Affirmed as Modified in Part and Reversed and Remanded in Part, and Opinion

and Concurring Opinion filed May 9, 2013.

In The

Fourteenth Court of Appeals

NO. 14-11-00791-CV

MAN INDUSTRIES (INDIA), LTD., Appellant

V.

MIDCONTINENT EXPRESS PIPELINE, LLC, PRIME PIPE 

INTERNATIONAL, INC., AND THE BANK OF TOKYO-MITSUBISHI 

UFJ, LTD., Appellees

NO. 14-11-00892-CV

MIDCONTINENT EXPRESS PIPELINE, LLC, Cross-Appellant

V.

MAN INDUSTRIES (INDIA), LTD., PRIME PIPE INTERNATIONAL, INC.,

AND THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., Cross-Appellees

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 2008-56539
2

CONCURRING O P I N I O N

I respectfully concur in the judgment. I write separately to address the 

majority’s handling of omitted findings in disposing of the cross-appeal.

In its cross-appeal, Midcontinent Express Pipeline, LLC asserts that Man 

Industries (India), Ltd. acted in bad faith in seeking and obtaining the April 2008 

modification to Midcontinent’s purchase order with Man. Though the trial court 

enforced this modification, the trial court made no finding as to whether Man acted 

in good faith. Midcontinent has sufficiently raised the issue of whether a finding 

of good faith should be supplied by presumption under Texas Rule of Civil 

Procedure 299, which governs omitted findings in bench trials. The majority 

supplies this finding by presumption without addressing whether the evidence 

supports such a finding regarding the subjective component of the definition of 

good faith and without addressing whether the evidence is factually sufficient to 

support such a finding regarding the objective component of this definition. In 

proceeding in this fashion, the majority contravenes the governing rule and 

procedure. As explained below, the proper course would be to determine whether 

the evidence is legally and factually sufficient to support a finding of good faith as 

to both the objective and subjective components. Because the evidence is legally 

and factually sufficient to support such a finding, and because the other 

requirements of Rule 299 are satisfied, it is appropriate to supply such a finding by 

presumption. 

Good Faith in Seeking Modification under the Uniform Commercial Code

In March 2008, Man told Midcontinent for the first time that Man would run 

out of steel before completing production. Man then sought, negotiated, and 

obtained a modification to Midcontinent’s purchase order with Man. The trial 
3

court enforced this modification agreement but did not address in its findings of 

fact whether Man complied with its obligation under the Uniform Commercial 

Code to act in good faith in seeking and obtaining this modification.1 In its crossappeal, Midcontinent asserts that the trial court erred by enforcing this 

modification because Man acted in bad faith in seeking and obtaining the 

modification. Midcontinent’s argument raises the issue of whether this court 

should supply by presumption under Rule 299 a finding that Man acted with 

honesty in fact and observed reasonable commercial standards of fair dealing in 

seeking and obtaining the modification (the ―Finding‖).

2

 

Omitted Findings Supplied by Presumption

On appeal, a finding of fact omitted from the trial court’s findings of fact 

will be supplied by presumption in support of the judgment as to an element of a 

ground of recovery if three conditions are met: (1) an element of the ground of 

recovery was included in the findings of fact; (2) a finding of fact as to the element 

was not properly requested; and (3) the evidence is legally and factually sufficient 

to support a finding of fact as to the element.3 In its findings of fact, the trial court 

found that Midcontinent agreed in the April 2008 modification to pay Man an 

additional $4.4 million and that Midcontinent breached this agreement. The 

 

1

See Tex. Bus. & Com. Code Ann. § 1.201(b)(20) (West 2013) (defining ―good faith‖ in this 

context as ―honesty in fact and the observance of reasonable commercial standards of fair 

dealing‖); id. § 1.304 (West 2013) (stating that ―[e]very contract or duty within this title imposes 

an obligation of good faith in its performance and enforcement‖). 

2

See Tex. R. Civ. P. 299 (stating that ―[t]he judgment may not be supported upon appeal by a 

presumed finding upon any ground of recovery or defense, no element of which has been 

included in the findings of fact; but when one or more elements thereof have been found by the 

trial court, omitted unrequested elements, when supported by evidence, will be supplied by 

presumption in support of the judgment‖).

3

See id.; Foley v. Capital One Bank, N.A., 383 S.W.3d 644, 648 (Tex. App.—Houston [14th 

Dist.] 2012, no pet.); Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 253, 258 (Tex. 

App.—Houston [14th Dist.] 1999, pet. denied).
4

Finding was not properly requested. Thus, the first and second conditions are met.

Considering the evidence in the light most favorable to the Finding, 

indulging every reasonable inference that would support the Finding, crediting 

favorable evidence if a reasonable factfinder could, and disregarding contrary 

evidence unless a reasonable factfinder could not, the trial evidence would enable 

reasonable and fair-minded people to find that Man acted with honesty in fact and

observed reasonable commercial standards of fair dealing in seeking and obtaining 

the modification.

4

 Examining the entire record, considering and weighing all the 

evidence, including the evidence in favor of, and contrary to, the Finding, the 

Finding is not so contrary to the overwhelming weight of the evidence as to be 

clearly wrong and unjust.5 The evidence is legally and factually sufficient to 

support the Finding, and thus the third condition is met. Because all three 

conditions are satisfied, this court may supply the Finding by presumption in 

support of the trial court’s judgment and reject Midcontinent’s assertion that Man 

acted in bad faith in seeking and obtaining the modification.6 

Proper Procedure under Rule 299

The majority supplies the Finding by presumption without addressing 

whether the record contains legally and factually sufficient evidence to support the 

subjective component of the Finding and without addressing whether the record

contains factually sufficient evidence to support the objective component of the 

Finding.7 Instead, this court should analyze and determine whether the evidence is 

 

4

See City of Keller v. Wilson, 168 S.W.3d 802, 823, 827 (Tex. 2005); Bank of Tex. v. VR Elec., 

Inc., 276 S.W.3d 671, 679–80 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (determining 

the evidence was legally sufficient to support a finding of good faith, as defined in Texas 

Business and Commerce Code section 1.201(b)(20)). 

5

See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998).

6

See Foley, 383 S.W.3d at 648; Vickery, 5 S.W.3d at 253, 258.

7

See ante at pp. 33–38. 
5

legally and factually sufficient to support both the objective and the subjective 

components before supplying the Finding by presumption.8 This important step 

ensures full and fair review, and it is required by the rules of procedure. 

 

/s/ Kem Thompson Frost

Justice

Panel consists of Justices Frost, Christopher, and Jamison. (Christopher, J., 

majority).

 

8

See Tex. R. Civ. P. 299; Foley, 383 S.W.3d at 648; Vickery, 5 S.W.3d at 253, 258.