AFFIRMED and Opinion Filed December 30, 2020 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-19-01150-CV ANNELLE R. JOHNSON, M.D., Appellant V. SHERMAN MD PROVIDER, INC., Appellee On Appeal from the 59th Judicial District Court Grayson County, Texas Trial Court Cause No. CV-17-1541 MEMORANDUM OPINION Before Chief Justice Burns, Jus tice Carlyle, and Justice Browni ng Opinion by Justice Browning Annelle R. Johnson, M.D.’s December 17, 2020 motion for reheari ng is denied. On the Court’s own motion, we withdraw our opinion iss ued December 2, 2020 and vacate our judgment of that date. The following is no w the opinion of the
Court. Annelle R. Johnson, M.D., appeals the trial court’s judgment in favor of Sherman MD Provider, Inc. on Sherman’s breach of contract claim . In five issues, Johnson argues that Sherman’s cau se of action is barred by the Covenants Not to Compete Act, that the contractual agreement alleged by Sherman was not supported–2– by valid consideration, that Sher man failed to prove the elemen ts of offer and acceptance, that Johnson has been harmed by the trial court’s f ailure to file findings of fact and conclusions of law, and that the trial court should not have rendered judgment against Johnson for appellate attorney’s fees. We aff irm the trial court’s judgment. In September 2017, Sherman file d its original petition alleging the following facts: Sherman and Johnson entered into a physician employment agreement In January 2015, under which Johnson would provide professional me dical and administrative services for Sherman. Section 8.2 of the employ ment agreement contained a covenant not to comp ete. Section 8.3.2 provided th e following buy-out provision: 8.3.2 Buy-Out Option. Provide r may be released from the noncompetition provisions contained in Section 8.2 upon payment to Company of the Buy-Out Price pr ior to a breach by Provider. If Provider wishes to exercise the Buy-Out Option, Provider shall provide Company with a written notice of i ntent to exercise the Buy-Out Option. As consideration for the Company’s agreement to release Provider from the non-competiti on provisions of Section 8.2, Pr ovider shall pay Company an amount e qual to the Provider’s gross compensation from Company (as dete rmined by W-2) for the twelve month period immediately preceding the last date of employment or, if Provider is employed with Compa ny for less than twelve (12) mon ths, an amount equal to Provider’s ave rage monthly compensation time s twelve (12). Such amount shall be paid by Provider to Company i n full no later than five (5) business days following the date Provide r gives notice of intent to exercise the Buy-Out Option. Provider hereb y agrees and acknowledges that the Buy-Out Price is a fair and reasonabl e method for Company’s agreement to release Provider from the non

