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 , Appellant s
V.
THOMAS C. SCHOOLER , Appellee

On Appeal from the County Court at Law Washington County, Texas Tri al Court Cause No. 2018

- 014

MEMORANDUM OPINION Appellants C. Michael Orr and Lois W. Orr appeal from the final judgment in favor of appel lee T h omas C. Schooler si gned following a one

- day be nch trial

. Finding n o error, we a ff

irm the trial court ’ s fin al judgment

.

B ACKGROUND Appe llants contra cted to purchase a twenty

- acre property in Wa shington County from the James Gray Revocable Living Tru st (the “ Trust ” )

. Schooler2

resided on the property and he was also a benefic iary under the Trust. Schooler

was n ot a party to the re al estate purchase contract.
The contract included a terminat ion op tion. This option gave appellant s the option to terminate the contract “ within 3 days after the effective date of the
contract. ” The option also included the followin g provision : “ [ t ] ime is of the essence for this paragraph and strict compliance with the time fo r performance is required. ”
The contract pro vided that , a m o n g o t h e r i t e m s l o c a t e d o n t h e p roperty, appellants we re purchasing “ all outdoor art and furniture o n [the] property. ” The contract initially provid e d for a lea seback of the proper ty t o the T r ust for a perio d of t wo weeks after the closing. The contract al so provided that “ a t [t he ] tim e o f [the] termination o f [the ] lease

- back [ ,] all remaining personal items , furniture [and] art will become property o f owner. ” The contract , however, was subsequently amended

. The amend ment shor ten ed the leaseback period to one we ek after the

c losing date . It also provided that the outdoor sculpture Poetry Cor ner and t hree metal chairs would be left and become the property of appellants. The amendment further provided that appellants would give Sc hooler sixty days from the closing dat e to remove four other large pieces of outdo or sc ul p ture , the Geode, Walking Man, the Seven Deadly Sins, and the Granite Canyon, from the property. 1 The

am endment also required that appellants “ must agree on day s t o r emove these it ems in order to have correct weather conditions. ” Finally, the amendment provided that School er w as “ personal ly responsi ble for a ny damage to the property due to removal of said structures. ” The amendment did n ot have a time is of the

es sen ce clause. I t is undisputed that t he Seve n Deadly Sins sculpture was removed

1 The Granite Canyon weighs approx im ately 2 tons. T he Geode i s a pproximately seven

feet tall and also very heavy.3

before the closing occurred on May 2, 2016 and the sixty

- day period ended on July 1, 2 016.
The sixt y days followi ng th e cl osing were a period when Washington Cou nty e xperienced historic rainfall totals and historic flooding. This extre me

we ather impact ed Schooler ’ s efforts to remove the three outdoor scul ptures remaini ng on the property

. During that period , Schoo ler attempted to coordina te with appel lan ts on dates to remove the sculptures. According to Schooler, both part ies agreed t hat it was best to wait u n til the rainy weather had improved. Once the weather improved and the ground started to dry out , S chooler contacted appella nts and wa s told the time was not good because they were conduc ting grass cutting and ba ling operations on the property. The y all agreed t o delay moving the artwork because appellants were having wor k done on the ho use and it would continue “ for the nex t t w o months. ” According to Schooler, Mr. Orr told him that he could take his time because Mr. Orr di d not want the proper ty damage d

. F inally, o n July 15, 2016, Schooler cal led Mr. Orr and he agreed Schoo l er could enter the propert y 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 th e property the next day about one in the afternoon only to find a p pellants we re not there. Schooler ha d hired
cont ractors and heavy equipment to move the Geode, so they went ah ead and

remo ved it f

rom the property that day. The move o ccurred in daylight and it took ab out two to three hours.

