C. Michael Orr and Lois W. Orr v. Thomas C. Schooler

Affirmed and Memorandum Opinion filed March 9, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00620-CV
C. MICHAEL ORR AND LOIS W. ORR, Appellants
V.
THOMAS C. SCHOOLER, Appellee
On Appeal from the County Court at Law
Washington County, Texas
Trial Court Cause No. 2018-014
MEMORANDUM OPINION
Appellants C. Michael Orr and Lois W. Orr appeal from the final judgment
in favor of appellee Thomas C. Schooler signed following a one-day bench trial.
Finding no error, we affirm the trial court’s final judgment.
BACKGROUND
Appellants contracted to purchase a twenty-acre property in Washington
County from the James Gray Revocable Living Trust (the “Trust”). Schooler
resided on the property and he was also a beneficiary under the Trust. Schooler
was not a party to the real estate purchase contract.
The contract included a termination option. This option gave appellants the
option to terminate the contract “within 3 days after the effective date of the
contract.” The option also included the following provision: “[t]ime is of the
essence for this paragraph and strict compliance with the time for performance is
required.”
The contract provided that, among other items located on the property,
appellants were purchasing “all outdoor art and furniture on [the] property.” The
contract initially provided for a leaseback of the property to the Trust for a period
of two weeks after the closing. The contract also provided that “at [the] time of
[the] termination of [the] lease-back[,] all remaining personal items, furniture [and]
art will become property of owner.” The contract, however, was subsequently
amended. The amendment shortened the leaseback period to one week after the
closing date. It also provided that the outdoor sculpture Poetry Corner and three
metal chairs would be left and become the property of appellants. The amendment
further provided that appellants would give Schooler sixty days from the closing
date to remove four other large pieces of outdoor sculpture, the Geode, Walking
Man, the Seven Deadly Sins, and the Granite Canyon, from the property.1 The
amendment also required that appellants “must agree on days to remove these
items in order to have correct weather conditions.” Finally, the amendment
provided that Schooler was “personally responsible for any damage to the property
due to removal of said structures.” The amendment did not have a time is of the
essence clause. It is undisputed that the Seven Deadly Sins sculpture was removed
1
The Granite Canyon weighs approximately 2 tons. The Geode is approximately seven-
feet tall and also very heavy.
2
before the closing occurred on May 2, 2016 and the sixty-day period ended on July
1, 2016.
The sixty days following the closing were a period when Washington
County experienced historic rainfall totals and historic flooding. This extreme
weather impacted Schooler’s efforts to remove the three outdoor sculptures
remaining on the property. During that period, Schooler attempted to coordinate
with appellants on dates to remove the sculptures. According to Schooler, both
parties agreed that it was best to wait until the rainy weather had improved. Once
the weather improved and the ground started to dry out, Schooler contacted
appellants and was told the time was not good because they were conducting grass
cutting and baling operations on the property. They all agreed to delay moving the
artwork because appellants were having work done on the house and it would
continue “for the next two months.” According to Schooler, Mr. Orr told him that
he could take his time because Mr. Orr did not want the property damaged.
Finally, on July 15, 2016, Schooler called Mr. Orr and he agreed Schooler could
enter the property the next day to remove the Geode sculpture. The two agreed on
a 1:30 p.m. meeting time.
Schooler and his contractor arrived at the property the next day about one in
the afternoon only to find appellants were not there. Schooler had hired
contractors and heavy equipment to move the Geode, so they went ahead and
removed it from the property that day. The move occurred in daylight and it took
about two to three hours.
About a week later, the sheriff showed up at Schooler’s residence to
investigate the removal of the Geode sculpture. After talking to Schooler, the
sheriff determined that the matter was a civil dispute and left. Appellants filed suit
against Schooler asserting a claim under the Texas Theft Liability Act. See Tex.
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Civ. Prac. & Rem. Code Ann. § 134.001, et seq. Appellants subsequently added
claims seeking declaratory and injunctive relief. Schooler filed an answer as well a
counterclaim asserting claims for breach of contract and declaratory relief. The
case went to trial before the bench. At the conclusion of the trial, the trial court
found in favor of Schooler. It signed a final judgment that denied all relief to
appellants. It also declared that the four sculptures listed above were the property
of the Trust and that Schooler was authorized to retrieve the last two sculptures
from the property. Finally, the judgment awarded Schooler his attorney’s fees.2
The trial court also signed findings of fact and conclusions of law. Among
its findings were the following: (1) appellants gave no consideration for the
sculptures; (2) Washington County experienced “historic rainfall totals and
devastating flooding” during the sixty days following the closing and this delayed
Schooler’s ability to remove three of the large sculptures; (3) Schooler was
required to coordinate removal of the sculptures with appellants and needed the
approval of appellants before he could enter the property to remove the sculptures;
(4) Schooler attempted to coordinate removal of the sculptures but appellants
would not schedule a date until after the sixty-day period had expired;3 (5)
Schooler coordinated with Mr. Orr in mid-July 2016 for the removal of the Geode
sculpture and it was removed on July 16, 2016; and (6) Schooler has not removed
2
The parties agreed on the amount of each side’s attorney’s fees.
