KINSEY v. DUCHMAN LTD (2025)

OPINION

In this case involving breach of a promissory note, appellant Wayne Kinsey (“Kinsey”) appeals a judgment in favor of appellees Duchman, Ltd. (“Duchman”), Lisa M. Duchman (“Lisa”), and Stanley M. Duchman (“Stanley”). In two issues, Kinsey argues: (1) there is legally insufficient evidence supporting the trial court's findings that Kinsey accelerated the promissory note's maturity date on January 1, 2014, and that he did not subsequently abandon the acceleration; and (2) the trial court erred in finding there was legally insufficient evidence of Kinsey's damages. Because we conclude (1) there is legally insufficient evidence that Kinsey accelerated the note and (2) Kinsey established his damages as a matter of law, we reverse the portion of the trial court's judgment ordering that Kinsey take nothing by virtue of each of his claims and awarding costs to appellees. We render judgment in part that: (1) Kinsey established his damages consist of $2,839,729.67 in principal plus interest, as accrued under the terms of the note; and (2) the applicable statutes of limitation bar Kinsey from recovering (a) from Duchman any payments missed prior to December 17, 2014, and (b) from Lisa and Stanley any payments missed prior to December 17, 2016. We remand for the trial court to calculate Kinsey's damages consistent with this opinion, together with interest, attorney's fees, and costs as determined by the trial court and permitted by law. We affirm the remainder of the judgment.

I. Background

Lisa and Stanley own Duchman, through which they operate a winery. On December 17, 2020, Kinsey filed a lawsuit against appellees, asserting claims for breach of contract and attorney's fees. In his petition, Kinsey alleged that he and Duchman entered into a promissory note for a principal amount of $2,839,729.67 with a maturity date of December 31, 2019, and that Duchman failed to pay back the note. Kinsey further alleged that Lisa and Stanley executed continuing guaranties, agreeing to be bound by all the terms and conditions of the note and to be jointly and severally liable for Duchman's obligations under it.

Kinsey filed a traditional motion for summary judgment, arguing that appellees failed to pay back the note despite Kinsey's demands for payment and requesting $7,415,548.17 in damages. Kinsey's damage calculation in his motion was based on a maturity date that had been accelerated to January 1, 2014. Kinsey also included in his calculation of damages a credit of $27,500.00 for “the total amount Defendants’ have repaid to Mr. Kinsey ․”

Appellees filed a combined response and traditional and no-evidence motion for summary judgment, arguing that Kinsey accelerated the note in January 2014, the claims under the guaranties also accrued in January 2014, and Kinsey's claims were barred by the applicable statute of limitations. In support, appellees attached a demand letter sent by Kinsey's counsel in 2020 stating that the note's maturity date was accelerated on January 1, 2014; and Kinsey's deposition testimony, in which Kinsey stated he accelerated the note in 2014.

The trial court denied both motions for summary judgment but found the parties entered into valid contracts, Kinsey performed his obligations under the contracts, and appellees had breached the contracts. The case then proceeded to trial before the bench on the remaining issues of whether Kinsey accelerated the note and, if so, the date of the acceleration; and whether the statute of limitations barred Kinsey's claims and, if not, the amount of Kinsey's damages.

At trial, the court received testimony from Kinsey and Stanley and admitted into evidence, in relevant part, the promissory note, the continuing guarantees, the 2020 demand letter from Kinsey's counsel, Kinsey's supplemental responses to appellees’ request for disclosures, and Kinsey's motion for summary judgment. The promissory note provides that appellees waive any demand or presentment for payment of the note, notice of nonpayment, notice of intention to accelerate, and notice of acceleration. The 2020 demand letter stated that the note was accelerated on January 1, 2014, when appellees failed to make the first payment due on the note.