A bout a week later , the sheri ff showed up at Schooler ’ s residence to in v estigate th e remo val of the Geode sculpture. After talking to Schooler, the sheriff determined that the ma tter was a civil dispute and left

. Appellants filed suit
ag ainst Schooler asse rting a c laim unde r the Tex as Theft Liability Act. See Tex.4

Civ. Prac. & Rem. Code Ann. § 134.001 , et seq

. Appellants subsequ en tly add ed claim s seeking declaratory and injunctive re lief

. School er filed an answer as well a

cou nterclaim asserting cl aims for breach of contract and d eclaratory relief. The case went to trial before the be nch. At the conclusion of the tria l, the trial court found in favor of Schooler. It signed a final judgment that denied all relief to appel lants. It also declared t hat the four sc ulptures listed ab ove were the pr operty of the Tru st and that Schoo ler was authorized to retr ieve the last two scul ptures from the property. Finally, the judgment awarded Schooler his attorney ’ s fees

. 2

The trial court also signed fin ding s of fact and conclu sions of law. A mong its findings w ere the following: (1) appellants gave no consid eration for the sculptures ; (2) Washington County experienced “ historic rainfall tota l s and dev astating flooding ” during the s ixty d ays foll owing the cl osing and this delayed Schooler ’ s abi lity to remo ve th ree of the large scu l p t ures ; (3) Schooler was required to coordinate removal of the sculptu res with appellants and needed the approval of app ellants before he could enter the property to rem ove the sculptures; (4) School er attempted to coo rdinate removal of the scul ptures but appellants would n ot schedule a date un til after the sixty

- day period had expired ; 3 (5) Scho oler coordinated with Mr. Orr in mid

- July 2016 for the remov al of th e Geode

s c ulpture and it was removed on July 16, 2016 ; and (6) Schooler has not re moved

2 The parties agreed on the a mo unt of eac h side ’ s attorney ’ s fe es.
3 The trial court ’ s finding provides: “ Defendant attempted to coordinate with Plaintiff for the re mo v al of t he remain in g artwork during the sixty (60) day period, b ut Defendant would not schedule a d ate unt il after the s i xty (60) [day ] peri od expired. ” The trial court ’ s reference to

“ Defendant ” not schedul ing a date until after the sixty

- day period expired is c learly a typogra phical mistake be cause the contract establishes t hat it was appellants wh o had the cont ractual authority to approve the scheduling o f any entry onto the prop erty by School er to remove the scu l ptures. We therefore correct the finding to sho w that it was appellants /plaintiffs who would not appr ove a date during the sixt y - day per io d. 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.) ( correctin g typographical mistake in fact finding on appe al ).5

the two sculpture s rem aining on the property d ue to appellant s ’ actions

. The trial court then made the following conclus i ons of law: (1) appellants “ gave no

cons ideration for t he artwork kn own as th e large Geode, Walking Man, the Seven
D eadly 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 Jam es Gray Revocab le Living Trust ; ” and (4) Scho oler was the prevai ling p arty and was therefore entitled to re cover his attorney ’ s fees pu rsuant
to section 134.005 of th e Texas Civil Practi ce and Remedies Code. This appeal followed.

A NALYSIS Appell an ts raise s ix issues ch allenging the trial court ’ s judgment. We address the f

irst , second, third, and fifth issues together

. In the se i s sues , appellant s

a rgue that the trial c ourt erred when it granted judg ment in favor of Schooler and denied them relie f

. Appellants specifical ly assert that the trial court erred when it (1) determined that they did not give an y consideration for the four sculp t u res ; (2) ruled th at the Trust owned th e four ou tdoor sculptures , and that Schooler had the right to remove the scu lptures; and (3) concluded that time was not of the es sence for the r emoval of the outdoor sculptu res from the pr operty

. In their fourt h issue appella nts argue th at the tri al court erred when it f ound that they d id not coordinate the removal of th e ou tdoor sculptures in good faith. We need not address th is issue because t h e bad faith finding is immaterial to the trial court ’ s judgment. F inally, b ecause we have reject ed appellants ’ arguments in the ir cons olidated issues and conclude that t he trial cou rt did not err in rende ring judgment in favor of Sc hooler , we need not ad dress appell a nts ’ sixth issue because it was conti ngent on a reversal of the trial co ur t ’ s determination that the Trust ow ned the four outdoor sculptures

. I

. Standard of rev iew and ap plicable law6

When a trial court makes specific findings of fact and concl usions of law following a bench trial and a reporter’ s record is before the appellate court, the findin gs will be sustain ed if there is evidence to support them, and the app ellate

cou rt will revie w the legal conclusions drawn from the facts found to determ ine their correctness

. Trelltex, Inc . v. Intecx, L.L.C. , 494 S.W.3d 781, 789 (Tex. App.

