                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-17-00062-CV


LLOYD WALTERSCHEID &                                                APPELLANTS
WALTERSCHEID FARMS, LLC

                                         V.

DANNY WALTERSCHEID                                                      APPELLEE

                                      ----------

          FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
                     TRIAL COURT NO. CV15-00678

                                      ----------

                                    OPINION

                                      ----------

      Appellants raise seven issues following a bench trial that resulted in a

take-nothing judgment on their claims of breach of contract, fraud, and civil theft.

We affirm.
                                BACKGROUND

I.    Factual and Procedural Background

      At the end of 2014, Appellant Lloyd Walterscheid (Lloyd) acquired a ranch

in Muenster, Texas, that included approximately 120 head of cattle. Lloyd owns

and operates the ranch through Appellant Walterscheid Farms, LLC. Appellee

Danny Walterscheid (Danny) is the manager of the Kountry Korner convenience

store, which is also located in Muenster, Texas.1 Danny’s convenience store has

a table where a group of local farmers and ranchers regularly meet to discuss

and conduct business.

      After Lloyd purchased the ranch, Danny contacted him to see if he wanted

to sell some of his 120 cattle at the Red River Livestock Auction.2 Lloyd agreed,

and the sale went well, which prompted Lloyd to purchase a share in the Red

River Livestock Auction.   Thus, Lloyd and Danny engaged in two seemingly

successful cattle-related transactions. Lloyd does not dispute the success of

these transactions.

      However, things fell apart in 2015 when Lloyd and Danny became involved

in a series of seven cattle purchases as part of a broader cattle investment


      1
        Although Lloyd and Danny share a unique last name and hometown, to
their knowledge they are not related by blood, but Lloyd said it is possible they
are distant kin.
      2
       The Red River Livestock Auction is located in Oklahoma and is the
assumed name of LI Group, Inc., an entity formed and owned by Danny and
several cattle ranchers in the Muenster area.


                                       2
arrangement (Cattle Investment), which also involved Clint Sicking. Sicking, who

is also from Muenster, has been in the cattle business his entire life. Having

done business with Sicking before and considering him to be “very

knowledgeable” about cattle, Danny suggested to Lloyd that they “invest[] in

some cattle” with Sicking. Lloyd agreed and the results were disastrous for him:

In less than two months, Lloyd had paid out approximately $1 million but ended

up with almost nothing to show for it—no profit, almost nothing left of his

investment money,3 and “[t]he cattle were gone.” Lloyd later found out that in

2013, prior to participating in the Cattle Investment, Sicking had signed a

Consent Decision in an action brought against him by the Deputy Administrator

of the Grain Inspection, Packers and Stockyards Administration (GIPS), which is

an agency of the United States Department of Agriculture.               The Consent

Decision, inter alia, required that Sicking cease and desist “[i]ssuing checks in

purported payment of livestock purchases without having and maintaining

sufficient funds on deposit[;]” “[f]ailing to pay, when due, the full purchase price of

livestock[;]” and “[f]ailing to pay the full purchase price for livestock purchases.”

Sicking was also assessed a $65,000 civil penalty.4

      As a result of the failure of the Cattle Investment, Appellants filed suit

against Danny (as well as LI Group, Inc. d/b/a Red River Livestock Auction and

Clint Sicking) in the 235th District Court of Cooke County, Texas. Danny and LI

      3
       Lloyd testified that he did receive a little more than $55,000 back.
      4
       At the time of trial, Sicking was still under investigation by the GIPS.

                                          3
Group, Inc. brought a cross-claim against Sicking. Eventually, the trial court

rendered interlocutory agreed judgments against Sicking in favor of Lloyd in the

amount of $1.3 million, in favor of Danny in the amount of $256,558.95, and in

favor of LI Group, Inc. in the amount of $828,289.15.5

      At trial the only claims remaining were Appellants’ claims against Danny.6

Appellants contended that Danny had (1) breached an oral contract by failing to

properly oversee Lloyd’s monetary investment in the Cattle Investment and

Sicking’s role in caring for the cattle, by failing to return the funds Lloyd paid

Danny for Sicking to purchase the cattle, and by failing to distribute profits to

Lloyd; (2) committed fraud by suggesting that Lloyd invest with Sicking when

Danny allegedly knew but failed to disclose that Sicking had signed the Consent

Decree; and (3) committed civil theft by misappropriating Appellants’ property.

II.   Trial Proceedings

      On December 9, 2016, the parties appeared for a one-day bench trial.

Lloyd, Danny, and Sicking all provided live testimony, and the trial court admitted

40 exhibits into evidence.

      A.    Lloyd’s Trial Testimony

      Lloyd testified that after he purchased Walterscheid Farms, Danny

contacted him to see if he wanted to sell his cattle at the Red River Livestock

      5
      The interlocutory agreed judgments were incorporated into the final
judgment.
      6
       Appellants nonsuited their claims against LI Group, Inc. prior to trial.


                                          4
Auction. Lloyd averred that Danny represented that he would pick up Lloyd’s

cattle and haul them to auction. Lloyd agreed, the cattle were sold, and Lloyd

was paid. Lloyd testified that following the sale, Danny approached him to see if

Lloyd wanted to purchase shares in the Red River Livestock Auction. Lloyd said

it looked like a good deal, so he invested $159,000 on or about January 29,

2015, and became a shareholder in the Red River Livestock Auction.

      After Lloyd’s investment in the Red River Livestock Auction, Danny

approached him again, this time to see if he would be “interested in investing in

some cattle” with Sicking. Lloyd claimed that other than purchasing Walterscheid

Farms, he had no experience investing in cattle.     But Danny told Lloyd that

Sicking had “some connections,” was “very knowledgeable,” and was someone

with whom Danny had done business “for many years.”

