Tonda Harris Helms v. Mary Frances Swansen

ACCEPTED
12-14-00280-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
2/12/2015 4:16:32 PM
CATHY LUSK
CLERK

NO. 12-14-00280-CV
__________________________________________________________________
FILED IN
12th COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE TWELFTH DISTRICT, TYLER,
TYLER, TEXAS
TEXAS 2/12/2015 4:16:32 PM
__________________________________________________________________
CATHY S. LUSK
Clerk

TONDA HARRIS HELMS
Appellant,
v.
MARY FRANCES SWANSEN
Appellee.
__________________________________________________________________

On Appeal from Cause No. 62,602-A
In the County Court at Law #2 in and for Smith County, Texas
Honorable Randall Lee Rogers, Presiding Judge
__________________________________________________________________

APPELLANT’S BRIEF
__________________________________________________________________

Jonathan Wharton
SNOW E. BUSH, JR., P.C.
Texas State Bar No. 24075764
420 N. Center Street
Longview, TX 75601
Tel. (903) 753-7006
Fax (903) 753-7278
jonathanwharton1@sbcglobal.net
ATTORNEY FOR APPELLANT
TONDA HARRIS HELMS

February 12, 2015
 IDENTITY OF PARTIES AND COUNSEL

Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, Appellant

lists the following parties affected by this appeal, and their respective appellate and

trial counsel:

Appellant: Tonda Harris Helms

Jonathan Wharton
Snow E. Bush, Jr., P.C.
420 N. Center Street
Longview, TX 75601
Tel. 903.753.7006
Fax 903.753.7278
jonathanwharton1@sbcglobal.net
Appellate Counsel for Tonda Harris Helms

Taylor J. Harris
15272 St. Hwy. 64 West
Tyler, Texas 75704
Tel. 903.530.8188
taylorjharris@gmail.com
Trial Counsel for Tonda Harris Helms

Appellee: Mary Frances Swansen

Robert G. Hindman
5620 Old Bullard Road
Suite 105
Tyler, TX 75703-4358
Tel. 903.581.9960
Fax 903.534.0647
attorney@tyler.net
Trial and Appellate Counsel for Mary Frances Swansen

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 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

NO REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

2
 INDEX OF AUTHORITIES

STATUTES

Tex. Civ. Prac. & Rem. Code § 38.001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Tex. Civ. Prac. & Rem. Code § 38.002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14, 38

RULES

Tex. R. Civ. P. 279 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Tex. R. Civ. P. 296 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Tex. R. Civ. P. 297 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Tex. R. Civ. P. 298 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17, 28

Tex. R. Civ. P. 299 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CASES

Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991) . . . . . . . . . . . . . . 15

Asai v. Vanco Insulation Abatement, Inc., 932 S.W.2d 118 (Tex. App.—El Paso
1996, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Blockbuster, Inc. v. C-Span Entm’t, Inc., 276 S.W.3d 482 (Tex. App.—Dallas 2008,
pet. granted, judg’t vacated w.r.m.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006) . . . . . . . . . . 39

Burges v. Mosley, 304 S.W.3d 623 (Tex. App.—Tyler 2010, no pet.). . . . . . . . . . 24

Burns v. Rochon, 190 S.W.3d 263 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

3
Chavez. v. McNeely, 287 S.W.3d 840 (Tex. App.—Houston [1st Dist.] 2009, no pet.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Cherokee Water Co. v. Forderhause, 741 S.W.2d 377 (Tex. 1987). . . . . . . . . . . . 31

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) . . . . . . . . . . . . . . . . . . . . . 22

City of Laredo v. Montano, 414 S.W.3d 731 (Tex. 2013). . . . . . . . . . . . . . . . . . . . 37

COC Serv., Ltd. v. CompUSA, Inc., 150 S.W.3d 654 (Tex. App.—Dallas 2004, pet.
denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817 (Tex. 2012). . . . . . . . . . . . . . 33

Denver City Indep. Sch. Dist. v. Moses, 51 S.W.3d 386 (Tex. App.—Amarillo 2001,
no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

D. Houston, Inc. v. Love, 92 S.W.3d 450 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . 17

DiGiuseppe v. Lawler, 269 S.W.3d 588 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . 31

Eikenhorst v. Eikenhorst, 746 S.W.2d 882 (Tex. App.—Houston [1st Dist.] 1988, no
writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012) . . . . . . . . . . . . . . . . . . . . . 37

Federal Sign v. Texas S. Univ., 951 S.W.2d 401 (Tex. 1997) . . . . . . . . . . . . . . . . 24

Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394 (1981). . . . . . . . . . . . . . . . . . 22

Fiduciary Fin. Serv. of the Sw., Inc. v. Corilant Financial, LP, 376 S.W.3d 253 (Tex.
App.—Dallas 2012, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Fort Worth Indep. Sch. Dist. v. Fort Worth, 22 S.W.3d 831 (Tex. 2000) . . . . 25, 26

Garland Community Hospital v. Rose, 156 S.W.3d 541 (Tex. 2004) . . . . . . . . . . 21

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Gentry v. Squires Const., Inc., 188 S.W.3d 396 (Tex. App.—Dallas 2006, no pet.).
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33

Hathaway v. General Mills, Inc., 711 S.W.2d 227 (Tex. 1986) . . . . . . . . . . . . . . . 30

In re Weekley Homes, L.P., 180 S.W.3d 127 (Tex. 2005) . . . . . . . . . . . . . . . . . . . 22

J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003). . . . . . . . . . . . . . 20, 23

Lamajak, Inc. v. Frazin, 230 S.W.3d 786 (Tex. App.—Dallas 2007, no pet.) . . . . 27

Lindner v. Hill, 673 S.W.2d 611 (Tex. App.—San Antonio 1984, aff’d Lindner v.
Hill, 691 S.W.2d 590 (Tex. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 29

Mathis Equipment Co. v. Rosson, 386 S.W.2d 854 (Tex.Civ.App.—Corpus Christi
1964, writ ref'd n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Meadows v. Bierschwale, 516 S.W.2d 125 (Tex. 1974) . . . . . . . . . . . . . . . . . . . . 34

Miles v. Martin, 321 S.W.2d 62 (Tex. 1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Myrad Properties v. LaSalle Bank Nat’l Ass’n, 300 S.W.3d 746 (Tex. 2009) .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Okemah Const., Inc. v. Barkley-Farmer, Inc., 583 S.W.2d 458 (Tex. Civ.
App.—Houston [1st Dist.] 1979, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex. 1998). . . . . . . . . . . . . . . . . . . 34

Simmons v. Compania Financiera Libano, 830 S.W.2d 789 (Tex. App.—Houston [1st
Dist.] 1992, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Southern v. Goetting, 353 S.W.3d 295 (Tex. App.—El Paso 2011, pet. denied)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Stafford v. S. Vanity Magazine, Inc., 231 S.W.3d 530 (Tex. App.—Dallas 2007, pet.
denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

