Hassan M. Tork v. Ray A. and Carmen B. Garcia ( 2023 )

NUMBER 13-21-00077-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
HASSAN M. TORK, Appellant,
v.
RAY A. AND CARMEN B.
GARCIA, Appellees.
On appeal from the 135th District Court
of Calhoun County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Silva and Peña
Memorandum Opinion by Justice Peña
Appellant Hassan M. Tork appeals a take-nothing judgment, following a bench trial,
on his breach of contract claim. By ten issues which we interpret as two, Tork argues that:
(1) the evidence was legally and factually insufficient to support the trial court’s judgment;
and (2) the trial court abused its discretion in failing to issue findings of fact regarding
Tork’s attorney’s fees. We affirm.
I. BACKGROUND
A. The Underlying Facts 1
Tork owned and operated several Skillet’s Restaurants in South Texas, including
one in Port Lavaca and another in Victoria. In 2015, Tork closed his Port Lavaca location
and placed the building for sale. A realtor introduced appellees Ray and Carmen Garcia
to Tork in 2016. Ray stated that he and his wife were interested in purchasing the Port
Lavaca restaurant but could not afford the purchase price of $700,000. Because the
restaurant’s lack of revenue for two years prevented the Garcias from obtaining a bank
loan, the parties negotiated a year-long lease with an option to buy the restaurant for
$599,000. The parties executed this lease on July 16, 2016.
Carmen testified that the Garcias spent thousands of dollars of their own money
repairing the Port Lavaca restaurant during the lease term. According to her, the most
significant expenses were for air conditioning and freezer repairs, upgrades to the vent
hood and frying equipment, and the purchase of a new ice machine. By April of 2017, the
Garcias signed a commercial contract with Tork to purchase the property for $592,747,
contingent on the Garcias securing financing. 2 The contract set a closing date of July 1,
2017.
1 These facts are taken from the trial evidence.
2 The record shows that Tork gave the Garcias credit for the repairs they had made to the
restaurant during the pendency of their lease.
2
The Garcias amassed $121,000 as a down payment toward the purchase of the
restaurant by selling their residence and personal stock. However, they were unable to
secure a loan for the remainder of the purchase price by July 1. Tork subsequently agreed
to extend the closing deadline in exchange for a separate promissory note of $18,000, 3
and the closing date was moved to August 25, 2017. The Garcias finally obtained
financing from Woodforest National Bank and were prepared to close on August 25.
Unfortunately, Hurricane Harvey then ravaged Port Lavaca in late August of 2017, and
the closing did not occur at this time, either. Because of the hurricane, the parties mutually
agreed to move the closing date to September 20, 2017.
Under the terms of the commercial contract, Tork could have taken the $6,000 in
earnest money the Garcias had tendered to the title company and terminated the
agreement. The commercial contract specifically set forth that, “[i]f Buyer fails to comply
with this contract, Buyer is in default and Seller, as Seller’s sole remedy(ies), may
terminate this contract and receive the earnest money [] as liquidated damages for
Buyer’s failure.” Tork did not exercise this remedy, however, and the Garcias continued
to operate the Port Lavaca restaurant on a month-to-month basis.
Tork gave conflicting testimony regarding whether the contract to sell the Port
Lavaca ever terminated. At his deposition, he was asked, “When did you terminate [the
contract to sell]?”, to which he replied, “I did not.” At trial, however, he stated “as far as
[he] was concerned . . . the contract was over” in July of 2017. Tork’s commercial realtor
3 Carmen testified that Tork lost $18,000 on a missed vacation and other business expenses
related to the sale not occurring, so he asked the Garcias to pay that amount in exchange for continuing
with the sale of the Port Lavaca restaurant.
3
James Paxton, however, testified that Tork never took the Garcia’s $6,000 earnest money
as liquidated damages to terminate the contract. Paxton also stated that he never drafted
a termination contract for the sale of the Port Lavaca restaurant.
Tork testified that he received “numerous offers” on the Port Lavaca restaurant.
One call in particular was from someone who offered to purchase the Port Lavaca
restaurant for $800,000. Tork testified that he could not recall the name of the person who
made this offer, nor did he obtain an email address or phone number from this person.
According to Carmen, one week before the September closing date, Tork told the Garcias
about this new offer. In response, Tork made the Garcias a new offer of $100,000 to walk
away from the purchase contract.
