O'Farrill Avila v. Gonzalez

• Decision Date: 06 May 1998
• Docket Number: No. 04-97-00234-CV,04-97-00234-CV
• Citation: 974 S.W.2d 237
• Parties: Jos Antonio O'FARRILL AVILA, Appellant, v. Luisa GONZALEZ, Appellee.
• Court: Texas Court of Appeals

Page 237

974 S.W.2d 237

Jos Antonio O'FARRILL AVILA, Appellant, v. Luisa GONZALEZ, Appellee.

No. 04-97-00234-CV.

Court of Appeals of Texas San Antonio.

May 6, 1998.

Rehearing Overruled June 11, 1998.

Richard R. Orsinger, San Antonio, William Lewis Sessions, Sessions & Sessions, L.C., San Antonio, for Appellant.

Victoria Valerga, San Antonio, Karl E. Hays, Law Offices of Karl E. Hays, San Antonio, for Appellee.

Before HARDBERGER, C.J., and RICKHOFF and DUNCAN, JJ.

OPINION ON APPELLANT'S MOTION FOR REHEARING

HARDBERGER, Chief Justice.

INTRODUCTION

Appellant's Motion for Rehearing is granted in part. This court's original opinion and judgment, issued February 27, 1998, are withdrawn and this opinion and judgment are substituted. In our original opinion, we affirmed the trial court's judgment on all points except the assessment of interest on appellate attorneys' fees. Specifically, with regard to the legal and factual sufficiency of the evidence to support the award of attorneys' fees, we held that appellant's points of error were waived. Because preservation of sufficiency points of error is not required in non-jury trials, we modify our opinion on rehearing to consider the merits of those claims relating to attorneys' fees.

This is an appeal from a breach of contract case. The trial judge found that appellant, Jos Antonio O'Farrill Avila (O'Farrill), had breached two contracts with appellee, Louisa Gonzalez-Chacon (Gonzalez). The court awarded Gonzalez $200,000 on the contract claims, plus attorneys' fees and fees for appeal to this court and to the supreme court. We affirm the judgment as modified.

FACTS

This lawsuit arises from a three-year domestic relationship between the parties, a relationship that has produced a daughter, a corporation, and a tangle of litigation, including a paternity suit, tort claims, contract claims, alter ego claims, and child support claims. Many of the issues have been resolved; some are still pending.

In the case before us, the trial judge was asked to consider the validity and effect of two agreements between the parties: a promise, written and signed by O'Farrill on July 5, 1994, to pay Gonzalez $5,000 per month, and an agreement between the two regarding the purchase of the home they shared in San Antonio. The trial court determined that both agreements reflected enforceable contracts.

The July 5 document, written and signed by O'Farrill in Mexico City, is a bare promise to make monthly payments to Gonzalez. The document makes no mention of duration of these payments or of any return promise made by Gonzalez. The trial court allowed extrinsic evidence on both issues. Gonzalez testified that, in exchange for the money, she had promised to live with the child in San Antonio and to remain home with her rather than seek employment. As for the duration of the agreement, Gonzalez admitted that the agreement was silent on the matter, but she testified that her understanding was that O'Farrill did not want his child raised by strangers, and the money therefore was a guarantee that Gonzalez would remain with the child throughout the formative years, until the child was settled in school. O'Farrill did not appear at trial to controvert this testimony.

The second agreement between the parties was to purchase a home in San Antonio. According to Gonzalez, she agreed to contribute $60,000 up front for the home, and O'Farrill agreed to make monthly payments on the remaining debt. As proof of this agreement, Gonzalez offered her own testimony and the loan documents for the home. These papers reflected only the agreement between the purchasers and the loan company. Gonzalez testified that she performed her part of the agreement fully, but that O'Farrill ceased making mortgage payments after less than two years, when Gonzalez initiated legal action against him. The bank holding the mortgage on the home has foreclosed on the property. Again, O'Farrill was not present at trial to present controverting testimony.

