1 

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00340-CV

__________________

CARL MERZI AND THOMAS SAMMONS III, Appellants 

V.

JOHN “HAL” BRUMFIELD, Appellee

__________________________________________________________________

On Appeal from the 457th District Court

Montgomery County, Texas

Trial Cause No. 19-02-03036-CV

__________________________________________________________________

MEMORANDUM OPINION

Carl Merzi and Thomas Sammons III (Plaintiffs or Appellants) appeal the trial 

court’s final judgment entering a take-nothing judgment in favor of John “Hal” 

Brumfield (Brumfield or Appellee) and dismissing Appellants’ claims. Brumfield 

filed a cross-appeal of the trial court’s denial of Brumfield’s request for attorney’s 

fees under the Declaratory Judgments Act. See Tex. Civ. Prac. & Rem. Code Ann. 

§ 37.009. We affirm. 
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Background

The Plaintiffs filed an Original Petition and Application for Temporary 

Restraining Order against Brumfield alleging they were part owners of a company 

operating under the name “Tachus,” which was formed to provide residential fiber 

optic broadband services.

1 Plaintiffs alleged that Plaintiffs and Brumfield began 

work on behalf of the company under an agreement that provided each of them 

would own equal interests, along with a fourth owner, Philip Ming who owned 5% 

of the company. According to the petition, after Merzi and Sammons had contributed 

to the company and its projects (including a Fiber-to-the-Home project with the City 

of Shenandoah referred to herein as “the Shenandoah FttH project” or “the 

Shenandoah project”), Brumfield was supposed to incorporate the company as 

agreed and allocate the ownership as agreed, but Brumfield instead used his own 

attorney to set up Tachus LLC, and the LLC’s public filings list only himself and his 

wife as members of Tachus LLC. Plaintiffs alleged that once the failure to form the 

LLC as agreed was discovered, Brumfield agreed that the equity in Tachus would 

be adjusted, but Brumfield never took any action to do so and instead he allowed the

owners to continue to build the company. The petition alleged that in 2018, after the 

company successfully reached agreements with the City of Shenandoah, they all 

1 Plaintiffs also sued Ana Brumfield, John Brumfield’s wife. Because

Plaintiffs non-suited Ana and she is not a party to the appeal, we only refer to her as 

necessary in this opinion.
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agreed it would be beneficial to form a new company to further define the company’s 

business as it existed in and around the City of Shenandoah. According to the 

petition, Brumfield converted Tachus LLC into Tachus Shenandoah but once again 

failed to list Plaintiffs as owners/members of Tachus Shenandoah LLC. Plaintiffs 

alleged that thereafter the Plaintiffs and Brumfield entered into a Letter Agreement 

dated September 30, 2018, wherein they agreed to (1) sign and deliver a “Use and 

Management Agreement”2 and (2) sign and deliver an Amended Company 

Agreement which would document their equal membership interest and provide for 

the reimbursement of advances prior to making distributions. According to the 

petition, Plaintiffs began to suspect Brumfield was being dishonest and Plaintiffs 

learned that Brumfield opened a bank account for the company but failed to make 

the Plaintiffs signatories on the account, despite the fact that revenues from company 

customers and sources were being deposited into the account. The petition also 

alleged that Brumfield improperly used company funds for his own personal use and 

improperly obtained credit cards for the company that he used for his own benefit.

Plaintiffs alleged that when they inquired into Brumfield’s questionable activities, 

he broke off communications while they were negotiating a more formal company 

agreement. According to the petition, Brumfield planned a coup of the company, 

2 The parties sometimes refer to this agreement as the “Use Management 

Agreement” or “Use-Management Agreement.” Because the document is titled “Use 

and Management Agreement,” we will refer to it by the title.
4

used the failure to incorporate the company as agreed upon as leverage to take the 

position that he and his wife were the only owners, threatened to take the company

into bankruptcy which would harm the company, and took actions or inactions that 

damaged the reputation the company had with the City of Shenandoah. 