— Houston [14th Dist.] 2016, no pe t.). Findings of fact have the same force and di gni ty as a ju ry’ s verdict and are reviewable under the same standards of legal and fac tual sufficiency. Foley v. Capital O ne Bank, N.A. , 383 S.W.3d 644, 646 (Tex. App.

— Houston [14th Dist.] 2012, no pet.)

. A party att acking the legal suffi ciency of an adverse finding o n 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. Franci s , 4 6 S.W.3d 237, 241 (Tex. 2001 ). When a party attacks the legal suffici ency of an advers e 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. H

osp., L.P. v. Prex us Health Consultants, LLC , 403 S.W.3d 547, 550 (Tex . App.

—

Hou ston [14th Dist.] 2013, no pet.)

. In conducting a legal sufficiency revi ew, we consider the evidence in the l ight most favorable to the appealed finding and indulge every reas onable inference t hat supports it. Id. at 550

– 51 (citing City of Kell er v. W ils on , 168 S.W.3d 802, 821

– 22 (Tex. 2005)). The evidence is legally sufficie nt if it would enable reasonable and fair

- minded people to reach the decision under review. Id . at 551

. This C ourt must credit favorable evidence if a reasonable trier of fact co uld and disregard contrary evidence unless a reasonable trier of fact could not. Id

. The trier of fact is th e s ole judge of the witnesses’ credibility and the weight to be given their testimony. Id

. If there is more than a scintilla of evidence support ing a finding of fact, we will overrule a7

legal sufficiency challenge. CA P artners v. Spears , 274 S.W.3d 51, 69 (Tex. App.

— Houston [14th Dist.] 2008, pet. denied). When a party a ttacks the factual sufficiency of an adverse finding on which he bore the burden of proof, he must establish that the finding is agains t the great weight and preponderance of the evidence. Dow Chemical Co. , 46 S.W.3d at 242

. When a party challenges the factual sufficien cy of the evidence supporting a finding on whi ch it did not ha ve the bur den of proof, we may set aside the finding only if it is so con trary to the overwhelming weight of t he evidence as to be clearly wrong and unjust. See Mar itime Overs eas Corp. v. Ellis , 971 S.W.2d 402 , 407 (Tex. 1998) ; Nip v. Chec kpoint Sys

. , Inc

. , 154 S.W .3d 767, 769 (Tex. App.

— Houston [14th Dist.] 2004, no pet.)

. I n reviewing the factual sufficiency o f the evidence, we must examine the entire record, considering the evidence both in favor of and contrary to the challenged finding

. Se e Ellis , 9 71 S.W.2d a t 406

– 07; Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986). The amount of evidence necessary to affir m is far less than the amount necessary to reverse a judgment. GT E Mobilnet of S. T

ex. Ltd. P’ship v. Pascouet , 61 S.W.3d 599, 616 (Tex . App.

— Hou ston [14th Dist.] 2001, pet. denied).
This Court is not a factfinder. El lis , 971 S.W.2d at 407. Instead, the trier of fact, in this case the trial court, is the sole judge of the credibility o f the witnesses and the weight to afford thei r testi mony. Pas couet , 61 S.W.3d at 615

– 16. Therefore , we may not pass upon the witnesse s’ credibility or substitute our judg ment for that of the trial court , even if the evidence would suppo rt a different

res ult. Id. If we determine that the evidence is fact ually insu fficient, we must detail the evidence relevant to the issue and state in what regard the contrary evidence gre atly outweighs the evidence in support of the challenged finding ; we need not do so when we affirm

. See Gonzalez v. McAllen Med. Ctr., Inc. , 1958

S.W.3d 680, 681 (Tex. 2006) (per curia m).

