1... See Tex. R. App. P. 47.4.

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-08-356-CV

GARY EARL WALKER APPELLANT

V.

SOUTHWEST BASKETBALL, LLC APPELLEES

AND NBDL FORT WORTH, LLC

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FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant Gary Earl Walker appeals a take-nothing judgment in favor of

appellees Southwest Basketball, LLC (“Southwest”) and NBDL Fort Worth, LLC

(“NBDL”). We affirm.

NBDL and Southwest planned to place an NBA Development League

basketball franchise, the Fort Worth Flyers, in Fort Worth. The Fort Worth
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Flyers were to be operated by NBDL which was, in turn, controlled by

Southwest. Southwest owned eighty percent of NBDL. David Kahn founded

Southwest, and is the sole manager of both Southwest and NBDL.

By September of 2005, Walker had made investments in Southwest

totaling $150,000. In August 2006, Walker agreed to invest an additional

$75,000 in NBDL following a conference call with Kahn and Tim Berry, of N3

Texas Hoops, LLC (“N3"), during which the parties discussed financial and

marketing problems NBDL was experiencing in the Fort Worth market. NBDL

continued to experience a lack of progress in the Fort Worth market, and

another conference call was held during which Walker requested that his

August 2006 investment be returned. Kahn promised he would do everything

he could to return Walker’s investment.

In December 2006, Southwest was in the process of bringing in a new

investor who planned to invest $1,400,000 in Southwest, a portion of which

Southwest intended to invest in NBDL. After preparing an amended operating

agreement to accommodate the new investor, Kahn emailed a copy of the

proposed agreement to Walker for execution. On or before December 14,

2006, the following email exchange ensued: 

Email from Khan to Walker:
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[G]ary, if you haven’t already, please send in the signed signature

page from the document distributed to [Southwest] investors on

11/30. [W]e’re aiming to close today. . . .

Reply from Walker to Khan:

Please send in writing confirmation of our conversation, that Tim

[N3] and I will get our money back by [the] end of [the] month.

Then I will find the email tomorrow and execute by [the] end of

[the] day.

Response from Khan to Walker:

Confirmed. Please send the signed signature page to Lainie Dillon

at 503-220-2480. We should be able to send checks to you and

Tim [N3] within 48 hours of the close.

Walker eventually signed the amended operating agreement and the new

investor was brought in.

In January 2007, NBDL informed Walker that before it would return

Walker’s August 2006 investment, he would need to sign an LLC Unit Purchase

Agreement and Release of Claims, which included an offer by NBDL to buy

back the additional units of ownership in NBDL that Walker purchased in August

2006. Walker, however, rejected the offer by making a counter-offer which

changed the language in the release of claims. NBDL would not agree to the

changes and refused to return Walker’s investment.

Walker sued appellees for breach of contract. After a bench trial between

Kahn and Walker, the trial court entered a judgment for appellees that Walker
2... Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991).

3... Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel,

881 S.W.2d 295, 297 (Tex. 1994). 

4

take nothing. Walker then filed a motion for new trial, which was denied by the

trial court. The trial court entered findings of fact and conclusions of law.

Walker filed this appeal.

Walker challenges the legal and factual sufficiency of the trial court’s

finding that no contract was formed between Walker and appellees whereby

appellees would return Walker’s August 2006 investment. Walker argues that

the evidence conclusively establishes that there was such a contract, and, in

the alternative, that the trial court’s failure to find such a contract is against the

overwhelming weight of evidence to the contrary. 

Findings of fact entered in a case tried to the court have the same force

and dignity as a jury’s answers to jury questions.2 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 evidence supporting

a jury’s answer.3

If a party is attacking the legal sufficiency of an adverse finding on which

the party had the burden of proof, and there is no evidence to support the

finding, we review all the evidence to determine whether the contrary
4... Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Sterner

v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).

5... Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on

reh’g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); In re King’s Estate,

150 Tex. 662, 664–65, 244 S.W.2d 660, 661 (1951).

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proposition is established as a matter of law.

4

 When reviewing an assertion

that the evidence is factually insufficient to support an adverse finding, we set

aside the finding only if, after considering and weighing all of the evidence in

the record pertinent to that finding, we determine that the finding is so contrary

to the overwhelming weight of all the evidence, that the answer should be set

aside and a new trial ordered.5

Walker contends that the December 2006 email exchange between him

and Kahn conclusively establishes a written agreement on the part of NBDL to

reimburse Walker for his August 2006 investment of $75,000 in exchange for

his execution of the amended operating agreement. There was testimony

offered at trial, however, showing that NBDL did not understand Walker’s email

to mean that he was offering to exchange his signature on the amended

operating agreement for return of his August 2006 investment. In fact, at trial,

Kahn flatly rejected this interpretation of the email exchange:

Q. Did you understand Mr. Walker’s e-mail to mean that you

were agreeing to exchange his signature on the Amended Operating

Agreement in exchange for – – in exchange for [Southwest] paying

Mr. Walker $75,000?
6... See generally Hubbard v. Shankle, 138 S.W.3d 474, 481 (Tex.

App.—Fort Worth 2004, pet. denied) (listing elements for valid contract).

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A. Absolutely not.

Kahn further testified that at the time of the December 2006 email exchange

with Walker, the parties understood that to unwind the August 2006

investment, the purchase agreement and release of claims would need to be

executed. He said that when he wrote in his email to Walker that, “We should

be able to send checks to you and Tim within 48 hours of the close,” he was

simply confirming that Walker’s execution of the amended operating agreement

would put NBDL in a financial position to unwind that investment after the

release of claims was executed. Thus, the evidence does not conclusively

establish an acceptance of Walker’s offer, or a meeting of the minds, to support

either a written or oral contract.6

Because the evidence does not conclusively establish the elements

necessary for the trial court to find a contract between Walker and appellees

for the return of Walker’s August 2006 investment in exchange for his

signature on the amended operating agreement, we overrule appellant’s legal

sufficiency challenge. Moreover, after reviewing all of the evidence in the

record relevant to the trial court’s finding that no contract was formed between
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Walker and appellees, we cannot say that the trial court’s finding is against the

great weight of the evidence. 

We overrule Walker’s four issues. The trial court’s judgment is affirmed.

PER CURIAM

PANEL: CAYCE, C.J.; MCCOY and MEIER, JJ.

DELIVERED: December 23, 2009