      Lloyd stated that he had no knowledge of or involvement with Sicking prior

to Danny’s suggestion that he invest with Danny and Sicking:

      Q.    Now, when Mr. Walterscheid – when Danny Walterscheid
            came to you, after you bought the interest in the livestock
            auction and talked to you about this cattle investment, did you
            know Clint Sicking?

      A.    No, I did not.

      Q.    Never met him before?

      A.    No.




                                       5
Lloyd also stated that Danny did not notify him of the Consent Decree or any

problems related to Sicking.7

      Lloyd explained his understanding of his role in this Cattle Investment as

follows:

      Q.     How was the deal going to work? Who was going to put up
             the money to buy the cattle?

      A.     I was going to put up the money to buy the cattle.

      Q.     That was your part of the deal?

      A.     Yeah.

      ....

      Q.     And when the cattle were sold, were you going to get your
             money back that you put up?

      A.     Yes. I was told I’d make 15 to 20 percent on my money.

      ....

      Q.     And then, would Mr. Sicking get reimbursed for the cost he
             had incurred in –

      A.     Yes.

      Q.     – keeping the cattle?

      A.     Yes.

      Q.     Were you going to get some interest on your money?

      A.     Yes.

      Q.     And then what was going to happen to the profit, the
             remaining money?

      7
      Danny would testify that at the time of the Cattle Investment, none of his
own deals with Sicking had “gone bad yet.”


                                        6
          A.     Then that would be divided up.

          Q.     Okay. And how was it going to be divided up?

          A.     Well, I think we were all going to get a third of the profits.

          Lloyd explained that Sicking’s role in the Cattle Investment would be to

take care of the cattle:

          Q.     [W]ho would take care of the cattle after they were
                 purchased?

          A.     Clint [Sicking] would take care of the cattle.

          ....

          Q.     And then what was going to happen? Who was going to pay
                 to keep the cattle and feed the cattle?

          A.     Clint [Sicking] was going to keep the cattle and care for them.

          ....


          Q.     And Clint Sicking was going to manage, pasture, feed, take
                 care of the cattle; is that correct?

          A.     Yes, to my knowledge.

          Lloyd then clarified that Danny’s role in the Cattle Investment was to

maintain a spreadsheet of the cattle purchased—not to transport or move the

cattle:

          Q.     According to the deal, they were supposed to be pastured,
                 managed, fed and kept by Clint Sicking, correct?

          A.     Yes.

          Q.     Danny didn’t have any involvement in the deal after the cattle
                 were purchased, correct?



                                               7
      A.    I’m not sure.

      Q.    But the agreement he was – Danny wasn’t – Danny never
            transported cattle, moved cattle, correct?

      A.    Not to my knowledge.

      Q.    Now did Danny Walterscheid tell you whether he was going to
            make any money off of this arrangement that he was
            suggesting you invest in?

      A.    Yes. He was going to make a small percentage off of putting
            everything together and keeping track of everything.

      Q.    And when you said he was going to keep track of everything,
            what did Mr. Walterscheid tell you he was going to do?

      A.    He had a spreadsheet on his computer where he kept track of
            how many cattle were purchased and the price paid and how
            much per head or the cost per head.

      On cross-examination, Lloyd confirmed that not only was Danny in charge

of keeping records, but that Danny had, in fact, kept and provided the records:

      Q.    Right. [Danny] kept the – kept the books.

      A.    Yeah.

      Q.    As a matter of fact, that’s how you even knew how many head
            of cattle – when all this went bad, that’s how you knew how
            many head of cattle you should have had, correct?

      A.    Yeah.

      Q.    And has Danny been cooperative with you in getting you those
            records?

      A.    Yes.8



      8
       Lloyd did, however, testify elsewhere that Danny never presented him
with a breakdown of the cattle purchases.


                                        8
      On March 9, 2015, Lloyd wrote Danny a check for $139,090 for “41 bred

heifers and 63 heifers,” and Danny wrote Lloyd a receipt. Additional transactions

occurred between Lloyd and Danny as follows:

   • On March 17, 2015, Lloyd wrote Danny a check for $100,000;

   • On March 23, 2015, Lloyd wrote Danny a check for $135,568.96;

   • On April 1, 2015, Lloyd wrote Danny a check for $78,450, of which
     $22,740 was used to purchase 12 bred heifers and the remaining
     $55,710 was returned to Lloyd;

   • On April 6, 2015, Lloyd wrote Danny a check for $140,234.71 for 117 head
     of calves;

   • On April 14, 2015, Lloyd wrote Danny a check for $111,875.00 for
     98 calves; and

   • On April 28, 2015, Lloyd wrote Danny a check for $168,295.00 for 97 cows
     and 8 heifers.

Lloyd testified that the total amount he paid Danny in less than two months was

more than $873,000.

      Beginning in May 2015, Lloyd began writing checks directly to Sicking. On

May 14, 2015, Lloyd wrote Sicking a check for $155,800.89 for 143 head, and on

June 30, 2015, Lloyd wrote Sicking a check for $187,220. Shortly thereafter, a

check for $385,121.20 from Sicking’s company to Lloyd was denied for

insufficient funds.

      Lloyd attempted to distinguish the first two transactions in the Cattle

Investment from the last five transactions; namely, that the first two transactions

were to be for “market” or “market support” cattle—i.e., cattle that Lloyd would



                                        9
purchase, Clint would care for on a short-term basis, and that would then be

promptly sold through Red River Livestock Auction for sale 9—and the next five

transactions which, according to Lloyd were for “wheat” cattle—i.e., cattle that

Lloyd would purchase and Clint would care for on a longer-term basis before they

were sold, although not necessarily through the Red River Livestock Auction and

not at any specified date.

      Lloyd was also asked about whether Danny told him when he was

supposed to be repaid the money he invested:

      Q.     Now, did Mr. Danny Walterscheid give you any kind of idea of
             how long it would take for these investments to, in effect, roll
             over and for you to get your money?