3
The trial court’s finding provides: “Defendant attempted to coordinate with Plaintiff for
the removal of the remaining artwork during the sixty (60) day period, but Defendant would not
schedule a date until after the sixty (60) [day] period expired.” The trial court’s reference to
“Defendant” not scheduling a date until after the sixty-day period expired is clearly a
typographical mistake because the contract establishes that it was appellants who had the
contractual authority to approve the scheduling of any entry onto the property by Schooler to
remove the sculptures. We therefore correct the finding to show that it was appellants/plaintiffs
who would not approve a date during the sixty-day period. See 701 Katy Building, L.P. v. John
Wheat Gibson, P.C., No. 05-16-00193-CV, 2017 WL 3634335, at *3 n.2 (Tex. App.—Dallas,
Aug.24, 2017, pet. denied) (mem. op.) (correcting typographical mistake in fact finding on
appeal).
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the two sculptures remaining on the property due to appellants’ actions. The trial
court then made the following conclusions of law: (1) appellants “gave no
consideration for the artwork known as the large Geode, Walking Man, the Seven
Deadly Sins, and Granite Canyon;” (2) “time was not of the essence” for the
removal of the sculptures from appellants’ property; (3) the four sculptures “are the
property of the James Gray Revocable Living Trust;” and (4) Schooler was the
prevailing party and was therefore entitled to recover his attorney’s fees pursuant
to section 134.005 of the Texas Civil Practice and Remedies Code. This appeal
followed.
ANALYSIS
Appellants raise six issues challenging the trial court’s judgment. We
address the first, second, third, and fifth issues together. In these issues, appellants
argue that the trial court erred when it granted judgment in favor of Schooler and
denied them relief. Appellants specifically assert that the trial court erred when it
(1) determined that they did not give any consideration for the four sculptures; (2)
ruled that the Trust owned the four outdoor sculptures, and that Schooler had the
right to remove the sculptures; and (3) concluded that time was not of the essence
for the removal of the outdoor sculptures from the property. In their fourth issue
appellants argue that the trial court erred when it found that they did not coordinate
the removal of the outdoor sculptures in good faith. We need not address this issue
because the bad faith finding is immaterial to the trial court’s judgment. Finally,
because we have rejected appellants’ arguments in their consolidated issues and
conclude that the trial court did not err in rendering judgment in favor of Schooler,
we need not address appellants’ sixth issue because it was contingent on a reversal
of the trial court’s determination that the Trust owned the four outdoor sculptures.
I. Standard of review and applicable law
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When a trial court makes specific findings of fact and conclusions of law
following a bench trial and a reporter’s record is before the appellate court, the
findings will be sustained if there is evidence to support them, and the appellate
court will review the legal conclusions drawn from the facts found to determine
their correctness. Trelltex, Inc. v. Intecx, L.L.C., 494 S.W.3d 781, 789 (Tex.
App.—Houston [14th Dist.] 2016, no pet.). Findings of fact have the same force
and dignity as a jury’s verdict and are reviewable under the same standards of legal
and factual sufficiency. Foley v. Capital One Bank, N.A., 383 S.W.3d 644, 646
(Tex. App.—Houston [14th Dist.] 2012, no pet.).
A party attacking the legal sufficiency of an adverse finding on an issue on
which he had the burden of proof must demonstrate that the evidence conclusively
establishes all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46
S.W.3d 237, 241 (Tex. 2001). When a party attacks the legal sufficiency of an
adverse finding on an issue on which it did not have the burden of proof, it must
demonstrate on appeal that there is no evidence to support the adverse finding.
Univ. Gen. Hosp., L.P. v. Prexus Health Consultants, LLC, 403 S.W.3d 547, 550
(Tex. App.—Houston [14th Dist.] 2013, no pet.). In conducting a legal sufficiency
review, we consider the evidence in the light most favorable to the appealed
finding and indulge every reasonable inference that supports it. Id. at 550–51
(citing City of Keller v. Wilson, 168 S.W.3d 802, 821–22 (Tex. 2005)). The
evidence is legally sufficient if it would enable reasonable and fair-minded people
to reach the decision under review. Id. at 551. This Court must credit favorable
evidence if a reasonable trier of fact could and disregard contrary evidence unless a
reasonable trier of fact could not. Id. The trier of fact is the sole judge of the
witnesses’ credibility and the weight to be given their testimony. Id. If there is
more than a scintilla of evidence supporting a finding of fact, we will overrule a
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legal sufficiency challenge. CA Partners v. Spears, 274 S.W.3d 51, 69 (Tex.
