source: Caselaw Access Project

author: JANE BLAND, Justice.

license: Public Domain

text:
    MERRY HOMES, INC., Appellant, v. CHI HUNG LUU, Appellee.
    No. 01-09-00187-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 18, 2010.

      Ben A. Baring Jr., De Lange, Hudspeth, McConnell & Tibbets, L.L.P., Houston, TX, Jennifer M. Dean, Law Office of Jennifer M. Dean, Kerrville, TX, for Appellant.
    John S. Fason, Fason & Associates, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices BLAND and MASSENGALE.
   OPINION

JANE BLAND, Justice.

In this commercial lease dispute, we determine whether a landlord may enforce a lease to operate a “nightclub or bar” and for “no other” purpose when the tenant cannot legally obtain a liquor license for the leased premises and the lease requires that any activity on the premises comply with applicable law.

After a bench trial, the trial court entered a judgment declaring the commercial lease between Merry Homes, Inc. and Chi Hung Luu void for illegality, since the lease only authorized the operation of a nightclub or bar at the premises and Luu was unable to obtain a liquor license due to the premises’ proximity to a public school. The trial court awarded Luu $6000 for the security deposit, $25,300 in attorney’s fees, and denied Merry Homes’ counterclaim for unpaid rent. In nine issues, Merry Homes (1) challenges the legal and factual sufficiency of fifteen different findings of fact and conclusions of law; (2) contends the trial court erred in holding the lease void for illegality, using an admission made by a co-defendant against Merry Homes, awarding attorney’s fees to Luu, and denying Merry Homes’ recovery on its counterclaim; and (3) asserts that six findings of fact should be disregarded as irrelevant to the issue of enforceability of the lease. We hold that the trial court correctly determined that Luu could not legally perform under the lease, and therefore affirm the judgment of the trial court.

Background

In December 2004, Chi Hung Luu, his friend and business partner Luc Dao, and Raymond Yu, Merry Homes’ agent, began negotiating to lease space in a new shopping center located on Bellaire Boulevard. Luu informed Yu of his desire to open a nightclub or bar at the location, and Yu responded that this particular location had good potential for that kind of business. Shortly after the initial meeting with Yu, Luu contacted Kim Marketing, an agency that specialized in obtaining liquor licenses, to discuss the requirements for such a license. The representatives of Kim Marketing informed Luu that he did not need to secure a lease before he applied for a liquor license, though Yu, as the landlord’s representative, had to supply lease information on the license application. In December 2004, Luu submitted a proposal of lease terms to Merry Homes, including proposed monthly rent ranging from $7000 to $7700 for a five year lease term, a security deposit of $7000, and Luu’s right to terminate the lease with forty-five days’ notice.

Over the next five months, Luu and Dao met with Yu three or four additional times. On May 20, 2005, Yu presented a copy of the lease to Luu for his review. This version of the lease differed from Luu’s earlier written proposal: the security deposit and monthly rent were each $6000, and the lease included no provision allowing Luu to terminate the lease with forty-five days’ notice. According to Luu and Mary McGrane, a Merry Homes representative, the parties agreed that Merry Homes would not collect rent from Luu until after Luu obtained a permit to operate the bar and completed the build-out. On May 31, 2005, before the parties executed the lease, Kim Marketing asked that Yu provide information about Merry Homes for Luu’s liquor license application. According to both Luu and Dao, Yu refused to provide the necessary information for the application before Luu signed the lease on June 2, 2005.

The lease provides that Luu may use the premises only for the purpose of operating a nightclub or bar and for “no other” purpose. The lease also prohibits Luu from using the premises for “any activity that violates any applicable law, regulation, zoning ordinance, restrictive covenant, [or] governmental order” or for “any activity that violates any applicable federal, state, or local law.” An additional provision requires Luu to “satisfy [himself] that the leased premises may be used as [Luu] intends by independently investigating all matters related to the use of the leased premises or Property.”