5
State Dept. Highways v. Payne, 838 S.W.2d 235 (Tex. 1992). . . . . . . . . . . . . . 18, 20

Stretcher v. Gregg, 542 S.W.2d 954 (Tex. App.—Texarkana 1976, no writ) . . . . . .20

Texas Capital Securities, Inc. v. Sandefer, 58 S.W.3d 760 (Tex. App.—Houston [1st
Dist.] 2001, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32, 33

Texas E. Transmission Corp. v. Sealy Ind. School Dist., 572 S.W.2d 49 (Tex.
App.—Houston [1st Dist.] 1978, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Thigpen v. Locke, 363 S.W.2d 247 (Tex. 1962). . . . . . . . . . . . . . . . . . . . . . . . . 34, 35

Tony Gullo Motors I, LP v. Chapa, 212 S.W.3d 299 (Tex. 2006). . . . . . . . . . . 39, 40

T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218 (Tex. 1992) . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 26, 27, 30

United Nat’l Ins. Co. v. A.M.J. Investments, L.L.C., No. 14-12-00941-CV (Tex.
App.—Houston [1st Dist.] 2014, pet. filed) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Valero Mkg. & Supply Co. v. Kalama Int., L.L.C., 51 S.W.3d 345 (Tex.
App.—Houston [1st Dist.] 2001, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 29

Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241 (Tex. App.—Houston
[14th Dist.] 1999, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18, 19

West Anderson Plaza v. Feyznia, 876 S.W.2d 528 (Tex. App.—Austin 1994, no writ)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Western Reserve Life Assurance Co. of Ohio v. Graben, 233 S.W.3d 360 (Tex.
App.—Ft. Worth 2007, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Winkle Chevy-Olds-Pontiac, Inc. v. Condon, 830 S.W.2d 740 (Tex. App.—Corpus
Christi 1992, writ dism’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990). . . . . . . . . . . . . . . . . . . . . . . . . 16

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 STATEMENT OF THE CASE

The plaintiff filed suit for breach of contract. CR 4-9. After a bench trial, the

trial court awarded the plaintiff recovery of a specific piece of property, namely a

trailer, as well as attorneys’ fees. CR 74-77.

REQUEST FOR ORAL ARGUMENT

Because the case is relatively complex and has a convoluted fact pattern, oral

argument may assist the court’s decisional process.

ISSUES PRESENTED

1. What is the effect of the trial court’s refusal to file additional findings of fact
after a request?

2. Is there any evidence of consideration for the alleged oral contract?

3. Is the alleged oral contract insufficiently definite for enforcement?

4. Is there any evidence that the alleged contract was breached?

5. Was it proper for the trial court to award recovery of a specific piece of
property for a simple breach of contract?

6. Is there sufficient evidence of attorneys’ fees?

7. Did the plaintiff’s attorney properly segregate his attorneys’ fees by cause of
action?

8. Did the plaintiff’s attorney properly segregate his attorneys’ fees by time
relative to the date of presentment of his breach of contract claim?

7
 STATEMENT OF FACTS

According to the plaintiff, Mary Swansen, the story proceeds as follows. The

next four paragraphs are based entirely on her testimony unless otherwise noted.

Sometime in the beginning of 2007, the plaintiff bought a 20-foot mobile home

(also called a park trailer because it is so small) worth $50,000 for $33,000 in 2006.

1 RR 7-9 & 13; Defendant’s Exhibit 1 (attached to the end of Volume 1 of the

Reporter’s Record). She rented a lot for it from the Appellant, Tonda Helms, for $225

per month. 1 RR 14. After about a year, the plaintiff married a man in Kansas who

already had a home, so she decided to get rid of it. 1 RR 15. Since a realtor’s office

did not want to sell it for her, she decided to sell it through Appellant, her landlord.

1 RR 16. The plaintiff asked Appellant to offer it at $50,000 and then gradually

reduce the asking price to $25,000. 1 RR 18.

There was no written contract between the parties. 1 RR 17. There was no

obligation flowing from the plaintiff to Appellant: at the time, the plaintiff did not

owe any rent, as she had paid every month. 1 RR 14. Lot rent did not continue to

accumulate after she asked Appellant to sell the trailer for her, either, so no money

was owed to Appellant at all. 1 RR 18. No money was to be made by Appellant. 1 RR

19.

Soon thereafter, Appellant sold the trailer to a man for monthly payments. 1 RR

8
19. The plaintiff found out in January of 2010 and filed a suit in small claims court.

1 RR 20. When the judge announced that she would not prevail, she began crying, so

he changed his decision so that she would recover the trailer. 1 RR 22. On appeal to

the County Court at Law #3 for Smith County, her case was dismissed. 1 RR 23-24.

Her representative on appeal was Appellant’s former handyman, Nathan McCarty, an

unlicensed individual. 2 RR 28-29 & 39-40; Exhibit 5. According to him, he cannot

read but is able to copy whatever he sees. 2 RR 40-41. Her original appellate attorney

had withdrawn due and put in the motion that he had a conflict with her, but that was

not his real reason. 2 RR 17. “He preferred to say that than what he told me, that he

didn’t work with a crooked judge.” 2 RR 17 at 16-17. The plaintiff then went to

another justice of the peace to get a writ of possession. He refused to accept a check,

demanding cash, and after she put $150 in his hand, he slammed the door shut and

refused to do anything else. 1 RR 25-26.

She filed judicial complaints against all three judges that had handled the case.

2 RR 20. Afterwards, she contacted the local sheriff, the constable, the Texas

Rangers, and the U.S. Attorney’s office but each refused to get involved. 1 RR 32-33

& 35. The plaintiff ultimately filed this suit in 2013, claiming that an oral contract

between the parties had been breached. CR 4-7. She did not file it as conversion claim

because the statute of limitations had already run. 1 RR 31.

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 Appellant had a very different recollection of events. According to her, the

trailer was given to her in payment for back rent that was owed. 2 RR 44-45, 51-52

& 58. Appellant buys and sells mobile homes often, particularly when back rent is

owed, but ordinarily it is done through a bank mortgage. 2 RR 53-54. When the bank

forecloses and sells a mobile home owned by someone that owes Appellant for rent,

she bids on it, and if she wins, then she deducts the amount owed to her from the

payment she makes on the trailer. 2 RR 54. The arrangement is similar to an offset.

This sale worked somewhat differently because there was no bank involved.

Appellant made efforts to sell the home, including putting ads in the Tyler Paper and

the Thrifty Nickel and placing signs in front of the park and on the home. 2 RR 103.

But the house did not sell and lot rent continued to accrue month after month while

the trailer sat on Appellant’s property. 2 RR 86 at 10-15; 2 RR 94. Since the plaintiff

was going to lose the home anyway, and her debt to Appellant was accumulating, she

gave it to Appellant as full payment for money owed. 2 RR 52. 2 RR 64.