competition provision of this Agreement and it is intended to f airly compensate Company for lost rev enues and other damages to–3– Company’s business that would occur if Provider were allowed to compete with Company in t he Prohibited Territory. In early 2017, Sherman was negotiating an asset purchase and sa le agreement under which Baylor Scott & White Health Texas Provider Network (Baylo r) would purchase Johnson’s family practice group from Sherman. On Febr uary 14, 2017, Johnson gave Sherman notice that s he intended to terminate the employment agreement, effective June 15, 2017. Because Johnson was enteri ng into an employment relationship with Baylor, she wanted to extend the t erm of the employment agreement and exercise her right under the buy-out o ption. As a result, on June 2, 2017, Sherman and Johnson entered into a second amen dment to the employment agreement under which Johnson exercised the buy-out option, with full payment of $104,650 due the earlier of September 15, 2017, or t he date of the closing of the Baylor transaction. Sherman’s petition alleged Johnson breached the second amendment by failing to pay the $104, 650. At a bench trial in May 2019, J ohnson testified she signed the second amendment and read and underst ood it before she signed it. Joh nson testified she understood that the second amendm ent deleted the termination wi thout cause provision contained in her original contract. Johnson agreed t hat the second amendment constituted written no tice of her exercise of the buy out provision under section 8.3.2 of her employmen t agreement. Johnson also testif ied she understood the buy-out provision required he r to give written notice and p ay the buy-out price within five days of giving notice, but that the second amendmen t provided her–4– “approximately or close to 90 days of time to pay the buyout.” Johnson further testified she signed the second amendment “a couple of weeks af ter” she signed her contract with Baylor. Under her contract with Baylor, Johnson would have received a $50,000 salary advance and a $30, 000 signing bonus when she b egan her employment with Baylor on Septembe r 18. The evidence further i ndicated that, on September 12, Johnson to ld a Sherman representative that she “w as not going to go forward with entering into practice with Baylor.” One or two d ays later, the Sherman representative asked Johnson to pay the buy-out, but Johnson re fused. On August 2, 2019, the trial court entered judgment awarding Sh erman attorney’s fees and $104,650 in act ual damages. This appeal fo llowed. In her first issue, Johnson argues “Sherman’s cause of action is barred by the Covenants Not to Compete Act, wh ich preempts all remedies not i ncluded in the Act for actions to enforce covenants not to compete.” In making th is argument, Johnson characterizes Sherman’s cause of action as “an action to enforc e a covenant not to compete.” Our review of the record shows the underlying case was based o n Sherman’s breach of contract claims and was not an action to enforce a co venant not to compete. Sherman’s claims against Johnson focused on Johnson’s breach of the second amendment to the employment contract. There is no evidence in the record that Johnson attempted to compete with Sherman or that Sherman sough t to prevent–5– Johnson from competing. Under thes e circumstances, we conclude Johnson’s first issue lacks merit. In her second issue, Johnson argue s the second amendment was no t supported by consideration. A modification to a contract must itself be supported by consideration to be valid. Dupree v. Boniuk Interests, Ltd. , 472 S.W.3d 355, 367– 68 (Tex. App.—Houston [1st Dist.] 2015, no pet .); see Hathaway v. Gen. Mills, Inc. , 711 S.W.2d 227, 228 (Tex. 1986) (“P arties have the power to mod ify their contracts. A modification must satisfy the elements of a contract: a meeti ng of the minds supported by consideration.”). C onsideration may consist of a benefit that accrues to one party, or, alternatively, a detriment incurred by the ot her party. Walden v. Affiliated Computer Servs., Inc. , 97 S.W.3d 303, 315 (Tex. App.—Houston [14th Dist.] 2003, pet. denied); see Roark v. Stallworth Oil & Gas, Inc. , 813 S.W.2d 492, 496 (Tex. 1991) (“Consideration is a present exchange bargained for in return for a promise. It consists of either a benefit to the promisor or a detriment to the promisee. The detriment must induce the making of the promise, and the pr omise must induce the incurring of the detriment.”). A promise to fulfill a pre- existing obligation cannot serve as new consideration for an amendment to a contract. Walden , 97 S.W.3d at
319. Johnson argues that, because the second amendment imposed no n ew obligations regarding release of the covenant not to compete, “ such a commitment falls squarely within the preexisting duty rule.” Johnson also argues Sherman failed–6– to prove that the covenant not to compete was enforceable and, therefore, Sherman did not “show that it relinquished the right to enforce the cov enant.” Finally, Johnson argues there was no “extension of an ‘employment agreem ent’” because, in order for this Court to find that Johnson agreed to pay $104,65 0 in exchange for the extension of the employment agre ement, we would have to find th at Johnson agreed to pay back the $31,835.30 that Sherman paid her during the ext ended term of employment plus an additional $72,814.70. Johnson argues the s econd amendment limits the applicability of the $104,650 to the provisions of t he covenant not to compete and does not associate that payment with the extension of the employment agreement. Sherman agrees that, if the buy-out provision was by itself, it would need separate consideration. However, Sherman points out that, unde r the second amendment, the term of the emplo yment agreement was extended un til the earlier of September 15, 2017 or the date of the closing of the Baylor tra nsaction, and this was not a pre-existing obligation. Moreover, under the terms of th e second amendment, Sherman gave up its right to terminate Johnson’s employment wit hout cause. Sherman characterizes the second amendment as “analogous to a s ettlement agreement”: rather than disputing the enforceability of the non -compete, the applicability of the non-compete to the work Johnson intended t o perform for Baylor, or the buy-out price after the termination of the emplo yment agreement,–7– Johnson and Sherman agreed that Johnson would exercise the buy- out option and pay a buy-out price of $104,650. The record shows Johnson had alre ady signed her contract with B aylor “a couple of weeks” before the sec ond amendment. The second amend ment eliminated Sherman’s right to terminate Johnson’s employment without cause and effectively extended Johnson’s employment until the date of the closing of the Baylor transaction. At trial, Johnson agreed that the second amendmen t constituted written notice of her exercise of the buyout provision under section 8. 3.2 of her employment agreement. Johnson testified she understood the buy-out provis ion required her to give written notice and pay the buy-out price within five days of giving notice, but the second amendment provided he r “approximately or close to 90 days of time to pay the buyout.” Under these circumstances, we conclude the tr ial court properly determined that the second amen dment was supported by considera tion. See Hathaway , 711 S.W.2d at 228; Dupree , 472 S.W.3d at 367–68. We overrule Johnson’s second issue. In her third issue, Johnson argues that Sherman failed to prove the elements of offer and acceptance and therefore did not prove the existen ce of a contract that obligated Johnson to pay $104,650. Specifically, Johnson argue s the employment agreement “unambiguously calls for a unilateral contract,” the second amendment “merely modified the underlying contract,” and there was no “me eting of the minds” between all parties on the te rms of the modification.–8– To prove contract formation, a party must prove, among other el ements, an offer and acceptance and a meeti ng of the minds on all essentia l elements. Lanier v. E. Foundations, Inc. , 401 S.W.3d 445, 459 (Tex. App.— Dallas 2013, no pet.). For there to be an offer which may ripen into a contract by simple acceptance, the offer must be reasonably definite in its terms and must sufficiently cover the essentials of the proposed transaction so that, with an expression of assent, there will be a complete and definite agreement on all essential details. Id. The term “meeting of the minds” refers to the parties’ mutual understanding and asse nt to the expression of their agreement. Id. To create an enforceable contract, the minds of the parties must meet with respect to the subject matter of the agreement a nd all its essential