On June 10, 2005, Luu submitted his liquor license application to the City of Houston. Approximately one month later, the city faxed a letter to Luu via Kim Marketing, informing him that the city denied his application since the premises is located less than 300 feet from a public school and less than 300 feet from a public hospital. The city mailed a follow-up letter on August 24, again informing Luu that it denied his application, but also suggesting that he attempt to qualify for the “restaurant exception,” which would allow Luu to operate a restaurant that serves alcohol at the premises. Luu testified that immediately after he received the first denial from the City of Houston, he contacted Yu and requested a meeting to determine how to proceed under the lease. At this meeting, Luu requested the refund of $6000 of the $12,000 he had paid Merry Homes for the security deposit and first month’s rent and asked to cancel the lease. Yu responded that Luu had signed the lease and was therefore committed to leasing the premises, but he should consider other options for using the space, such as a pool hall or a restaurant.

After the meeting with Yu, Luu began investigating the possibility of opening a restaurant instead of a bar. Luu testified that a restaurant required a full kitchen and thus a significantly more expensive build-out than a bar. Luu ultimately determined that opening a restaurant instead of a bar would not be financially feasible.

Merry Homes refused to refund Luu’s deposit or cancel the lease. Luu sought a declaratory judgment that the lease was void since it could not be performed legally, and also asserted claims of common law and statutory fraud, negligent misrepresentation, and violations of the Deceptive Trade Practices Act. Merry Homes counterclaimed for breach of contract and sought to recover eight months’ unpaid rent.

After a bench trial, the trial court declared the lease void and issued findings of fact and conclusions of law. The trial court denied recovery on Luu’s four other claims and on Merry Homes’ counterclaim for unpaid rent-. The trial court rested its decision that the lease was void on two grounds: (1) Section 9(a) of the lease, which restricted the use of the premises to that of a nightclub or bar, fatally conflicted with Sections 10(a)(3) and (5), which prohibited any use of the premises that violates an applicable law or regulation; and (2) Luu could not perform his contractual obligations legally, since he could not obtain a liquor license for the premises due to its proximity to a public school. The trial court awarded Luu $6000 in damages and $23,500 in attorney’s fees.

Discussion

Standard of Review

In an appeal from a bench trial, the trial court’s findings of fact have the same weight as a jury verdict. HTS Servs., Inc. v. Hallwood Realty Partners, L.P., 190 S.W.3d 108, 111 (Tex.App.-Houston [1st Dist.] 2005, no pet.). We review a trial court’s findings of fact under the same legal and factual sufficiency of the evidence standards used when determining if sufficient evidence exists to support an answer to a jury question. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994); HTS Servs., 190 S.W.3d at 111. When a trial court enters findings of fact and conclusions of law, we “indulge every reasonable presumption in favor of the findings and judgment of the trial court, and no presumption will be indulged against the validity of the judgment.” Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 252 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). In a bench trial, the trial court judges the credibility of the witnesses, determines the weight of testimony, and resolves conflicts and inconsistencies in the testimony. See Sw. Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex.App.-Houston [1st Dist.] 1992, writ denied). As long as the evidence falls “within the zone of reasonable disagreement,” we will not substitute our judgment for that of the fact-finder. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005).

In a legal sufficiency review, we view the evidence in the light most favorable to the fact-finding, credit favorable evidence if a reasonable fact-finder could do so, and disregard contrary evidence unless a reasonable fact-finder could not. See id. at 827. “[Findings of fact bind an appellate court only if the findings are supported by evidence of probative force.” Thomas v. Casale, 924 S.W.2d 433, 437 (Tex.App.-Fort Worth 1996, writ denied); see also Jerry v. Ky. Cent. Ins. Co., 836 S.W.2d 812, 815 (Tex.App.-Houston [1st Dist.] 1992, writ denied). Anything more than a scintilla of evidence is legally sufficient to support the fact-finding. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998). In a factual sufficiency review, we view all of the evidence in a neutral light and set aside the finding only if the finding is so contrary to the overwhelming weight of the evidence such that the finding is clearly wrong and unjust. See Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam).

We review de novo a trial court’s conclusions of law. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). If we determine that the trial court made an erroneous conclusion of law, we will not reverse if the trial court rendered the proper judgment. See id. We uphold conclusions of law if the judgment can be sustained on any legal theory supported by the evidence. Adams v. H & H Meat Prods., Inc., 41 S.W.3d 762, 769 (Tex.App.-Corpus Christi 2001, no pet.).

