Gooch v. American Sling Co., Inc.

• Decision Date: 29 June 1995
• Docket Number: No. 2-94-205-CV,2-94-205-CV
• Citation: 902 S.W.2d 181
• Parties: William C. GOOCH, Appellant, v. AMERICAN SLING COMPANY, INC., Appellee.
• Court: Texas Court of Appeals

Page 181

902 S.W.2d 181

William C. GOOCH, Appellant, v. AMERICAN SLING COMPANY, INC., Appellee.

No. 2-94-205-CV.

Court of Appeals of Texas Fort Worth.

June 29, 1995.

Richard E. McGary, Robert F. Jones, Jr., Arlington, for appellant.

Donald T. Smith, Philip H. Trew, Law Office of Donald T. Smith, P.C., Fort Worth, for appellee.

Before LIVINGSTON, DAUPHINOT and BRIGHAM, JJ.

OPINION

DAUPHINOT, Justice.

American Sling Co., Inc., Appellee, initially brought suit on a debt owed by William C. Gooch, Appellant. In a bench trial, the court found for Appellee and ordered Appellant to pay $4,282.42 for the debt and $3,754.74 in attorney fees. In seven points of error, Appellant complains that the trial court erred by finding that a guaranty agreement signed by Appellant was supported by consideration, that Appellant signed the guaranty voluntarily, and that Appellee was entitled to attorney fees. We affirm.

Appellant was President of Car Stackers, International, Inc. ("Car Stackers"). Car Stackers maintained a business relationship with Appellee, but had failed or delayed making payments to Appellee for goods sold over a period of time. In July 1993, Appellant signed a guaranty agreement that made him personally liable for the debt owed by Car Stackers. The guaranty stated that payment of the debt was due on or before August 1, 1993. When neither Car Stackers nor Appellant paid the debt by August 1, Appellee sent a demand letter to Appellant. Appellant sent a letter reaffirming his intent to pay, but the payment was never made. Appellee sued both Car Stackers and Appellant. The trial court found for Appellee.

STANDARDS OF REVIEW

All of Appellant's points of error address the sufficiency of the evidence at trial, and the related conclusions of law. The points of error allege that the evidence was established as a matter of law, that there was no evidence to support the findings of the trial court, that the trial court's findings were against the great weight and preponderance of the evidence, and that there was factually insufficient evidence to support findings of the trial court. All of these points of error were raised without addressing the appropriate burden of proof on the issues at the trial level. Because two of Appellant's points of error appear to confuse the appropriate standard of appellate review as applied to Appellant's burden of proof in the trial court, we shall, therefore, review the proper handling of sufficiency points of error.

LEGAL SUFFICIENCY POINTS

Legal sufficiency points are addressed as either "no evidence" or "matter of law" points. If the complaining party has the burden of proof at trial, then the error is to be addressed as a "matter of law" point. If the complaining party does not have the burden of proof, then the error is to be addressed as a "no evidence" point. Croucher v. Croucher, 660 S.W.2d 55 (Tex.1983); Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275 (Tex.App.--Amarillo 1988, writ denied).

In determining a "no evidence" point, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992); Orozco v. Sander, 824 S.W.2d 555, 556 (Tex.1992); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). If there is more than a scintilla of such evidence to support the finding, the claim is sufficient as a matter of law, and any challenges go merely to the weight to be accorded the evidence. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993).

A "no evidence" point of error may only be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or 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 of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. Juliette Fowler Homes, Inc. v. Welch Assoc., Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990); Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX.L.REV. 361 (1960). There is some evidence when the proof supplies a reasonable basis on which reasonable minds may reach different conclusions about the existence of the vital fact. Orozco, 824 S.W.2d at 556.

If an appellant is attacking the legal sufficiency of an adverse answer to a finding on which he had the burden of proof, the Texas Supreme Court has stated that the appellant must, as a matter of law, overcome two hurdles. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex.1991). First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. Second, if there is no evidence to support the fact finder's answer, then the entire record must be examined to see if the contrary proposition is established as a matter of law. Id.; Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989).