Plaintiffs sued Brumfield for a declaratory judgment that the Letter 

Agreement dated September 30, 2018 is the Company Agreement; that Ming is the 

owner of 5% of Tachus Shenandoah LLC and has been since its formation in 2015;

that Merzi, Sammons, and Brumfield each own 31 1/3% of the company and have

since its formation in 2015; and that Merzi, Sammons, and Brumfield are managers 

of the company and have been since its formation in 2015. Plaintiffs pled in the 

alternative a claim for declaratory judgment that the company was a partnership; that 

Ming is a 5% partner in the Company; that Plaintiffs and Brumfield each own 31

1/3% of the partnership and have since its inception in 2015; that all business by 

Tachus Shenandoah LLC since its inception in 2015 was for the benefit of the 

partnership; and that all assets of Tachus Shenandoah LLC since 2015 are actually 

assets of the company. Plaintiffs also sued Brumfield for breach of fiduciary duty, 

constructive fraud, conversion, fraud, negligent misrepresentation, promissory 

estoppel, attorney’s fees, and equitable relief. Plaintiffs filed an application for 

temporary restraining order to prevent Brumfield from denying the Plaintiffs’ 

ownership rights and from withholding the company’s information and records from 
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Plaintiffs, and Plaintiffs also sought a temporary and a permanent injunction against 

Brumfield. 

As an exhibit to their petition, Plaintiffs attached a September 30, 2018 “Letter 

Agreement” executed by Plaintiffs and Brumfield that stated the following in its 

entirety:

This Letter Agreement is executed by and among JOHN H. 

BRUMFIELD, an individual residing in Texas (“JHB”), THOMAS W. 

SAMMONS III, an individual residing in Texas (“TS”), and CARL 

MERZI, an individual residing in Texas (“CM”). JHB, TS and CM are 

sometimes referred collectively as the “Parties”. 

The Parties hereby agree as follows:

1. Upon the execution hereof, the Parties will execute and deliver to 

each other the Use [and] Management Agreement to be effective as 

of the date hereof.

2. On or before 5:00 p.m. CST on October 12, 2018, the Parties will 

execute and deliver to each other an Amended and Restated 

Company Agreement and Joint Consent of Manager and Members 

of Tachus Shenandoah, LLC, with the following intent:

a. Regardless of any past time, material, service, or cost claims, 

that each Party will own equal Membership interests or units 

in Tachus Shenandoah, and;

b. The Parties agree to reimburse any documented cash

advances made directly to Tachus Shenandoah, specifically 

for the Shenandoah FttH project, prior to any other 

distributions.

Executed as of the date written above.

Plaintiffs also attached as an exhibit a “Use and Management Agreement” executed 

in 2018 by Plaintiffs (as “Service Providers”) and Brumfield (as President of Tachus 
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Shenandoah, LLC and as CEO of Tachus Holdings, Inc.) wherein they agreed that 

the Service Providers owned a fiber optic network with supporting equipment, that 

Brumfield owned the internet domain name and websites for Tachus, that Brumfield 

granted Tachus Shenandoah, LLC the non-exclusive right to use Brumfield’s Tachus 

internet domain name and branding for a fee per residential customer, and that 

Tachus Shenandoah, LLC would pay monthly fees to Tachus Holdings, Inc. and the 

Service Providers per internet service customer. Although the Use and Management 

Agreement provided a fee-based service agreement, it did not discuss or address the

ownership interests in Tachus Shenandoah.

Brumfield filed an Original Answer and, subsequently, Defendant’s First 

Amended Answer and Counterclaim. In Defendant’s First Amended Answer and 

Counterclaim, Brumfield generally denied Plaintiffs’ allegations, asserted 

affirmative defenses, and pleaded that “[i]n the event that the court finds that the 

parties are members of a limited liability company or partners of a general 

partnership,” he asserted a counterclaim for “non-monetary relief in the form of a 

Court order for termination and winding up of such limited liability company or 

partnership pursuant to Section 11.413 of the Texas Business Organizations Code.” 

Brumfield filed a Motion for Traditional and No-Evidence Motion for 

Summary Judgment, arguing that after Plaintiffs rejected Brumfield’s offer to be 

members with him in an LLC, Brumfield formed Tachus Shenandoah in March 2015 
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as the sole member and manager. According to the summary judgment motion, from 

2015 to 2018 Brumfield continued to make offers to Plaintiffs to become members 

of Tachus Shenandoah, but they never reached a meeting of the minds as to terms. 