Sufficiency of the Evidence

In two issues, Merry Homes challenges thirteen findings for legal and factual sufficiency. Seven of these thirteen findings are conclusions of law. Merry Homes challenges the following conclusions:

• Sections 9(a) and Sections 10(a)(3) and (5) are in fatal conflict;
• Luu could not perform the lease legally due to the location’s proximity to a school;
• Due to the fatal conflict and Luu’s inability to legally perform his obligations, the lease is void;
• The trial court is not required to rule on any affirmative defenses raised by the parties;
• The trial court should render judgment only against Merry Homes and not Yu; and
• At the conclusion of the trial, the trial court erroneously stated that the lease conflict was between section 9(a) and section 13.

We do not review conclusions of law for legal sufficiency, but instead evaluate them independently to determine their correctness. See Rayford v. State, 16 S.W.3d 203, 210 (Tex.App.-Dallas 2000, pet. denied); Jerry, 836 S.W.2d at 815. A party “may not challenge a trial court’s conclusions of law for factual insufficiency.” BMC Software, 83 S.W.3d at 794. We review the other six challenged findings of fact for legal and factual sufficiency. Specifically, Merry Homes challenges the following findings:

• Luu reasonably and in good faith believed he could open a bar and did not learn otherwise until after he signed . the lease;
• Yu told Luu to sign the lease before he would assist with the liquor license application;
• All parties believed Luu would open a nightclub or bar that served light refreshments or snacks but not meals;
• Luu reasonably believed he could obtain a liquor license;
• Yu’s attorney admitted Luu never occupied the premises; and
• Luu informed Yu that the city denied his license application.

Luu testified that, in his initial meeting with Yu, he informed Yu that he was looking into opening a nightclub or bar, and Yu responded that the location of the premises had good potential for that particular type of business. According to Luu, Yu opined that Luu should not have a problem obtaining a liquor license because another bar stood near to the premises. Luu also stated that if Yu had not told him that he would have no problem in obtaining a license, he would not have signed the lease, indicating that Luu reasonably believed that he could obtain a liquor license. Luu further testified that, upon receiving a letter from the City of Houston denying the liquor license, approximately one month after signing the lease, he immediately called Yu and requested a meeting to determine how to proceed.

Yu testified that he never met with Luu and Dao regarding the denial of the liquor license, but Luu and Dao both testified that they met with Yu immediately after receiving the City’s denial, and they informed him of the .denial and discussed alternative lease options. Viewing the evidence in the light most favorable to the fact-findings, we hold that legally sufficient evidence exists to support the trial court’s findings that (1) Luu reasonably believed he could open a bar at the leased premises and the city would approve his license application, (2) Luu did not learn that he could not open a bar at the premises until after he signed the lease, and (3) Luu met with Yu and informed him that the city denied his liquor license.

Luu, Dao, and Yu himself each testified that Yu told Luu and Dao that he required a signed lease before he would provide the necessary information regarding Merry Homes for Luu’s liquor license application. Undisputed evidence therefore supports the trial court’s finding that Yu told Luu and Dao to sign the lease before he would assist in providing information for the license application. Luu additionally testified that before signing the lease, he and Dao met with Yu and Mary McGrane and discussed how the bar would operate. Luu informed Yu and McGrane that they planned on selling liquor and serving some cold food, but not cooked meals. McGrane testified that she understood that a distinction exists between a restaurant and a bar, and Merry Homes always believed that Luu would serve some food at the bar, though it was unaware of the extent of food service. According to McGrane, if she had believed that Luu would build a full kitchen for a restaurant, then she would not have prepared the lease to reád that Luu could use the premises to operate a nightclub or bar and for “no other” purpose. We hold that legally sufficient evidence exists to support the trial court’s finding that the parties thought that the premises would be used for a nightclub or bar.

In the final finding of fact challenged by Merry Homes, the trial court found that, in Luu’s Exhibit 15, Yu’s attorney admitted that Luu never occupied the premises at any time material to the lawsuit. Exhibit 15 is a letter from Yu’s attorney to Luu, dated January 19, 2006, and states the following: ‘You are the tenant of the referenced property under a written lease dated June 2, 2005. You still have not occupied the premises. Merry Homes, Inc., is concerned about the status of this lease.” We hold that this letter is legally sufficient evidence that Yu’s attorney admitted that Luu never occupied the premises. We hold that legally sufficient evidence supports each of the challenged findings of fact.