      A.     Well, the bred heifers, as soon as they’d calve, they were
             going to sell them as pairs. And the other heifers, they were
             going to feed them out until they got, you know, 900 pounds or
             whatever and then sell them.

      Q.     Did he give you an idea [of] how long that was going to take?

      A.     Yeah, it was about three or four months for the calves.

      But during cross-examination, Lloyd was also asked about the terms of the

Cattle Investment and he acknowledged that there was no guarantee of a return

on his investment:


      9
       Lloyd testified that after the market supply cattle were sold, he would
receive 15%–20% on his investment, Sicking would be reimbursed for his costs,
and the remaining profits would be divided evenly among Lloyd, Danny, and
Sicking. Although Danny acknowledged that he, Lloyd, and Sicking agreed
regarding the profit distribution for the market supply cattle, he asserted that they
had never agreed if and when Lloyd would be reimbursed for his initial
investment.


                                         10
      Q.     There was no guarantee[] of a return on investment, because
             you don’t know what the market price for the cattle –

      A.     Well, most of these calves that they put on wheat field, they’ve
             got contracts on them, so you knew what the sale price was
             going to be when you bought them.

      Q.     Well, my question is: There was no way to guarantee that
             return. The return is going to fluctuate, correct?

      A.     Well, I guess. But, you know, they had these contracts on
             these calves, so you knew what they were going to sell for.

      Indeed, when pressed on the specific terms of the alleged oral contract,

including ownership of the cattle and profit distribution, Lloyd equivocated:

      Q.     After those first two [market cattle] transactions, all the other
             [wheat cattle] deals, the profits were going to be -- those deals
             were between you and Clint [Sicking], is what I’m getting at.
             Danny wasn’t going to receive any profits from any of the
             other deals?

      A.     I don’t recall. I assumed he was making profits on all the
             deals that he was doing.

      [Emphasis added.]

      ....

      Q.     Okay. And all the wheat cattle were to be your cattle,
             belonging to you, correct?

      A.     I guess so, I paid for them. I guess they would belong to me.

      Q.     Right. My question is: Danny didn’t have any ownership
             interest or a profit interest in those wheat cattle, correct?

      A.     I’m not sure about that. I assumed he did since he was
             putting these deals together.

      Q.     But he didn’t tell you or there wasn’t any agreement that he
             was to get a profit out of those cattle, correct?

      A.     I don’t remember him telling me that.

                                         11
         [Emphasis added.]

         ....

         Q.      Okay. And when those cows sold, the wheat cattle sold, how
                 was that supposed to be handled as far as the profits, if any?

         A.      I assumed it was – everything was done the same way.

[Emphasis added.]

         Even on direct examination, Lloyd could not unequivocally state the

division of the profits:

         Q.      And then what was going to happen to the profit, the
                 remaining money?

         A.      Then that would be divided up.

         Q.      Okay. And how was it going to be divided up?

         A.      Well, I think we were all going to get a third of the profits.

[Emphasis added.]

         Finally, Lloyd conceded that he was unaware of any wrongdoing by Danny

with regard to the missing cattle:

         Q.      Well, let me ask you this: Do you truly think that Danny
                 Walterscheid or LI Group had anything to do with the cattle
                 going missing?

         A.      I’m not sure.

         B.      Sicking’s Video Deposition

         Next, Lloyd presented a portion of Sicking’s video deposition to the trial

court.        However, Sicking asserted his Fifth Amendment right against self-

incrimination and refused to answer any questions at the deposition. The trial



                                              12
court stopped the video and simply admitted the entire deposition transcript into

evidence.

      C.    Danny’s Trial Testimony

      Lloyd’s next witness was Danny. Danny testified that as soon as Sicking’s

$385,121.20 check to Lloyd was rejected for insufficient funds, Danny began

questioning his own cattle investments with Sicking. Danny acknowledged that

“[i]n retrospect” Sicking had already “cheated” him before Danny suggested the

Cattle Investment to Lloyd; but hindsight notwithstanding, Danny testified that at

the time he first met Lloyd, Sicking did not owe him any money, and Danny did

not have any “doubts” about Sicking or know about his trouble with the GIPS and

the Consent Decision.10 Danny testified that for the first two “market support”

cattle transactions, the three agreed to buy a combination of bred heifers and

heifers, have Sicking feed and condition them for two weeks, and then sell them

two weeks later and split the profits three ways.

      Danny said the plan was to use money Lloyd put up to continue buying

cattle, which would then be sold. Danny also explained that he and Lloyd never

discussed when Lloyd would get his money back because the understanding was

that they were simply going to “roll” the funds into more cattle purchases:

      Q.    When was [Lloyd] supposed to get his money back?

      A.    Never was discussed.

      10
        Danny later testified that he was aware of the Consent Decision in March
of 2015.


                                        13
      Q.    And he never got his money back?

      A.    No, sir.

      THE COURT:          I’m sorry, you said it was never discussed that
                          when he’d get his money back?

      THE WITNESS:        Correct. We continued – we just figured we’d
                          continue rolling it, I guess is what that would be
                          like.

      Later, the trial court asked Danny about what happened to the money that

Lloyd had given him, and Danny testified that all the funds were forwarded to

Sicking:

      THE COURT:          Can I ask you – let me ask you.            Mr.
                          Walterscheid, all of the money that Lloyd
                          Walterscheid gave you, did you forward all the
                          money to Mr. Sicking?

      THE WITNESS:        Yes.

      THE COURT:          You didn’t keep any of it?

      THE WITNESS:        I did not keep any of it, other than the market
                          support. The 50,000 he was asking me about
                          these checks, these for 23,000 or 23,000 for
                          cows, that was for the next support.

      THE COURT:          Other than the first two deals?

      THE WITNESS:        Yes.