Brumfield alleged in his summary judgment motion that in September 2018, the 

Plaintiffs rejected Brumfield’s final offer for them to become members of Tachus 

Shenandoah and instead entered into a “Use and Management Agreement” 

governing Plaintiffs’ provision of bandwidth to Tachus Shenandoah in exchange for 

Tachus Shenandoah’s payment for that service. Brumfield attached exhibits to his 

motion for summary judgment and argued that the evidence conclusively established

that Plaintiffs are not members of Tachus Shenandoah, Plaintiffs were not partners 

in a partnership with Brumfield, and there was no evidence of the requisite elements 

for each of Plaintiffs’ other causes of action.

Plaintiffs filed a Response to the motion for summary judgment. On April 20, 

2020, the trial court signed an Amended Order on Defendant’s Motion for Summary 

Judgment, granting Brumfield’s motion on Plaintiffs’ cause of action for conversion 

and claim for declaratory relief as to the declarations related to the partnership issue,

but denying his motion as to the declaratory judgment action claim regarding the 

membership interest in the limited liability company and the remainder of Plaintiffs’

causes of action. 
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Plaintiffs filed their First Amended Petition, removing the causes of action on 

which the trial court granted a take-nothing summary judgment against Plaintiffs and 

adding a cause of action for breach of contract. Plaintiffs sought a declaration that 

(a) the September 30, 2018 Letter Agreement “is the Company Agreement of Tachus 

Shenandoah LLC f/k/a Tachus LLC, with all other provisions of the agreement 

supplied by the Texas Organizations Code;” (b) Ming is the owner of 5% of Tachus 

Shenandoah LLC f/k/a Tachus LLC and has been since its formation in 2015; (c) the 

remaining interest in Tachus Shenandoah LLC f/k/a Tachus LLC is owned by Merzi, 

Sammons, and Brumfield at 31 1/3% each, and has been since its formation in 2015, 

or alternatively since its formation in 2015, or alternatively since the execution of 

the Letter Agreement; and (d) Merzi, Sammons, and Brumfield are managers of 

Tachus Shenandoah LLC f/k/a Tachus LLC and have been since its formation in 

2015, or alternatively since the execution of the Letter Agreement. According to 

Plaintiffs, the September 30, 2018 Letter Agreement is a validly executed contract 

between the parties, Brumfield entered into a valid contract with Plaintiffs to create 

“Tachus” and to divide ownership equally, Brumfield breached the Letter 

Agreement by failing to execute and deliver the Amended and Restated Company 

Agreement and Joint Consent of Managers and Members of Tachus Shenandoah, 

LLC on or before October 12, 2018, Brumfield breached the contract because he 

failed or refused to legally transfer to Plaintiffs the ownership interests as set forth 
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in the contract, and these breaches proximately caused Plaintiffs’ damages. 

Brumfield filed a Second Amended Answer and Counterclaim, generally denying 

Plaintiffs’ allegations, asserting affirmative defenses, and pleading a counterclaim 

“in the event that the Court finds that the parties are members of a limited liability 

company or partners of a general partnership[.]”

Brumfield filed Defendant’s Second Traditional and No-Evidence and Motion 

for Summary Judgment, attaching certain exhibits and arguing that the Plaintiffs 

were not members of the LLC. According to Brumfield, although Plaintiffs’ 

requested in their First Amended Petition a declaration from the trial court that the 

September 30, 2018 Letter Agreement “is the Company Agreement of Tachus 

Shenandoah LLC f/k/a/ Tachus LLC, with all other provisions of the agreement 

supplied by the Texas Business Organizations Code[,]” the plain language of the 

Letter Agreement does not contain any language of assignment of an existing 

membership interest. Further, Brumfield argues that it does not contain language to 

suggest the actual issuance of new membership interests by the company itself, and, 

in fact, expressly states that “the parties must execute an Amended and Restated 

Company Agreement and Joint Consent of Manager and Members of Tachus 

Shenandoah with the intent of doing certain things.” According to Brumfield, on the 

same day the Plaintiffs and Brumfield executed the Letter Agreement and the Use 

and Management Agreement but before they were signed, Brumfield had a telephone 
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conversation with Merzi and the Use and Management Agreement was created 

because the Shenandoah project had become active and Plaintiffs had not signed the 

