NUMBER 13-08-457-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

BARBARA O’NEAL, Appellant,

 

v. 

THOMAS FOREHAND, Appellee.

 

On appeal from the 36th District Court 

of Live Oak County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Vela

Memorandum Opinion by Justice Vela

This is an appeal from a judgment entered by the trial court in favor of appellee

Thomas Forehand and against his former wife, appellant, Barbara O’Neal, in a suit

involving their 1991 divorce decree. By five issues, O’Neal complains that she was

deprived of her right to a jury trial, that the evidence did not support the trial court’s
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findings, and that the trial court improperly awarded attorney’s fees. We affirm. 

I. BACKGROUND

On August 21, 1991, the judge of the 36th District Court in Live Oak County entered

a divorce decree ending the marriage of O’Neal and Thomas. The decree, agreed upon

by the parties, provided for potential future conveyances to O’Neal of post-divorce working

interests and overriding royalty interests acquired by Thomas if: (1) Thomas did not pay

money for the interest acquired; (2) Thomas paid less for the interest than he would have

if the interest had been acquired by a third party; or (3) Thomas acquired the interest

through personal services rendered by him, in whole or in part.

On May 19, 2006, O’Neal filed an original petition in the 156th District Court urging

breach of contract, conversion and breach of fiduciary duty claims based upon Thomas’s

alleged refusal to comply with certain portions of the divorce decree with respect to postdivorce working interests and overriding royalty interests acquired after the parties’ divorce.

Specifically, O’Neal urged that the parties entered into a marital property contract wherein

Thomas “agreed that with respect to working interests and/or overriding royalties which he

would acquire. . . for less than full and adequate consideration post divorce, the parties

would own equal interests as their separate property.” She argued that she is owed onehalf of an apportioned share of the overriding royalty interests received by Nueces Oil

through several assignments that occurred after their divorce. 

Prior to trial, the parties agreed to consolidate the case in the 36th District Court, the

court where the divorce action had been filed. O’Neal had previously requested a jury trial.

Thomas objected, taking the position that a jury would not be proper because the suit was

one to enforce the divorce decree and a jury trial is not proper under section 9.005 of the
Section 9.005 states: “A party may not demand a jury trial if the procedures to enforce a decree of

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divorce or annulment provided by this subchapter are invoked”. TEX. FAM. CODE ANN. § 9.005 (Vernon 2006).

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Texas Family Code. See TEX. FAM. CODE ANN. § 9.005 (Vernon 2006). The 36th District 1

Court entered an order determining that O’Neal’s suit was a claim for enforcement of the

divorce decree and the trial court removed the case from the jury docket. 

After a non-jury trial, the trial court entered judgment in favor of Thomas.

Thereafter, the trial court entered findings of fact and conclusions of law. The trial court

found that:

1) the divorce decree provided that Thomas agreed that if he acquired any

working interest and/or overriding royalty interests after the entry of the

decree for less than adequate consideration, either personally or through any

company in which he had any interest, then one-half of the interest acquired

would be assigned, transferred or held in trust for O’Neal; 

2) Thomas was a part owner of Nueces Oil Company;

3) Nueces Oil acquired either working interests or overriding royalty interests

in oil and gas leases after the decree;

4) There was no evidence that any working interests or overriding royalty

interests acquired by Nueces Oil after the divorce were acquired for less than

adequate consideration;

5) Thomas performed personal services to Nueces Oil;

6) There was no evidence that any of his personal services were

consideration for the acquisition of any working interests or overriding royalty

interests acquired by Nueces Oil after the entry of the divorce decree. 

II. ISSUE ONE

A. Factual Background

O’Neal complains in her first issue that the trial court erred by denying her

constitutional right to submit her claims to a jury. Prior to trial, Thomas objected to
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O’Neal’s request for jury trial because section 9.005 of the Texas Family Code precluded

her from demanding a jury trial. Id. The trial court heard arguments on Thomas’s motion,

requested additional briefing, took the matter under advisement, and later determined that

the action pleaded was one for enforcement of a divorce decree under the family code.

See id. Prior to the court’s ruling, counsel for O’Neal had filed an agreed motion requesting

that her case be consolidated in the 36th District Court, the court where the decree of

divorce was entered because “section 9.001, Texas Family Code, states that suits involving

a prior decree of divorce be filed in the court that rendered the judgment.” When the case

was called for a non-jury trial, counsel made no objection to proceeding without a jury

present.

B. Preservation and Standard of Review

We review the trial court’s denial of a jury trial for an abuse of discretion. MercedesBenz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). In conducting an abuse

of discretion review, we examine the entire record. Id. We find an abuse of discretion only

when the trial court’s decision is arbitrary, unreasonable, and without reference to guiding

principles. Id.; Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1985). 