The plaintiff admitted that she declared bankruptcy in May of 2008. 1 RR 58

at 8-10; Exhibit 2, Page 2. In the bankruptcy petition, she listed herself as owning no

real property and a total of $5,575 in personal property (including clothing, jewelry,

books, and a 2006 Saturn Ion). 1 RR 64-66. She did not include the trailer she valued

at $50,000 in that list. 1 RR 64-66; Exhibit 2, Page 17-19. According to her, she

10
forgot about it. 1 RR 67 at 3-5. Her debts totaled $142,561.00. Exhibit 2 at Page 33.

The buyer for the trailer was found in September of 2009, after the trailer

would have gone to the plaintiff’s creditors in bankruptcy if she had kept it herself.

2 RR 87 at 21-23. Nevertheless, the plaintiff has tried two times without legal process

to remove the home from Appellant’s property. 2 RR 88.

The trial court found that a contract existed between the parties and that it had

been breached and awarded the plaintiff recovery of the trailer home and attorneys’

fees. CR 74-77.

SUMMARY OF THE ARGUMENT

The trial court, after request, made findings of fact but refused to file additional

findings on certain key elements of the plaintiff’s breach of contract case, including

what the consideration for the contract was, what the material terms of the contract

were, what terms were breached, and the date of presentment of the breach of contract

claim. The missing findings cannot be deemed or presumed on appeal because there

was a timely request that notified the trial court of the problem. Therefore, elements

of the plaintiff’s case are absent, which results in a take-nothing judgment.

Even if there were presumed or deemed findings in favor of the judgment, there

is no evidence of consideration. The plaintiff’s case rests on the notion that Appellant

gratuitously agreed to sell her trailer home for her. That is not a contract because it

11
lacks consideration.

The alleged contract is also insufficiently definite to be enforced. It is entirely

unclear from the record what the terms were supposed to have been. Without

guidance as to the rights and obligations of each party, a contract is unenforceable.

There is no evidence of breach. In the findings and judgment, the agreement

was that Appellant would sell the plaintiff’s trailer. The trailer was sold. The findings

and judgment indicate that there was a breach because Appellant put her name on the

title to the trailer, but there was no agreement in the original terms that Appellant

would not do that.

There is also no evidence to support the award of attorneys’ fees. The

plaintiff’s attorney elected to proceed under the lodestar method but he did not detail

what he did and how long it took him. He merely stated that his time is worth $250

an hour and he has accumulated $12,938.85 in bills. Dividing that out, it means that

he spent 51.7554 hours on the case, but more specificity is required in order for the

judge to be able to consider the reasonableness and necessity of the activities

performed in the case.

Even if there is evidence to support the award of attorneys’ fees, they have not

been segregated by cause of action. The plaintiff proceeded under multiple other legal

theories which were abandoned after trial. He did not segregate work performed in

12
those causes out from the breach of contract action.

The plaintiff’s attorney also did not segregate his fees by time relative to

presentment. He stated that he made presentment after suit was filed but failed to say

the precise date, and he did not state which fees were incurred before rather than after

the presentment. Since fees incurred before the date of presentment are not

recoverable, a new trial on attorneys’ fees is required to segregate our recoverable

from unrecoverable fees.

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 ARGUMENT

I. Refusal to Make Additional Findings of Fact and Conclusions of Law

A. Introduction

After the court entered its final judgment, Appellant timely filed a Request for

Findings of Fact and Conclusions of Law under Tex. R. Civ. P. 296. CR 88-89. The

trial court did not file its findings within the twenty-day time period prescribed by

Tex. R. Civ. P. 297, so Appellant filed and served a Notice of Past Due Findings of

Fact and Conclusions of Law. CR 91-92. After Appellee filed her proposed findings,

the trial court signed and adopted them. CR 102-106. These findings abandoned

several of the plaintiff’s causes of action, including breach of trust and breach of

fiduciary duty. CR 5. The only remaining cause of action was breach of contract. See

CR 102-106.

The findings did not include all the essential elements of a breach of contract:

there are no findings on what the terms of the contract were, what term was breached,

or what was the consideration given by each party. See CR 102-106. The only finding

of fact on the existence of the contract is a conclusory statement that “the parties

entered into a valid oral contractual agreement via the exchange of mutual promises

under which Defendant agreed to find a buyer for the park model home.” CR 102.

Since these facts are critical to the outcome of this appeal, Appellant filed a Request

14
for Additional or Amended Findings of Fact and Conclusions of Law. CR 97-98. The

following findings were requested:

1. The consideration given by each party to the contract.
2. The material terms of the contract between the parties.
3. Which material term was breached, and by what specific act.
4. The date the claim for breach of contract was presented to the
Defendant under Tex. Civ. Prac. & Rem. Code § 38.002.

CR 97. The trial court never filed any additional findings.

B. Effect of Failure to File Additional or Amended Findings

The Rules clearly state the effect of a court’s refusal to make appropriate

findings: “No findings or conclusions shall be deemed or presumed by any failure of

the court to make any additional findings or conclusions.” Tex. R. Civ. P. 298. Since

the findings of fact are treated as jury verdicts on special questions, Anderson v. City

of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991), and it is axiomatic that all

essential elements of a claim must be found in order for recovery, it would seem

straightforward that, after notice, failing to find an essential element of a claim would

result in a take-nothing judgment. The path to that simple result is complicated,

though, and it depends in large part on the efforts of the parties to preserve error.

If there is neither a reporter’s record nor findings of fact, the appellate court

assumes the trial court heard sufficient evidence to make any and all the necessary

findings to support the judgment. Vickery v. Commission for Lawyer Discipline, 5

15
S.W.3d 241, 251 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). In other

words, the appeal is immediately lost and there is no appellate review.

If a reporter’s record is filed but no findings of fact are requested or made, it

is again implied that the trial court made any and all necessary findings to support the

judgment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). But since there is

a reporter’s record, the appellate court can review the sufficiency of the evidence to

support those implied findings. See id. The court affirms the judgment if it can be

supported by any legal theory in the evidence. Id.

If a reporter’s record is filed and findings of fact are made, the findings will be

sustained if there is any evidence to support them (instead of the judgment). Lindner

v. Hill, 673 S.W.2d 611, 614 (Tex. App.—San Antonio 1984, aff’d Lindner v. Hill,

691 S.W.2d 590 (Tex. 1985). Rather than pore over an entire record and create a set

of hypothetical findings for all the determinative facts of the case, the court of appeals

only looks to the findings of fact and decides whether they are supported by the

evidence. This approach narrows the issues on appeal: the factual findings are the

equivalent of a jury verdict on special issues. Id.

The question remains of what to do if necessary findings are omitted. For

example, if a plaintiff sues for negligence, and the trial court makes findings that the

defendant had a duty to exercise reasonable care, the defendant caused the plaintiff’s

16
injuries, and the injuries are compensable in the amount of $100,000, there is an

omitted element of the case: the trial court did not make a finding that the defendant

breached its duty of care. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002)

(stating essential elements of a negligence claim). Does the court revert to the default

approach of affirming so long as the omitted findings have support in the evidence?