Amended and Restated Company Agreement. According to Brumfield, the Use and 

Management Agreement defined the parties’ relationship as a “vendor-vendee” and 

outlined what each party owned and would receive when residents signed up for 

internet service. Brumfield alleged that during the telephone call, Brumfield 

confirmed Merzi was aware that simply signing the Use and Management 

Agreement (which Brumfield asserts he erroneously called the “MSA” during the 

call) and Letter Agreement did not make Plaintiffs members of the LLC – the parties 

still had to reach an agreement and sign the Amended and Restated Company 

Agreement by the deadline. In the Second Motion for Summary Judgment, 

Brumfield referenced an exhibit attached to Merzi’s deposition, and that exhibit is a 

transcript of a telephone conversation between Merzi and Brumfield which contains 

the following:

Hal [Brumfield]: . . . I wanted to make sure you and Tommy 

[Sammons] understand that just because we sign 

this MSA, it doesn’t make you owners. . . . you’ve

got to sign the company agreement.

Carl [Merzi]: Yeah.

Hal [Brumfield]: We’ve been talking about it for a long time and, you 

know, by not signing it, you’re telling me that you 

don’t want to be a part of it and that’s why I put the 

hard date in the letter agreement, because if, you 

know, we can’t get it done by then, I’m just going 

to assume that y’all are good with just the MSA and 
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y’all get paid for providing internet service but 

that’s it.

Are you and Tommy [Sammons] okay with that?

Carl [Merzi]: Yeah. Yeah, that’s perfect. And -- and I do 

appreciate your offer of doing it this way, okay? I 

mean, I do appreciate that. And so both -- you know, 

Tommy [Sammons] does, too. 

According to Brumfield, shortly after that phone conversation, Plaintiffs and 

Brumfield signed the Use and Management Agreement as well as the Letter 

Agreement. Brumfield alleged in the motion that the Amended and Restated 

Company Agreement was never signed, and the parties have continued to operate 

under the terms of the Use and Management Agreement. 

Brumfield alleged that he did not use the recording of the telephone call as 

evidence in his initial motion for summary judgment because he “only recently 

located the flash drive it was saved on.” Brumfield argued in his Second Motion for 

Summary Judgment that, to the extent Plaintiffs would argue the call was 

inadmissible under the parol evidence rule, that rule did not apply because there was 

“no agreement.”

After Plaintiffs filed responsive pleadings and Brumfield replied, on March 

15, 2021, the trial court signed an Order granting Defendant’s Second Traditional 

and No-Evidence Motion for Summary Judgment. As to Plaintiffs’ request for a 

declaration that they have a membership or ownership interest in the company and 

that the Letter is the company agreement, the trial court made the following findings:
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The Court agrees that the audio recording is admissible extrinsic 

evidence of the existence of a condition precedent to the formation of a 

contract to convey an ownership or membership interest in the 

Company to the Plaintiffs. The recording conclusively establishes that 

the parties understood, intended, and agreed that the execution of the 

Amended and Restated Company Agreement and Joint Consent of 

Manager and Members of Tachus Shenandoah, LLC “[o]n or before 

5:00 CST on October 12, 2018” would be a condition precedent to the 

formation of a contract to convey an ownership or membership interest 

in the Company to the Plaintiffs. Since the condition precedent never 

occurred, no binding contract arose from the Letter Agreement entitling 

the Plaintiffs to an ownership or membership interest in the Company.

The trial court also granted the motion as to Plaintiffs’ contract claim because “[n]o 

contract was formed that gave the Plaintiffs a membership or ownership interest in 

the Company.”

Brumfield then filed Defendant’s Third No-Evidence and Traditional Motion 

for Summary Judgment, arguing that Plaintiffs had no evidence of one or more 

essential elements of their fraud and negligent misrepresentation claims, and that the 

recorded telephone conversation between Brumfield and Merzi conclusively 

negated one or more essential elements of Plaintiffs’ causes of action for fraud and 

negligent misrepresentation. The trial court initially denied Defendant’s Third 

Motion for Summary Judgment, but on June 24, 2021, the trial court signed an Order 

granting Defendant’s Motion to Reconsider and ordered Plaintiffs take nothing on 

their causes of action for fraud and negligent misrepresentation.