Merry Homes also challenges the six findings of fact for factual insufficiency. This contention, however, is unavailing. Merry Homes does not point to any specific evidence in the record that contradicts the trial court’s findings, and our review of the record indicates that the findings are not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain, 709 S.W.2d at 176. We therefore hold that factually sufficient evidence supports the trial court’s findings of fact.

Legality of the Lease

Merry Homes contends that the trial court erred in determining that the lease was void because Luu could not legally perform it. The Texas Supreme Court previously has held that a contract to fulfill an obligation which cannot be performed without violating the law contravenes public policy and is void. See Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146, 148-49 (1947); Gupta v. E. Idaho Tumor Inst., Inc., 140 S.W.3d 747, 751 (Tex.App.-Houston [14th Dist.] 2004, pet. denied). The purpose behind this principle is to benefit and protect the public, not to punish or protect a party to the contract. See Villanueva v. Gonzalez, 123 S.W.3d 461, 464 (Tex.App.-San Antonio, 2003, no pet.). If the illegality does not appear on the contract’s face, a court will not find it void unless facts showing the illegality are before the court. See Lewis, 199 S.W.2d at 149. If the parties could perform the contract in a legal manner, the contract is not void merely because the parties may have performed the contract in an illegal manner or committed illegal acts in carrying out the contract. See Denson v. Dallas County Credit Union, 262 S.W.3d 846, 852 (Tex.App.-Dallas 2008, no pet.); Carras v. Birge, 211 S.W.2d 998, 1002 (Tex.Civ.App.-Dallas 1948, writ ref'd n.r.e.) (“[I]f any ordinance existed absolutely prohibiting the performance by either or both of the parties to the contract, and no method is therein provided whereby the contract could be performed without violation of the ordinance, then, and only then, could the contract be held void.”). But, we must not enforce an illegal contract, “particularly where the contract involves the doing of an act prohibited by statutes intended for the protection of the public health and welfare.” Peniche v. Aeroméxico, 580 S.W.2d 152, 155 (Tex.Civ.App.-Houston [1st Dist.] 1979, no writ).

We decide whether a contract violates a statute by “looking at the specific facts of the case and deciding the intention of the parties in executing the contract.” Id. at 156. In Peniche, we refused to enforce a contract for chauffeur services because Peniche lacked a chauffeur’s license in violation of Article 6687b of the Revised Civil Statutes. See id. We noted that “[t]here can be little doubt that Article 6687b ... was a valid exercise of a state police power for the purpose of protecting the safety of the general public and that any contract in derogation of such article would be illegal.” Id.; see also Denson, 262 S.W.3d at 854 (“[I]n situations where public policy concerns have led to a governmentally supervised statutory licensing scheme, courts have consistently held the unlawful and unlicensed participation in such regulated businesses cannot form the basis of recovery.”); McCreary v. Bay Area Bank & Trust, 68 S.W.3d 727, 733 (Tex.App.-Houston [14th Dist.] 2001, pet. dism’d) (“Where a contract is made in violation of a statute, it is illegal and void”).

Here, the Texas Alcoholic Beverages Code authorizes counties and cities to adopt regulations prohibiting the sale of alcohol within 300 feet of a public school. See Tex. Alco. Bev.Code Ann. § 109.33(a) (Vernon 2007). The City of Houston has adopted such a regulation. See Houston, Tex., Code of Ordinances ch. 3, art. I, § 3-2(a) (1968). The Texas Legislature and the City of Houston enacted this statute and ordinance, respectively, to protect the health and safety of the general public. See Tex. Alco. Bev.Code Ann. § 1.03 (Vernon 2007) (“This code is an exercise of the police power of the state for the protection of the welfare, health, peace, temperance, and safety of the people of the state.”). Any contract or lease that requires a violation of this statute and ordinance is void. See Peniche, 580 S.W.2d at 156. Although the Houston Code of Ordinances includes a “restaurant exception” to the general prohibition of selling alcohol within 300 feet of a public school, Houston, Tex., Code of Ordinances ch. 3, art. I, § 3-2(g) (1968), the trial court explicitly found that the lease required Luu to operate a “nightclub/bar” on the premises, and not a restaurant, and that the parties never intended to operate a restaurant.