      D.    Sicking’s Trial Testimony

      After Lloyd concluded his case-in-chief, Danny called Sicking as his only

witness. Sicking’s testimony regarding his background with Lloyd contradicted

Lloyd’s testimony that he had never met Sicking or knew Sicking prior to the

2015 Cattle Investment:


                                        14
      Q.     And do you know Lloyd Walterscheid?

      A.     Yes, sir.

      Q.     How do you know Lloyd Walterscheid?

      A.     He’s contacted me several times to go out there and get his
             calves from his ranch that him and his brother own at
             Marysville, and I hauled them to the sale barn for him.

      Q.     When was that?

      A.     Anywhere from – roughly, I don’t know, the Muenster
             Livestock closed in 2010. I know I hauled some there for him.
             And then after that, I hauled some to Gainesville for him so I’d
             say anywhere from 2008 to 2012, ’13. And then he contacted
             me the first – early 2015 to [haul] 40-something pair from
             Northern Oklahoma to his place in Nocona.

      Q.     Okay. Wait a minute. So you say that you – Lloyd spoke with
             you – y’all knew each other back in 2010?

      A.     I’ve never – yeah, it’s just over the phone; phone call: Come
             get my cattle, I have such and such head out here, I need you
             to take them to the sale barn. I’d go out there and get them.

      ....

      Q.     And I believe Mr. Walterscheid, Lloyd Walterscheid testified he
             didn’t know you and hasn’t had any business dealings with
             you. Did you hear that testimony?

      A.     Yes, sir.

      Q.     So you’re telling us that’s not accurate?

      A.     Yes, sir.

      Sicking also testified that the exact amount of money that Lloyd paid

Danny would always go to him and that he used all the money to purchase cattle:

      Q.     Okay. And did you always get a check from Danny in the
             exact amount that you quoted on your sheet that you needed
             for the cattle?

                                        15
      A.     Yes, sir.

      Q.     And did you generally have a number of head of cattle in each
             transaction?

      A.     Yes, sir.

      Q.     And from the moneys that Danny Walterscheid passed on to
             you, did you buy – actually buy and purchase those cattle?

      A.     Yes sir. . . .

      Sicking’s testimony also confirmed that Danny had nothing to do with

transporting the cattle or with the actual grazing and care of the cattle:

      Q.     Did Danny have anything to do with transporting the cattle?

      A.     No, sir.

      Q.     And you were the one going to take care of pasturing them,
             feeding them, pulling calves, whatever you needed to do,
             correct?

      A.     Yes.

      Q.     At any time after the cattle were acquired and pastured, did
             Danny have any control or possession over those cattle?

      A.     No.

      Q.     Did Danny Walterscheid have any role in or control over your
             cattle operations?

      A.     No.

      ....

      Q.     Were any of these cattle that you acquired, other than the
             66 heifers, put on Danny’s property?

      A.     No.




                                         16
      E.     Closing Argument

      During closing argument, Appellants’ counsel argued that Appellants

established the following oral contract existed:

      [APPELLANTS’ COUNSEL]: . . . the contract would be that my
      client would put up the money to acquire the cattle, number one.

             Number two, the cattle would be fattened and fed at some
      location by Mr. Sicking. The cattle would be sold. And upon sale,
      my client would get his money back. And then the profit -- and then
      Mr. Sicking would get his cost of keeping the cattle, and the
      remaining profits would be divided as testified to.

The trial court pointedly asked Appellants’ counsel what evidence presented at

trial established the existence of such a contract:

      THE COURT: And what do you think establishes that they had that
      contract, that agreement?

      [APPELLANTS’ COUNSEL]: The testimony of both Mr. Lloyd
      Walterscheid and the testimony of Mr. Danny Walterscheid. I think
      it's conceded.

      THE COURT: I’m going to disagree that Mr. Walterscheid conceded
      that.

      F.     Final Judgment and Findings of Fact and Conclusions of Law

      The judge ruled from the bench in favor of Danny as to all of Appellants’

claims and their request for attorney’s fees. On December 20, 2016, the trial

court rendered a final judgment providing that Appellants take nothing on their

claims against Danny.

      Appellants timely filed a request for findings of fact and conclusions of law,

a notice of past-due findings of fact and conclusions of law, and a motion for new




                                         17
trial. On January 31, 2017, the trial court entered the following relevant findings

of fact and conclusions of law:

                               FINDINGS OF FACT


      ....


      6.     Lloyd Walterscheid and Danny Walterscheid are both
             shareholders of the LI Group, Inc. which operates a livestock
             sale barn.

      7.     Lloyd Walterscheid both individually and doing business as
             Walterscheid Farms, LLC buys and sells cattle.

      8.     Danny Walterscheid individually buys and sells cattle.

      9.     In 2015 Danny Walterscheid on multiple occasions made
             Lloyd Walterscheid aware of opportunities to purchase cattle
             through Clint Sicking.

      10.    Lloyd Walterscheid individually and doing business as
             Walterscheid Farms, LLC purchased cattle through Clint
             Sicking in a series of transactions in 2015 that are the basis of
             Plaintiffs’ suit.

      11.    With the exception of the last two cattle transactions Plaintiffs
             gave checks payable to Danny Walterscheid . . . . Danny
             Walterscheid deposited those checks into his account and
             within a day on each transaction wrote checks payable to Clint
             Sicking for the same amount he had received from Plaintiffs.
             In the last two cattle transactions Plaintiffs gave checks
             directly to Clint Sicking.

      12.    Plaintiff Lloyd Walterscheid saw at least some of the cattle that
             Plaintiffs purchased through Clint Sicking[;] however[,]
             Plaintiffs never went and counted the cattle to confirm the
             quantity.

      13.    There were no written contracts between the parties.




                                        18
                             CONCLUSIONS OF LAW

      ....