On July 30, 2021, the trial court signed a Final Judgment incorporating the 

prior orders of April 20, 2020, March 15, 2021, and June 24, 2021. “Based upon the 
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dismissal of the entirety of Plaintiffs’ claims,” the trial court rendered a take-nothing 

judgment in favor of Brumfield and denied any relief not specifically granted in the 

judgment. Brumfield filed Defendant’s Amended Motion for Attorney’s Fees and 

Costs under Section 37.009 of the Texas Civil Practice and Remedies Code. 

Plaintiffs filed a Motion for New Trial, which was overruled by operation of law, 

and then filed this appeal. Brumfield filed a notice of cross-appeal of the trial court’s 

denial of Brumfield’s request for attorney’s fees.

Parol Evidence

In one issue, Appellants argue that the trial court erred in considering parol 

evidence to contradict the terms of a written agreement regarding the parties’ 

ownership percentages. According to Appellants, the trial court relied exclusively 

on a recorded conversation that contradicts the terms of the Letter Agreement in 

granting Defendant’s Second Motion for Summary Judgment, in granting 

Defendant’s Motion for Reconsideration of Defendant’s Third Motion for Summary 

Judgment, and in ordering that Plaintiffs take nothing on their remaining causes of 

action for negligent misrepresentation and fraud. 

The applicability of the parol evidence rule is a question of law that we review 

de novo. Audubon Indem. Co. v. Custom Site-Prep, Inc., 358 S.W.3d 309, 316 (Tex. 

App.—Houston [1st Dist.] 2011, pet. denied). The parol evidence rule is not a rule 

of evidence, but a rule of substantive contract law. Hubacek v. Ennis State Bank, 317 
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S.W.2d 30, 32 (Tex. 1958). “When parties have entered into a valid, written, 

integrated contract, the parol evidence rule precludes enforcement of any prior or 

contemporaneous agreement that addresses the same subject matter and is 

inconsistent with the written contract.” West v. Quintanilla, 573 S.W.3d 237, 243 

(Tex. 2019). In such cases, extrinsic evidence is not admissible to add to, vary, or 

contradict the terms of a written contract that is complete on its face. Guisinger v. 

Hughes, 363 S.W.2d 861, 865 (Tex. App.—Dallas 1962, writ ref’d n.r.e.).

Appellants assert that the Letter Agreement is a valid, fully integrated contract 

because it contains all material terms and that the recording of the telephone 

conversation constitutes inadmissible parol evidence that Brumfield used to 

contradict the express terms of the enforceable Letter Agreement. We address this 

contention first because the parol evidence rule only applies to valid, written, 

integrated contracts. See West, 573 S.W.3d at 243. Appellee contends the Letter was 

nothing more than an “agreement to agree” and not a valid integrated written 

agreement. Appellee contends that because the Appellants failed to execute the 

Amended Company Agreement, the Appellants never became owners of Tachus and 

the remaining conditions outlined in the Letter Agreement were never met.

In Fischer v. CTMI, L.L.C., the Texas Supreme Court explained contract 

enforceability in the context of agreements to agree as follows:

. . . . To be enforceable, a contract must address all of its essential 

and material terms with “a reasonable degree of certainty and 
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definiteness.” Although it is difficult to say “just what particularity or 

refinement of terms is essential to meet the requirement of ‘reasonable 

degree of certainty,’” . . . a contract must at least be sufficiently definite 

to confirm that both parties actually intended to be contractually bound. 

And even when that intent is clear, the agreement’s terms must also be 

sufficiently definite to “enable a court to understand the parties’ 

obligations,” . . . and to give “an appropriate remedy” if they are 

breached[.]

However, a contract need only be definite and certain as to the 

terms that are “material and essential” to the parties’ agreement. Other 

courts have held that, under Texas law, material and essential terms are 

those that parties would reasonably regard as “vitally important 

ingredient[s]” of their bargain. We agree but we note that “[t]he 

material terms of a contract are determined on a case-by-case basis,” 

. . . and “[e]ach contract should be considered separately to determine 

its material terms.”