The Garcias, however, did not want to do this. Carmen testified that she spent a
year of her life “building up” the restaurant through personal sacrifice, including selling
her home and living in an RV with her husband, quitting her job, and selling personal
stock. She also claimed she injured herself once while cleaning the Port Lavaca
restaurant, spending some time in the hospital. In sum, she stated that she “spent too
much money and time in this thing.”
According to Carmen, Tork then made another offer: he would add $100,000 to
the purchase price which would go toward the optional purchase of his Victoria Skillet’s
Restaurant. On the day of closing, Tork presented a letter to the Garcias that stated the
following:
This letter is to serve as the agreement between [the parties], as follows:
1. That the total purchase price to be paid by [Ray] and [Carmen] for the
Port Lavaca Property at the Closing is the sum of $592,747[], including
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third party financing secured by a vendor’s lien and first lien deed of trust
on the Port Lavaca Property.
2. That, in consideration of [Tork] closing the sale of the Port Lavaca
Property, [Ray] and [Carmen] agree, promptly after closing, to execute
a promissory note in the amount of $100,000[], payable to [Tork] for a
term of 18 months. The $100,000[] note will be secured by a second lien
deed of trust on the Port Lavaca Property which will be inferior to the
first lien deed of trust executed by [Ray] and [Carmen] in connection with
the purchase of the Port Lavaca Property. The form and terms of the
$100,000[] note and the second lien deed of trust securing the
$100,000[] note will be subject to agreement between [Tork] and [Ray]
and [Carmen], but will be in accordance with appropriate forms
contained in the State Bar of Texas Real Estate Forms Manual.
[Ray] and [Carmen]’s agreement to execute the $100,000[] note and the
second lien deed of trust securing the note, is subject to [Tork’s]
agreement to grant to [Ray] and [Carmen] an option to purchase the land
and building located at 3202 Houston Highway, Victoria, Texas (the
“Victoria Skillet[’s]”), for the purchase price of $750,000[] (said purchase
price of $750,000[])[,] specifically for the land and building and not the
business located at the Victoria Skillet[’s]) for a period of 18 months from
the date of the $100,000[] note, and, [Tork’s] further agreement that, in
the event of the closing of the sale of the Victoria Skillet[’s] from [Tork]
to [Ray] and [Carmen] within 18 months from the date of the $100,000[]
note, [Tork] will promptly cancel any balance remaining on the
$100,000[] note and release the second lien deed of trust securing the
$100,000[] note.
Notwithstanding anything contained in this letter agreement to the
contrary, [Tork] expressly retains the right to sell the Victoria Skillet[’s]
to any party and at any price or terms during the 18 month period, after
the date of the $100,000[] note. Further, in the event of the sale of the
Victoria Skillet[’s] to another party during the 18 month period after the
date of the note, the balance of the $100,000[] note will remain payable
in full according to its terms.
Carmen testified that she and Ray signed that letter. However, she stated that Tork
then drew a line through the “5” in the “$592,747” amount in the letter and wrote in a “6”,
to make the total purchase price $692,747. Carmen explained:
[W]hen we finish signing it[, Tork] says, [“H]old on. This is supposed to be
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a six[”] and [Tork] changes that five to a six. I’m like why are you changing
that to a six, are we not buying the store for [$]600,000 and Ray is like, no,
that’s just that [$]100,000 if we don’t buy the Victoria store that [$]100,000
is for that Victoria store, so I was like, are you sure, and we looked at the
paper, the closing papers, and that said [$]592 so that kind of made me feel
at ease. Okay, it’s at [$]592. This one said [$]692. He changed that five to
a six but the other papers say [$]592, so I just went with what Ray said, no,
that’s that [$]100,000 from Victoria store if we don’t buy it. That’s why he’s
adding that [$]100,000.
Carmen testified, “This agreement, to me, was for that Victoria store. It didn’t have
anything to do with the Port Lavaca store.” The Garcias then both initialed the changed
number that reflected “$692,747.” Of note, the actual purchase contract, entitled
“Commercial Contract – Improved Property,” still reflected the $592,747 purchase price.
Ray further testified about the circumstances regarding signing and initialing that
letter:
Well, well, you want to talk about two individuals that threw their hat over
the fence, I mean, we sold the house. We’re living in an RV. My wife is no
longer working at a place that she was established at working. And if we
lose the business, man, I can’t imagine. I don’t think people can imagine
that kind of pressure you are, I was under from both sides—from my wife
and from [Tork] and trying to get that thing, you know, get this thing done,
so when we signed it, we signed everything. Like I said, I thought it was for
the [$]592[,000] or whatever it is, and when he scratched that out and put—
I, in my mind I thought we were done with the Port Lavaca and this was part
of something with the Victoria. That’s—and Carmen even said, bless her
heart, she said, well, why are we changing that price? What is it for? And I
told her it was for the Victoria store. I didn’t know that it was for this other
place.
