STACY C. NOTLEY AND SANDRA R. NOTLEY, Appellants v. STERLING BANK, Appellee

AFFIRMED; Opinion Filed November 21, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00891-CV
............................
STACY C. NOTLEY AND SANDRA R. NOTLEY, Appellants
V.
STERLING BANK, Appellee
.............................................................
On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 04-10716-M
.............................................................
MEMORANDUM OPINION
Before Justices Bridges, Lang, and Lang-Miers
Opinion By Justice Lang
        After a bench trial, the trial court signed a take nothing judgment against Stacy and Sandra Notley in their suit against Sterling Bank regarding a home improvement loan where Notleys claimed breach of an implied-in-fact contract and breach of a contract created by promissory estoppel. Notleys raise five issues on appeal, arguing the trial court's findings of fact that they did not prove their claims by a preponderance of the evidence are factually insufficient because the findings are contrary to the great weight and preponderance of the evidence. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. We decide against Notleys on their issues and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        Stacy Notley negotiated with Chris Newtown, Executive Vice President at Sterling Bank, for a $50,000 home improvement loan to build a swimming pool and make other home improvements. They agreed orally Notleys would borrow $50,000 for a twelve-year term at a fixed interest rate of seven percent. The Bank's Regional CEO, Lynn Prude, internally approved Notleys' loan for twelve years and sent the credit approval form to the Bank's loan operations department in Houston for final approval and processing.
        The loan operations department approved a loan, but authorized different terms whereby interest would be payable monthly and the $50,000 principle would be payable in six months. Newtown testified loan operations wanted to provide a six-month note during an interest only period, “dr[a]w down the funds to make the improvements, and then they would do a separate note at maturity for the 12-year payout.” Newtown explained these terms to Notleys, including that two closings would be required. Newtown assured Notley he “could be comfortable with that.” According to Newtown, the “two time close” was an “absolute commitment.”
        On June 16, 2003, Notleys executed a six-month note that matured on December 16, 2003. The loan documents, executed contemporaneously with the note, included a “Disclaimer of Oral Agreements.” The “Disclaimer” contained a clause providing the note represented “the final agreement between the parties” and could not be “contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties.” Also, the “Disclaimer” stated there were “no unwritten oral agreements between the parties.” Notley acknowledged at trial he read the “Disclaimer” before he signed it. Notleys timely paid all monthly interest on the note.
        In the fall of 2003, Newtown resigned from the Bank and Eric Boeckman became Notleys' Bank liaison. Between the time the note was executed and when it matured in December 2003, Notley's business issued twenty insufficient funds checks on its account with Sterling Bank. This situation caused Boeckman to be concerned about Notleys' ability to make their loan payments. After obtaining Prude's approval, Boeckman told Notley he should move his business line of credit to another bank. Then, Prude informed Boeckman she would not approve a twelve-year loan to Notleys. Prude was “very concerned” Notleys' financial condition and the cash flow problems the business was experiencing created increased risk Notleys might default on a second, twelve-year loan.
        As an alternative to the twelve-year loan, the Bank offered Notleys a five-year loan. Under the terms of that loan, principle and interest would be amortized at the rate of a twelve-year loan, but there would be a balloon payment of the principal balance at the end of the five-year term. Notleys refused the five-year loan, continued to make monthly payments of principal and interest after the note matured, and paid the Bank in full in October 2006. Then, Notleys brought suit against the Bank. After a bench trial on the merits, the trial court entered findings of fact and conclusions of law, and a take nothing judgment in the Bank's favor. Only the breach of implied-in- fact contract, meeting of the minds, and promissory estoppel claims are addressed by Notleys on appeal.
II. SUFFICIENCY OF THE EVIDENCE
 