. . .

“It is well settled law that when an agreement leaves material 

matters open for future adjustment and agreement that never occur, it is 

not binding upon the parties and merely constitutes an agreement to 

agree.” If an agreement to make a future agreement is not sufficiently 

definite as to all of the future agreement’s essential and material terms, 

the agreement to agree “is nugatory.” Thus to be enforceable, an 

agreement to agree, like any other contract, “must specify all its 

material and essential terms, and leave none to be agreed upon as the 

result of future negotiations.”

Conversely, “[a]greements to enter into future contracts are 

enforceable if they contain all material terms.” When an “agreement to 

enter into a future contract already contains all the material terms of the 

future contract,” courts can determine and enforce the parties’ 

obligations, and concerns about indefiniteness and reasonable certainty 

do not arise. So an agreement that contains all of its essential terms is 

not unenforceable merely because the parties anticipate some future 

agreement. 

479 S.W.3d 231, 237-38 (Tex. 2016) (citations and footnotes omitted). Whether an 

agreement is an enforceable contract is generally a question of law. Allamon Tool 

Co. v. Derryberry, No. 09-06-200-CV, 2007 Tex. App. LEXIS 8858, at *5 (Tex. 
16

App.—Beaumont Nov. 8, 2007, no pet.) (mem. op.) (citing Meru v. Huerta, 136 

S.W.3d 383, 390 (Tex. App.—Corpus Christi–Edinburg 2004, no pet.)).

The September 30, 2018 Letter Agreement states that Plaintiffs and Brumfield 

agreed that (1) upon the execution of the Letter Agreement they will execute and 

deliver to each other the Use and Management Agreement to be effective as of the 

date hereof and (2) that on or before 5 p.m. on October 12, 2018 the Plaintiffs and 

Brumfield will execute and deliver to each other an Amended and Restated 

Company Agreement and Joint Consent of Manager and Members of Tachus 

Shenandoah, LLC, with the intent that each party will own equal membership 

interests or units in Tachus Shenandoah and that the parties agree to reimburse any 

documented cash advances made directly to Tachus Shenandoah, specifically for the 

Shenandoah FttH project, prior to any other distributions. 

The Use and Management Agreement executed by the parties and referenced 

in the Letter Agreement contains language that outlines a contract for services, and 

it does not describe or contain terms pertaining to the formation of Tachus or the 

parties’ ownership interests in the company. The only “terms” relating to the 

formation of the company in the one-page Letter Agreement are found in the clause 

stating that the parties, on or before October 12, 2018, would execute and deliver to 

each other an Amended and Restated Company Agreement and Joint Consent of 

Managers and Members of Tachus Shenandoah, LLC “with the [] intent” that “each 
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Party will own equal Membership interests or units in Tachus Shenandoah[]” and 

that “[t]he Parties agree to reimburse any documented cash advances made directly 

to Tachus Shenandoah . . . prior to any other distributions.”

As summary judgment evidence, Brumfield attached his deposition transcript 

wherein he testified that he presented Plaintiffs with a Company Agreement to form 

the company in 2015, but it was never executed. That unexecuted agreement was 

thirty-five pages outlining percentage ownership interests and other terms. 

Brumfield also attached the thirty-four-page Company Agreement that was in effect 

at the time of the Letter Agreement and it listed Brumfield as the sole manager and 

member of Tachus, LLC and contained provisions relating to initial membership, 

ownership interests, procedures for altering the LLC’s membership and ownership 

interests, management duties of the members, and listed Brumfield as owner of 1000 

units, with a capital contribution of $1000. The parties do not dispute that the

Amended and Restated Company Agreement and Joint Consent of Managers and 

Members of Tachus Shenandoah, LLC was never executed by the parties. 

Only two terms relating to formation or ownership and operation of the 

company were mentioned in the Letter Agreement, and those two terms were to be 

included in the Amended and Restated Company Agreement:

a. Regardless of any past time, material, service, or cost claims, that 

each Party will own equal Membership interests or units in Tachus 

Shenandoah, and;
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b. The Parties agree to reimburse any documented case advances made 

directly to Tachus Shenandoah, specifically for the Shenandoah 

FttH project, prior to any other distributions.

