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Ewing v. Creative Care, Inc.

Court of Appeals of Texas, Twelfth District, Tyler

June 14, 2017

CANDACE RENAE EWING, APPELLANT
v.
CREATIVE CARE, INC., APPELLEE

         APPEAL FROM THE COUNTY COURT AT LAW NO. 1 HENDERSON COUNTY, TEXAS

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          Brian Hoyle Justice

         Candace Renae Ewing appeals from the trial court's judgment against her and in favor of Creative Care, Inc. In three issues, Ewing contends that the evidence is legally insufficient to support the trial court's judgment and the trial court erred in considering hearsay evidence. We affirm.

         Background

         Ewing sought rehabilitation care services from Creative Care. Prior to receiving the services, Ewing signed contracts agreeing to pay Creative Care for the services if her insurance company did not and assigning Creative Care her rights to her insurance proceeds for the services. Ewing's insurance company sent checks payable to her for the services rendered by Creative Care. Ewing neither paid Creative Care nor forwarded the proceeds received from her insurance company to Creative Care for the services rendered.

         Creative Care sued Ewing alleging that she defaulted in paying a debt. Creative Care sought $27, 436.07 plus interest as provided for in the agreement and reasonable attorney's fees. Ewing filed a general denial. The matter proceeded to a bench trial. While Ewing was represented by counsel at trial, Ewing did not herself participate or appear at trial.

         The trial court found for Creative Care and awarded $21, 506.67 plus interest and costs of court. The trial court denied Creative Care's request for attorney's fees. The parties did not request, and the trial court did not prepare, findings of fact and conclusions of law. This appeal followed.

         Sufficiency of the Evidence

         In her first and second issues, Ewing challenges the legal sufficiency of the evidence to support the trial court's judgment. In her first issue, Ewing contends that there was no evidence to support a finding of performance by Creative Care of a contract with Ewing. In her second issue, Ewing asserts that there was no evidence to support a finding of breach of contract by Ewing.

         Standard of Review and Applicable Law

         In an appeal of a judgment rendered after a bench trial, the trial court's findings of fact have the same weight as a jury's verdict, and we review the legal sufficiency of the evidence used to support them just as we would review a jury's findings. See In re Doe, 19 S.W.3d 249, 253 (Tex. 2000). The trial court acts as fact finder in a bench trial and is the sole judge of the credibility of witnesses. See Murff v. Murff, 615 S.W.2d 696, 700 (Tex. 1981).

         In conducting a legal sufficiency review of the evidence, we must consider all of the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). In determining whether legally sufficient evidence supports the finding under review, we must consider evidence favorable to the finding, if a reasonable fact finder could consider it, and disregard evidence contrary to the finding, unless a reasonable fact finder could not disregard it. Id. at 827; Brown v. Brown, 236 S.W.3d 343, 348 (Tex. App.-Houston [1st Dist.] 2007, no pet.). If the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, the fact finder must be allowed to do so. City of Keller, 168 S.W.3d at 822; see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). When a party attacks the legal sufficiency of an adverse finding on which it did not have the burden of proof, it must demonstrate that there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983); Bellino v. Comm'n for Lawyer Discipline, 124 S.W.3d 380, 385 (Tex. App.-Dallas 2003, pet. denied). We will sustain a legal sufficiency or "no evidence" challenge if the record shows one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar the court 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 scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller, 168 S.W.3d at 810.

         More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair minded jurors to differ in their conclusions. Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (per curiam); Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). Any ultimate fact may be proved by circumstantial evidence. Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993). A fact is established by circumstantial evidence when the fact may be fairly and reasonably inferred from other facts proved in the case. Id. Evidence that is so slight as to make any inference a guess is in legal effect no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). Moreover, under the equal inference rule, a factfinder may not ...


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