There are two steps to answer this question. First, the appellate court

determines whether the omitted finding is of an entire ground of recovery or defense,

no element which has been found by the trial court. Tex. R. Civ. P. 299. In that case,

the ground of recovery or defense is waived. Tex. R. Civ. P. 299 (“The judgment may

not be supported upon appeal by a presumed finding upon any ground of recovery or

defense, no element of which has been included in the findings of fact.”). If at least

one element of the ground of recovery or defense is included in the findings, the next

question is whether the complaining party notified the trial court of the omitted

elements. If no complaint was made (via request), the unrequested elements are

supplied by presumption. Tex. R. Civ. P. 299 (“[W]hen one or more elements thereof

have been found by the trial court, omitted unrequested elements, when supported by

evidence, will be supplied by presumption in support of the judgment”). If the trial

court is notified of the omission, the ground of recovery or defense is waived. Tex.

R. Civ. P. 298 (“No findings or conclusions shall be deemed or presumed by any

17
failure of the court to make any additional findings or conclusions.”)

It works similarly to omissions from a jury charge: if the entire ground of

recovery or defense is omitted, that ground of recovery or defense is waived entirely.

Tex. R. Civ. P. 279. If one or more elements of the ground of recovery or defense is

submitted, but others are omitted, and no objection or request is made, then the

omitted elements are supplied by implication. Tex. R. Civ. P. 279. But if an essential

element is not submitted, and the defect is brought to the court’s attention in a timely

manner by request, and the jury charge is still submitted in that defective manner, the

result is a take-nothing judgment. State Dept. Highways v. Payne, 838 S.W.2d 235,

241 (Tex. 1992). The answers to the special issues do not include all the necessary

elements of the claim, and without all essential elements, a claim fails. See id.

This system is designed to avoid reversal by inadvertent omission: if neither

litigant brings the problem to the court’s attention, the problem is waived. Vickery

v. Commission for Lawyer Discipline, 5 S.W.3d 241, 254 (Tex. App.—Houston [14th

Dist.] 1999, pet. denied). As with a trial objection, it is incumbent on the appealing

party to point out distinctively the issue to the trial court to give it an opportunity to

correct the mistake. Id. The objection cannot be confounded by voluminous

unfounded objections. Id. The requested findings must relate to the ultimate or

controlling legal issues, not just issues of evidence. Texas E. Transmission Corp. v.

18
Sealy Ind. School Dist., 572 S.W.2d 49, 51 (Tex. App.—Houston [1st Dist.] 1978, no

writ).

It is also insufficient to make a request for negative findings. Id. The trial court

is under no obligation to make a finding that is contrary to findings already entered.

Asai v. Vanco Insulation Abatement, Inc., 932 S.W.2d 118, 122 (Tex. App.—El Paso

1996, no writ); Simmons v. Compania Financiera Libano, 830 S.W.2d 789, 793 (Tex.

App.—Houston [1st Dist.] 1992, writ denied); Eikenhorst v. Eikenhorst, 746 S.W.2d

882, 887 (Tex. App.—Houston [1st Dist.] 1988, no writ). Logically, it would make

no sense for the losing party to request the trial court to make findings of fact that

conflict with its own judgment. The purpose of the rule is to require the trial court to

specify the basis for its own decision, thus narrowing the issues on appeal. That

purpose is not served by requiring the submission of proposed findings that will be

summarily rejected and ignored.

The situation we are left with is one in which the trial court has made findings

of fact, including one element of a ground of recovery or defense, but which omit

other elements of that ground of recovery or defense, and a party has made a request

for a finding on the omitted elements. In that scenario, the omission is no longer

inadvertent: it is deliberate. Vickery v. Commission for Lawyer Discipline, 5 S.W.3d

241, 253 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). The omitted element

19
is not presumed, deemed, or implied: it is absent from the appeal. The ground of

recovery or defense is lost because it lacks an essential element; one element has not

been proven. See Stretcher v. Gregg, 542 S.W.2d 954, 957-58 (Tex.

App.—Texarkana 1976, no writ) (party asserted defense of cancellation of a contract;

by the contract’s terms, cancellation had to be in writing; trial court found the

contract was canceled but refused to find that written cancellation was made;

judgment could not be affirmed based on cancellation); cf. State Dept. Highways v.

Payne, 838 S.W.2d 235, 241 (Tex. 1992) (take-nothing judgment due to failure to

submit all elements of a claim to jury).

C. Application

Here, the trial court found that Appellant breached a contract. CR 102-106. But

the findings do not include several essential elements for a breach of contract

recovery. “Consideration is an essential element for a valid, enforceable contract.”

J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 235 (Tex. 2003). Further, “In order

to be legally binding, a contract must be sufficiently definite in its terms so that a

court can understand what the promisor undertook.” T.O. Stanley Boot Co. v. Bank

of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). Finally, breach is an essential element

of a breach of contract claim. Valero Mkg. & Supply Co. v. Kalama Int., L.L.C., 51

S.W.3d 345, 351 (Tex. App.—Houston [1st Dist.] 2001, no pet.). In other words, the

20
trial court omitted several essential elements of a breach of contract, the only cause

of action for which any element was found. See CR 102-106. The trial court and

Appellee were timely notified of the deficiencies by a request for additional or

amended findings of fact on those precise issues. CR 97-98. Appellee did not submit

the necessary additional or amended findings of fact. The trial court did not file any

additional or amended findings on its own. As a result, essential elements that cannot

be deemed or presumed are absent from the findings, and recovery cannot be had. The

judgment must be reversed and a take-nothing judgment rendered. In the alternative,

the trial court must be instructed to submit additional or amended findings.

II. No Evidence of Consideration

A. Introduction

Even if deemed or presumed findings exist in favor of the judgment, there is

still no evidence of several essential elements for breach of contract, including

consideration. The plaintiff pled breach of contract instead of conversion to avoid the

statute of limitations. 1 RR 31 at 4-8. That, of course, is no excuse for failing to meet

the legal elements. In fact, courts are generally very skeptical of “artful pleading”

designed to avoid the rule of law. See, e.g., Garland Community Hospital v. Rose,

156 S.W.3d 541, 543 (Tex. 2004) (“Plaintiffs cannot use artful pleading to avoid the

[Medical Liability and Insurance Improvement Act’s] requirements when the essence

21
of the suit is a health care liability claim.”); In re Weekley Homes, L.P., 180 S.W.3d

127, 131-32 (Tex. 2005) (“Under both Texas and federal law, whether a claim seeks

a direct benefit from a contract containing an arbitration clause turns on the substance

of the claim, not artful pleading.”); Federated Dept. Stores, Inc. v. Moitie, 452 U.S.

394, 408-09 (1981) (“[I]t would be unacceptable to permit that very plaintiff, by the

artful manipulation of the terms of a complaint, to defeat a clearly enunciated

congressional objective.”).