One of the two terms to be included in the Amended and Restated Company 

Agreement and Joint Consent of Managers and Members of Tachus Shenandoah, 

LLC was that the Plaintiffs and Brumfield should each own “equal” Membership 

interests or units, but no percentages were stated.3 The Letter Agreement could not 

have replaced the earlier executed Company Agreement listing Brumfield as sole 

member and manager because that Company Agreement included material terms 

such as ownership units, capital contributions, and the effective date of the formation 

of the company. Clearly on its face, the Letter Agreement anticipated the details 

regarding any ownership would be contained in the Amended and Restated 

Company Agreement and Joint Consent of Managers and Members of Tachus 

Shenandoah, LLC, which was something that had to be prepared and executed later.

On this record, we conclude that the Letter Agreement is merely an agreement to 

enter into a future contract (the Amended and Restated Company Agreement and 

Joint Consent of Managers and Members of Tachus Shenandoah, LLC) or an 

“agreement to agree,” and the Letter Agreement does not address all of the essential 

3 By contrast, in Plaintiffs’ declaratory action the Plaintiffs request that the 

trial court declare that Ming (who is not mentioned in the Letter Agreement and who 

is not a party to the Letter Agreement) has a 5% ownership interest, Merzi a 31 1/3% 

ownership interest, Sammons a 31 1/3% ownership interest, and Brumfield a 31 

1/3% ownership interest.
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and material terms with “‘a reasonable degree of certainty and definiteness.’” See 

Fischer, 479 S.W.3d at 237 (quoting Pace Corp. v. Jackson, 284 S.W.2d 340, 345 

(Tex. 1955)). Under these circumstances, the terms are not sufficiently definite to 

“‘enable a court to understand the parties’ obligations,’ . . . and to give ‘an 

appropriate remedy’ if they are breached[.]” See id. (quoting Restatement (Second) 

of Contracts § 33(2) (1981)). The Letter Agreement is not a written integrated 

contract with sufficiently definite terms, nor is it “complete on its face.” So, the parol 

evidence rule does not bar the trial court’s consideration of the telephone call. See 

West, 573 S.W.3d at 243. We overrule Appellants’ issue on appeal. 

Appellee’s Cross-Appeal on Attorney’s Fees

On cross-appeal, Brumfield argues that the trial court abused its discretion in 

denying Brumfield’s request for attorney’s fees under section 37.009 of the Texas 

Civil Practice and Remedies Code because the award of attorney’s fees was 

necessary, reasonable, equitable, and just. He also asserts he was not required to 

segregate recoverable from unrecoverable fees, and even if segregation was 

required, the district court should have awarded the segregated amount based on the 

evidence. Appellants opposed the request for attorney’s fees and argued the award 

was not equitable and just. In response to Appellants’ argument that an award of 

attorney’s fees to Brumfield was not equitable and just, Brumfield argued that Merzi 

knew he had the recorded conversation with Brumfield, both Appellants were aware 
20

they held no ownership in Tachus Shenandoah before they brought suit, the lawsuit 

should have never been filed, and an award of attorney’s fees “would only be fair 

when considering the circumstances.”

We review an award or denial of attorney’s fees under the Declaratory 

Judgments Act for an abuse of discretion. Ullrich v. Meijer, No. 09-21-00090-CV, 

2022 Tex. App. LEXIS 8805, at *13 (Tex. App.—Beaumont Dec. 1, 2022, no pet.) 

(mem. op.) (citing Forest Hills Improvement Ass’n Inc. v. Flaim, No. 09-18-00199-

CV, 2019 Tex. App. LEXIS 8478, at *4 (Tex. App.—Beaumont Sept. 19, 2019, no 

pet.) (mem. op.)). Under the Declaratory Judgments Act, a trial court has broad 

discretion in deciding whether to award attorney’s fees. See Bocquet v. Herring, 972 

S.W.2d 19, 20 (Tex. 1998) (citing Tex. Civ. Prac. & Rem. Code Ann. § 37.009); 

Ullrich, 2022 Tex. App. LEXIS 8805, at *13; Anglo-Dutch Petroleum Int’l, Inc. v. 