Although the lease, on its face, does not require violation of the law, the only permissible use of the premises under the lease’s terms is impossible and illegal, given the location of the premises relative to a school. As Luu cannot obtain a liquor license and therefore cannot perform under the lease without violating the statute and ordinance, the trial court properly determined that this lease is void for illegality.

Merry Homes relies on Houston Ice & Brewing Co. v. Keenan for the proposition that Luu unconditionally bound himself to perform under the lease, and thus the City of Houston’s refusal to grant a liquor license should not excuse his performance, especially because the City’s denial is a contingency that Luu should have anticipated. See 99 Tex. 79, 88 S.W. 197 (1905). The lease in Keenan limited the use of the premises to the operation of a saloon in Ellis County. Id. at 200. At the time the parties executed the lease, the Texas Legislature had enacted a “local option statute,” which allowed individual counties to prohibit the sale of alcohol within the county. Id. Ellis County did not adopt such a prohibition until after execution of the lease. Id. The Texas Supreme Court adopted the reasoning of the Dallas Court of Appeals in holding that the lease was legal:

[W]hen a party voluntarily undertakes and by contract binds himself to do an act or thing, without qualification, and performance thereof becomes impossible by some contingency which should have been anticipated and provided against in the contract, the nonperformance will not be excused. In such case the party’s failure to exempt himself from responsibility in the event of the happening of the contingency will be attributable to his own folly and he will be held to make good his contract.

Id. at 198. Relying on Keenan, Merry Homes maintains that the lease is not void for illegality because the lease required Luu to “satisfy” himself , that the premises could be used as he intended.

We agree with Luu that Keenan, which involves a supervening illegality after execution of the lease, is factually distinguishable. The Dallas Court of Appeals noted that the permissible use in the Keenan lease was “entirely legal” when the lease contract was executed. Id. Here, the City of Houston enacted the ordinance prohibiting the sale of alcohol within 300 feet of a public school prior to execution of Luu’s lease. Chapter 3 of the Houston Code of Ordinances includes no provisions or mechanisms for obtaining a variance or exemption from the ordinance’s prohibition. See Houston, Tex., Code of Ordinances ch. 3, art. I (1968). The City’s August 24, 2005, letter to Luu suggests that Luu may qualify for a license under the “restaurant exception,” indicating that turning the leased space into a restaurant is the only way to obtain a liquor license for this premises. Unlike the use of the premises in Keenan, Luu could never perform the only permissible use under his lease that the trial court found, operating a nightclub or bar, without violating the law.

Merry Homes further observes that a majority of jurisdictions hold that a lease remains valid if the tenant cannot obtain the permit or license necessary to use the premises in the manner required by the lease. Merry Homes relies on a reporter’s note to section 9.2 of the Restatement (Second) of Property, which states that “[i]t is well supported that a lease for a purpose contrary to the applicable zoning laws is not a lease for an illegal purpose when the purpose may become permissible if a license, permit, or variance is obtained.” Restatement (Second) of Prop.: Landlord & Tenant § 9.2 reporter’s n. 3 (1977) (emphasis added). Courts in other jurisdictions have noted that the zoning scenario is unique since the governing authority “frequently” grants variances from zoning regulations. See Warshawsky v. Am. Auto. Prods. Co., 12 Ill.App.2d 178, 138 N.E.2d 816, 819 (1956); see also Pa. State Shopping Plazas, Inc. v. Olive, 202 Va. 862, 120 S.E.2d 372, 375 (1961) (“There is authority that the obligor in a contract is excused from its performance when to perform would violate zoning regulations, but the rule is not applicable where, as in the present ease, the zoning laws permit a variance in the regulations and some discretion may be exercised by the proper authorities in granting a permit for a proposed use.”). In the only Texas case to address this issue, the Dallas Court of Appeals observed that a zoning ordinance would not automatically establish the illegality of the contract “so long as there existed a method, procedure, or course of action making it possible for a permit to issue within the time as contemplated by the contracting parties.” Carras, 211 S.W.2d at 1002. Unlike some zoning regulations, the ordinance here does not provide a mechanism by which a party can obtain a variance or exemption.