Kinsey, however, testified at trial that he did not accelerate the note on January 1, 2014, but he conceded that he previously testified to the contrary during his deposition. Specifically, Kinsey was asked during his deposition whether he accelerated the note on January 1, 2014, when appellees failed to make the first payment, and he answered “Yes, I did.” Kinsey testified at trial that he answered the question in his deposition “[n]ot knowing what it was” and that “I thought I knew what acceleration meant at the time, but I did not understand it.” Kinsey confirmed he was asked about the 2020 demand letter at his deposition and the fact that it stated the note was accelerated in January of 2014, and Kinsey confirmed he testified in his deposition that the 2020 demand letter's contents were correct. Kinsey was also confronted at trial with the calculations for damages asserted in his petition, his response to appellees’ request for disclosures, and his motion for summary judgment. Kinsey stated he did not understand these pleadings and could not testify as to the calculations provided in them. Nevertheless, Kinsey testified he understood that his attorneys filed various documents with the trial court referencing an accelerated debt.

Stanley testified he made several payments to Kinsey between 2016 and 2018 for a total of $27,500.00. Stanley initially stated that he “believe[d]” the payments were included in an amortization table prepared by him and that the payments were made for “legal fees,” but later he clarified that he recalled his amortization table “was purely based on the amount of funds that Mr. Kinsey gave to the winery” and “had nothing to do with the payments for the legal fees.” Stanley explained that those payments were made during meetings with Kinsey's attorney, Dan Leightman, to pay for the “time and energy and what he was doing for Mr. Kinsey on behalf of representing – looking into Duchman, LTD and the winery and Mr. Kinsey's interests.” Stanley further stated that those payments were not on the note but “were just to be made to Mr. Kinsey, so that Mr. Kinsey didn't have to take on other fees for his lawyer, while he was just taking a look at the winery and keeping track of those things.”

On August 24, 2023, the trial court signed a final judgment ordering that Kinsey take nothing via his claims and subsequently issued findings of fact and conclusions of law. In relevant part, the trial court found the promissory note contained express waivers of notice of default, notice of intent to accelerate, and notice of acceleration; Duchman did not make the first payment of interest and principal when it became due on January 1, 2014; and Kinsey declared the debt accelerated on January 1, 2014. The trial court further found that Kinsey “failed to provide any evidence ․ of the amount of damages for his contract claims” because “neither Kinsey nor any other witness provided testimony indicating the amount of damages Kinsey sustained.” The trial court determined that Kinsey's claims were barred by the statute of limitations and that Kinsey failed to prove his damages.

This appeal followed.

II. Standard of Review

When specific findings of fact and conclusions of law are filed and a reporter's record is before the appellate court, the findings will be sustained if there is evidence to support them, and the appellate court will review the legal conclusions drawn from the facts found to determine their correctness. Trelltex, Inc. v. Intecx, L.L.C., 494 S.W.3d 781, 789 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Findings of fact have the same force and dignity as a jury's verdict and are reviewable under the same standards of legal and factual sufficiency. Id.; Foley v. Capital One Bank, N.A., 383 S.W.3d 644, 646 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

When reviewing the legal sufficiency of the evidence, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. Id.

When a legal sufficiency challenge concerns an issue on which the appellant did not bear the burden of proof, we review it under a “no evidence” standard. See id. at 810. A no-evidence challenge will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. Serv. Corp. Int'l v. Guerra, 348 S.W.3d 221, 228 (Tex. 2011).

Evidence is more than a scintilla if it “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Ford Mtr. Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). If, however, the evidence does no more than create a mere surmise or suspicion and is so slight as to necessarily make any inference a guess, then it is no evidence. Id.

We review a trial court's conclusions of law de novo. State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996); Potcinske v. McDonald Prop. Inv., Ltd., 245 S.W.3d 526, 529 (Tex. App.—Houston [1st Dist.] 2007, no pet.). When performing a de novo review, we exercise our own judgment and redetermine each legal issue. Trelltex, Inc., 494 S.W.3d at 790. To make this determination, we consider whether the conclusions are correct based on the facts from which they are drawn. Potcinske, 245 S.W.3d at 529. While accrual is a legal question, whether a note holder has accelerated the maturity date and whether the holder has abandoned the acceleration are generally questions of fact. See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 570 (Tex. 2001); Citibank N.A. as Tr. For NRZ Pass-Through Tr. VI v. Pechua, Inc., 624 S.W.3d 633, 638 (Tex. App.—Houston [14th Dist.] 2021, pet. denied); see also Logan v. Mullis, 686 S.W.2d 605, 608 (Tex. 1985) (“As a general rule, intent is a question of fact to be decided by the jury.”).