      4.     The bench trial began and ended on December 9, 2016. The
             Court issued a bench ruling that the evidence was insufficient
             to support . . . findings for Plaintiffs and found as follows for
             plaintiffs’ cause of actions:

             a.    Breach of contract – Finding for Defendant Danny
                   Walterscheid

             b.    Civil Theft Claim – Finding for Defendant Danny
                   Walterscheid

             c.    Fraud Claim       –    Finding   for   Defendant     Danny
                   Walterscheid

      ....

             The evidence was legally and factually insufficient to support
      that there was [1] a valid and enforceable contract between Plaintiffs
      and Danny Walterscheid [2] that was breached by Danny
      Walterscheid.

      ....

      On February 16, 2017, the trial court denied Appellants’ motion for new

trial. Appellants timely perfected this appeal.

                              ISSUES PRESENTED

      In their first, second, and third issues, Appellants contend that the trial

court erred in finding there is legally and factually insufficient evidence to

demonstrate the existence of a valid, oral contract between Lloyd and Danny; in

finding there is factually and legally insufficient evidence to support that Danny

breached the contract they claim existed; and generally that there is legally and

factually insufficient evidence to support their breach of contract claim.


                                         19
      In issues four, five, and six, Appellants contend that the trial court erred by

finding that there was legally and factually insufficient evidence to support their

claims of common-law fraud and fraud by nondisclosure. Appellants argue that

Danny made misrepresentations concerning “the payments that would be made

to Appellants, including repayment of the entire amounts funded for each cattle

acquisition and the 1/3 net profits interest, all of which Appellants were to receive

but never did.” Appellants also argue that the evidence supported that Danny

knew about Sicking’s Consent Decree but failed to disclose its existence to Lloyd

in spite of having a duty to disclose.

      In their seventh issue, Appellants argue that the evidence at trial

established their claim against Danny for civil theft under the Texas Theft Liability

Act (TTLA).

                             STANDARD OF REVIEW

      In an appeal from a bench trial, the trial court’s findings of fact have the

same force and effect as jury findings.       Anderson v. City of Seven Points,

806 S.W.2d 791, 794 (Tex. 1991). We review a trial court’s findings of fact under

the same legal and factual sufficiency of the evidence standards that we use

when we determine whether sufficient evidence exists to support an answer to a

jury question. Kennon v. McGraw, 281 S.W.3d 648, 650 (Tex. App.—Eastland

2009, no pet.).11


       When, as in this case, a reporter’s record is part of the appellate record,
      11

the appellant may challenge the legal and factual sufficiency of implied findings

                                         20
      When a party attacks the legal sufficiency of an adverse finding on an

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

evidence establishes, as a matter of law, all vital facts in support of the issue.

Dow Chemical Company v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Sterner v.

Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). The appellate court first

examines the record for evidence that supports the finding, while ignoring all

evidence to the contrary unless a reasonable factfinder could not.               Dow

Chemical, 46 S.W.3d at 241; City of Keller v. Wilson, 168 S.W.3d 802, 821–

22 (Tex. 2005). If there is no evidence to support the finding, the reviewing court

will then examine the entire record to determine if the contrary proposition is

established as a matter of law. Dow Chemical, 46 S.W.3d at 241.

      In a factual sufficiency review of an issue on which the appellant had the

burden of proof, we consider all the evidence and will uphold the trial court’s

finding unless the credible evidence is too weak to support it or the finding is so

against the great weight and preponderance of the credible evidence contrary to


the same as jury findings or a trial court’s findings of fact. Roberson v. Robinson,
768 S.W.2d 280, 281 (Tex. 1989). When the trial court’s findings of fact address
a ground of recovery, we may infer an omitted element because the judgment is
presumed valid. See Tex. R. Civ. P. 299; Hailey v. Hailey, 176 S.W.3d 374,
383–84 (Tex. App.—Houston [1st Dist.] 2004, no pet.). An omitted finding will be
deemed to support the judgment if evidence exists to support the finding. See
Tex. R. Civ. P. 299; Lindner v. Hill, 691 S.W.2d 590, 592 (Tex. 1985). In
reviewing the record to determine whether any evidence supports an implied
finding, we consider evidence in the light most favorable to the trial court’s finding
and indulge every reasonable inference that would support it. See Jamshed v.
McLane Exp. Inc., 449 S.W.3d 871, 876 (Tex. App.—El Paso 2014, no pet.).


                                         21
the finding.    Serv. Corp. Int’l v. Aragon, 268 S.W.3d 112, 118 (Tex. App.—

Eastland 2008, pet. denied); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

      We review a trial court’s conclusions of law de novo as a question of law.

BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002);

A & W Indus., Inc. v. Day, 977 S.W.2d 738, 741 (Tex. App.—Fort Worth 1998, no

pet.). We independently evaluate conclusions of law to determine whether the

trial court correctly drew the legal conclusions from the facts.         Walker v.

Anderson, 232 S.W.3d 899, 908 (Tex. App.—Dallas 2007, no pet.). We will

uphold the trial court’s conclusions of law if any legal theory supported by the

evidence can sustain the judgment.           OAIC Commercial Assets, L.L.C. v.

Stonegate Vill., L.P., 234 S.W.3d 726, 736 (Tex. App.—Dallas 2007, pet.

denied). We will reverse the judgment of the trial court only if the conclusions are

erroneous as a matter of law. Id.

                                    DISCUSSION

I.    Appellants’ Breach of Contract Claim

      The first issue we address is whether there is sufficient evidence to

support the existence of a legally enforceable oral contract.