In the no-evidence context, the evidence must be viewed in the light most

favorable to the plaintiff. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005)

(“If the parties to an oral contract testify to conflicting terms, a reviewing court must

presume the terms were those asserted by the winner.”). Only the plaintiff’s evidence

is outlined below.

Before the transfer of the trailer to the defendant’s custody, the plaintiff was

paying monthly lot rent for use of the space. 1 RR 14 at 7-14. But once the trailer was

handed to the defendant, the plaintiff did not pay her anything monthly, like rent. 1

RR 18 at 16-25. No more lot rent was paid or accumulated in favor of the landlord

“because she’s responsible for the house.” 1 RR 18 at 18-21.

The plaintiff insisted that she had no obligation to the defendant with respect

to this arrangement.

22
 Q: And if she was to get any money once she sold the thing, was she
supposed to get her money at that time for the—up until that time
for the—
A: For the rent? No.
Q: Well, I’m talking for the lot because she’s trying to sell it.
A: No.

1 RR 19 at 3-9. She further insisted “I never owed that woman one penny.” 1 RR 29

at 15.

Q: Now, was there ever any exchange of money between the two of
you for the—for this contract?
A: I have said over and again, no, there was no contract. It’s what is
usual—it’s what the usual policy is.
Q: So let me ask my question again. Was there ever any exchange of
money or goods or services between the two of you to support
this contract.
A: Well, she sent two 200-dollar checks she owed me.
Q: Ms. Swansen, at the time that you made this agreement—
A: No.

2 RR 25-26.

B. Law

“Consideration is an essential element for a valid, enforceable contract.” J.M.

Davidson, Inc. v. Webster, 128 S.W.3d 223, 235 (Tex. 2003). Without it, there is no

enforceable contract between the parties. Agreements to gratuitously perform actions

for other people are not enforceable. See English v. Fischer, 660 S.W.2d 521, 523

(Tex. 1983). The plaintiff could have pursued a promissory estoppel claim to avoid

the requirement of consideration but she chose not to. See id. As a result, she must

23
satisfy the legal elements of a breach of contract claim. It is worth noting that

although consideration is presumed in a written contract, it is not presumed for an

oral contract. Compare Okemah Const., Inc. v. Barkley-Farmer, Inc., 583 S.W.2d

458, 460 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ) to Blockbuster, Inc. v.

C-Span Entm’t, Inc., 276 S.W.3d 482, 488 (Tex. App.—Dallas 2008, pet. granted,

judg’t vacated w.r.m.)

Consideration is a bargained-for exchange of promises; it consists of benefits

and detriments to the contracting parties. Federal Sign v. Texas S. Univ., 951 S.W.2d

401, 409 (Tex. 1997). “Lack of consideration occurs when the contract, at its

inception, does not impose obligations on both parties.” Burges v. Mosley, 304

S.W.3d 623, 628 (Tex. App.—Tyler 2010, no pet.).

C. Application

It is entirely unclear what the consideration could be in this case: what

obligation was imposed on the plaintiff? The “contract,” as described in the findings,

was “a valid oral contractual agreement via the exchange of mutual promises under

which Defendant agreed to find a buy for the park model home.” CR 102. What the

plaintiff described is not an “exchange of mutual promises” because there is no

obligation on her. According to her, Appellant gratuitously offered to sell her trailer

for her. See 1 RR 17-18. Later in the findings, the contract is described as “the oral

24
contract to hold such title until a buyer could be find.” CR 103. Again, that does not

describe consideration.

Since there is no evidence on this essential element of the plaintiff’s breach of

contract claim, a take-nothing judgment must be rendered.

III. Indefinite Contract

A. Introduction

Not only is there no consideration to the contract, the entire nature of the

contract is unclear. The findings refer to the contract as “a valid oral contractual

agreement via the exchange of mutual promises under which Defendant agreed to find

a buy for the park model home.” CR 102. They also describe it as “the oral contract

to hold such title until a buyer could be find.” CR 103. What rights and obligations

were conferred by the contract are unknown.

B. Law

Indefiniteness is a question of law for the court. Fiduciary Fin. Serv. of the Sw.,

Inc. v. Corilant Financial, LP, 376 S.W.3d 253, 256 (Tex. App.—Dallas 2012, pet.

denied). “The rules regarding indefiniteness of material terms of a contract are based

on the concept that a party cannot accept an offer so as to form a contract unless the

terms of that contract are reasonably certain.” Fort Worth Indep. Sch. Dist. v. Fort

Worth, 22 S.W.3d 831, 846 (Tex. 2000). “In order to be legally binding, a contract

25
must be sufficiently definite in its terms so that a court can understand what the

promisor undertook.” T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221

(Tex. 1992). Each material term must be agreed upon. Id. For example, in an

agreement to loan money, the material terms include the amount to be loaned,

maturity date of the loan, the interest rate, and the repayment terms. Id. If there is no

evidence of any of those terms, the contract fails for indefiniteness. Id. “It is well

settled law that when an agreement leaves material matters open for future adjustment

and agreement that never occur, it is not binding upon the parties and merely

constitutes an agreement to agree.” Fort Worth Indep. Sch. Dist. v. Fort Worth, 22

S.W.3d 831, 846 (Tex. 2000).

“Fatal indefiniteness in an agreement may concern the time of performance, the

price to be paid, the work to be done, the service to be rendered or the property to be

transferred.” COC Serv., Ltd. v. CompUSA, Inc., 150 S.W.3d 654, 664 (Tex.

App.—Dallas 2004, pet. denied). For example, in a divorce, it is too vague for a

mother to agree to “continue to pay as much as possible toward [her son’s] needs,

limited only by her personal financial situation.” Chavez. v. McNeely, 287 S.W.3d

840, 845 (Tex. App.—Houston [1st Dist.] 2009, no pet.). In a lease, failing to identify

a term for the lease and failing to provide dates for commencing and ending the lease

results in a contract being indefinite. Southern v. Goetting, 353 S.W.3d 295, 300

26
(Tex. App.—El Paso 2011, pet. denied). Specific evidence must be adduced as to the

obligations and liabilities of both parties: if the only evidence in the record on a

party’s obligation under a contract is that “[the contracting party] told [the other

party] he had contacts and outlets and he could ‘help [the other party] do all this

stuff,’” that is insufficient. Lamajak, Inc. v. Frazin, 230 S.W.3d 786, 795 (Tex.

App.—Dallas 2007, no pet.).