III. Acceleration

In his first issue, Kinsey argues there is legally insufficient evidence supporting the trial court's finding that he accelerated the note's maturity date on January 1, 2014.

A. Applicable Law

A negotiable instrument that is payable at a definite time may provide for the right of acceleration of the debt upon default. See Tex. Bus. & Com. Code Ann. § 3.108(b). Default does not ipso facto start limitations running on a note. Wolf, 44 S.W.3d at 566. If a note contains an acceleration clause, then default is not the triggering event that starts the limitations running on the note; “[r]ather, the action accrues only when the holder actually exercises its option to accelerate.” Id.

Generally, effective acceleration requires two acts: (1) notice of intent to accelerate; and (2) notice of acceleration. Id. Both notices must be clear and unequivocal. Id. However, these requirements can be waived if agreed to by the parties, and no affirmative action is required unless specified by the agreement. Id. at 570.

A claim to collect a debt is subject to a four-year statute of limitations. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(3). “[A]n action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six years after the due date or dates stated in the note or, if a due date is accelerated, within six years after the accelerated due date.” Tex. Bus. & Com. Code Ann. § 3.118(a). When recovery is sought on an obligation payable in installments, the statute of limitations runs against each installment from the time it becomes due. Hollander v. Capon, 853 S.W.2d 723, 726 (Tex. App.—Houston [1st Dist.] 1993, writ denied); Intermedics, Inc. v. Grady, 683 S.W.2d 842, 845 (Tex. App.—Houston [1st Dist.] 1984, writ ref'd n.r.e.); see also Discovery Grp. v. Kammen, No. 01-15-00243-CV, 2015 WL 7300690, at *3 (Tex. App.—Houston [1st Dist.] Nov. 19, 2015, pet. denied) (mem. op.).

B. Analysis

1. There is no evidence that Kinsey declared the note accelerated on January 1, 2014

Kinsley challenges the legal sufficiency of the evidence supporting the trial court's finding that he accelerated the note's maturity date on January 1, 2014.

Here, the note's optional acceleration clause provides that in the event of default:

the holder of this Note may, at its option, without demand, notice or presentment of default, notice of acceleration, notice of intention to accelerate or otherwise to Maker or to any other entity, declare the principal and any and all interest then accrued thereon at once due and payable.

Therefore, the terms of the note provide that Kinsley could accelerate the maturity date without any notice to appellees at any time after an event of default, but the note required Kinsey to “declare” the maturity date accelerated. See Wolf, 44 S.W.3d at 566. Because the note does not define “declare,” we look to dictionaries to determine its definition. See Epps v. Fowler, 351 S.W.3d 862, 866 (Tex. 2011).

