NUMBER 13-21-00077-CV

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG 

 

HASSAN M. TORK, Appellant,

v.

RAY A. AND CARMEN B.

GARCIA, Appellees. 

 

On appeal from the 135th District Court 

of Calhoun County, Texas.

 

MEMORANDUM OPINION 

Before Chief Justice Contreras and Justices Silva and Peña 

Memorandum Opinion by Justice Peña 

Appellant Hassan M. Tork appeals a take-nothing judgment, following a bench trial, 

on his breach of contract claim. By ten issues which we interpret as two, Tork argues that: 

(1) the evidence was legally and factually insufficient to support the trial court’s judgment; 
2

and (2) the trial court abused its discretion in failing to issue findings of fact regarding 

Tork’s attorney’s fees. We affirm.

I. BACKGROUND

A. The Underlying Facts1

Tork owned and operated several Skillet’s Restaurants in South Texas, including 

one in Port Lavaca and another in Victoria. In 2015, Tork closed his Port Lavaca location 

and placed the building for sale. A realtor introduced appellees Ray and Carmen Garcia 

to Tork in 2016. Ray stated that he and his wife were interested in purchasing the Port 

Lavaca restaurant but could not afford the purchase price of $700,000. Because the 

restaurant’s lack of revenue for two years prevented the Garcias from obtaining a bank 

loan, the parties negotiated a year-long lease with an option to buy the restaurant for 

$599,000. The parties executed this lease on July 16, 2016.

Carmen testified that the Garcias spent thousands of dollars of their own money 

repairing the Port Lavaca restaurant during the lease term. According to her, the most 

significant expenses were for air conditioning and freezer repairs, upgrades to the vent 

hood and frying equipment, and the purchase of a new ice machine. By April of 2017, the 

Garcias signed a commercial contract with Tork to purchase the property for $592,747, 

contingent on the Garcias securing financing.2 The contract set a closing date of July 1, 

2017.

1 These facts are taken from the trial evidence.

2 The record shows that Tork gave the Garcias credit for the repairs they had made to the 

restaurant during the pendency of their lease.
3

The Garcias amassed $121,000 as a down payment toward the purchase of the 

restaurant by selling their residence and personal stock. However, they were unable to 

secure a loan for the remainder of the purchase price by July 1. Tork subsequently agreed 

to extend the closing deadline in exchange for a separate promissory note of $18,000,3

and the closing date was moved to August 25, 2017. The Garcias finally obtained 

financing from Woodforest National Bank and were prepared to close on August 25. 

Unfortunately, Hurricane Harvey then ravaged Port Lavaca in late August of 2017, and 

the closing did not occur at this time, either. Because of the hurricane, the parties mutually 

agreed to move the closing date to September 20, 2017.

Under the terms of the commercial contract, Tork could have taken the $6,000 in 

earnest money the Garcias had tendered to the title company and terminated the 

agreement. The commercial contract specifically set forth that, “[i]f Buyer fails to comply 

with this contract, Buyer is in default and Seller, as Seller’s sole remedy(ies), may 

terminate this contract and receive the earnest money [] as liquidated damages for 

Buyer’s failure.” Tork did not exercise this remedy, however, and the Garcias continued 

to operate the Port Lavaca restaurant on a month-to-month basis.

Tork gave conflicting testimony regarding whether the contract to sell the Port 

Lavaca ever terminated. At his deposition, he was asked, “When did you terminate [the 

contract to sell]?”, to which he replied, “I did not.” At trial, however, he stated “as far as 

[he] was concerned . . . the contract was over” in July of 2017. Tork’s commercial realtor

3 Carmen testified that Tork lost $18,000 on a missed vacation and other business expenses 

related to the sale not occurring, so he asked the Garcias to pay that amount in exchange for continuing 

with the sale of the Port Lavaca restaurant.
4

James Paxton, however, testified that Tork never took the Garcia’s $6,000 earnest money 

as liquidated damages to terminate the contract. Paxton also stated that he never drafted 

a termination contract for the sale of the Port Lavaca restaurant. 