      A.       Elements of an Oral Contract

      To prevail on a breach of contract claim, the plaintiff must establish: (1) a

valid contract with the defendant; (2) the plaintiff performed or tendered

performance; (3) the defendant breached the contract; and (4) the plaintiff

suffered damages as a result of the breach. Critchfield v. Smith, 151 S.W.3d


                                        22
225, 233 (Tex. App.—Tyler 2004, pet. denied); Runge v. Raytheon E–Sys., Inc.,

57 S.W.3d 562, 565 (Tex. App.—Waco 2001, no pet.).

      The requirements of written and oral contracts are the same and must be

present for a contract to be binding. Critchfield, 151 S.W.3d at 233. In order to

have a valid and binding contract, there must be: (1) an offer; (2) acceptance in

strict compliance with the terms of the offer; (3) a meeting of the minds; (4) each

party’s consent to the terms; and (5) execution and delivery of the contract with

the intent that it be mutual and binding. Hubbard v. Shankle, 138 S.W.3d 474,

481 (Tex. App.—Fort Worth 2004, pet. denied); Labor Ready Cent. L.P. v.

Gonzalez, 64 S.W.3d 519, 522 (Tex. App.—Corpus Christi 2001, no pet.). To be

legally binding, a contract must be sufficiently definite in its terms so that a court

can understand what the promisor undertook. T.O. Stanley Boot Co., Inc. v.

Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). “The material terms of the

contract must be agreed upon before a court can enforce the contract.”             Id.

Thus, where an essential term is open for future negotiation, there is no binding

contract. Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640, 653 (Tex. App.—

Houston [14th Dist.] 2003, pet. denied); Gerdes v. Mustang Expl. Co.,

666 S.W.2d 640, 644 (Tex. App.—Corpus Christi 1984, no writ).

      In determining the existence of an oral contract, the court looks to the

communications between the parties and to the acts and circumstances

surrounding those communications. Prime Prods., Inc. v. S.S.I. Plastics, Inc.,

97 S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (citing


                                         23
Copeland v. Alsobrook, 3 S.W.3d 598, 605 (Tex. App.—San Antonio 1999, pet.

denied)). The terms must be expressed with sufficient certainty so that there will

be no doubt as to what the parties intended. Copeland, 3 S.W.3d at 605. “It is

well established that the terms of an oral contract must be clear, certain, and

definite.” Gannon v. Baker, 830 S.W.2d 706, 709 (Tex. App.—Houston [1st Dist.]

1992, writ denied). Thus, if an alleged oral agreement is so indefinite that it is

impossible for a court to fix the legal obligations and liabilities of the parties, it

cannot constitute an enforceable contract. Id.; accord Osa v. Neill Invs., LLC.,

No. 02-17-00181-CV, 2018 WL 1755224, at * 4 (Tex. App.—Fort Worth Apr. 12,

2018, no pet.) (mem. op.). A lack of definiteness precluding the existence of an

enforceable contract can concern the time of performance, the price to be paid,

the work to be done, the service to be rendered, or the property to be transferred.

Gannon, 830 S.W.2d at 709; see also Ludlow v. DeBerry, 959 S.W.2d 265,

272 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (stating for an agreement to

be enforceable, there must be a meeting of the minds with respect to the

agreement’s subject matter and essential terms).

      B.     Scope of Agreement Between Lloyd and Danny

      We agree with Appellants that the record supports that Danny agreed as

part of the Cattle Investment to take money from Lloyd and deliver the money to

Sicking for Sicking to then purchase and manage cattle for Lloyd. It is also

apparent from the record that Danny agreed to maintain records of the Cattle

Investment on a spreadsheet on his computer. And the record demonstrates that


                                         24
Danny acted in accordance with this oral agreement because he, in fact, agreed

that he took money from Lloyd, delivered the money to Sicking for the purchase

of cattle, and maintained records of the transactions.

      The record also demonstrates, however, that there was no definite

agreement for Danny to provide any oversight of Sicking and of the day-to-day

care of the cattle. There was no testimony or other evidence to support that the

actions of the parties demonstrated that Danny and Lloyd agreed that Danny

would oversee Sicking and the care of the cattle. Instead, the relevant testimony

supported that Danny had no role in overseeing Sicking or the cattle. Therefore,

we hold that based on our review of the record, deferring as we must to the

factfinder on issues of witness credibility and resolution of conflicting evidence,

some evidence supports the trial court’s implied finding that Danny did not agree

to oversee Sicking and the cattle as part of the Cattle Investment. See Wiley v.

Bertelsen, 770 S.W.2d 878, 883 (Tex. App.—Texarkana 1989, no writ) (holding

no oral contract between ranch managers and ranch owners because “[t]he

terms of the offer and acceptance as set forth . . . are equivocal and lack the

required specificity to be an enforceable contract”).

      The evidence in the record is also sufficient to support that the implied

finding that there was no definite agreement between Danny and Lloyd that

guaranteed Lloyd would be repaid on his investment, that provided a time when

Lloyd would be repaid on his investment, or that set forth how to divide any

profits in the Cattle Investment. Lloyd testified, “I don’t remember exactly how


                                         25
the profits were going to be split, but – but Danny was going to get a percentage

of it . . . .” Danny testified that he and Lloyd never agreed that Lloyd would be

repaid for his investment. Based on our consideration of the evidence, deferring

to the factfinder on issues of witness credibility and the resolution of conflicting

evidence, we hold that some evidence supports the trial court’s implied finding

that there was no valid oral contract between Lloyd and Danny because there

was no definite agreement regarding the material terms of if and when Lloyd

would be repaid on his investment and how the profits were to be divided. See

T.O. Stanley Boot Co., 847 S.W.2d at 221–22 (holding alleged loan contract

failed for indefinite repayment terms and that courts are not free to simply supply

such missing material terms); Wiley, 770 S.W.2d at 883 (holding no oral contract

between ranch manager and ranch owners when parties did not specify a

percentage amount of how proceeds would be divided).12




      12
        Appellants’ contention that the alleged oral contract involving Danny’s
purported oversight of Sicking and the cattle represents a continuing contract is
also misplaced. In support of their contention, Appellants erroneously rely upon
our decision in Hubble v. Lone Star Contracting Corp., a case that concerned a
construction contract. 883 S.W.2d 379, 381–82 (Tex. App.—Fort Worth 1994,
writ denied). Here, we are not considering a construction contract, and
Appellants provide no authority for the proposition that the law of continuing
contracts is applicable to the instant alleged oral contract that is undisputedly not
a construction contract. Indeed, Appellants’ only case cited to address this
contention in their reply brief was Godde v. Wood, a case involving debt alleged
to be due under an “oral building contract.” 509 S.W.2d 435, 437 (Tex. App.—
Corpus Christi 1974, writ ref’d n.r.e.). As such, we find Appellants’ argument and
case law in support of their continuing contract argument inapposite.