        In issues one through three, Notleys challenge the sufficiency of the evidence to support the trial court's findings of fact nos. 25, 26, and 28. These findings state Notleys failed to prove by a preponderance of the evidence their implied-in-fact contract, meeting of the minds, and promissory estoppel causes of action. Notleys contend there is evidence contradicting the trial court's findings. They claim there was a meeting of the minds on an implied contract for a loan to be made in two phases: a six-month note that, upon maturity, would be extended to a twelve-year loan. Notleys assert the Bank's original promise for the two phase loan survived the signing of the six-month note. Although Notleys set forth separate issues on appeal for implied-in-fact contract and meeting of the minds, those points are not distinguished in the briefing as to the law, other than Notleys address the separate findings made by the trial court as to each theory. Rather, meeting of the minds was included in Notleys' brief as part of the analysis of the claim there was an implied contract. We will treat these two contentions as one.
        The Bank responds the existence of an express contract, the six-month note and accompanying “Disclaimer,” precludes Notleys from recovering under theories of implied contract or promissory estoppel. Also, the Bank contends there is no evidence any agreement was made after execution of the six-month note and, therefore, no evidence of a meeting of the minds on a second loan.
A. Standard of Review
         Findings of fact in a case tried to the trial court have the same force and effect as jury findings. See Van Marcontell v. Jacoby, 260 S.W.3d 686, 690 (Tex. App.-Dallas 2008, no pet.); Walker v. Anderson, 232 S.W.3d 899, 907 (Tex. App.-Dallas 2007, no pet.); Pulley v. Milberger, 198 S.W.3d 418, 426 (Tex. App.-Dallas 2006, pet. denied). When an appellant challenges a trial court's findings of fact, an appellate court reviews those fact findings by the same standards it uses to review the sufficiency of the evidence to support a jury's findings. See Jacoby, 260 S.W.3d at 690; Walker, 232 S.W.3d at 907; Pulley, 198 S.W.3d at 426.
         An appellant who attacks the factual sufficiency of the evidence on an issue for which he had the burden of proof at trial must demonstrate the adverse finding is contrary to the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Landerman v. State Bar of Tex., 247 S.W.3d 426, 431 (Tex. App.-Dallas 2008, pet. denied); Buckeye Ret. Co., L.L.C. v. Bank of Am., N.A., 239 S.W.3d 394, 399 (Tex. App.-Dallas 2007, no pet.) . The appellate court should weigh all the evidence and set the adverse finding aside only if it is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Dow Chem. Co., 46 S.W.3d at 242; Landerman, 247 S.W.3d at 431; Joplin v. Borusheski, 244 S.W.3d 607, 610 (Tex. App.-Dallas 2008, no pet.); Coleman v. Coleman, 170 S.W.3d 231, 240 (Tex. App.-Dallas 2005, pet. denied); Hatch v. Williams, 110 S.W.3d 516, 522 (Tex. App.-Waco 2003, no pet.).
B. Applicable Law
        1. Implied-in-fact contract
        Whether an implied contract exists is determined from the parties' actions and conduct. See Haws & Garrett Gen. Contractors, Inc. v. Gorbett Bros. Welding Co., 480 S.W.2d 607, 609 (Tex. 1972); Harrison v. Williams Dental Group, P.C., 140 S.W.3d 912, 916 (Tex. App.-Dallas 2004, no pet.); Ervin v. Mann Frankfort Stein & Lipp CPAs, L.L.P., 234 S.W.3d 172, 182 (Tex. App.-San Antonio 2007, no pet.). An implied contract exists when the facts and circumstances show a mutual intention to contract. See Haws & Garrett Gen. Contractors, 480 S.W.2d at 609; Harrison, 140 S.W.3d at 916; Lection v. Dyll, 65 S.W.3d 696, 704 (Tex. App.-Dallas 2001, pet. denied); Weynand v. Weynand, 990 S.W.2d 843, 846 (Tex. App.-Dallas 1999, pet. denied); see also Ervin, 234 S.W.3d at 183. Where the existence of the agreement is disputed, whether the parties reached an agreement is a question of fact. See Preston Farm & Ranch Supply, Inc. v. Bio-Zyme Enters., 625 S.W.2d 295, 298 (Tex. 1981); Haws & Garrett Gen. Contractors, 480 S.W.2d at 609; Live Oak Ins. Agency v. Shoemake, 115 S.W.3d 215, 218 (Tex. App.-Corpus Christi 2003, no pet.).
        However, as a general rule, the existence of an express contract covering the same subject matter precludes finding the existence of an implied contract, whether in fact or in law. See Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990); Woodard v. Sw. States, Inc., 384 S.W.2d 674, 675 (Tex. 1964); Threadgill v. Farmers Ins. Exch., 912 S.W.2d 264, 268 (Tex. App.-Dallas 1995, no writ). “Where the parties expressly state the terms of an agreement, they create an express contract and are bound by it to the exclusion of conflicting implied terms.” Smith v. State, 96 S.W.3d 377, 384 (Tex. App.-Amarillo 2002, pet. ref'd) (citing Haws & Garrett Gen. Contractors, 480 S.W.2d at 609; Woodard, 384 S.W.2d at 675).         
        2. Promissory estoppel
        The requisites of promissory estoppel include (1) a promise, (2) foreseeability of reliance on the promise by the promisor, and (3) substantial reliance by the promisee on that promise to his detriment. English v. Fisher, 660 S.W.2d 521, 524 (Tex. 1983); see also Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 706 n.25 (Tex. 2003). “Under the theory of promissory estoppel, a party that has failed to prove a legally sufficient contract, but has acted in reliance upon a promise to his detriment, may be compensated for his foreseeable, definite, and substantial reliance.” Lamajak v. Frazin, 230 S.W.3d 786, 794 (Tex. App.-Dallas 2007, no pet.) (citing Wheeler v. White, 398 S.W.2d 93, 97 (Tex. 1965)). However, the doctrine of promissory estoppel “presumes no contract exists.” Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 226 (Tex. 2002); see also Cessna Aircraft Co. v. Aircraft Network, L.L.C., 213 S.W.3d 455, 468 (Tex. App.-Dallas 2006, pet. denied) (op. on reh'g); Fertic v. Spencer, 247 S.W.3d 242, 250 (Tex. App.-El Paso 2007, pet. denied) (the existence of an express contract between the parties “bars recovery...under the theory of promissory estoppel as a matter of law.”); Doctors Hosp. 1997, L.P. v. Sambuca Houston, L.P., 154 S.W.3d 634, 636 (Tex. App.-Houston [14th Dist.] 2004, pet. abated) (“promissory estoppel becomes available to a claimant only in the absence of a valid and enforceable contract”). C. Application of Law to Facts        
        The trial court's findings of fact nos. 25, 26, and 28, challenged by Notleys, state:         
25.
 