Tork testified that he received “numerous offers” on the Port Lavaca restaurant. 

One call in particular was from someone who offered to purchase the Port Lavaca 

restaurant for $800,000. Tork testified that he could not recall the name of the person who 

made this offer, nor did he obtain an email address or phone number from this person. 

According to Carmen, one week before the September closing date, Tork told the Garcias 

about this new offer. In response, Tork made the Garcias a new offer of $100,000 to walk 

away from the purchase contract.

The Garcias, however, did not want to do this. Carmen testified that she spent a 

year of her life “building up” the restaurant through personal sacrifice, including selling 

her home and living in an RV with her husband, quitting her job, and selling personal 

stock. She also claimed she injured herself once while cleaning the Port Lavaca 

restaurant, spending some time in the hospital. In sum, she stated that she “spent too 

much money and time in this thing.”

According to Carmen, Tork then made another offer: he would add $100,000 to 

the purchase price which would go toward the optional purchase of his Victoria Skillet’s 

Restaurant. On the day of closing, Tork presented a letter to the Garcias that stated the 

following:

This letter is to serve as the agreement between [the parties], as follows:

1. That the total purchase price to be paid by [Ray] and [Carmen] for the 

Port Lavaca Property at the Closing is the sum of $592,747[], including 
5

third party financing secured by a vendor’s lien and first lien deed of trust 

on the Port Lavaca Property.

2. That, in consideration of [Tork] closing the sale of the Port Lavaca 

Property, [Ray] and [Carmen] agree, promptly after closing, to execute 

a promissory note in the amount of $100,000[], payable to [Tork] for a 

term of 18 months. The $100,000[] note will be secured by a second lien 

deed of trust on the Port Lavaca Property which will be inferior to the 

first lien deed of trust executed by [Ray] and [Carmen] in connection with 

the purchase of the Port Lavaca Property. The form and terms of the 

$100,000[] note and the second lien deed of trust securing the 

$100,000[] note will be subject to agreement between [Tork] and [Ray] 

and [Carmen], but will be in accordance with appropriate forms 

contained in the State Bar of Texas Real Estate Forms Manual.

[Ray] and [Carmen]’s agreement to execute the $100,000[] note and the 

second lien deed of trust securing the note, is subject to [Tork’s] 

agreement to grant to [Ray] and [Carmen] an option to purchase the land 

and building located at 3202 Houston Highway, Victoria, Texas (the 

“Victoria Skillet[’s]”), for the purchase price of $750,000[] (said purchase 

price of $750,000[])[,] specifically for the land and building and not the 

business located at the Victoria Skillet[’s]) for a period of 18 months from 

the date of the $100,000[] note, and, [Tork’s] further agreement that, in 

the event of the closing of the sale of the Victoria Skillet[’s] from [Tork] 

to [Ray] and [Carmen] within 18 months from the date of the $100,000[]

note, [Tork] will promptly cancel any balance remaining on the 

$100,000[] note and release the second lien deed of trust securing the 

$100,000[] note.

Notwithstanding anything contained in this letter agreement to the 

contrary, [Tork] expressly retains the right to sell the Victoria Skillet[’s] 

to any party and at any price or terms during the 18 month period, after 

the date of the $100,000[] note. Further, in the event of the sale of the 

Victoria Skillet[’s] to another party during the 18 month period after the 

date of the note, the balance of the $100,000[] note will remain payable 

in full according to its terms. 

Carmen testified that she and Ray signed that letter. However, she stated that Tork 

then drew a line through the “5” in the “$592,747” amount in the letter and wrote in a “6”, 

to make the total purchase price $692,747. Carmen explained:

[W]hen we finish signing it[, Tork] says, [“H]old on. This is supposed to be 
6

a six[”] and [Tork] changes that five to a six. I’m like why are you changing 

that to a six, are we not buying the store for [$]600,000 and Ray is like, no, 

that’s just that [$]100,000 if we don’t buy the Victoria store that [$]100,000 

is for that Victoria store, so I was like, are you sure, and we looked at the 

paper, the closing papers, and that said [$]592 so that kind of made me feel 

at ease. Okay, it’s at [$]592. This one said [$]692. He changed that five to 

a six but the other papers say [$]592, so I just went with what Ray said, no, 

that’s that [$]100,000 from Victoria store if we don’t buy it. That’s why he’s 

adding that [$]100,000.