In eleven points of error, O'Farrill appeals the judgment against him, claiming that (1) there is legally or factually insufficient evidence to support the existence of the two contracts; (2) there is legally or factually insufficient evidence to support the finding that O'Farrill breached the agreements; (3) the trial court erred in admitting parol evidence to prove the contracts and their terms; (4) the trial court erred in upholding the Mexico City agreement despite want of consideration; (5) the evidence is legally or factually insufficient to support the award of $200,000; (6) the trial court erred in failing to make separate findings on each contract claim; (7) the evidence is legally or factually insufficient to support the amount of attorneys' fees awarded; (8) the evidence is legally or factually insufficient to support the amount of attorneys' fees awarded for appeals to this and the supreme court; (9) the trial court erred in awarding attorneys' fees when the plaintiff had not segregated fees for the contract claims from fees incurred on other, unsuccessful, claims between the parties; (10) the trial court erred in assessing interest on appellate attorneys' fees from the date of judgment rather than the date of perfection of the appeal or the date on which application for writ of error is filed; and (11) the trial court abused its discretion in granting the plaintiff judgment against the defendant.

POINTS OF ERROR ONE-SIX: THE CONTRACT CLAIMS

O'Farrill's first six points of error address the existence and breach of the agreements between the parties. Points of error one and two allege that the evidence is legally or factually insufficient to support a finding that the contracts existed or that they were breached. Points of error three and four address the admission of parol evidence to show consideration for and the duration of O'Farrill's promise to pay Gonzalez $5,000 per month. Point of error five alleges that the evidence is legally or factually insufficient to support the damages award.

Sufficiency Standards of Review

We will review fact findings in a bench trial for legal and factual sufficiency of the evidence by the same standards used in reviewing the evidence supporting a jury's verdict. See W. Wendell Hall, Revisiting Standards of Review in Civil Appeals, 24 ST. MARY'S L.J. 1045, 1145 (1993).

Conclusions of law are not binding on an appellate court, which is free to make its own legal conclusions. Muller v. Nelson Sherrod & Carter, 563 S.W.2d 697, 701 (Tex.Civ.App.--Fort Worth 1978, no writ). Conclusions of law are reviewable as a matter of law, but not on the grounds of the sufficiency of their supporting evidence. Mercer v. Bludworth, 715 S.W.2d 693, 697 (Tex.App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.), overruled on other grounds, Shumway v. Horizon Credit Corp., 801 S.W.2d 890 (Tex.1991).

To test the legal sufficiency of evidence supporting a fact finding, this court must view only the evidence supporting the finding and all inferences to be drawn from that evidence. All contrary evidence and inferences must be disregarded. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). A legal sufficiency challenge will be sustained when (1) there is a complete lack 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 established conclusively the opposite of a vital fact. Cecil v. Smith, 804 S.W.2d 509, 510 n. 2 (Tex.1991).

To test the factual sufficiency of the evidence supporting a fact finding, this court must view and weigh all the evidence and will reverse only if the evidence supporting the finding is so weak that the finding is manifestly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

It is clear, then, that the absence of O'Farrill's testimony on the contracts does not guarantee success for Gonzalez on appeal. To be legally sufficient, the evidence presented by her must be competent and admissible and support a viable legal theory. The evidence presented, even if uncontroverted, could conceivably fail a factual sufficiency review if sufficiently weak.

Consideration

O'Farrill claims that the promise to pay Gonzalez $5,000 per month cannot be enforced because it has not been proven as a contract. A contract, O'Farrill correctly asserts, must be supported by consideration, and this agreement recites no consideration. Gonzalez testified at trial that she gave consideration for O'Farrill's promise: her promise to remain in San Antonio and to stay at home with the couple's daughter. Gonzalez's testimony, coupled with the fact that she did remain in San Antonio with the child, provides some evidence to support this claim. O'Farrill did not offer any contrary evidence. We do not find Gonzalez's evidence so weak as to render the result wrong or manifestly unjust result.

O'Farrill counters that this evidence is legally insufficient, because Gonzalez is barred by the parol evidence rule from introducing extrinsic evidence regarding consideration.

When parties have entered a valid agreement that embodies all the terms of that agreement, parol evidence may not be used to show inconsistent prior or contemporaneous agreements. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 32 (1958). This rule does not preclude enforcement of prior or contemporaneous agreements that are not inconsistent with or do not vary or contradict the express or implied terms of the agreement. Id. 317 S.W.2d at 33.

The document presented to the trial court is, on its face, no more than a unilateral promise to pay, which is not an enforceable contract. See Federal Sign v. Texas Southern Univ., 951 S.W.2d 401, 409 (Tex.1997). Gonzalez argues that extrinsic evidence is allowed to prove that mutual promises were exchanged. We agree. "The rule is...