                                         26
      Accordingly, we overrule Appellants’ first and second issues.             And,

because we hold that there is no enforceable oral contract, we need not address

Appellants’ third issue regarding breach. See Tex. R. App. P. 47.1; Advantage

Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21, 26 (Tex. App.—Houston [14th

Dist.] 2005, no pet.) (declining to address appellant’s “remaining issues

concerning whether [appellee] breached the [alleged contract] or whether there is

sufficient evidence to show a breach occurred” after appellate court held that the

alleged contract was not enforceable).

II.   Appellants’ Fraud Claim

      In issues four, five, and six, Appellants argue that the trial court erred in

finding that the evidence was legally and factually insufficient to support that

Danny made a material false misrepresentation and that at the time the

representation was made, he knew it was false. Appellants contend that the

evidence adduced at trial was legally and factually sufficient to support that

Danny knew but failed to disclose “the payments that would be made to

Appellants, including repayment of the entire amounts funded for each cattle

acquisition and the 1/3 net profits interest, all of which Appellants were to receive

but never did,” and that Danny knew about Sicking’s Consent Decree but failed

to disclose its existence to Lloyd in spite of having a duty to disclose.

      A.     Elements of Fraud

      For Appellants to prevail on a common-law fraud claim, they must have

proved that (1) Danny made a material misrepresentation; (2) Danny knew the


                                         27
representation was false or made the representation recklessly without any

knowledge of its truth; (3) Danny made the representation with the intent that

Appellants would act on that representation or intended to induce their reliance

on the representation; and (4) Appellants suffered an injury by actively and

justifiably relying on that representation. Exxon Corp. v. Emerald Oil & Gas Co.,

L.C., 348 S.W.3d 194, 217 (Tex. 2011).

      Fraud by nondisclosure is considered a subcategory of common-law fraud.

Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex. 1997). To

succeed on a claim for fraud by nondisclosure, Appellants must have

established: (1) Danny failed to disclose facts to Appellants; (2) Danny had a

duty to disclose those facts; (3) the facts were material; (4) Danny knew

Appellants were ignorant of the facts and did not have an equal opportunity to

discover the facts; (5) Danny was deliberately silent when he had a duty to

speak; (6) by failing to disclose the facts, Danny intended to induce Appellants to

take some action or refrain from acting; (7) Appellants relied on Danny’s

nondisclosure; and (8) Appellants were injured as a result of acting without that

knowledge.    Blankinship v. Brown, 399 S.W.3d 303, 308 (Tex. App.—Dallas

2013, pet. denied).

      B.     Record Supports Finding of No Common-Law Fraud

      Lloyd’s testimony regarding what Danny represented to him regarding how

he would be repaid for the Cattle Investment and even who owned the cattle

was, at best, equivocal:


                                        28
     Q.     And then what was going to happen to the profit, the
            remaining money?

     A.     Then that would be divided up.

     Q.     Okay. And how was it going to be divided up?

     A.     Well, I think we were all going to get a third of the profits.

     [Emphasis added.]

     ....

     Q.     Okay. And all the wheat cattle were to be your cattle,
            belonging to you, correct?

     A.     I guess so, I paid for them. I guess they would belong to me.

     Q.     Right. My question is: Danny didn’t have any ownership
            interest or a profit interest in those wheat cattle, correct?

     A.     I’m not sure about that. I assumed he did since he was
            putting these deals together.

     Q.     But he didn’t tell you or there wasn’t any agreement that he
            was to get a profit out of those cattle, correct?

     A.     I don’t remember him telling me that.

     [Emphasis added.]

     ....

     Q.     Okay. And when those cows sold, the wheat cattle sold, how
            was that supposed to be handled as far as the profits, if any?

     A.     I assumed it was – everything was done the same way.

     [Emphasis added.]

     For his part, Danny testified that there was no discussion regarding

repayment because the investment would be “rolled” into the next investments




                                         29
and that he never made any guarantees or promises to Lloyd that he would see a

return on his investment.

      Therefore, some evidence supports the trial court’s implied finding that

Danny did not make a material representation regarding repayment of Lloyd’s

investment and distribution of any profits, and the finding is not against the great

weight and preponderance of the evidence.             See Guevara v. Lackner,

447 S.W.3d 566, 575 (Tex. App.—Corpus Christi 2014, no pet.) (dismissing

common-law fraud claim because no evidence supported that defendant made

an affirmative, material misrepresentation).

      C.    Record Supports Finding of no Fraud by Nondisclosure

      According to Lloyd, Danny made partial disclosures regarding Sicking and

thereby created the duty to disclose Danny’s prior bad deals with Sicking as well

as the Consent Decision, which was allegedly known to Danny. We disagree.