Carmen testified, “This agreement, to me, was for that Victoria store. It didn’t have 

anything to do with the Port Lavaca store.” The Garcias then both initialed the changed 

number that reflected “$692,747.” Of note, the actual purchase contract, entitled 

“Commercial Contract – Improved Property,” still reflected the $592,747 purchase price.

Ray further testified about the circumstances regarding signing and initialing that 

letter:

Well, well, you want to talk about two individuals that threw their hat over

the fence, I mean, we sold the house. We’re living in an RV. My wife is no 

longer working at a place that she was established at working. And if we 

lose the business, man, I can’t imagine. I don’t think people can imagine 

that kind of pressure you are, I was under from both sides—from my wife 

and from [Tork] and trying to get that thing, you know, get this thing done, 

so when we signed it, we signed everything. Like I said, I thought it was for

the [$]592[,000] or whatever it is, and when he scratched that out and put—

I, in my mind I thought we were done with the Port Lavaca and this was part 

of something with the Victoria. That’s—and Carmen even said, bless her 

heart, she said, well, why are we changing that price? What is it for? And I 

told her it was for the Victoria store. I didn’t know that it was for this other 

place.

The sale of the Port Lavaca restaurant closed on September 20, 2017. However, 

the Garcias did not execute the $100,000 promissory note, nor did they purchase the

Victoria restaurant location. Although Ray apparently made attempts to get a loan for the 

purchase, he testified that Tork never sent him information the bank required to justify a 
7

loan. Further, Tork admitted that he did not grant the Garcias an option to purchase the 

land and building for the Victoria restaurant.

B. The Litigation

Tork eventually sued the Garcias for breach of contract when they failed to 

purchase the Victoria restaurant or execute the $100,000 promissory note. His original 

petition claimed that the letter agreement, signed and initialed by the Garcias at the 

closing on September 20, 2017, explains their contractual obligation to pay him the 

additional amount for the Port Lavaca restaurant. Carmen filed a general denial, but also 

asserted affirmative defenses of lack of consideration, estoppel, and duress. Ray, 

appearing pro se, filed a separate answer containing only a general denial.

The trial court held a bench trial on December 1, 2020. On December 17, 2020, 

the trial court issued a take-nothing judgment against Tork. On January 21, 2021, the trial 

court issued the following findings of fact and conclusions of law:

Findings of Fact: 

1. The Commercial Contract – Improved Property marked as [Tork’s] 

Exhibit 4 was never terminated. The parties thereto simply agreed to 

extend closing date contained in the contract out to September 20, 

2017. The purchase price in said contract was $592,747[]. 

2. [Tork’s] Exhibit 5 was signed by all parties prior to the scratched out 

change of the purchase price from $592,747[] to $692.747[] as 

contained in section 1. [Tork’s] Exhibit 5 represented an affirmation 

of the purchase price contained in Commercial Contract – Improved 

Property marked as [Tork’s] Exhibit 4. 

3. [Tork] never granted [Carmen] or [Ray] an option to purchase the 

land and building located at 3202 Houston Highway, Victoria, Texas 

(the “Victoria Skillet’s”) for the purchase price of $750,000[] for a 

period of 18 months. 
8

4. The parties closed on the Commercial Contract – Improved Property 

marked as [Tork’s] Exhibit 4 on September 20, 2017. The contract 

sales price was $599,000[] as reflected in [Tork’s] Exhibit 6. 

5. The Court finds that no money is now due or owing to [Tork] from 

[the Garcias].