We review a trial court’ s concl usions of law de novo. Trelltex, Inc

. , 494 S.W.3d at 790. When performing a de novo review, we exerci se our own judgmen t and redetermine each legal issue. Id. To make th is determi nation, we consider whether the conclu sions are correct based on the fact s from which they are drawn. Id.

In construing a written contract, an appellate court ’ s primary goal i s to ascertain the true intentions of the parties as expressed in the instrument

. J.M. Davidson, Inc. v. Webster , 1 28 S.W.3d 223, 229 (Tex. 2003)

. Whe n construing a contract, we give contract terms their plain, ordin ary, and generally accepted meanings unless the contract itself sh ows them to be used in a technical or differe nt sen se. Valence Operating Co. v. Dorset t , 164 S.W.3d 656, 662 (Tex. 2005)

. We construe contracts from a utilitarian stand point, bearing in mind the particular business a ctiv ity sought to b e served, and we avoid, wh en pos sible and proper, a construction tha t is unreasonable, inequitable, or op pressive. Frost Nat ’ l Bank v . L & F Distrib., Ltd. , 165 S.W.3d 310, 312 (Tex. 2005)

. Courts are not author ized to rewrite agreements to i nsert provisions parties could have includ ed or to imply terms for which they h ave not bargained. Tenneco, In c. v. Enterprise
P rod. Co. , 925 S.W.2d 640, 646 (Tex. 1996)

. In othe r words, c ourts cannot make , or remake, c ontrac ts 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 r ole to protect the parties from their own agreement s. Nat ’ l Prop. Holdings, L.P. v. Westergren , 453 S.W.3d 4 19, 425 (Tex. 2015).

For a contract to be valid, it must be suppo rted by consideration. Eurecat US, Inc . v. Marklund , 527 S .W.3d 367, 387 (Tex. App

. — Houston [14th Di st.] 2017, no pet.). A co ntract that lack s consider ation is unenforceable

. Hall v

.9

Hubco, Inc. , 292 S.W.3d 22, 28 (Tex. App.

— Housto n [14th Dist.] 2006, pet. denied). Whether valid consideration exists is a question o f law. Id. Consid eration can be eit her a benefit to the promis or or a d e trime nt to the promise e. Id.

II

. The trial court did not err w hen it granted judgment in favor of Schooler and denied appellants ’ requested relief. Appellants initially argue that the trial cou rt err ed when it conclud ed that they did not give any consideratio n for the four sculptures. The agreement at issue here includes both the or iginal F arm and Ranch Contract as well as a n 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. deni ed) ( “ A promise to fulfill a pre

- existing obligation cannot serve as ne w consideration. ” ). The initial F arm and Ranch Cont ract did state tha t the transaction included “ all outdoor ar t

. ” T hat , however, is not the totality of the agreement we are called up on to construe in t his case bec ause the parties a m end ed th e o riginal contract

. The amendment expressly ca rved out four of the outdoor sculpt ures from the tran saction by allowing Scho oler , on b ehalf

o f the T rust, t o remove them from the p roperty

. The amen dment specif ically provi de d: “ Tommy Schooler will agree to leave Po etry Corner sculpture and three metal c hairs in place and these items will become the pro perty of the Buyers; Buyers , will then give him sixty days from closing date to remove the large Geo de, Walking Man, the Seven De adly S ins, and Granite Canyo n. ” T he parties also
agre ed in the amendment to reduc e the lease back period from the original two weeks to a si ngle week

. We conclude the amendmen t was supported by independ ent consideration

. Hal l , 292 S.W.3d at 2 28 ( stating that c onsideration can be either a benefit to the promis or or a d e triment to the promise e )

. A s a result , the amendment removed the four nam ed out door sculptu res from the c on sid eration for10

the transaction and the t rial court d id not err when it reached that conclusion

. Additionally, the plain language of the amendme nt supports the trial court ’ s conclusion that the f

our named outdoor sculpture s remained the pro perty of the
Tr ust and that Schooler had the authority to remove the sculptures f rom the
pr operty

. Finally, appellants argue that the trial co urt erred when it determined that time was not of the essence in the removal of the four named o utdoor scul ptures from the pr operty within sixty days of the closing dat e. We disagre e. Ordinarily, t ime 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.). A dditi onally, a date stat ed for performance in the
contract does not mean t ime 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 cir cumstances surrou nding 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 resolv ed by the factfinder

. Id.