The sale of the Port Lavaca restaurant closed on September 20, 2017. However,
the Garcias did not execute the $100,000 promissory note, nor did they purchase the
Victoria restaurant location. Although Ray apparently made attempts to get a loan for the
purchase, he testified that Tork never sent him information the bank required to justify a
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loan. Further, Tork admitted that he did not grant the Garcias an option to purchase the
land and building for the Victoria restaurant.
B. The Litigation
Tork eventually sued the Garcias for breach of contract when they failed to
purchase the Victoria restaurant or execute the $100,000 promissory note. His original
petition claimed that the letter agreement, signed and initialed by the Garcias at the
closing on September 20, 2017, explains their contractual obligation to pay him the
additional amount for the Port Lavaca restaurant. Carmen filed a general denial, but also
asserted affirmative defenses of lack of consideration, estoppel, and duress. Ray,
appearing pro se, filed a separate answer containing only a general denial.
The trial court held a bench trial on December 1, 2020. On December 17, 2020,
the trial court issued a take-nothing judgment against Tork. On January 21, 2021, the trial
court issued the following findings of fact and conclusions of law:
Findings of Fact:
1. The Commercial Contract – Improved Property marked as [Tork’s]
Exhibit 4 was never terminated. The parties thereto simply agreed to
extend closing date contained in the contract out to September 20,
2017. The purchase price in said contract was $592,747[].
2. [Tork’s] Exhibit 5 was signed by all parties prior to the scratched out
change of the purchase price from $592,747[] to $692.747[] as
contained in section 1. [Tork’s] Exhibit 5 represented an affirmation
of the purchase price contained in Commercial Contract – Improved
Property marked as [Tork’s] Exhibit 4.
3. [Tork] never granted [Carmen] or [Ray] an option to purchase the
land and building located at 3202 Houston Highway, Victoria, Texas
(the “Victoria Skillet’s”) for the purchase price of $750,000[] for a
period of 18 months.
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4. The parties closed on the Commercial Contract – Improved Property
marked as [Tork’s] Exhibit 4 on September 20, 2017. The contract
sales price was $599,000[] as reflected in [Tork’s] Exhibit 6.
5. The Court finds that no money is now due or owing to [Tork] from
[the Garcias].
Conclusions of Law:
1. The Court finds that there was no consideration for the proposed
increase in the purchase price from $592,747[] to $692,474[] [sic] as
reflected in [Tork’s] Exhibit 5.
2. The Court finds that [the Garcias were] never legally obligated to
execute a $100,000[] [sic] in favor of [Tork].
3. The Court finds that [Tork] represented to [the Garcias], and
contractually agreed, that the purchase price for the Port Lavaca
Skillet’s [sic] was $592,747[], and [the Garcias] relied on that
representation and acted to [their] detriment on said reliance.
4. The Court finds that [Tork] is estopped from raising the cont[r]act
price from $592,747[] to $692,747[].
5. The Court finds that [Tork] is not entitled to a recovery from [the
Garcias] in this suit under any theory and shall take nothing on his
claims.
Tork filed a motion for new trial and judgment. Tork also requested additional
findings of fact and conclusions of law, requesting the court to make findings for the
reasonable value of his attorney fees through trial and appeal to this Court and the Texas
Supreme Court. The trial court did not make these requested additional findings, and the
motion for new trial was overruled by operation of law.
Tork appeals. 4
4 Ray and Carmen have since divorced. Only Carmen, through her attorney, filed a responsive
brief on appeal.
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II. SUFFICIENCY OF THE EVIDENCE
By what we construe as his first issue, Tork contends the evidence adduced at trial
was insufficient to support the trial court’s findings of fact, conclusions of law, and
judgment.
A. Standard of Review
“In a legal sufficiency challenge, we consider whether the evidence at trial would
enable a reasonable and fair-minded fact finder to reach the verdict under review.” Gunn
v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018) (citing City of Keller v. Wilson, 168 S.W.3d
802, 827 (Tex. 2005)). “When a party attacks the legal sufficiency of an adverse finding
on an issue on which she has the burden of proof, she must demonstrate on appeal that
the evidence establishes, as a matter of law, all vital facts in support of the issue.” Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).