Conclusions of Law: 

1. The Court finds that there was no consideration for the proposed 

increase in the purchase price from $592,747[] to $692,474[] [sic] as 

reflected in [Tork’s] Exhibit 5.

2. The Court finds that [the Garcias were] never legally obligated to 

execute a $100,000[] [sic] in favor of [Tork]. 

3. The Court finds that [Tork] represented to [the Garcias], and 

contractually agreed, that the purchase price for the Port Lavaca 

Skillet’s [sic] was $592,747[], and [the Garcias] relied on that 

representation and acted to [their] detriment on said reliance. 

4. The Court finds that [Tork] is estopped from raising the cont[r]act 

price from $592,747[] to $692,747[]. 

5. The Court finds that [Tork] is not entitled to a recovery from [the 

Garcias] in this suit under any theory and shall take nothing on his 

claims. 

Tork filed a motion for new trial and judgment. Tork also requested additional 

findings of fact and conclusions of law, requesting the court to make findings for the 

reasonable value of his attorney fees through trial and appeal to this Court and the Texas 

Supreme Court. The trial court did not make these requested additional findings, and the 

motion for new trial was overruled by operation of law.

Tork appeals.4

4 Ray and Carmen have since divorced. Only Carmen, through her attorney, filed a responsive 

brief on appeal.
9

II. SUFFICIENCY OF THE EVIDENCE

By what we construe as his first issue, Tork contends the evidence adduced at trial 

was insufficient to support the trial court’s findings of fact, conclusions of law, and 

judgment.

A. Standard of Review

“In a legal sufficiency challenge, we consider whether the evidence at trial would 

enable a reasonable and fair-minded fact finder to reach the verdict under review.” Gunn 

v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018) (citing City of Keller v. Wilson, 168 S.W.3d 

802, 827 (Tex. 2005)). “When a party attacks the legal sufficiency of an adverse finding 

on an issue on which she has the burden of proof, she 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). 

“Evidence is legally insufficient to support a . . . finding when[:] (1) the record 

discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules 

of law or of evidence from giving weight to the only evidence offered to prove a vital fact; 

(3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the 

evidence establishes conclusively the opposite of a vital fact.” Gunn, 554 S.W.3d at 658

(first citing Bustamante v. Ponte, 529 S.W.3d 447, 455–56 (Tex. 2017); and then citing 

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)). More than a mere 

scintilla of evidence exists when the evidence rises to a level that would enable 

reasonable and fair-minded people to differ in their conclusions. Id. (citing King Ranch, 

Inc., 118 S.W.3d at 751). Conversely, less than a scintilla of evidence exists when the 
10

evidence offered to prove a vital fact’s existence is “so weak as to do no more than create 

a mere surmise or suspicion.” Id. All the record evidence must be considered in the light 

most favorable to the verdict—“every reasonable inference deducible from the evidence 

is to be indulged in that party’s favor.” Id. (citing Bustamante, 529 S.W.3d at 456).

By contrast, a factual sufficiency review is premised on consideration of the entire 

record. In re Commitment of Stoddard, 619 S.W.3d 665, 674 (Tex. 2020). “The 

assumption that the factfinder resolved disputed evidence in favor of the finding if a 

reasonable factfinder could do so remains.” Id. Rather than disregarding disputed 

evidence that a reasonable factfinder could not have credited in favor of the finding, 

though, the court must determine whether, in light of the entire record, that evidence “is 

so significant that a factfinder could not reasonably have formed a firm belief or conviction” 

that the finding was true. Id.