terms. Id. The parties must agree to the same thing, in the same sense, at the same time. Id. Here, Johnson testified she signe d the second amendment and rea d and understood it before she signed it. As already discussed, John son had already signed a contract with Baylor when she signed the second amendment, an d the second amendment deferred payment of t he buy-out price until the deal with Baylor closed. Further, we have already determ ined the second amendment was su pported by consideration. Based on our review of the record, we conclude Sherman established the elements of offer and acceptance. See id. We overrule Johnson’s third issue. In her fourth issue, Johnson argue s she has been harmed by the trial court’s failure to file findings of fact and conclusions of law. When properly requested, the–9– trial court has a mandatory duty to file findings of fact. T EX

. R. C IV

. P. 296, 297; Landerman v. State Bar of Texas , 247 S.W.3d 426, 430–31 (Tex. App.—Dallas 2008). The purpose of rule 296 is to give a party the right to findings of fact and conclusions of law following a conventional bench trial on the merits. Willms v.
Ams. Tire Co. , 190 S.W.3d 796, 801 (Tex. App.—Dallas 2006, pet. denied). I f the trial court fails to file findi ngs of fact and conclusions of l aw after a proper request, the failure is presumed harmful unless the record affirmatively shows the complaining party suffered no injury. Cherne Indus., Inc. v. Magallanes , 763 S.W.2d 768, 772 (Tex.1989); Willms , 190 S.W.3d at 801. Generally, an appellant is presumed harmed if, under the circum stances of the case, he has to guess at the reason the trial court ruled again st him. Willms , 190 S.W.3d at 801–02. However, “fact findings are not necessary wh en the matters in question are not disputed.” Barker v. Eckman , 213 S.W.3d 306, 310 (Tex. 2006). Accordingly, “where the facts are undisputed and the only matte rs presented on appeal are legal issues to be reviewed de novo, the failure to file findings of fact and conclusions of law is harmless error.” Rollins v. Am. Exp. Trav el Related Servs. Co. , 219 S.W.3d 1, 5–6 (Tex. App.—Hous ton [1st Dist.] 2006, no pet.)

. Here, Sherman alleged only a cause of action for breach of cont ract, and the trial court’s judgment awarded Sherman $104,650 on its claim of breach of contract. The judgment also indicated it ruled against Johnson because sh e “failed to introduce any evidence or sufficient evid ence supporting the required ele ments of her–10– affirmative defenses.” Under th ese circumstances, we conclude Johnson was not left to guess at the reason the tr ial court ruled against her, and she was not harmed by the failure of the trial court to file findings of fact and conclusions of law. See
Eckman , 213 S.W.3d at 310; Willms , 190 S.W.3d at 801–02. We overrule Johnson’s fourth issue. In her fifth issue, Johnson argues the trial court should not h ave rendered judgment against her for appellate attorney’s fees. The reason s Johnson gives for error in the award of attorney’s fees all depend on her success on appeal in showing: 1. this case comes within the purview of the Covenants Not to C ompete Act, which preempts an award of attorney’s fees, and 2. there is no valid contract to support the award. Because we have determ ined this case does not involve a covenant not to compete, and that a valid contract existed between the parties, we conclude Johnson’s fifth issue presents no basis for reversing the award of attorney’s fees. Accordingly, we overrule Johnson’s fifth issue. We affirm the trial court’s judgment.

191150F.P05 /John G. Browning/ JOHN G. BROWNING JUSTICE–11– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ANNELLE R. JOHNSON, M.D., Appellant

No. 05-19-01150-CV V. SHERMAN MD PROVIDER, INC., Appellee On Appeal from the 59th Judicial District Court, Grayson County, Texas Trial Court Cause No. CV-17-1541. Opinion delivered by Justice Browning. Chief Justice Burns and Justice Carlyle participating.
In accordance with this Court’ s opinion of this date, the judg ment of the trial court is AFFIRMED

. It is ORDERED that appellee SHERMAN MD PROVIDER, INC. recover its costs of this appeal from a ppellant ANNELLE R . JOHNSON, M.D

.. Judgment entered December 30, 2020.