Greenberg Peden, P.C., 522 S.W.3d 471, 494 (Tex. App.—Houston [14th Dist.] 

2016, pet. denied). The attorney’s fees must be reasonable, necessary, equitable, and 

just. Bocquet, 972 S.W.2d at 21. A reviewing court will reverse an award of 

attorney’s fees under the Declaratory Judgment Act only if the lower court abused 

its discretion by either (1) awarding fees when there was insufficient evidence that 

the fees were reasonable and necessary or (2) acting arbitrarily, unreasonably, or 

without regard to guiding legal principles in its determination that the fees awarded 

were equitable and just. Id. A trial court may decide that fees should not be awarded 
21

if such an award would not be equitable and just, in light of the circumstances. 

Ullrich, 2022 Tex. App. LEXIS 8805, at *13. The determination of whether an 

award of attorney’s fees would be equitable and just is not susceptible to direct proof 

but instead is a matter of fairness, in light of the circumstances. Id. (citing AngloDutch Petroleum Int’l, Inc., 522 S.W.3d at 494). Even if the evidence is 

uncontroverted that the attorney’s fees incurred are reasonable and necessary, a court 

may decide it is not equitable or just to award them. Id. Since an award of attorney’s 

fees is not dependent on a finding that a party has substantially prevailed, the trial 

court is not required to award attorney’s fees to a prevailing party in a declaratory 

judgment action. Id.; see also Bocquet, 972 S.W.2d at 20 (“The Declaratory 

Judgments Act does not require an award of attorney fees to the prevailing party.”).

Brumfield has the burden of establishing that the trial court abused its 

discretion in denying an award of attorney’s fees. See Ullrich, 2022 Tex. App. 

LEXIS 8805, at *14 (citing Sanchez v. AmeriCredit Fin. Servs., Inc., 308 S.W.3d 

521, 526 (Tex. App.—Dallas 2010, no pet.)). When, as here, no findings of fact and 

conclusions of law were requested or filed, we imply all necessary findings and 

conclusions to support the trial court’s judgment. See Sixth RMA Partners, L.P. v. 

Sibley, 111 S.W.3d 46, 52 (Tex. 2003). Here, the trial court denied Brumfield’s

request for attorney’s fees under the Declaratory Judgments Act, and implicitly 

found that it would not be equitable and just to award him attorney’s fees. See
22

Armour Pipe Line Co. v. Sandel Energy, Inc., No. 14-20-00412-CV, 2023 Tex. App. 

LEXIS 3300, at *55 (Tex. App.—Houston [14th Dist.] May 16, 2023, no pet. h.) 

(op. on reh’g) (noting that in denying the parties’ request for attorney’s fees under 

the Declaratory Judgments Act, “[t]he trial court impliedly determined that it would 

not be equitable and just to award attorney’s fees to any party.”) (citing Kings River 

Trail Ass’n v. Pinehurst Trail Holdings, L.L.C., 447 S.W.3d 439, 451-52 (Tex. 

App.—Houston [14th Dist.] 2014, pet. denied)). On this record, the trial court in its 

broad discretion could have reasonably concluded that the parties had legitimate 

positions and arguments and that it was fair and equitable that Brumfield bear the 

cost of his own attorney’s fees. See, e.g., Sunday Canyon Prop. Owners Ass’n v. 

Annett, 978 SW.2d 654, 659 (Tex. App.—Amarillo 1998, no pet.) (no error not to 

award attorney’s fees under section 37.009 where both parties had “legitimate rights 

to pursue”). Accordingly, we conclude there was no abuse of discretion by the trial 

court in denying Brumfield attorney’s fees under section 37.009 of the Texas Civil 

Practice and Remedies Code.4 We overrule Appellee’s cross-issue. And we affirm 

the trial court’s judgment.

4 Based on our disposition of this issue, we need not address Brumfield’s 

contention that he was not required to segregate recoverable fees or that they were 

discernable from the evidence. See Tex. R. App. P. 47.1.
23

AFFIRMED.

_________________________

 LEANNE JOHNSON

Justice

Submitted on October 11, 2022

Opinion Delivered June 22, 2023

Before Golemon, C.J., Johnson and Wright, JJ.