The standard of review for factual and legal sufficiency challenges remains the 

same regardless of whether a judge or a jury served as the factfinder. Victory Energy 

Corp. v. Oz Gas Corp., 461 S.W.3d 159, 170 (Tex. App.—El Paso 2014, pet. denied) 

(citing Raman Chandler Props., L.C. v. Caldwell’s Creek Homeowners Ass’n, Inc., 178 

S.W.3d 384, 390 (Tex. App.—Fort Worth 2005, pet. denied)). Further, because 

the factfinder is the sole judge of a witness’s credibility and demeanor, we must defer to 

its factual determinations. See City of Keller, 168 S.W.3d at 827. “We ‘assume that 

the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could 

do so,’ and we ‘disregard all evidence that a reasonable factfinder could have disbelieved 

or found to have been incredible.’” In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021); see 
11

also Cox v. Walden, No. 13-20-00283-CV, 2022 WL 120014, at *3 (Tex. App.—Corpus 

Christi–Edinburg Jan. 13, 2022, no pet.) (mem. op.).

B. Findings of Fact

We will address each of the contested fact findings in turn. First, the trial court 

found that the commercial contract was never terminated. The “Commercial Contract –

Improved Property,” which all the parties signed, set forth a specific provision regarding 

termination. Counsel for Carmen cross-examined Tork on this provision during trial:

Counsel: All right. Now, I’ll read it: If buyer fails to comply with this 

contract, buyer is in default and seller, as seller’s sole remedy 

may[ ] terminate this contract and receive the earnest money 

as liquidated damages for buyers’ failure. But that never 

happened, did it?

Tork: May I explain?

Counsel: I’m asking you did that happen?

Tork: No, sir. . . .

This testimony supports the trial court’s finding that an agreement to sell the Port Lavaca 

restaurant existed and never terminated. Paxton, Tork’s realtor, also confirmed that he 

never drew up a termination contract. Carmen’s testimony further buttresses this finding.

Carmen testified that she and Ray were unable to close on the original closing date of 

July 1, 2017 because they did not have funding. Accordingly, they executed an $18,000 

promissory note to extend the closing deadline to August 25, 2017. The Garcias then 

secured a commercial loan from Woodforest Bank to enable the parties to proceed with 

the August 25 closing date. However, Hurricane Harvey then struck. Trial testimony 

established that because several areas of Port Lavaca did not have water or electricity in 
12

the aftermath of the storm, the parties mutually agreed to close on September 20, 2017.

The agreement to sell existed.

The existence of the agreement is further supported by Tork’s own admission that

he offered the Garcias’ $100,000 to “get out” of the existing agreement to sell. Tork would 

not have to make a new offer to the Garcias had he not already been bound by the existing 

agreement to sell. See, e.g., McKinney v. Flato Bros., Inc., 397 S.W.2d 525, 529 (Tex. 

App.—Corpus Christi–Edinburg 1965, no writ) (holding that the necessary elements to 

plead novation are (1) a previous valid obligation; (2) the agreement of all the parties to 

a new contract; (3) the extinguishment of the old contract; and (4) the validity of the new 

one) (emphasis added)).

Second, the trial court found that Plaintiff’s Exhibit 5, the letter agreement Tork 

brought to the closing, was signed by all parties prior to the scratched-out change of the 

purchase price from $592,747 to $692.747. Both Carmen and Ray testified that they 

signed the letter first, then Tork scratched out the “5” on the “$592,747” amount and had 

them initial the change. Prior to Tork’s changing of the number, there is no dispute that 

the letter and the purchase contract entitled “Commercial Contract – Improved Property” 

both reflected that the purchase price of the Port Lavaca restaurant was $592,747.

Although Tork testified otherwise, the trial court was the sole factfinder and chose to 

believe the Garcias’ version of the facts over Tork’s. See City of Keller, 168 S.W.3d at 

827. Because the trial record supports this fact finding, we do not disturb it. See id.

Third, the trial court found that Tork never formally granted the Garcias an option 

to purchase the land and building located at 3202 Houston Highway in Victoria, Texas for 
13

the purchase price of $750,000 for a period of eighteen months. Tork admitted as much 

during cross examination:

Counsel: And you never made a written agreement to grant them that 

option, did you?

Tork: No, sir.

The Garcias testified that they believed the $100,000 promissory note was 

contingent upon Tork extending an offer to purchase the Victoria restaurant. Tork, on the 

other hand, argues that the $100,000 was for the Port Lavaca restaurant sale. However, 

viewing the record in light of the verdict, the parties had already agreed to extend to the 

closing date from August 25, 2017 to September 20, 2017 due to Hurricane Harvey. 