B. Facts

In this case, the alleged contract is so vague as to be meaningless. The plaintiff

asserted that the trailer was to be held by Appellant until it was sold. 1 RR 18. How

long was it to be held for? Would Appellant have been liable if the trailer were never

sold? Was she required to use best efforts to procure a buyer? By what terms could

the trailer have been sold: rent-to-own, cash payment, or periodic payments? None

of these terms are in the record. Even further, there is absolutely no guidance as to

what the obligations of the plaintiff would be. Would she be liable to pay Appellant

a fee or a portion of the money received for the trailer? Would she have to advise her

throughout the process? Were there any other duties for her? Were there no duties at

all? Again, it is entirely unclear. As a result, the contract fails for lack of definiteness,

and a take-nothing judgment must be rendered. See T.O. Stanley Boot Co. v. Bank

of El Paso, 847 S.W.2d 218, 224 (Tex. 1992) (rendering take-nothing judgment on

27
contract claim due to indefiniteness).

IV. No Evidence of Breach

A. Introduction

Even if there were an enforceable contract between the parties, due to the lack

of findings on the issue, it would be difficult to determine what the contractual

obligations of the parties were. See supra Parts I & III. According to the findings of

fact, there was “a valid oral contractual agreement via the exchange of mutual

promises under which Defendant agreed to find a buyer for the park model home.”

CR 102. The findings go on regarding breach as follows:

6. In May 2010, after the conclusion of litigation in a justice court
in Smith County, Texas which had resulted in a judgment
unfavorable to Defendant, without the knowledge or consent of
the Plaintiff, and without payment of any consideration, the
Defendant breached the oral contract to hold such title until a
buyer could be found.

7 In May 2010 the Defendant, unilaterally and without the payment
of any consideration for the sale of such park model home,
wrongfully affixed her own name to the application for title as
Buyer and then remitted the title to the said park model home to
the State of Texas further breaching such oral contract and
resulting in the issuance of a new certificate of title by the state of
Texas reflecting Defendant as owner.

CR 103. There is no dispute that Appellant put her name on the title, but that is not

a breach of the plaintiff’s alleged contract. It is also important to note that there are

28
no findings that the contract was breached by the failure, if any, to send payments

made for the sale of the home to the plaintiff.

B. Law

Unsurprisingly, breach is an essential element of a breach of contract cause of

action. Valero Mkg. & Supply Co. v. Kalama Int., L.L.C., 51 S.W.3d 345, 351 (Tex.

App.—Houston [1st Dist.] 2001, no pet.). “When the evidence is undisputed

regarding a person's conduct under a contract, the court as a matter of law determines

whether the conduct shows performance or breach of a contract obligation.” Id.

C. Application

There is no dispute that Appellant put her name on the title. The issue here is

whether that is a breach of the plaintiff’s alleged contract. According to the findings,

the contract required Appellant to find a buyer for the home. CR 103. She did find a

buyer (at least at one point) and received money from him. 2 RR 57. The plaintiff

wanted to receive money from that arrangement, but the findings did not find a breach

based on failure to forward payments to her. See CR 102-06. That ground of recovery

has been waived. Sufficiency of the evidence is measured by the findings of fact: the

question here is whether the findings are supported by evidence. Lindner v. Hill, 673

S.W.2d 611, 614 (Tex. App.—San Antonio 1984, aff’d Lindner v. Hill, 691 S.W.2d

590 (Tex. 1985); Tex. R. Civ. P. 298 (“No findings or conclusions shall be deemed

29
or presumed by any failure of the court to make any additional findings or

conclusions.”). There is no pleading nor a finding that Appellant breached the

contract by failing to forward payments for the home.

The only allegation is that Appellant breached the contract by filling in her

name on the title. It is possible that it would be conversion if the trailer were not

returned after a demand. See Burns v. Rochon, 190 S.W.3d 263, 268 (Tex.

App.—Houston [1st Dist.] 2006, no pet.). But the plaintiff did not sue for conversion

due to the statute of limitations. 1 RR 31. It is not a breach of contract. The terms of

a contract are determined at the time of the original formation. See T.O. Stanley Boot

Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992) (“The material terms of the

contract must be agreed upon before a court can enforce the contract.”) (emphasis

added). When the parties formed the alleged contract, the agreement did not include

anything about the title. It could not have, because the plaintiff did not send Appellant

the title until after the alleged contract would have been formed. 1 RR 20. That

transfer was not Appellant’s idea, but rather one of the plaintiff’s neighbors. 1 RR 20.

Any modification, such as an additional requirement that Appellant not affix her

name to the title, would have to be supported by additional consideration. Hathaway

v. General Mills, Inc., 711 S.W.2d 227, 228 (Tex. 1986). The findings expressly

reject that there was any new or additional consideration for such a modification. CR

30
103.

V. Award of Specific Property

A. Introduction

After finding that Appellant breached the contract, no damages were awarded.

CR 74-77. Rather, the court ordered the plaintiff to recover a specific piece of

property from her, namely the trailer. CR 74-75. That is not a proper remedy for

breach of contract.

B. Law

The ordinary remedy for breach of contract is damages. See DiGiuseppe v.

Lawler, 269 S.W.3d 588, 593 (Tex. 2008) (explaining additional elements in breach

of contract cases required in order to obtain specific performance). Extraordinary

remedies include specific performance, rescission, and reformation.

Specific performance of the contract is clearly inapposite, as the remedy would

be an order that Appellant perform under the contract. See Stafford v. S. Vanity

Magazine, Inc., 231 S.W.3d 530, 535 (Tex. App.—Dallas 2007, pet. denied).

Presumably, that would be done by selling the trailer, not returning it.

In the plaintiff’s petition, she prays for “reformation.” CR 6, Paragraph 6. But

that does not quite fit. Reformation is a remedy for a mistake, typically mutual, such

as a mistake in reducing an agreement to writing. See, e.g., Cherokee Water Co. v.

31
Forderhause, 741 S.W.2d 377, 379 (Tex. 1987) (“The underlying objective of

reformation is to correct a mutual mistake made in preparing a written instrument, so

that the instrument truly reflects the original agreement of the parties.”); Miles v.

Martin, 321 S.W.2d 62, 67 (Tex. 1959) (mistake of law).

The last available remedy is rescission. “Rescission of contract is an equitable

remedy, with the measure of damages generally being return of the consideration paid

together with such further special damage or expense as may have been reasonably

incurred by the party wronged on account of the contract.” Denver City Indep. Sch.

Dist. v. Moses, 51 S.W.3d 386, 391 (Tex. App.—Amarillo 2001, no pet.). The trailer

was not the consideration paid by the plaintiff. As discussed above in Part II, there

was no consideration. If there were any consideration, it would certainly not have

been the trailer, which, according to the plaintiff, Appellant was not supposed to

keep.

Further, rescission takes more than simple breach of contract. It “is an equitable

remedy that operates to extinguish a contract that is legally valid but must be set aside

due to fraud, mistake, or for some other reason to avoid unjust enrichment.” Gentry

v. Squires Const., Inc., 188 S.W.3d 396, 410 (Tex. App.—Dallas 2006, no pet.). For

example, mutual mistake will allow it. Myrad Properties v. LaSalle Bank Nat’l Ass’n,

300 S.W.3d 746, 751 (Tex. 2009). Fraud also makes it available. Texas Capital

32
Securities, Inc. v. Sandefer, 58 S.W.3d 760, 773 (Tex. App.—Houston [1st Dist.]

2001, pet. denied).