“Evidence is legally insufficient to support a . . . finding when[:] (1) the record
discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules
of law or of evidence from giving weight to the only evidence offered to prove a vital fact;
(3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the
evidence establishes conclusively the opposite of a vital fact.” Gunn, 554 S.W.3d at 658
(first citing Bustamante v. Ponte, 529 S.W.3d 447, 455–56 (Tex. 2017); and then citing
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)). More than a mere
scintilla of evidence exists when the evidence rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions. Id. (citing King Ranch,
Inc., 118 S.W.3d at 751). Conversely, less than a scintilla of evidence exists when the
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evidence offered to prove a vital fact’s existence is “so weak as to do no more than create
a mere surmise or suspicion.” Id. All the record evidence must be considered in the light
most favorable to the verdict—“every reasonable inference deducible from the evidence
is to be indulged in that party’s favor.” Id. (citing Bustamante, 529 S.W.3d at 456).
By contrast, a factual sufficiency review is premised on consideration of the entire
record. In re Commitment of Stoddard, 619 S.W.3d 665, 674 (Tex. 2020). “The
assumption that the factfinder resolved disputed evidence in favor of the finding if a
reasonable factfinder could do so remains.” Id. Rather than disregarding disputed
evidence that a reasonable factfinder could not have credited in favor of the finding,
though, the court must determine whether, in light of the entire record, that evidence “is
so significant that a factfinder could not reasonably have formed a firm belief or conviction”
that the finding was true. Id.The standard of review for factual and legal sufficiency challenges remains the
same regardless of whether a judge or a jury served as the factfinder. Victory Energy
Corp. v. Oz Gas Corp., 461 S.W.3d 159, 170 (Tex. App.—El Paso 2014, pet. denied)
(citing Raman Chandler Props., L.C. v. Caldwell’s Creek Homeowners Ass’n, Inc., 178
S.W.3d 384, 390 (Tex. App.—Fort Worth 2005, pet. denied)). Further, because
the factfinder is the sole judge of a witness’s credibility and demeanor, we must defer to
its factual determinations. See City of Keller, 168 S.W.3d at 827. “We ‘assume that
the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could
do so,’ and we ‘disregard all evidence that a reasonable factfinder could have disbelieved
or found to have been incredible.’” In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021); see
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also Cox v. Walden, No. 13-20-00283-CV, 2022 WL 120014, at *3 (Tex. App.—Corpus
Christi–Edinburg Jan. 13, 2022, no pet.) (mem. op.).
B. Findings of Fact
We will address each of the contested fact findings in turn. First, the trial court
found that the commercial contract was never terminated. The “Commercial Contract –
Improved Property,” which all the parties signed, set forth a specific provision regarding
termination. Counsel for Carmen cross-examined Tork on this provision during trial:
Counsel: All right. Now, I’ll read it: If buyer fails to comply with this
contract, buyer is in default and seller, as seller’s sole remedy
may[ ] terminate this contract and receive the earnest money
as liquidated damages for buyers’ failure. But that never
happened, did it?
Tork: May I explain?
Counsel: I’m asking you did that happen?
Tork: No, sir. . . .
This testimony supports the trial court’s finding that an agreement to sell the Port Lavaca
restaurant existed and never terminated. Paxton, Tork’s realtor, also confirmed that he
never drew up a termination contract. Carmen’s testimony further buttresses this finding.
Carmen testified that she and Ray were unable to close on the original closing date of
July 1, 2017 because they did not have funding. Accordingly, they executed an $18,000
promissory note to extend the closing deadline to August 25, 2017. The Garcias then
secured a commercial loan from Woodforest Bank to enable the parties to proceed with
the August 25 closing date. However, Hurricane Harvey then struck. Trial testimony
established that because several areas of Port Lavaca did not have water or electricity in
11
the aftermath of the storm, the parties mutually agreed to close on September 20, 2017.
The agreement to sell existed.
The existence of the agreement is further supported by Tork’s own admission that
he offered the Garcias’ $100,000 to “get out” of the existing agreement to sell. Tork would
not have to make a new offer to the Garcias had he not already been bound by the existing
agreement to sell. See, e.g., McKinney v. Flato Bros., Inc., 397 S.W.2d 525, 529 (Tex.
App.—Corpus Christi–Edinburg 1965, no writ) (holding that the necessary elements to
plead novation are (1) a previous valid obligation; (2) the agreement of all the parties to
a new contract; (3) the extinguishment of the old contract; and (4) the validity of the new
one) (emphasis added)).