A party is required to act affirmatively in order to preserve the right to complain on

appeal that he was denied his perfected right to a trial by jury. Sunwest Reliance

Acquisitions Group, Inc. v. Provident Nat'l Assurance Co., 875 S.W.2d 385, 387 (Tex.

App.–Dallas 1993, no writ). If a trial court proceeds to trial without a jury, the party must,

in order to preserve any error by the trial court, “either object on the record to the trial
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court's action or indicate affirmatively in the record it intends to stand on its perfected right

to a jury trial.” Id. This is because “the right in a civil case is not self-executing: to invoke

and perfect the right to a jury trial in a civil case a party must first comply with the

requirements of rule 216;” once perfected, the right to a jury trial still may be waived

expressly or by a party's failure to act. Id. at 387-88. 

C. Analysis

The record before us does not show that O’Neal objected to the case going forward

without a jury or that she indicated in any way to the trial court that she intended to stand

on her right to a jury trial. It was Thomas who originally complained to the trial court about

the propriety of a jury trial. Thomas’s objection was heard on October 25, 2006. The nonjury trial was held on March 27, 2008. Because O’Neal did not inform the trial court of her

intent to stand on her right to a jury trial, error, if any, has not been preserved. TEX. R.APP.

33.1(a). Regardless, even if O’Neal had preserved error, we do not believe the trial court

abused its discretion. The agreed motion, prepared by O’Neal’s counsel, showed that she

was invoking the provisions of the family code. Therefore, she was precluded from

demanding a jury trial. See TEX. FAM. CODE ANN. § 9.005. Further, the record does not

reflect any act by the trial court during the course of the trial that appeared either arbitrary

or unreasonable. O’Neal’s first issue is overruled. 

III. ISSUES TWO THROUGH FOUR

A. Factual Background

Thomas Forehand is an owner of Nueces Oil Company. O’Neal was an owner, but

sold her interest in the company in July 1992. At the time of trial, Thomas owned a one-
Thomas described a farmout agreement as one “when you own a leasehold, as opposed to owning 2

minerals and royalties. You own a leasehold that you acquired from someone that holds the mineral and oil

royalties. And you want to turn that leasehold—push it off to—a portion over to a company to get some wells

drilled.”

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third interest in Nueces Oil, his son, Mikal, owned one-third and his daughter, Robin, also

owned one-third. At trial, O’Neal, Thomas, and Mikal testified as witnesses. O’Neal

introduced portions of the video depositions of Mikal and Thomas. O’Neal’s counsel

testified regarding attorney’s fees. Thomas’s attorney also testified regarding his attorney’s

fees. 

The dispute made the basis of O’Neal’s suit arises from two 1992 leases. Thomas

testified that Nueces Oil acquired the two leases in 1992, referred to as the Herring leases.

The consideration for the Herring leases was a one-sixth royalty, customary terms and

obligations of an oil and gas lease and a cash bonus. Thomas testified that in early 2004-

2005 Nueces Oil entered into farmout agreements with AMPAK Oil Company and OGGP

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Partners. 

Mikal testified that to develop these prospects, AMPAK and OGGP each entered

into a farmout agreement with Nueces Oil that covered its 22% leasehold estate in the

Herring lease. AMPAK and OGGP drilled commercially productive wells. Nueces Oil

assigned each an interest in the net revenue and reserved an overriding royalty to itself.

Mikal stated that Nueces Oil received one hundred dollars an acre to execute the farmout

agreements. According to Mikal, his father did not perform any personal services with

respect to the agreement. In fact, he said that he was unaware of any personal service

performed by Thomas.

O’Neal testified that she had not been assigned overriding royalty interest in the
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wells in issue. 

B. STANDARD OF REVIEW

In her second, third, and fourth issues, O’Neal argues that she established her

entitlement to a share of the interests earned as a matter of law, or that the trial court’s

findings that she was entitled to nothing were against the great weight and preponderance

of the evidence.

Findings of fact in a case tried to the court have the same force and dignity as a

jury's verdict upon jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794

(Tex. 1991); Ashcraft v. Lookadoo, 952 S.W.2d 907, 910 (Tex. App.–Dallas 1997, writ

denied) (en banc). Fact findings are not conclusive when a complete reporter's record

appears in the record. Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex.

App.–Houston [14th Dist.]), writ ref'd n.r.e., 699 S.W.2d 199 (Tex. 1985) (per curiam). We

review a trial court's fact findings for legal and factual sufficiency of the evidence. Ortiz v.

Jones, 917 S.W.2d 770, 772 (Tex. 1996). We review the conclusions drawn from the facts

to determine their correctness. Ashcraft, 952 S.W.2d at 910. The standard of review for

claims of legal and factual sufficiency of the evidence govern non-jury trials on the merits.

IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 445 (Tex. 1997).

When a party attacks the legal sufficiency of an adverse finding on an issue on

which it has the burden of proof, the party must demonstrate on appeal that the evidence

establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v.

Francis, 46 S.W.3d 237, 241 (Tex. 2001). “The final test for legal sufficiency must always

be whether the evidence at trial would enable reasonable and fair-minded people to reach
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the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In

making this determination, we must credit favorable evidence if a reasonable fact finder

could, and disregard contrary evidence unless a reasonable fact finder could not. Id.

When a party attacks the factual sufficiency of an adverse finding on an issue on

which it has the burden of proof, the party must demonstrate on appeal that the adverse

finding is against the great weight and preponderance of the evidence. Francis, 46

S.W.3d at 242. We set aside a verdict only if the evidence is so weak or if the finding is

so against the great weight and preponderance of the evidence that it is clearly wrong and

unjust. Id.; see Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain v. Bain,

709 S.W.2d 175, 176 (Tex. 1986).

C. Analysis

1. Issues Two and Three

By her second and third issues, O’Neal urges that the trial court erred in failing to

find that: (1) Thomas did not pay money for the working and/or overriding royalty interests

Nueces Oil acquired; and (2) Thomas provided personal services that resulted in Nueces

Oil acquiring working and/ or overriding royalty interests. According to O’Neal, the three

conditions that would constitute “less than full consideration” under the decree are that

Thomas: (1) did not pay money for interest so acquired; (2) paid a sum less than the

interest could have been acquired by a third party; or (3) he acquired the interest for

personal services he rendered. 

At the end of trial, counsel for O’Neal conceded that there was no evidence that

Thomas paid a lesser sum than “could have been acquired by a third party,” and
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abandoned that theory. Counsel for O’Neal stated at trial that the scenario he was relying

upon was that Thomas was required to pay O’Neal because his interest had been

acquired because of the personal services he rendered. The trial court found that

Thomas had rendered personal services to Nueces Oil, but there was no evidence that

the personal services were in consideration for interests acquired by Nueces Oil. The trial

court made no finding with regard to whether Thomas had paid money for the interest

Nueces Oil acquired. 

The evidence at trial was that Nueces Oil, not Thomas, had acquired an overriding

royalty interest. The issue before the trial court was not whether Thomas, himself, did or

did not pay money. Regardless, the evidence at trial was that only Nueces Oil acquired

an overriding royalty interest. In fact, there was no evidence that Thomas individually paid

any money for the interest Nueces Oil acquired. The testimony at trial was that Nueces

Oil, not Thomas, acquired the leases for consideration and properly reserved to itself an

overriding royalty after the wells proved to be commercially productive and an assignment

had been made. We overrule issue two.

In her third issue, O’Neal argues that the great weight and preponderance of the

evidence established that Thomas provided personal services resulting in Nueces Oil

acquiring a working and or overriding royalty interest post-divorce.

At trial, Thomas was asked if he “provided a lot of personal services to sell these

deals” to AMPAK. He replied that he provided no personal services, because he was in

law school at the time. Mikal testified that his father’s personal services “did not come into

play” in arranging the farmout agreement. From this testimony, the trial court could have

determined that no personal services of Thomas were required in arranging the farmout
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agreement from which the overriding royalty interests were generated.

O’Neal points to testimony at Mikal’s deposition where Mikal testified that he could

not make a decision in Nueces Oil Company alone. With regard to AMPAK, Mikal said

that his father “was in the loop.” Assuming this evidence could be construed to mean that

Thomas generally provided personal services to Nueces Oil, there was, however, no

evidence that the services were consideration for the reservation of the overriding royalty

interests involved in this case. The trial court heard the evidence before it and was in the

best position to judge the credibility of the witnesses. O’Neal did not establish as a matter

of law that Thomas paid no money for the mineral interests acquired by Nueces Oil or that

his personal services resulted in Nueces Oil acquiring the interests at issue. The trial

court’s findings were not against the great weight and preponderance of the evidence.

We overrule issues two and three.

2. Issue Four

O’Neal argues by her fourth issue that the trial court erred because she established

as a matter of law that Nueces Oil provided personal services that resulted in it obtaining

working and/or overriding royalty interests and that the trial court’s failure to so find is

against the great weight and preponderance of the evidence. O’Neal claims that it is

undisputed that the oil company provided personal services. In general, a corporation

cannot perform personal services. Tex. Int’l Prods. v. Mustex, Inc., 368 S.W.2d 27, 30

(Tex. App.–Fort Worth 1963, no writ). Regardless, the issue in this case was whether

Thomas performed personal services, not Nueces Oil. The pertinent provision of the

divorce decree stated “. . . and/or if such interest is acquired for personal services

rendered by him, in whole or in part.” (emphasis added). It does not appear that this
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issue was raised by O’Neal or considered by the trial court. Therefore, it is waived TEX.