There are additional requirements to a breach of contract claim when seeking

rescission, such as notice and tender. Cruz v. Andrews Restoration, Inc., 364 S.W.3d

817, 824 (Tex. 2012). “Notice and tender” means that the party requesting rescission

must prove that he offered to put the other party in the position it was in before the

contract was entered. Id. In other words, “before a rescission can be granted, the

parties must be placed in status quo.” Mathis Equipment Co. v. Rosson, 386 S.W.2d

854, 869-70 (Tex.Civ.App.—Corpus Christi 1964, writ ref'd n.r.e.); see also Gentry,

188 S.W.3d at 410. Appellant paid taxes and insurance on the trailer while it was in

her possession. 2 RR 60-63; Exhibits 6 & 7. Those expenses have not been repaid to

her and were not awarded in the court’s judgment. CR 74-77. The burden is on the

plaintiff to prove that she paid those back. Rosson, 386 S.W.2d at 869-70.

There are other causes of action that allow for the recovery of specific pieces

of property. The most obvious example is conversion: “A plaintiff who establishes

conversion is entitled to return of the property and damages for loss of use during the

tort-feasor's detention. Alternatively, the injured party can sue for the value of the

property.” Winkle Chevy-Olds-Pontiac, Inc. v. Condon, 830 S.W.2d 740, 746 (Tex.

App.—Corpus Christi 1992, writ dism’d) (citations omitted). A constructive trust can

33
also be imposed after a finding of fraud in certain situations. See, e.g., Schlueter v.

Schlueter, 975 S.W.2d 584, 588 (Tex. 1998) (fraud on the community in divorce

proceeding). It may also be imposed if there is a breach of fiduciary duty. Meadows

v. Bierschwale, 516 S.W.2d 125, 128 (Tex. 1974) (“It is not essential for the

application of the constructive trust doctrine that a fiduciary relationship exist

between the wrongdoer and the beneficial owner. Actual fraud, as well as breach of

a confidential relationship, justifies the imposition of a constructive trust.”). Breach

of contract is not enough to impose a constructive trust. “This court has held that

mere breach of an oral contract is not fraud and that subsequent breach is not

evidence that may be considered in determining whether or not there was fraud in the

original transaction.” Thigpen v. Locke, 363 S.W.2d 247, 252 (Tex. 1962). Fraud was

neither pleaded nor proved in this case.

Neither did Appellee plead or prove the existence of any kind of fiduciary or

confidential relationship between the parties. The landlord-tenant relationship is not

one of trust and confidence in general. See West Anderson Plaza v. Feyznia, 876

S.W.2d 528, 534 (Tex. App.—Austin 1994, no writ) (finding that a landlord and

tenant did not have a confidential or fiduciary relationship). And there are no specific

facts or circumstances in this case that would establish the existence of such a

relationship.

34
 C. Conclusion

Since the Appellee did not plead or prove any causes of action that would

support the imposition of a constructive trust or the recovery of a specific piece of

property, the court’s judgment awarding the trailer to the Appellee was improper.

There is no evidence to support that recovery, so that portion of the judgment must

be reversed. Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex. 1962) (affirming take-

nothing judgment on request for imposition of a constructive trust).

VI. No Evidence of Attorneys’ Fees

A. Introduction

The court awarded $11,443.67 in attorneys’ fees. CR 105. The only evidence

supporting that amount is the testimony of the plaintiff’s attorney. He took the case

on a forty percent contingency. 2 RR 78 at 13-15. He testified that the going rate for

a case like this is $250 per hour. 2 RR 78 at 8-11. He flatly stated that “the amount

of time expended on the case was necessary and reasonable in the representation of

the client in this case. Totaled at $250 an hour, $12,938.85.” 2 RR 78 at 20-22.

Dividing $12,938.85 by $250 to find out the number of hours he spent arrives at

51.7554 hours, which is odd because very few attorneys take note of their time to the

fourth decimal place. 0.0001 of an hour is equal to roughly a third of a second, so that

would be refreshingly precise timekeeping. It also just so happens that the amount is

35
“equivalent” to his contingency fee if the trailer were worth $33,000, the amount the

plaintiff says she paid for it. 2 RR 79 at 2-5; 2 RR 13 at 9-11. Mr. Hindman did not

explain how much time he spent, what he spent his time on, the skill required to do

whatever he did, the novelty or difficulty involved in the case, whether he was

precluded from other work, time limitations imposed by the client, or his experience

and reputation. See 2 RR 79-80.

B. Law

Although the plaintiff in a breach of contract case does not have to use the

lodestar method to prove up attorneys’ fees, he may elect to do so. United Nat’l Ins.

Co. v. A.M.J. Investments, L.L.C., No. 14-12-00941-CV at *23 (Tex. App.—Houston

[1st Dist.] 2014, pet. filed) (quoting Long v. Griffin, Case No. 11-1021 at *4 (Tex.

2014) (per curiam) (“The affidavit supporting the Griffins’ request for attorney’s fees

used the lodestar method by relating the hours worked for each of the two attorneys

multiplied by their hourly rates for a total fee.”)). Testifying to the number of hours

worked and a reasonable hourly rate is an election to use the lodestar method. Id.

That election has consequences: “a party choosing the lodestar method of

proving attorney's fees must provide evidence of the time expended on specific tasks

to enable the fact finder to meaningfully review the fee application.” Long, Case No.

11-1021 at *1. The testifying attorney should testify so that the court can discern how

36
many hours were required to perform each task in the representation and whether that

time was reasonable. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012).

Although documentary evidence (such as time records or billing statements) is not

required, “in all but the simplest cases, the attorney would probably have to refer to

some type of record or documentation to provide this information.” City of Laredo

v. Montano, 414 S.W.3d 731, 736 (Tex. 2013).

C. Conclusion

Mr. Hindman’s testimony lacks the specificity required by the lodestar method

for calculating attorneys’ fees. It is general and conclusory. He states the amount of

time spent on the case without providing any means for the court to analyze whether

the tasks performed were necessary and the time spent on them reasonable. That

information must be provided so that the court can determine whether his analysis is

correct.

The remedy for a failure to properly establish attorneys’ fees by the lodestar

method is a remand for a determination of the properly-documented amount. See El

Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 765 (Tex. 2012). The plaintiff will still have

an opportunity to prove up her attorneys’ fees.

37
VII. Failure to Segregate Attorneys’ Fees by Cause of Action

A. Introduction

The plaintiff’s attorney testified that he incurred $12,938.85 in attorneys’ fees

but he did not specify what he did. More importantly, he did not explain whether that

work was done on the contract cause of action or one of the others. See 2 RR 78-79.