Second, the trial court found that Plaintiff’s Exhibit 5, the letter agreement Tork
brought to the closing, was signed by all parties prior to the scratched-out change of the
purchase price from $592,747 to $692.747. Both Carmen and Ray testified that they
signed the letter first, then Tork scratched out the “5” on the “$592,747” amount and had
them initial the change. Prior to Tork’s changing of the number, there is no dispute that
the letter and the purchase contract entitled “Commercial Contract – Improved Property”
both reflected that the purchase price of the Port Lavaca restaurant was $592,747.
Although Tork testified otherwise, the trial court was the sole factfinder and chose to
believe the Garcias’ version of the facts over Tork’s. See City of Keller, 168 S.W.3d at
827. Because the trial record supports this fact finding, we do not disturb it. See id.
Third, the trial court found that Tork never formally granted the Garcias an option
to purchase the land and building located at 3202 Houston Highway in Victoria, Texas for
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the purchase price of $750,000 for a period of eighteen months. Tork admitted as much
during cross examination:
Counsel: And you never made a written agreement to grant them that
option, did you?
Tork: No, sir.
The Garcias testified that they believed the $100,000 promissory note was
contingent upon Tork extending an offer to purchase the Victoria restaurant. Tork, on the
other hand, argues that the $100,000 was for the Port Lavaca restaurant sale. However,
viewing the record in light of the verdict, the parties had already agreed to extend to the
closing date from August 25, 2017 to September 20, 2017 due to Hurricane Harvey.
“Mutual promissory obligations by the parties to the agreement furnishes sufficient
consideration to constitute a binding contract.” Domingo v. Mitchell, 257 S.W.3d 34, 40
(Tex. App.—Amarillo 2008, pet. denied) (citing Iacono v. Lyons, 16 S.W.3d 92, 94 (Tex.
App.—Houston [1st Dist.] 2000, no pet.)). Here, because the parties had mutually agreed
to extend the closing date due to an act of God, the revised letter agreement could not
have constituted “consideration” for a promise Tork had previously made to close on
September 20, 2017.
In sum, the Court found that the contract for the Port Lavaca Property was never
terminated, that the sales price was $592,747, and that the Garcias did not owe any
additional money to Tork. Considering the trial court’s findings in the light most favorable
to the verdict and indulging every reasonable inference deducible from the evidence in
the Garcias’ favor, we hold that the trial court’s foregoing findings of fact are supported
by the record. See Dow Chem. Co., 46 S.W.3d at 241. A “reasonable and fair-minded
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fact[ ]finder” could have reached this verdict. Gunn, 554 S.W.3d at 658. And in light of the
entire record, a factfinder could have reasonably formed a firm belief or conviction that
these findings were true. Stoddard, 619 S.W.3d at 674.
C. Conclusions of Law
Tork’s brief further argued that “each of the [c]onclusions of law presented by the
trial court are not supported by the evidence, but instead are contrary to the undisputed
and great weight and preponderance of the evidence.”
Appellate courts must review a trial court’s conclusions of law as legal questions.
I & JC Corp. v. Helen of Troy L.P., 164 S.W.3d 877, 883 (Tex. App.—El Paso 2005, pet.
denied) (citing Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex. App.—
Waco 1997, pet. denied)). “The appellant may not challenge a trial court’s conclusions of
law for factual insufficiency; however, the reviewing court may review the trial court’s legal
conclusions drawn from the facts to determine their correctness.” Id. (first citing
Templeton v. Dreiss, 961 S.W.2d 645, 656 n.8 (Tex. App.—San Antonio 1998, pet.
denied); and then citing Dallas County v. Sweitzer, 881 S.W.2d 757, 763 (Tex. App.—
Dallas 1994, writ denied)).
The trial court first concluded that there was no consideration for the proposed
increase in the purchase price from $592,747 to $692,747. A modification to a contract
must still satisfy all the elements required for a contract: a meeting of the minds supported
by consideration. Barrand, Inc. v. Whataburger, Inc., 214 S.W.3d 122, 145 (Tex. App.—
Corpus Christi–Edinburg 2006, pet. denied) (citing Hathaway v. General Mills, Inc., 711
S.W.2d 227, 228–29 (Tex. 1986)). “Consideration is a bargained-for exchange of
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promises or return performance and consists of benefits and detriments to the contracting
parties.” Marx v. FDP, LP, 474 S.W.3d 368, 378 (Tex. App.—San Antonio 2015, pet.
denied). Here, Tork contends that the consideration of the $100,000 was for him to
continue with the sale of the Port Lavaca restaurant to the Garcias and not his new alleged
offeror. However, the trial court found—and the record supported—that the “Commercial
Contract – Improved Property” was never terminated. Accordingly, the original contract
to sell the Port Lavaca restaurant for $595,747 was still in place—no new consideration
was necessary.