App.—Houston [14th Dist.] 2008, pet. denied).
When a party attacks the factual sufficiency of an adverse finding on which
he bore the burden of proof, he must establish that the finding is against the great
weight and preponderance of the evidence. Dow Chemical Co., 46 S.W.3d at 242.
When a party challenges the factual sufficiency of the evidence supporting a
finding on which it did not have the burden of proof, we may set aside the finding
only if it is so contrary to the overwhelming weight of the evidence as to be clearly
wrong and unjust. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407
(Tex. 1998); Nip v. Checkpoint Sys., Inc., 154 S.W.3d 767, 769 (Tex. App.—
Houston [14th Dist.] 2004, no pet.). In reviewing the factual sufficiency of the
evidence, we must examine the entire record, considering the evidence both in
favor of and contrary to the challenged finding. See Ellis, 971 S.W.2d at 406–07;
Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The amount of evidence
necessary to affirm is far less than the amount necessary to reverse a judgment.
GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 616 (Tex. App.—
Houston [14th Dist.] 2001, pet. denied).
This Court is not a factfinder. Ellis, 971 S.W.2d at 407. Instead, the trier of
fact, in this case the trial court, is the sole judge of the credibility of the witnesses
and the weight to afford their testimony. Pascouet, 61 S.W.3d at 615–16.
Therefore, we may not pass upon the witnesses’ credibility or substitute our
judgment for that of the trial court, even if the evidence would support a different
result. Id. If we determine that the evidence is factually insufficient, we must
detail the evidence relevant to the issue and state in what regard the contrary
evidence greatly outweighs the evidence in support of the challenged finding; we
need not do so when we affirm. See Gonzalez v. McAllen Med. Ctr., Inc., 195
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S.W.3d 680, 681 (Tex. 2006) (per curiam).
We review a trial court’s conclusions of law de novo. Trelltex, Inc., 494
S.W.3d at 790. When performing a de novo review, we exercise our own
judgment and redetermine each legal issue. Id. To make this determination, we
consider whether the conclusions are correct based on the facts from which they
are drawn. Id.In construing a written contract, an appellate court’s primary goal is to
ascertain the true intentions of the parties as expressed in the instrument. J.M.
Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). When construing a
contract, we give contract terms their plain, ordinary, and generally accepted
meanings unless the contract itself shows them to be used in a technical or
different sense. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex.
2005). We construe contracts from a utilitarian standpoint, bearing in mind the
particular business activity sought to be served, and we avoid, when possible and
proper, a construction that is unreasonable, inequitable, or oppressive. Frost Nat’l
Bank v. L & F Distrib., Ltd., 165 S.W.3d 310, 312 (Tex. 2005). Courts are not
authorized to rewrite agreements to insert provisions parties could have included or
to imply terms for which they have not bargained. Tenneco, Inc. v. Enterprise
Prod. Co., 925 S.W.2d 640, 646 (Tex. 1996). In other words, courts cannot make,
or remake, contracts for the parties. HECI Exploration Co. v. Neel, 982 S.W.2d
881, 888 (Tex. 1998). That is because it is not a court’s role to protect the parties
from their own agreements. Nat’l Prop. Holdings, L.P. v. Westergren, 453 S.W.3d
419, 425 (Tex. 2015).
For a contract to be valid, it must be supported by consideration. Eurecat
US, Inc. v. Marklund, 527 S.W.3d 367, 387 (Tex. App.—Houston [14th Dist.]
2017, no pet.). A contract that lacks consideration is unenforceable. Hall v.
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Hubco, Inc., 292 S.W.3d 22, 28 (Tex. App.—Houston [14th Dist.] 2006, pet.
denied). Whether valid consideration exists is a question of law. Id.Consideration can be either a benefit to the promisor or a detriment to the
promisee. Id.II. The trial court did not err when it granted judgment in favor of
Schooler and denied appellants’ requested relief.
Appellants initially argue that the trial court erred when it concluded that
they did not give any consideration for the four sculptures. The agreement at issue
here includes both the original Farm and Ranch Contract as well as an amendment.
Both the original contract and the amendment must be supported by consideration.
