Court of Appeals of Texas, Twelfth District, Tyler
FROM THE COUNTY COURT AT LAW NO. 1 HENDERSON COUNTY, TEXAS
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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
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.
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.
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
of the Evidence
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.
of Review and Applicable Law
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
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.
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