FACTUAL SUFFICIENCY POINTS

Like legal sufficiency, factual sufficiency points depend on who has the burden of proof. If the party attacking the adverse finding had the burden of proof, then he must show that the finding was against the "great weight and preponderance" of the evidence. If the party attacking the adverse finding did not have the burden of proof, then he must show that the evidence was insufficient to support the adverse finding. Croucher, 660 S.W.2d at 58; Raw Hide, 766 S.W.2d at 275.

An assertion that the evidence is "insufficient" to support a fact finding means that the evidence supporting the finding is so weak or that the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We are required to consider all of the evidence in the case in making this determination and, if reversing, to detail that evidence in the opinion. Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 29 (Tex.1993).

In reviewing a point of error asserting that an answer is "against the great weight and preponderance" of the evidence, we must consider and weigh all of the evidence, both the evidence that tends to prove the existence of a vital fact as well as evidence that tends to disprove its existence. Ames v. Ames, 776 S.W.2d 154, 158-59 (Tex.1989), cert. denied, 494 U.S. 1080, 110 S.Ct. 1809, 108 L.Ed.2d 939 (1990); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). So considering the evidence, if a finding is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the point should be sustained, regardless of whether there is some evidence to support it. Watson v. Prewitt, 159 Tex. 305, 320 S.W.2d 815, 816 (1959); In re King's Estate, 244 S.W.2d at 661.

HOLDING

Appellant's first and second points of errors complain of the findings of fact made by the trial court. Appellant's third point of error complains that the trial court erred in concluding that the guaranty was supported by consideration. Specifically, Appellant argues that the evidence established, as a matter of law, that there was no consideration given for the guaranty. Appellant argues, in the alternative, that the failure to find that there was no consideration given for the guaranty was against the great weight and preponderance of the evidence. Appellant also alleges that the there was no evidence and insufficient evidence to support the findings of the trial court.

Findings of fact entered in a case tried to the court are of the same force and dignity as a jury's answers to jury questions. 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 to support them by the same standards that are applied in reviewing the legal or factual sufficiency of the evidence supporting a jury's answer to a jury question. Arena v. Arena, 822 S.W.2d 645, 650 (Tex.App.--Fort Worth 1991, no writ); Raposa v. Johnson, 693 S.W.2d 43, 45 (Tex.App.--Fort Worth 1985, writ ref'd n.r.e.).

A guaranty agreement is a contract in which one party agrees to be responsible for the performance of another party even if he does not have direct control. A written contract presumes that there was consideration given for its execution. See Wright v. Robert & St. John Motor Co., 122 Tex. 278, 282, 58 S.W.2d 67, 69 (1933); Hargis v. Radio Corp. of America, Electronic Components, 539 S.W.2d 230, 232 (Tex.Civ.App.--Austin 1976, no writ). The burden of proof was on Appellant to show that there was a failure of consideration. Maykus v. Texas Bank & Trust Co., 550 S.W.2d 396, 398 (Tex.Civ.App.--Dallas 1977, no writ). Because Appellant had the burden of proof, it was not appropriate for him to allege that there was no evidence and insufficient evidence to support the fact finding. Accordingly, we overrule point of error two and will address points of error one and three.

Appellant and Appellee entered into the guaranty agreement independently of the transaction that resulted in the debt owed to Appellee. If a guaranty is entered into independently of the transaction that caused the obligation, then the guaranty must be supported by consideration independent of the obligation. Fourticq v. Fireman's Fund Ins. Co., 679 S.W.2d 562, 564 (Tex.App.--Dallas 1984, no writ). Consideration for a guaranty agreement usually consists of either the suffering of a detriment by the creditor or a benefit conferred on the primary debtor. Id.

Both Appellant's and Appellee's arguments rely on the trial testimony of James Fletcher, president of American Sling. Appellee argues that Fletcher's testimony that the intent of the guaranty agreement was to extend the due date of the past due invoices until August 1, 1993, demonstrates that Appellee...