Merriam Webster's dictionary defines to declare, in part, as “to make known formally, officially, or explicitly” and “to make known as a determination” and “to make clear.” “Declare,” Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/declare. Black's Law Dictionary defines a “declaration” as “A formal statement, proclamation, or announcement, esp. one embodied in an instrument.” Declaration, Black's Law Dictionary (12th ed. 2024). Considering these definitions, we conclude that the terms of the note required Kinsey to take some contemporaneous, affirmative act on January 1, 2014, formally declaring the note's maturity date accelerated. See Ramo, Inc. v. English, 500 S.W.2d 461, 466 (Tex. 1973) (“[I]t should be noted that a contract to thus accelerate the maturity of a debt gives a remedy that is harsh in its nature, and provision therefor, in order to be effective, should be clear and unequivocal; and if there is a reasonable doubt as to the meaning of the terms employed, preference should be given to that construction which will avoid the forfeiture and prevent acceleration of the maturity of the debt.” (quoting Motor Indus. Fin. Corp. v. Hughes, 157 Tex. 276, 289, 302 S.W.2d 386 (1957))); Drinkard v. Jenkins, 207 S.W. 353, 356 (Tex. App.—Fort Worth 1918, writ dism'd w.o.j.) (“The plaintiff had the option to declare the note due for such default, but he was not obliged to do so; it required affirmative action upon the part of the holder to effectuate this result, and there is nothing in the record to indicate that appellant, as plaintiff, exercised the option given in the note prior to the time of the original institution of his suit.”). Because there is no evidence of an affirmative, contemporaneous act by Kinsey on January 1, 2014, declaring the maturity date accelerated, we conclude there is legally insufficient evidence that Kinsey accelerated the maturity date on January 1, 2014. See City of Keller, 168 S.W.3d at 822; Ford Mtr. Co., 135 S.W.3d at 601.

Appellees argue that Kinsey made a quasi-admission when he testified in his deposition that he accelerated the note on January 1, 2014, and thus, there is legally sufficient evidence that he accelerated the note. “A party's testimonial declarations which are contrary to his position are quasi-admissions.” Mendoza v. Fid. and Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980). “They are merely some evidence, and they are not conclusive upon the admitter.” Id. “The weight to be given such admissions is decided by the trier of fact.” Id.

In support of their argument, appellees cite our sister court's opinion in Fraps v. Lindsay, No. 01-02-00068-CV, 2003 WL 22810440, at *7 (Tex. App.—Houston [1st Dist.] Nov. 26, 2003, no pet.) (mem. op.). The issue in Fraps was “whether legally sufficient evidence was presented to support an implied finding by the trial court that Fraps accelerated the maturity of the promissory note 12 years before he filed suit.” Id. at *1. In Fraps, the promissory note contained an optional acceleration clause which stated:

In the event of a default in the payment of any installment of principal or interest when due or in the performance of any of the covenants securing this Note, the Payee [Fraps] may declare the entire indebtedness evidenced hereby due and payable after thirty (30) days written notice to Maker ․

Id. at *5 (emphasis added). Fraps “testified at trial that the promissory note ‘matured’ when Shipwash defaulted on the 1988 payment.” Id. Our sister court reasoned that “Fraps's testimony that the promissory note matured at the time of default was contrary to his position that he did not accelerate the note; thus, it is a quasi-admission.” Id. at *7, Our sister court further reasoned that “[b]ecause the promissory note did not mature by its own terms at that time, a reasonable inference could be drawn that the note ‘matured’ because it had been accelerated.” Id.

Our sister court concluded:

In his brief, Fraps states as follows: “Appellees apparently would rewrite Texas law by allowing a promissory note to mature when the payee ․ thinks ․ maybe ․ it has.” Though Fraps “belief” may not be probative of whether the promissory note had matured by acceleration, his testimony, as a quasi-admission, constituted substantive evidence. Such evidence alone amounted to more than a scintilla supporting the trial court's implied finding that Fraps accelerated the maturity of the promissory note following Shipwash's default.

Id. at *8. We find Fraps distinguishable from the present case because our sister court did not consider the definition of the term “declare” in the parties’ agreement.

As noted, there is no evidence that Kinsey took any contemporaneous, affirmative act to declare the note accelerated on January 1, 2014. Kinsey's deposition testimony that he accelerated the note in 2014 does not provide any evidence that he declared the note accelerated on January 1, 2014, as required by the terms of the note. The same is true of the demand letter by Kinsey's counsel in October of 2020—the demand letter provides no evidence that Kinsey declared the note accelerated on January 1, 2014.

Appellees also argue that Kinsey judicially admitted that he accelerated the note in his original petition and in his motion for summary judgment. The trial court's findings of fact included a finding that “Kinsey made judicial admissions both in his Original Petition and Motion for Summary Judgment that he accelerated the Note in January 2014.”

