Steven Joseph Pickowitz, Jr. v. Greys Fuster ( 2023 )

Affirmed and Opinion Filed May 15, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00487-CV
STEVEN JOSEPH PICKOWITZ, JR., Appellant
V.
GREYS FUSTER, Appellee
On Appeal from the 429th Judicial District Court
Collin County, Texas
Trial Court Cause No. 429-03994-2019
MEMORANDUM OPINION
Before Justices Carlyle, Garcia, and Wright1
Opinion by Justice Wright
Steven Joseph Pickowitz, Jr., appeals the portion of the trial court’s modified
judgment denying his counterclaims against Greys Fuster for breach of contract and
promissory estoppel relating to real property jointly owned by the parties.2
Pickowitz raises one issue on appeal arguing the evidence is legally and factually
insufficient to support the trial court’s written findings of fact and that the trial court
1
The Hon. Carolyn Wright, Justice, Assigned
2
Pickowitz does not raise any arguments with respect to the portion of the trial court’s modified
judgment granting Fuster’s claims for the partition by sale of the real property and the turnover or partition
of personal property or the portion of the modified judgment denying his breach-of-contract counterclaim
relating to Fuster’s failure to reimburse him for medical, dental and vision expenses.
erred in its implied conclusion of law. We conclude the evidence is sufficient and
the trial court did not err. The trial court’s modified judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Pickowitz and Fuster were in a romantic relationship and purchased a house
together. However, the relationship ended, and Fuster moved out of the house in
April 2019. In November 2019, Fuster stopped making payments with respect to
the jointly owned real property.
In her first amended petition, Fuster sought the partition by sale of the real
property she jointly owned with Pickowitz and the turnover or partition of personal
property she left at the house. Further, she asserted claims against Pickowitz for
battery, theft, and fraud, and she sought damages, exemplary damages, ouster
damages, equitable relief, and attorney’s fees.
In his third amended answer and first amended counterclaim, Pickowitz
generally denied the allegations, asserted several affirmative defenses, and alleged
counterclaims for breach of contract and promissory estoppel seeking damages and
attorney’s fees. Pickowitz alleged that Fuster agreed to pay 50% of all costs, fees,
and expenses related to the real property as well as 50% of the costs and fees incurred
with respect to Pickowitz adding Fuster to his medical, dental, and vision insurance
plans. He alleged that Fuster stopped paying the costs associated with the real
property, and she failed to reimburse him for her medical, dental and vision
coverage.
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After a bench trial, the trial court signed a judgment in favor of Fuster on her
claims for the partition by sale of the real property and the turnover or partition of
personal property. The trial court ordered the real property partitioned by sale with
50% of the proceeds disbursed to Fuster and 50% to Pickowitz and the turnover of
personal property to Fuster. All other claims and counterclaims were denied.
Because Pickowitz failed to turnover certain personal items, Fuster filed a motion to
modify the judgment to award her reimbursement for the missing items of personal
property. The trial court impliedly granted Fuster’s motion to modify the judgment,
signing a modified judgment awarding Fuster $2,849.71 as reimbursement for the
missing items of personal property.
Pickowitz filed a motion for new trial arguing only that the trial court’s
judgment against him with respect to his counterclaims for breach of contract and
promissory estoppel was contrary to the law and evidence. His motion for new trial
was overruled by operation of law. Also, the trial court signed separate written
findings of fact and conclusions of law.
II. SUFFICIENCY OF THE EVIDENCE
In his sole issue on appeal, Pickowitz argues the trial court erred when it
denied his counterclaims for breach of contract and promissory estoppel because the
evidence is legally and factually insufficient to support the trial court’s findings of
fact. Pickowitz argues “it is irrefutable and undeniable that [Fuster] was responsible
for the payment of [one half] of the mortgage payment and [one half] of the
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Homeowner’s Association dues” for their jointly owned real property. He maintains
there is no legal, factual, or equitable justification for excusing Fuster from paying
half of the expenses related to the real property. He claims the following:
[T]here was nothing in the record and nothing in the findings of fact or
conclusion of law that permitted the unilateral withdrawal of [Fuster]
from making the same payments she had made prior to and after
vacating the property, prior to and after the filing of the lawsuit, and
from the date of the purchase of the property through February 2022.
Fuster responds that, even though the trial court made written findings of fact and
conclusions of law, Pickowitz failed to preserve his complaint for appeal because he
did not request additional or amended findings and conclusions. In the alternative,
Fuster argues the trial court’s findings of fact were supported by the evidence.
A. Standard of Review
The trial court’s findings of fact following a bench trial have the same weight
as a jury’s verdict. See Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.
1991). The trial court’s findings of fact are reviewable for legal and factual
sufficiency of the evidence by the same standards that are applied in reviewing the
evidence supporting a jury’s findings. See id. An appellate court defers to
unchallenged findings of fact that are supported by some evidence. Tenaska Energy,
Inc. v. Ponderosa Pine Energy, LLC, 437 S.W.3d 518, 523 (Tex. 2014).
When a party attacks the legal sufficiency of an adverse finding on which it
had the burden of proof, it must demonstrate on appeal that the evidence establishes,
as a matter of law, all vital facts in support of the issue. See Dow Chem. Co. v.