We also note that the trial court could have found from the evidence that there was
no “meeting of the minds” with respect to the letter agreement. “‘Meeting of the minds’
describes the mutual understanding and assent to the agreement regarding the subject
matter and the essential terms of the contract.” Potcinske v. McDonald Prop. Invs., Ltd.,
245 S.W.3d 526, 530 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (quoting Weynand v.
Weynand, 990 S.W.2d 843, 846 (Tex. App.—Dallas 1999, pet. denied)). Here, the record
revealed no mutual understanding of the letter as both Tork and the Garcias had differing
testimony regarding its significance and what the $100,000 amount was for. See id.Accordingly, we conclude no consideration existed for the modification. 5
C. Conclusion
In light of the record, we conclude the take-nothing judgment is supported by
5 We need not address the remaining conclusions of law, as we can uphold the judgment under
this legal theory which is supported by the evidence. See TEX. R. APP. P. 47.1; Bendalin v. Youngblood,
381 S.W.3d 719, 735 (Tex. App.—Texarkana 2012, pet. denied) (citing City of Houston v. Cotton, 171
S.W.3d 541, 546 (Tex. App.—Houston [14th Dist.] 2005, pet. denied)). Assuming without deciding that the
remaining conclusions of law are incorrect, the judgment “do[es] not require reversal if the controlling
findings of fact support the judgment under a correct legal theory.” Id.15
legally and factually sufficient evidence, and that the trial court’s legal conclusions based
on the record were correct. See I & JC Corp., 164 S.W.3d at 883. As an appellate court,
we must defer to the trial court’s factual determinations of witness credibility and
demeanor. See City of Keller, 168 S.W.3d at 827. Although Tork and the Garcias had
conflicting recollections regarding the letter agreement and the significance of the
$100,000 promise, it appears the trial court believed the Garcias’ testimony regarding the
events. The evidence at trial would enable a reasonable and fair-minded factfinder to
reach this verdict under review. See Gunn, 554 S.W.3d at 658; City of Keller, 168 S.W.3d
at 827. And reviewing the record as a whole, the evidence was sufficient such that a
factfinder could have reasonably formed a firm belief or conviction that the parties had a
contract to purchase the Port Lavaca restaurant for $592,747, that the subsequent
amendment offered no additional consideration, and that Tork is equitably estopped from
enforcing the amendment. See Stoddard, 619 S.W.3d at 674. Accordingly, we overrule
Tork’s first issue.
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
By his second issue, Tork complains that the trial court erred by failing to issue
findings of fact and conclusions of law regarding his attorney’s fees.
A party to a bench trial is entitled to request findings of fact and conclusions of law
from the district court. See TEX. R. CIV. P. 296. “The district court has a mandatory duty
to respond to a timely request to file findings of fact and conclusions of law, and a failure
to do so is error.” Hernandez v. Moss, 538 S.W.3d 160, 164–65 (Tex. App.—El Paso
2017, no pet.) (citing Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989);
16
and then citing Larry F. Smith, Inc. v. The Weber Co., 110 S.W.3d 611, 614 (Tex. App.—
Dallas 2003, pet. denied)). “[E]rror is presumed harmful unless the record affirmatively
shows that the complaining party suffered no harm from the district court’s failure.” Id.To secure an award of attorney’s fees, a prevailing party must prove that:
“(1) recovery of attorney’s fees is legally authorized, and (2) the requested attorney’s fees
are reasonable and necessary for the legal representation, so that such an award will
compensate the prevailing party generally for its losses resulting from the litigation
process.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 487 (Tex.
2019); see TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (allowing recovery of attorney’s
fees in contractual claims).
Here, however, because we previously concluded that the trial court’s take-nothing
judgment against Tork was supported by legally and factually sufficient evidence, Tork
was not the prevailing party. Therefore, Tork was not entitled to attorney’s fees. See id.
Accordingly, Tork suffered no harm from the trial court’s failure to issue these findings.
See Hernandez, 538 S.W.3d at 165. We overrule this issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
L. ARON PEÑA JR.
Justice
Delivered and filed on the
30th day of March, 2023.
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