“A clear, deliberate, and unequivocal factual allegation made in a live pleading and not pleaded in the alternative constitutes a judicial admission that conclusively establishes the fact and bars the pleader from disputing it.” Lake Jackson Med. Spa, Ltd. v. Gaytan, 640 S.W.3d 830, 839 (Tex. 2022); Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000); Hous. First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983). Contrary to the trial court's finding, both Kinsey's live pleading and his motion for summary judgment also state that the note matured on December 31, 2019. Accordingly, we conclude that Kinsey's petition or motion for summary judgment did not clearly, deliberately, and unequivocally allege that the maturity date was accelerated on January 1, 2014. See Lake Jackson Med. Spa, 640 S.W.3d at 839. We further conclude there was no evidence supporting this finding by the trial court. See City of Keller, 168 S.W.3d at 822.

We sustain Kinsey's first issue.

IV. Damages

In his second issue, Kinsey argues the trial court erred in finding there was no evidence of his damages.

A. Applicable Law

A claim for breach of contract requires proof of the following essential elements: (1) the existence of a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the contract by the defendant, and (4) damages sustained by the plaintiff as a result of the defendant's breach. AKIB Constr. Inc. v. Shipwash, 582 S.W.3d 791, 806 (Tex. App.—Houston [1st Dist.] 2019, no pet.). Thus, a claimant must prove the damages caused by the defendant's breach. Id.

Although a promissory note is a type of contract, the elements for breach of a promissory note and breach of a contract materially differ. Kroesche v. Wassar Logistics Holdings, LLC, No. 01-20-00047-CV, 2023 WL 1112002, at *9 (Tex. App.—Houston [1st Dist.] Jan. 31, 2023, pet. denied) (mem. op.). To recover on a claim for breach of a promissory note, the plaintiff must present proof of the note in question, that the defendant signed the note, that the plaintiff was the legal owner and holder thereof, and that a certain balance was due and owing on the note. Rock Creek Cap., LLC v. Stewart, 681 S.W.3d 799, 803 (Tex. App.—Houston [14th Dist.] 2023, no pet.); Clark v. Dedina, 658 S.W.2d 293, 295–96 (Tex. App.—Houston [1st Dist.] 1983, writ dism'd).

As the plaintiff, Kinsey bore the burden of proof on its claim to enforce the promissory note. See Rock Creek Cap., LLC, 681 S.W.3d at 803. When a party challenges the legal sufficiency of the evidence to support an adverse finding on an issue for which it had the burden of proof, that party 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) (per curiam). In reviewing such a matter-of-law challenge, we employ a two-part test. We first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. If there is no evidence to support the finding, we then examine the entire record to determine if the contrary proposition is established as a matter of law. Id. The issue should be sustained only if the contrary proposition is conclusively established. Id.

B. Analysis

The parties’ promissory note and guaranties were admitted into evidence, and it is undisputed that appellees failed to pay back all of the principal owed under the note.

Here, the note states:

The principal and interest on this note shall be due and payable as follows:

(i) Interest on the outstanding principal balance of this Note shall accrue at the [seven percent] Stated Rate until January 1, 2014, at which time monthly principal and interest installments will be paid as set forth below.

(ii) Beginning January 1, 2014, all accrued and unpaid interest will be added to the unpaid principal and the total of such amount shall be paid by Maker to Payee in monthly principal and interest installments, utilizing the [seven percent] Stated Rate. The first monthly payment of principal and interest shall be due and payable on January 1, 2014, and like monthly payments of principal and interest shall be due and payable on the same day of each consecutive calendar month thereafter until December 31, 2019, the maturity hereof, at which time all accrued and unpaid interest shall be due and payable in full (the “Maturity Date”). All unpaid principal on this Note shall be due and payable in full on December 31, 2019, the Maturity Date. Any payments shall be applied first to the payment of accrued interest and the balance, if any, to the principal due hereunder.

The note further provides that it was executed December 10, 2012; that the principal amount was $2,839,729.67; and that all past due payments of principal shall accrue interest at a rate of eighteen percent.