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Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). To conclusively establish
that fact, the evidence must leave no room for ordinary minds to differ as to the
conclusion to be drawn from it. See Int’l Bus. Mach. Corp. v. Lufkin Indus., LLC,
573 S.W.3d 224, 235 (Tex. 2019). Similarly, when a party attacks the factual
sufficiency of an adverse finding of fact for which he has the burden of proof, he
must demonstrate on appeal that the adverse finding is against the great weight and
preponderance of the evidence. See Dow Chem., 46 S.W.3d at 242. For both legal
and factual sufficiency challenges, an appellate court defers to the fact finder’s
determination regarding the witnesses’ credibility and the weight accorded their
testimony. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (legal
sufficiency); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
2003) (factual sufficiency).
An appellant may not challenge the trial court’s conclusions of law for factual
insufficiency, but it may review the legal conclusions drawn from the facts to
determine their correctness. See Scott Pelley P.C. v. Wynne, No. 05-15-01560-CV,
2017 WL 3699823, at *8 (Tex. App.—Dallas Aug. 28, 2017, pet. denied) (mem.
op.). An appellate court reviews a trial court’s conclusions of law de novo. Hegar
v. Am. Multi-Cinema, Inc., 605 S.W.3d 35 (Tex. 2020). However, an erroneous
conclusion of law does not require reversal if the trial court rendered the proper
judgment. See Bos v. Smith, 556 S.W.3d 293, 299 (Tex. 2018).
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B. Application of the Law to the Facts
We begin by addressing Fuster’s argument that Pickowitz did not preserve his
legal and factual sufficiency complaints because he failed to request additional
findings of fact and conclusions of law. Texas Rule of Appellate Procedure 33
provides that “[i]n a civil nonjury case, a complaint regarding the legal or factual
insufficiency of the evidence . . . may be made for the first time on appeal in the
complaining party’s brief.” TEX. R. APP. P. 33.1(d). Pickowitz’s legal and factual
sufficiency challenges are, therefore, properly before us. See id.Next, we address Pickowitz’s arguments that the evidence is legally and
factually insufficient to support the trial court’s finding of fact. At trial, Pickowitz
had the burden to prove his counterclaims for breach of contract and promissory
estoppel. On appeal, he argues that “the only finding of fact referring to the real
property [or the] home purchased by [Pickowitz and Fuster]” was the following
(emphasis added):
The [trial court] found that both parties owned the subject real estate,
and, as such, were entitled to a partition of the real estate. The [trial
court] found that a partition in kind would not be feasible given the
single-family residential nature of the lot and house.
However, Pickowitz does not challenge the following relevant finding of fact:
The [trial court] did not find the allegations related to contracts between
and amongst the parties to be credible and, instead, found that the
parties merely co-owned property or that [Pickowitz] had possession of
property that should be turned over to [Fuster].
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This unchallenged finding of fact determined that the alleged oral agreement
between the parties agreeing for each to pay 50% of all costs, fees, and expenses
related to the real property was not credible. We defer to the trial court’s credibility
determinations, and the trial court found this alleged contract was not credible. See
City of Keller, 168 S.W.3d at 819 (legal sufficiency); Golden Eagle, 116 S.W.3d at
761 (factual sufficiency). The alleged contract formed the basis of Pickowitz’s
breach-of-contract and promissory-estoppel counterclaims. Accordingly, this
unchallenged finding of fact is binding on appeal. See Ponderosa, 437 S.W.3d at
523.
In light of this unchallenged finding, we conclude that Pickowitz has not
demonstrated that the evidence establishes, as a matter of law, all vital facts in
support of his counterclaims for breach of contract and promissory estoppel. We
also conclude that Pickowitz has not demonstrated that the adverse finding is against
the great weight and preponderance of the evidence.
Finally, we construe Pickowitz’s argument to challenge the trial court’s
implied conclusion of law that there was insufficient evidence to support Pickowitz’s
breach-of-contract and promissory-estoppel counterclaims. The trial court’s
binding, unchallenged finding of fact supports the implied conclusion of law that the
evidence was insufficient to support Pickowitz’s counterclaims.
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We conclude the trial court did not err when it denied Pickowitz’s
counterclaims for breach of contract and promissory estoppel relating to real
property jointly owned by the parties. We overrule Pickowitz’s sole issue.3
III. CONCLUSION
We affirm the trial court’s modified judgment.
/Carolyn Wright//
220487f.p05 CAROLYN WRIGHT
JUSTICE, ASSIGNED
3
To the extent Pickowitz argues the trial court’s ruling against Fuster on her claims for battery,
theft, fraud and ouster damages was inconsistent with the rejection of his breach-of-contract and
promissory-estoppel counterclaims, and to the extent he argues the trial court’s ruling in favor of Fuster on
her claims seeking partition of the real property and turnover or partition of personal property are not
inconsistent with his counterclaims, his arguments are not supported by citation to the record or legal
authority. Therefore, we need not consider them.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
STEVEN JOSEPH PICKOWITZ, On Appeal from the 429th Judicial
JR., Appellant District Court, Collin County, Texas
Trial Court Cause No. 429-03994-
No. 05-22-00487-CV V. 2019.
Opinion delivered by Justice Wright.
GREYS FUSTER, Appellee Justices Carlyle and Garcia
participating.
In accordance with this Court’s opinion of this date, the modified judgment
of the trial court is AFFIRMED.
It is ORDERED that appellee GREYS FUSTER recover her costs of this
appeal from appellant STEVEN JOSEPH PICKOWITZ, JR.
Judgment entered this 15th day of May 2023.
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