We conclu de time was not of the essence in the removal of the outdoor sculptures fo r the following re asons. Fi rst, the agreement at issue here did not expressly make time of the essence for the six ty

- day remova l period

. Id. The parties did, however, include a time of the essen ce provision in t he option contract establishing the y knew how to do so when such a cl ause was desired. We cannot ignore the fact they chose not to incl ude such a pr o vis ion in the a m endment. See Bennett v. Comm ission for Lawyer Discipline , 489 S.W.3d 58, 68 (Tex. App.

— Ho uston [14th Dist.] 2016, no pet.) ( stating that courts are not autho r i zed to rew rite agreements to insert provisions into contract that parties could have included but ,11

for w hatever reason, chose not to include )

. T he fact appellants may n ow wish they had included such a provision does not authorize this court to rewrite th e agreement in the guise of construing it. See Yzaguirre v. KC S 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 t he benefit o f a bar gain they never made. ” ). Second, the other langua ge of the amendment establishes that the parties did not cons ider ti me of the essence

. This language include s appellants reserving the right to approve entry onto the pr operty for remova l of the o utdoor sculptures and the language imposing liability on Sc hooler for any damage caused by the removal of the outdoor sc ulpt ures. Both indicate a decision by the parties to await the perfect time for the remov al of such large out door artwork r ath e r than a desire to accomplish the removal regardless of the consequ e nces within an ar b it rar il y set amount of time. We hold the trial court did not err when it concluded that time was not of the

esse nce in the removal of the o utdoor sculp tures. We overrule appellants ’ first,

secon d, third, and fifth issues. Appellants arg u e in the ir fourt h issue that the trial court erred when it found that they “ did not coordinate removal of the artwork w i th [Defendant] in good faith. ” The tria l court declared in its judgment that the o ut door sculptures belonged to the T rust based on its interpretation of the agreement between the parties. In ad dition, the trial court awarded atto rney ’ s fees to Schooler based on the Texas Theft Liability Act wh ich provides that “ each person who prevails in a suit under this chapter shall be awarded court costs and reasonable and necessary

a ttorney ’ s fees. ” Tex. Civ. Prac. & Rem. Code Ann. § 134.005 . Neither depends on the t rial court ’ s bad faith finding. Acco rdingly, w e conclude that we need not reach this issue because this findin g is imm ater ial to th e trial court ’ s judgment. See Tex. R. App. P. 47.1; Arriaga v. Cartmill , 407 S.W.3d 927, 931 (Tex. App.

—12

Houston [14th Dist.] 2013, no pet.) (disregarding trial court ’ s fact finding because it was im material to the trial court ’ s judgment). Finally, appel lants ass ert that the trial court erred when it awarded Schooler his attorney ’ s fees pursuant to secti on 134.005 of the Texas Civil Practice and Remedies Code. This issue was cont ingent on this court reve rs ing the trial co urt ’ s dete r mination that the outd oor sculp tures belonged to the Trust and that it had the legal right to remove them

. B ecause we have affirmed the trial court , we need not reach this issue. Se e Tex. R. App. P. 47.1

. C ONCLUSION Having overruled all o f appellant s ’ issue s n e c e s s a r y t o r e s o l v e t h i s a p p e a l , we affirm th e tr ial c ourt’s final judgment

.

/ s/ Jerry Zimmerer Justice

Panel consists of Ch ief Justice C hristopher and Justices Jewell and Zimmerer.