He testified that he not only filed the case for breach of contract but also for a

Declaratory Judgment. 2 RR 79 at 14-19. The plaintiff’s petition does not mention the

Declaratory Judgment Act. CR 4-9. It does mention trusts and breach of fiduciary

duty, though. CR 5 (title was “left in trust” with Appellant); CR 6 (changing name on

title was “in violation [of] Defendant’s fiduciary duty under the oral contract to the

Plaintiff at a time while the Defendant was holding the partially completed title

application form as a fiduciary”).

B. Law

Attorney’s fees are not recoverable for breach of fiduciary duty. Western

Reserve Life Assurance Co. of Ohio v. Graben, 233 S.W.3d 360, 377 (Tex. App.—Ft.

Worth 2007, no pet.). Attorney’s fees are recoverable for breach of contract cases

(assuming proper presentment). Tex. Civ. Prac. & Rem. Code § 38.001. When a

plaintiff proceeds under two different claims, he must segregate out attorneys’ fees

incurred in prosecuting claims for which fees are recoverable and claims for which

38
they are not. Tony Gullo Motors I, LP v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006).

Since the record does not reflect what the plaintiff’s attorney did for the breach of

contract claim versus on the breach of fiduciary claim, a remand is required. See id.

at 314.

VIII. Failure to Segregate Attorneys’ Fees by Time

The plaintiff was awarded attorneys’ fees in the judgment. CR 75. Those fees

were awarded for prevailing on a breach of contract claim. According to the

plaintiff’s attorney, he presented the claim for breach of contract to Appellant during

the pendency of this lawsuit. 2 RR 79 at 9-11. He did not say when. See 2 RR 79.

Presentment is a prerequisite for recovering attorneys’ fees for breach of

contract. Tex. Civ. Prac. & Rem. Code § 38.002. Obviously, the attorneys’ fees must

have been incurred after the date of presentment. “The purpose of presentment is to

allow the opposing party a reasonable opportunity to pay a claim without incurring

an obligation for attorney's fees.” Brainard v. Trinity Universal Ins. Co., 216 S.W.3d

809, 818 (Tex. 2006). If the attorneys’ fees are incurred before the date of breach and

presentment, they are not recoverable. See id.

Here, the presentment was made after suit was filed, but no date was provided.

See 2 RR 79. That makes it impossible to determine what fees were incurred before

or after the date of presentment. The plaintiff’s attorney did not segregate them out

39
himself. See 2 RR 78-79. He even included $504.82 of court costs in his calculation.

2 RR 78 at 24. Just as it is the attorney’s duty to segregate fees between causes of

action for which they are recoverable and those for which they are not, it was the

plaintiff’s attorney’s duty to segregate fees incurred before the date of presentment

and fees incurred after the date of presentment. Cf. Tony Gullo Motors I, LP v.

Chapa, 212 S.W.3d 299, 311 (Tex. 2006). The remedy for failure to segregate is a

new trial on the issue of attorney’s fees. Id. at 314.

PRAYER

Appellant respectfully prays that this Court render a take-nothing judgment; in

the alternative, abate the appeal for the trial court to enter additional or amended

findings of fact; or in the alternative, grant a new trial on the amount of attorneys’

fees that should have been awarded.

Respectfully submitted,

SNOW E. BUSH, JR., P.C.
420 N. Center Street
Longview, TX 75601
Tel. (903) 753-7006
Fax. (903) 753-7278
E-mail: jonathanwharton1@sbcglobal.net
/s/ Jonathan Wharton
By:___________________________
JONATHAN WHARTON
STATE BAR NO. 24075764

40
 ATTORNEY FOR APPELLANT,
TONDA HARRIS HELMS

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing has
been delivered to Robert G. Hindman, counsel for appellee, on this the 12th day of
February, 2015.
/s/ Jonathan Wharton

JONATHAN WHARTON

CERTIFICATE OF COMPLIANCE

I hereby certify that the Appellants Brief (as measured under Tex. R. App. P.
9.4(i)(1)) contains 7,872 words as counted by Microsoft WordPerfect on this the 12th
day of February, 2015.
/s/ Jonathan Wharton

JONATHAN WHARTON

41
 NO. 12-14-00280-CV
__________________________________________________________________

IN THE COURT OF APPEALS FOR THE TWELFTH DISTRICT, TYLER,
TEXAS
__________________________________________________________________

TONDA HARRIS HELMS
Appellant,
v.
MARY FRANCES SWANSEN
Appellee.
__________________________________________________________________

On Appeal from Cause No. 62,602-A
In the County Court at Law #2 in and for Smith County, Texas
Honorable Randall Lee Rogers, Presiding Judge
__________________________________________________________________

APPENDIX TO APPELLANT’S BRIEF
__________________________________________________________________

Final Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 1

Findings of Fact and Conclusions of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 2

42
TAB 1

43
 CAUSE NO. 62,602-A

MARY FRANCES SWANSEN §
Plaintiff, §
I
§
v. §
§
§
Deiendant §

FINAL JUDGMENT

A trial in this cause was commenced on June 23, 2014.

Plaintiff Mary Frances Swansen appeared in person and through her attorney of record,

Robert Hindman and announced ready for trial.

Defendant Tonda Harris Helms appeared in person and through her attorney of record,

Taylor J. Harris, and announced ready foi trial.

No jury having been requested by either party, all issues of law and fact were tried to the

Court.

The cou..rt finds that as a result of the existence and subsequent breach of the contract

existing between the Plaintiff and the Defendant, the Plaintiff sustained damages, and is

I
j
therefore entitled to the following judgment relief.
.!
I IT IS THEREFORE HEREBY ORDERED, ADJUDGED and DECREED that Plaintiff
l
l Mary Frances Swansen shall have and recover JUDGMENT against Defendant Tonda Harris
l
"'l Helms as foiiows: The transfer of the title to that certain park model home ( more specificallj'

l identified as that 2006 park CT home VIN #IA9BE36316AAPH23 l) which was effected as the

I
'~
result of the actions of the Defendant Tonda Harris Helms is set aside and it is ORDERED that

1
I Cause No. 62-602-A

I
Swansen \'S.. Helms
Final Judgment
Page 11
I Page 74
 the title to such park model trailer is hereby changed, reformed and should be reissued to Mary

Frances Swansen.

In light of the fee arrangement and contract between the Plaintiff and her counsei in

accordance with the testimony IT IS FURHTER ORDERED ADJUDGE AND DECREED that

such title of record as maintained by the State of Texas shall be reformed and reissued so as to

additionaliy reflect a lien in favor of such counsel, Rober-1 Hi11dti1an.

It is further ORDERED, ADJUDGED AND DECREED that the Plaintiff, her agents or

employees may enter upon the property of the Defendant Tonda Harris Helms as many times as

necessary to effectuate the removal of the said park model home, the disassembly and removal of

the attached patio to such park model home and the disassembly and removal of the nearby

carport, all of which are located on such real property. The storage building erected by the

Plaintiff shall remain as an attachment to the said real property and shall not be removed by the

Plaintiff or by her agents or employees.

In addition the court finds that the Plaintiff Mary Frances Swansen is enlille