“Mutual promissory obligations by the parties to the agreement furnishes sufficient 

consideration to constitute a binding contract.” Domingo v. Mitchell, 257 S.W.3d 34, 40 

(Tex. App.—Amarillo 2008, pet. denied) (citing Iacono v. Lyons, 16 S.W.3d 92, 94 (Tex.

App.—Houston [1st Dist.] 2000, no pet.)). Here, because the parties had mutually agreed 

to extend the closing date due to an act of God, the revised letter agreement could not 

have constituted “consideration” for a promise Tork had previously made to close on 

September 20, 2017.

In sum, the Court found that the contract for the Port Lavaca Property was never 

terminated, that the sales price was $592,747, and that the Garcias did not owe any 

additional money to Tork. Considering the trial court’s findings in the light most favorable 

to the verdict and indulging every reasonable inference deducible from the evidence in 

the Garcias’ favor, we hold that the trial court’s foregoing findings of fact are supported 

by the record. See Dow Chem. Co., 46 S.W.3d at 241. A “reasonable and fair-minded 
14

fact[ ]finder” could have reached this verdict. Gunn, 554 S.W.3d at 658. And in light of the 

entire record, a factfinder could have reasonably formed a firm belief or conviction that 

these findings were true. Stoddard, 619 S.W.3d at 674.

C. Conclusions of Law

Tork’s brief further argued that “each of the [c]onclusions of law presented by the 

trial court are not supported by the evidence, but instead are contrary to the undisputed 

and great weight and preponderance of the evidence.” 

Appellate courts must review a trial court’s conclusions of law as legal questions. 

I & JC Corp. v. Helen of Troy L.P., 164 S.W.3d 877, 883 (Tex. App.—El Paso 2005, pet. 

denied) (citing Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex. App.—

Waco 1997, pet. denied)). “The appellant may not challenge a trial court’s conclusions of 

law for factual insufficiency; however, the reviewing court may review the trial court’s legal 

conclusions drawn from the facts to determine their correctness.” Id. (first citing 

Templeton v. Dreiss, 961 S.W.2d 645, 656 n.8 (Tex. App.—San Antonio 1998, pet. 

denied); and then citing Dallas County v. Sweitzer, 881 S.W.2d 757, 763 (Tex. App.—

Dallas 1994, writ denied)). 

The trial court first concluded that there was no consideration for the proposed 

increase in the purchase price from $592,747 to $692,747. A modification to a contract 

must still satisfy all the elements required for a contract: a meeting of the minds supported 

by consideration. Barrand, Inc. v. Whataburger, Inc., 214 S.W.3d 122, 145 (Tex. App.—

Corpus Christi–Edinburg 2006, pet. denied) (citing Hathaway v. General Mills, Inc., 711 

S.W.2d 227, 228–29 (Tex. 1986)). “Consideration is a bargained-for exchange of 
15

promises or return performance and consists of benefits and detriments to the contracting 

parties.” Marx v. FDP, LP, 474 S.W.3d 368, 378 (Tex. App.—San Antonio 2015, pet. 

denied). Here, Tork contends that the consideration of the $100,000 was for him to 

continue with the sale of the Port Lavaca restaurant to the Garcias and not his new alleged 

offeror. However, the trial court found—and the record supported—that the “Commercial 

Contract – Improved Property” was never terminated. Accordingly, the original contract 

to sell the Port Lavaca restaurant for $595,747 was still in place—no new consideration 

was necessary.

We also note that the trial court could have found from the evidence that there was 

no “meeting of the minds” with respect to the letter agreement. “‘Meeting of the minds’ 

describes the mutual understanding and assent to the agreement regarding the subject 

matter and the essential terms of the contract.” Potcinske v. McDonald Prop. Invs., Ltd., 

245 S.W.3d 526, 530 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (quoting Weynand v. 

Weynand, 990 S.W.2d 843, 846 (Tex. App.—Dallas 1999, pet. denied)). Here, the record

revealed no mutual understanding of the letter as both Tork and the Garcias had differing 

testimony regarding its significance and what the $100,000 amount was for. See id.