      Appellants do not direct us to any evidence in the record to show that

Danny knew that Lloyd was ignorant of the Consent Decision. In fact, Danny

testified that he did not know whether Lloyd had any knowledge of Sicking’s past:

      Q.    Now you understand, [Lloyd] didn’t know Clint sic ‘em –
            Sicking from sic ‘em at that point, did he?

      A.    I don’t know.

      Danny also testified that he was unaware that Sicking had signed the

Consent Decision at the time of the Cattle Investment. Although, Danny did

subsequently state that he had known about the Consent Decision at the time of



                                        30
the Cattle Investment, we defer to the trier of fact as the sole judge of witness

credibility to reasonably resolve such inconsistencies in testimony.                  See

Theobold v. Pate, 542 S.W.2d 460, 466 (Tex. Civ. App.—Tyler 1976, writ dism’d

w.o.j.) (“Where there is evidence of probative force to support the findings and

judgment of the trial court such findings are controlling on the reviewing court and

will not be disturbed even though the evidence is conflicting and the appellate

court might have reached a different result. It is within the province of the trier of

facts to determine the weight and credibility of each witnesses’ testimony thereby

resolving conflicts and inconsistencies between the testimony of all witnesses.”)

(internal citations omitted); see also Treuil v. Treuil, 311 S.W.3d 114, 125–

26 (Tex. App.—Beaumont 2010, no pet.) (Gaultney, J., dissenting) (“As the fact-

finder in this bench trial, the trial judge was responsible for assessing the

credibility of the witnesses and for resolving conflicts in the evidence. City of

Keller, 168 S.W.3d at 819–20. As an appellate court, we must presume that, in a

case in which a fact-finder has conflicting evidence to resolve, the fact-finder

resolved all conflicts in favor of the prevailing party. As a reviewing court, we are

not free to resolve the conflicts in testimony differently from the fact-finder.”).

      Therefore, because evidence supports an implied finding that Danny did

not know that Lloyd was ignorant of the Consent Decision, because a reasonable

factfinder could resolve conflicting testimony in such a manner to impliedly find

that Danny himself did not know of the Consent Decision, and because that

evidence was not against the great weight and preponderance of the contrary


                                          31
evidence, the trial court’s finding that Lloyd take nothing on his fraud by

nondisclosure claim is not factually or legally insufficient. See Lake v. Cravens,

488 S.W.3d 867, 893 (Tex. App.—Fort Worth 2016, no pet.) (no fraud by

nondisclosure when no evidence defendant knew of plaintiff’s lack of knowledge

and was deliberately silent).

       Because after reviewing the record and deferring to the trial court on

issues of witness credibility and the resolution of conflicting evidence we

conclude that there is some evidence to support the trial court’s implied findings

that Danny made neither a fraudulent representation nor committed common-law

fraud and that such findings are not against the great weight and preponderance

of the evidence, we overrule Appellants’ fourth, fifth, and sixth issues.

III.   Appellants’ Civil Theft Claim

       In their seventh issue, Appellants argue that the trial court erred in finding

the evidence adduced at trial was factually and legally insufficient to support their

claim against Danny for civil theft under the TTLA; namely, that Danny unlawfully

and without authorization assumed and exercised dominion and control over

Appellants’ property, to the exclusion of or inconsistent with Appellants’ rights.

       A.    The Elements of Civil Theft

       Under the TTLA, a person who commits theft, which includes the unlawful

appropriation of property under section 31.03 of the penal code, is liable for the

damages resulting from the theft.         Tex. Civ. Prac. & Rem. Code Ann.

§ 134.002 (West Supp. 2017), § 134.003 (West 2011).            A theft occurs when


                                         32
(1) property is (2) unlawfully appropriated (3) by someone (4) with intent to

deprive the owner of that property. See Tex. Penal Code Ann. § 31.03(a) (West

Supp. 2017); Haler v. Boyington Capital Group, Inc., 411 S.W.3d 631, 635 (Tex.

App.—Dallas 2013, pet. denied).

      B.    Evidence Supports Finding of No Civil Theft

      The evidence presented to the trial court shows that Lloyd provided funds

to Danny and authorized him to provide the funds to Sicking as part of the Cattle

Investment. Thus, the evidence supports the implied finding that Lloyd effectively

consented to the payments to Danny to be paid to Sicking. See Tex. Penal Code

Ann. §§ 31.01(3) (defining “effective consent”), 31.03(b)(1) (providing a lack of

owner’s effective consent as a necessary element of theft) (West Supp. 2017).

Because evidence supports that Lloyd consented to Danny providing the funds to

Sicking (and that Danny actually provided Sicking with said funds), and because

there was no evidence to the contrary, we hold that Appellants failed to establish

the second element that Lloyd’s funds were unlawfully appropriated. See Tex.

Penal Code Ann. § 31.03; Haler, 411 S.W.3d at 635; see also McPeters v.

LexisNexis, 910 F. Supp. 2d 981, 993 (S.D. Tex. Oct. 3, 2012) (mem. op.)

(holding civil theft “claim fails because [plaintiff] knowingly consented” to pay

amounts charged).

      Appellants’ civil theft claim also fails because, based on our review of the

record, the evidence showed that Danny did not intend to deprive Appellants of

their property at the time of the alleged taking.   See Tex. Penal Code Ann.


                                       33
§ 31.03(a); McCullough v. Scarbrough, Medlin & Assocs., Inc., 435 S.W.3d 871,

906 (Tex. App.—Dallas 2014, pet. denied) (“The relevant ‘intent to deprive’

[under the TTLA] is the person’s intent at the time of the taking.”). Therefore, the

trial court’s implied finding that Danny did not intend to deprive Appellants of their

property is supported by and is not against the great weight and preponderance

of the evidence.

      Accordingly, we overrule Appellants’ seventh issue.

                                  CONCLUSION

      Having held that the evidence supports the final judgment, we affirm the

trial court’s judgment.




                                                    /s/ Mark T. Pittman
                                                    MARK T. PITTMAN
                                                    JUSTICE

PANEL: SUDDERTH, C.J.; GABRIEL and PITTMAN, JJ.

DELIVERED: August 2, 2018




                                         34