We conclude that Kinsey established his damages as a matter of law. See Park v. Swartz, 110 Tex. 564, 566, 222 S.W. 156 (1920) (“The loss suffered by the plaintiff is the measure of his damages. That loss is the amount as fixed by the contract which he would have earned but for the wrongful conduct of the defendants in preventing him from earning it. Upon establishing the contract, his readiness and willingness to perform it, and that he was denied opportunity to perform it through its wrongful breach by the defendants, rendering its performance by him impossible, the plaintiff made out his case; and prima facie was entitled as damages to the amount which under the contract he would, presumably, have earned if his rights had been respected.”); Clark, 658 S.W.2d at 295–96 (“In an action by the holder of a note against the maker, the introduction of the note in evidence makes a prima facie case for the holder, where the execution of the note has not been denied under oath.”); White v. Rampart Cap. Corp., No. 14-98-00816-CV, 2000 WL 4936, at *2 (Tex. App.—Houston [14th Dist.] Jan. 6, 2000, pet. denied) (not designated for publication) (“Given an amount of principal, interest rate, and method for calculating interest, the resulting simple interest calculation is reached arithmetically as a matter of law, and requires no additional factual information for which evidence is necessary or subject to dispute.”).

Appellees argue that Kinsey did not present evidence of his damages because Kinsey did not provide the trial court with the exact amount of his recoverable damages considering the application of the statutes of limitations and the terms of the note.

As a matter of law, Kinsey is barred from recovering from Duchman any payments missed prior to December 17, 2014—six years before Kinsey filed the underlying lawsuit on December 17, 2020—because the promissory note is a negotiable instrument. See Tex. Bus. & Com. Code Ann. §§ 3.104(a), 3.118(a); see also Cartwright v. MBank Corpus Christi, N.A., 865 S.W.2d 546, 549 (Tex. App.—Corpus Christi–Edinburg 1993, writ denied) (“A court need find no facts to determine whether the instrument before it is a negotiable instrument; negotiability is a question of law.”). In the guaranties, Lisa and Stanley agreed to jointly and severally guarantee all of Duchman's obligations under the promissory note. As a matter of law, Kinsey is barred from recovering from Lisa and Stanley any payments missed prior to December 17, 2016—four years before Kinsey filed the underlying lawsuit on December 17, 2020—because Kinsey's claims under the guaranties are subject to a four-year statute of limitations. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(3); see also Jones v. Baker, No. 01-22-0013-CV, 2023 WL 5353374, at *11 (Tex. App.—Houston [1st Dist.] Aug. 22, 2023, no pet.) (mem. op.) (“Because Baker's claim for breach of the guaranty agreement did not accrue until at least June 6, 2014, ․ the four-year statute of limitations for a cause of action on a debt had not run when Baker filed suit in January 2018.”). And pursuant to the terms of the note, the payments Kinsey is barred from recovering concern only interest earned on the note; the statute of limitations does not bar Kinsey from recovering any of the principal due under the note.

While it is true that the applicable statutes of limitations bar Kinsey from recovering some of his damages, see Hollander, 853 S.W.2d at 726; Intermedics, Inc., 683 S.W.2d at 845, we reject appellees’ contention that damages cannot be calculated as a matter of law. See White, 2000 WL 4936, at *2.

We sustain Kinsey's second issue.

V. Conclusion

We reverse the portion of the trial court's judgment ordering that Kinsey take nothing by virtue of each of his claims and awarding costs to appellees. We render in part that: (1) Kinsey established his damages consist of $2,839,729.67 in principal plus interest, as accrued under the terms of the note; and (2) the applicable statutes of limitation bar Kinsey from recovering (a) from Duchman any payments missed prior to December 17, 2014, and (b) from Lisa and Stanley any payments missed prior to December 17, 2016. We remand for the trial court to calculate Kinsey's damages consistent with this opinion, together with interest, attorney's fees, and costs as determined by the trial court and permitted by law. We affirm the remainder of the judgment.

Brad Hart, Justice