Opinion issued =
January 31,=20
2008
This is a=20
contract interpretation case. Afer a bench trial, the trial court =
rendered=20
judgment that appellee Monica J. Tate recover $30,000.00 for =
breach of=20
contract and $9,000.00 in attorney's fees from appellant Kennitra =
M.=20
Foote. In three questions, appellant contends there is legally=20
insufficient evidence of (1) a valid contract, =
(2) consideration, and=20
(3) Tate's fraud claim, on which the trial court denied relief. We =
affirm. Van Richard=20
Watkins, Jr. owned a house, but was unable to make the payments. =
In order=20
to prevent him and his family from being evicted from the family =
home,=20
Watkins and Tate signed a written contract on March 15, 2004 in =
which Tate=20
agreed to purchase the home from Watkins. In exchange for Watkins =
(1)=20
paying Tate $12,000.00 plus expenses and (2) paying Tate's =
mortgage=20
payments on the home, Watkins would have 90 days, i.e., =
until=20
June 8, 2004, in which to repurchase the house from Tate. If the=20
$12,000.00 fee was not paid by June 22, 2004, Tate could sell the =
house=20
with no further obligations to Watkins. After=20
Watkins failed to pay Tate the $12,000.00 and expenses, Tate began =
calling=20
Watkins. Watkins sought help from his attorney, Foote, who called =
Tate and=20
set up a meeting. At that meeting, the following document was=20
drafted: Kennitra M.=20
Foote agrees to pay Monica Tate the sum of $32,285.58 (Thirty Two =
Thousand=20
Two Hundred Eighty Five Dollars and 58/100). This amount is in=20
satisfaction of the debt concerning the payment for services and =
interest=20
that has accrued as of June 17, 2004. This amount involves =
payments that=20
are due from Van Richard Watkins, Jr. This amount includes an =
amount for=20
$2,285.58 which covers the mortgage payment for July 2004. This =
mortgage=20
payment covers the property located at 3313 Calumet, Houston, =
Texas=20
77004.
Kennitra M.=20
Foote agrees to pay Monica Tate or her agents by June 24, =
2004.
Signed:=20
/s/ Kennitra M.=20
Foote Date Foote paid=20
the July mortgage payment of $2,285.58, but made no further=20
payments.
In=20
questions one and two, Foote contents there is legally =
insufficient=20
evidence to establish a valid contract. Because this was a bench =
trial=20
without findings of fact and conclusions of law, all facts =
necessary to=20
support the judgment and supported by the evidence are implied.=20
See BMC Software Belg., N.V. v. Marchand, 83 =
S.W.3d 789,=20
795 (Tex. 2002). In reviewing the sufficiency of the evidence, we =
must=20
consider the evidence in the light most favorable to fact-finder's =
decision and indulge every reasonable inference that would support =
it.=20
City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.=20
2005). Foote=20
specifically challenges the existence of a contract on the grounds =
that (1) Tate did not sign the writing and (2) Tate gave =
no=20
consideration. Foote also argues that we should look only to the =
four=20
corners of the writing because Tate did not plead ambiguity. We =
agree that=20
the writing signed by Foote by its four corners was not a =
contract, but=20
was instead an offer. Foote argues, however, that the only legally =
permissible way for Tate to accept would be in writing. We=20
disagree. Under=20
common law, if an offer does not specify how the acceptance is to =
be made,=20
then the offeree may accept by any reasonable means. Cantu v. =
Cent.=20
Educ. Agency, 884 S.W.2d 565, 567 (Tex. App.--Austin 1994, no =
writ)=20
(citing Restatement (Second) of Contracts =A7=A7 30(2), 63(a), 65 =
(1981)).=20
Tate accepted the contract when she accepted Foote's payment of =
the July=20
mortgage, which is supported by the evidence. Foote next=20
argues that no consideration exists for the contract. First we =
note this=20
Court has previously held that consideration need not be recited =
or=20
expressed in the contract itself. Vass v. Fisher, 405 =
S.W.2d 866,=20
867 (Tex. Civ. App.--Houston 1966, no writ). However, the contract =
agreement provides consideration as Watkins previously had until =
June 8,=20
2004, in which to repurchase the house from Tate. Under the =
agreement with=20
Foote, Tate agreed to forebear her right to sell the house after =
June 8,=20
2004. See Restatement (Second) of Contracts =A7 71(1), =
(3)(b)=20
(1981) (consideration may consist of forbearance). Foote does not =
argue=20
that consideration was inadequate or unfair, but instead that no=20
consideration existed. Accordingly, we hold there is legally =
sufficient=20
evidence in the record to establish consideration. We overrule=20
questions one and two. In question=20
three, Foote contends there is legally insufficient evidence to =
support=20
Tate's fraud claim. The judgment recites that Tate recovered based =
on=20
breach of contract and that all other claims were denied, so this =
attack=20
on the judgment is moot. We affirm=20
the trial court's judgment. Sam=20
Nuchia Panel=20
consists of Justices Nuchia, Hanks, and=20
Higley.