Accordingly, we conclude no consideration existed for the modification.5

C. Conclusion

In light of the record, we conclude the take-nothing judgment is supported by 

5 We need not address the remaining conclusions of law, as we can uphold the judgment under 

this legal theory which is supported by the evidence. See TEX. R. APP. P. 47.1; Bendalin v. Youngblood, 

381 S.W.3d 719, 735 (Tex. App.—Texarkana 2012, pet. denied) (citing City of Houston v. Cotton, 171 

S.W.3d 541, 546 (Tex. App.—Houston [14th Dist.] 2005, pet. denied)). Assuming without deciding that the 

remaining conclusions of law are incorrect, the judgment “do[es] not require reversal if the controlling 

findings of fact support the judgment under a correct legal theory.” Id.
16

legally and factually sufficient evidence, and that the trial court’s legal conclusions based 

on the record were correct. See I & JC Corp., 164 S.W.3d at 883. As an appellate court, 

we must defer to the trial court’s factual determinations of witness credibility and 

demeanor. See City of Keller, 168 S.W.3d at 827. Although Tork and the Garcias had 

conflicting recollections regarding the letter agreement and the significance of the 

$100,000 promise, it appears the trial court believed the Garcias’ testimony regarding the 

events. The evidence at trial would enable a reasonable and fair-minded factfinder to 

reach this verdict under review. See Gunn, 554 S.W.3d at 658; City of Keller, 168 S.W.3d 

at 827. And reviewing the record as a whole, the evidence was sufficient such that a

factfinder could have reasonably formed a firm belief or conviction that the parties had a 

contract to purchase the Port Lavaca restaurant for $592,747, that the subsequent 

amendment offered no additional consideration, and that Tork is equitably estopped from 

enforcing the amendment. See Stoddard, 619 S.W.3d at 674. Accordingly, we overrule 

Tork’s first issue.

III. FINDINGS OF FACT AND CONCLUSIONS OF LAW

By his second issue, Tork complains that the trial court erred by failing to issue 

findings of fact and conclusions of law regarding his attorney’s fees.

A party to a bench trial is entitled to request findings of fact and conclusions of law 

from the district court. See TEX. R. CIV. P. 296. “The district court has a mandatory duty 

to respond to a timely request to file findings of fact and conclusions of law, and a failure 

to do so is error.” Hernandez v. Moss, 538 S.W.3d 160, 164–65 (Tex. App.—El Paso 

2017, no pet.) (citing Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989); 
17

and then citing Larry F. Smith, Inc. v. The Weber Co., 110 S.W.3d 611, 614 (Tex. App.—

Dallas 2003, pet. denied)). “[E]rror is presumed harmful unless the record affirmatively 

shows that the complaining party suffered no harm from the district court’s failure.” Id. 

To secure an award of attorney’s fees, a prevailing party must prove that: 

“(1) recovery of attorney’s fees is legally authorized, and (2) the requested attorney’s fees 

are reasonable and necessary for the legal representation, so that such an award will 

compensate the prevailing party generally for its losses resulting from the litigation 

process.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 487 (Tex. 

2019); see TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (allowing recovery of attorney’s 

fees in contractual claims). 

Here, however, because we previously concluded that the trial court’s take-nothing 

judgment against Tork was supported by legally and factually sufficient evidence, Tork 

was not the prevailing party. Therefore, Tork was not entitled to attorney’s fees. See id.

Accordingly, Tork suffered no harm from the trial court’s failure to issue these findings. 

See Hernandez, 538 S.W.3d at 165. We overrule this issue.

IV. CONCLUSION

We affirm the trial court’s judgment.

L. ARON PEÑA JR. 

 Justice 

 

Delivered and filed on the

30th day of March, 2023.