See Walden v. Affiliated Computer Servs., Inc., 97 S.W.3d 303, 319 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied) (“A promise to fulfill a pre-existing
obligation cannot serve as new consideration.”). The initial Farm and Ranch
Contract did state that the transaction included “all outdoor art.” That, however, is
not the totality of the agreement we are called upon to construe in this case because
the parties amended the original contract. The amendment expressly carved out
four of the outdoor sculptures from the transaction by allowing Schooler, on behalf
of the Trust, to remove them from the property. The amendment specifically
provided: “Tommy Schooler will agree to leave Poetry Corner sculpture and three
metal chairs in place and these items will become the property of the Buyers;
Buyers, will then give him sixty days from closing date to remove the large Geode,
Walking Man, the Seven Deadly Sins, and Granite Canyon.” The parties also
agreed in the amendment to reduce the lease back period from the original two
weeks to a single week. We conclude the amendment was supported by
independent consideration. Hall, 292 S.W.3d at 228 (stating that consideration can
be either a benefit to the promisor or a detriment to the promisee). As a result, the
amendment removed the four named outdoor sculptures from the consideration for
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the transaction and the trial court did not err when it reached that conclusion.
Additionally, the plain language of the amendment supports the trial court’s
conclusion that the four named outdoor sculptures remained the property of the
Trust and that Schooler had the authority to remove the sculptures from the
property.
Finally, appellants argue that the trial court erred when it determined that
time was not of the essence in the removal of the four named outdoor sculptures
from the property within sixty days of the closing date. We disagree.
Ordinarily, time is not of the essence in the performance of a contract.
Kennedy Ship & Repair, L.P. v. Pham, 210 S.W.3d 11, 19 (Tex. App.—Houston
[14th Dist.] 2006, no pet.). Additionally, a date stated for performance in the
contract does not mean time is of the essence. Id. Instead, the contract must
expressly make time of the essence or there must be something in the nature or
purpose of the contract and the circumstances surrounding it making it apparent
that the parties intended that time be of the essence. Id. Unless the contract
expressly makes time of the essence, the issue is a fact question to be resolved by
the factfinder. Id.We conclude time was not of the essence in the removal of the outdoor
sculptures for the following reasons. First, the agreement at issue here did not
expressly make time of the essence for the sixty-day removal period. Id. The
parties did, however, include a time of the essence provision in the option contract
establishing they knew how to do so when such a clause was desired. We cannot
ignore the fact they chose not to include such a provision in the amendment. See
Bennett v. Commission for Lawyer Discipline, 489 S.W.3d 58, 68 (Tex. App.—
Houston [14th Dist.] 2016, no pet.) (stating that courts are not authorized to rewrite
agreements to insert provisions into contract that parties could have included but,
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for whatever reason, chose not to include). The fact appellants may now wish they
had included such a provision does not authorize this court to rewrite the
agreement in the guise of construing it. See Yzaguirre v. KCS Res., Inc., 53
S.W.3d 368, 374 (Tex. 2001) (“We will not now rewrite this lease’s plain terms to
give the Royalty Owners the benefit of a bargain they never made.”). Second, the
other language of the amendment establishes that the parties did not consider time
of the essence. This language includes appellants reserving the right to approve
entry onto the property for removal of the outdoor sculptures and the language
imposing liability on Schooler for any damage caused by the removal of the
outdoor sculptures. Both indicate a decision by the parties to await the perfect time
for the removal of such large outdoor artwork rather than a desire to accomplish
the removal regardless of the consequences within an arbitrarily set amount of
time. We hold the trial court did not err when it concluded that time was not of the
essence in the removal of the outdoor sculptures. We overrule appellants’ first,
second, third, and fifth issues.
Appellants argue in their fourth issue that the trial court erred when it found
that they “did not coordinate removal of the artwork with [Defendant] in good
faith.” The trial court declared in its judgment that the outdoor sculptures
belonged to the Trust based on its interpretation of the agreement between the
parties. In addition, the trial court awarded attorney’s fees to Schooler based on
the Texas Theft Liability Act which provides that “each person who prevails in a
suit under this chapter shall be awarded court costs and reasonable and necessary
attorney’s fees.” Tex. Civ. Prac. & Rem. Code Ann. § 134.005. Neither depends
on the trial court’s bad faith finding. Accordingly, we conclude that we need not
reach this issue because this finding is immaterial to the trial court’s judgment. See
Tex. R. App. P. 47.1; Arriaga v. Cartmill, 407 S.W.3d 927, 931 (Tex. App.—
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Houston [14th Dist.] 2013, no pet.) (disregarding trial court’s fact finding because
it was immaterial to the trial court’s judgment).
Finally, appellants assert that the trial court erred when it awarded Schooler
his attorney’s fees pursuant to section 134.005 of the Texas Civil Practice and
Remedies Code. This issue was contingent on this court reversing the trial court’s
determination that the outdoor sculptures belonged to the Trust and that it had the
legal right to remove them. Because we have affirmed the trial court, we need not
reach this issue. See Tex. R. App. P. 47.1.
CONCLUSION
Having overruled all of appellants’ issues necessary to resolve this appeal,
we affirm the trial court’s final judgment.
/s/ Jerry Zimmerer
Justice
Panel consists of Chief Justice Christopher and Justices Jewell and Zimmerer.
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