R. APP. P. 33.1. We overrule O’Neal’s fourth issue.

V. ATTORNEY’S FEES 

O’Neal argues by her fifth issue that the attorney’s fees awarded to Thomas were

improper because no statute or contract allows such recovery. She also argues that the

trial court erred in refusing to make additional findings of fact with regard to the attorney’s

fee issue as well as other points in the case. 

After hearing evidence by the parties, the trial court awarded Thomas $29,425.00

in attorney’s fees. The trial court did not make specific findings of fact or conclusions of

law with respect to the attorney’s fee award, except to state that Thomas should be

awarded attorney’s fees pursuant to “appropriate civil statutes and the Family Code.” 

After the trial court files original findings of fact and conclusions of law, any party

may request specified additional or amended findings. TEX. R. CIV.P. 298. The trial court

shall file any additional findings and conclusions that are appropriate within ten days after

a request is filed. Id. If the record shows that the complaining party did not suffer injury,

the trial court's failure to make such additional findings does not require reversal.

Johnston v. McKinney Am., Inc., 9 S.W.3d 271, 277 (Tex. App.–Houston [14th Dist.] 1999,

pet. denied); see Tamez v. Tamez, 822 S.W.2d 688, 692 (Tex. App.–Corpus Christi 1991,

writ denied). To obtain a reversal, appellant must show from the record that the trial

court's refusal to file additional findings of fact and conclusions of law, as requested, was

reasonably calculated to cause and did cause rendition of an improper judgment.

Doncaster v. Hernaiz, 161 S.W.3d 594, 608 (Tex. App.–San Antonio 2005, no pet.);
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Tamez, 822 S.W.2d at 693. If the trial court's refusal to make additional findings does not

prevent an adequate presentation on appeal, there is no reversible error. Doncaster, 161

S.W.3d at 608. The issue is whether the circumstances are such that appellant is forced

to guess at the reasons for the trial court's decision. Id.

Here, while O’Neal filed documents requesting additional findings, she did not

actually specify the findings she wanted the trial court to make. Her request looked more

like proposed jury issues. Regardless, the trial court’s finding was that Thomas was

awarded attorney’s fees pursuant to the family code and other appropriate civil statutes.

The family code expressly provides for an award of attorney's fees in proceedings to

enforce the decree. TEX. FAM. CODE ANN. § 9.014 (Vernon 2006); In re Marriage of

Malacara, 223 S.W.3d 600, 603 (Tex. App.–Amarillo 2007, no pet.). O’Neal argued in this

Court that the fees were not authorized under the family code or under contract law and

briefed those issues on appeal. She also thoroughly briefed why she believed Thomas

was not entitled to attorney’s fees as sanctions. 

We review the trial court's award of attorney's fees for an abuse of discretion. See

Chavez v. Chavez, 12 S.W.3d 563, 566 (Tex. App.–San Antonio 1999, no pet.) (involving

the review of award of attorney's fees in an enforcement proceeding is under an abuse

of discretion standard); Schneider v. Schneider, 5 S.W.3d 925, 930 (Tex. App.–Austin

1999, no pet.) (same). A trial court abuses its discretion when it acts arbitrarily,

unreasonably, or without reference to any guiding principles. In his answer, Thomas

requested attorney’s fees under the family code, although he pleaded for fees under the
Thomas improperly pleaded for attorney’s fees under sections 106.001 and 106.002 of the family 3

code. TEX. FAM. CODE ANN. §§ 106.001-.002 (Vernon 2008). These sections deal with attorney’s fees and

costs in suits involving the parent-child relationship. 

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wrong section of the code. He also pleaded generally for attorney’s fees. The trial court 3

had authority under section 9.014 to award attorney’s fees in this action. See TEX. FAM.

CODE ANN. § 9.014. A general request for attorney's fees in the prayer of the pleading is

itself sufficient to authorize the award of attorney's fees. Tull v. Tull, 159 S.W.3d 758, 762

(Tex. App.–Dallas 2005, no pet.). The trial court did not err in failing to make additional

fact findings. However, even if the trial court did err, the error was harmless because

O’Neal was able to adequately present her issues to this Court. Accordingly, the trial court

did not abuse its discretion in awarding attorney’s fees. We overrule O’Neal’s fifth issue.

VI. CONCLUSION

The judgment of the trial court is affirmed.

ROSE VELA

Justice

Memorandum Opinion delivered and 

filed this 2nd day of July, 2009.