As to their claim for contract implied-in-fact for the making of a twelve year loan, the Notleys failed to prove by a preponderance of the evidence that any agreement, express or implied, survived the signing of the Note, an express contract, which contained a different term and which disclaimed the making of any oral agreements.
 
26.
 
After the Note was signed, the Notleys failed to prove by a preponderance of the evidence that there was a meeting of the minds on any permanent loan.
 
28.
 
As to the Notleys' claim of promissory estoppel, the Notleys failed to prove by a preponderance of the evidence that any promise to make a twelve-year loan survived the signing of the Note, an express contract, which contained a different term and which disclaimed the making of any oral agreements. And they failed to prove by a preponderance of the evidence that after the signing of the Note, Sterling Bank promised the Notleys permanent financing for a twelve year term.
 
        The record reflects the Bank initially agreed to execute a twelve-year loan with Notleys. Prude submitted the credit approval form to loan operations in Houston for final approval. Then, the loan operations department authorized only a six-month note with interest payable monthly. Newtown offered Notleys a six-month note maturing in December 2003 and explained another closing would be required for a second renewal loan for a twelve-year term. Notleys executed a six- month, $50,000 note on June 16, 2003, and simultaneously signed a document entitled “Disclaimer of Oral Agreements” that referred to the note. Notley testified he read the “Disclaimer” before he signed it.
        Notleys make the same factual argument as to the alleged error in the trial court's findings for each claim: implied-in-fact (factual finding no. 25), meeting of the minds (factual finding no. 26), and promissory estoppel (factual finding no. 28). They assert their claims are proved by the fact that Newtown agreed to a twelve-year loan at a fixed rate of interest to be executed upon maturity of the six-month note.
        However, Notleys simultaneously executed the six-month note and the “Disclaimer.” The terms of the “Disclaimer” acknowledged no agreements existed other than those set out in the loan documents they signed. Also, the record does not contain any evidence the Bank made a promise subsequent to execution of the note and “Disclaimer” to provide a twelve-year loan. Accordingly, we cannot conclude the trial court's findings of fact were so contrary to the great weight and preponderance of the evidence that the findings were clearly wrong and unjust. See Subaru, 84 S.W.3d at 226; Dow Chem. Co., 46 S.W.3d at 242; Woodard, 384 S.W.2d at 675. Notleys' first three issues are decided against them. Because we have decided issues one through three in the Bank's favor, we need not address Notleys' other issues. See Tex. R. App. P. 47.1.
III. CONCLUSION
 
        The trial court's findings of fact were not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. The trial court's judgment is affirmed.
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
 
070891F.P05