This case, therefore, is governed by section 9.1(1) of the Restatement (Second) of Property: “If the parties to the lease both intend that the leased property is to be used for a purpose illegal under all circumstances, the lease is unenforceable against the tenant.” Restatement (Second) of Prop.: Landlord & Tenant § 9.1(1); see also id. § 12.4 (stating lease is unenforceable against landlord in same situation). Because the City of Houston does not grant variances to the application of this ordinance, the intended use of this property as a nightclub or bar “is illegal no matter by whom it is made.” See id. § 9.1 cmt. a; see also id. § 9.2 reporter’s n. 6 (“Where the zoning law allows no variance, it has been held that a lease for a purpose prohibited by that law is voidable at the tenant’s option upon ascertaining that the use is absolutely prohibited.”); id. cmt. d (“When the use intended by the parties is illegal unless a permit, license or variance is obtained, the tenant may be justified in concluding that it would be impossible to obtain a necessary permit, license or variance.”). Although Merry Homes is correct that operating a nightclub or bar is not illegal in itself, operation of a nightclub or bar at this particular premises is illegal regardless of who operates it. Because the only authorized use of this particular premises is illegal under all circumstances, this lease is unenforceable against either Luu or Merry Homes.

Merry Homes cites to Gaston v. Gordon, a 1911 case from the Massachusetts Supreme Court, for the proposition that the trial court erred in holding the lease void since Luu failed to obtain the liquor license needed to legally operate his business. 208 Mass. 265, 94 N.E. 307 (1911). The Gaston court noted, however, that “[tjhis business when licensed according to the provisions of the statute is recognized by law as legal. It was possible in the nature of things lawfully to comply with all the stipulations of the lease.” Id. Here, it was impossible for Luu to satisfy the requirements of the ordinance and simultaneously comply with the terms of the lease because the lease agreement fixed the premises in a locale where no bar or nightclub could operate.

Finally, Merry Homes contends that the trial court’s decision to declare the lease void cannot be affirmed on the basis of impossibility of performance. Merry Homes relies on section 10(c) of the lease, which provides that Luu will satisfy himself that the premises can be used for the intended purposes, and thus is bound to perform. See Restatement (Second) of Contracts § 261 cmt. a (1981). We first note that section 261 of the Restatement only applies to supervening events that render performance impracticable, not pre-existing conditions and events. See id. (“Cases of existing, as opposed to supervening, impracticability are governed by § 266 rather than this Section”). The trial court found that the ordinance prohibiting the sale of alcohol on Luu’s premises which renders Luu’s performance illegal and impracticable existed before the parties executed the lease, and therefore section 266 of the Restatement applies. Section 266(1) provides:

Where, at the time a contract is made, a party’s performance under it is impracticable without his fault because of fact of which he has no reason to know and the non-existence of which is a basic assumption on which the contract is made, no duty to render that performance arises, unless the language or circumstances indicate the contrary.

See id. § 266(1). The last clause of section 266 provides that a party may agree to perform despite the existing impraeticability. See id. cmt. b. Comment a to section 266 notes that “the rules on agreements unenforceable on grounds of public policy stated in Chapter 8 will also apply. To the extent that the latter bar relief for reasons based on public policy, they are controlling.” See id. cmt. a.

We have repeatedly noted that contracts to perform an act in violation of a statute are void and contrary to public policy. See McCreary, 68 S.W.3d at 733 (‘Where a contract is made in violation of a statute, it is illegal and void.”); Peniche, 580 S.W.2d at 155 (holding that when contract requires performance of act violating statute that protects public health and welfare it is our duty to “at once decline to give [the contract] any validity”); see also In re Kasschau, 11 S.W.3d 305, 312 (Tex.App.-Houston [14th Dist.] 1999, orig. proceeding) (“A contract to do a thing which cannot be performed without violation of the law violates public policy and is void.”). Although section 266 excuses performance as impracticable based upon a pre-existing condition “of which [the party] has no reason to know,” we previously held that “[a] contract to do a thing which cannot be performed without a violation of the law is void, whether the parties knew the law or not.” Peniche, 580 S.W.2d at 156 (citing Tex. Employers’ Ins. Ass’n v. Tabor, 283 S.W. 779, 780 (Tex. Comm’n App.1926, judgm’t adopted)) (emphasis added); see also Centex Corp. v. Dalton, 840 S.W.2d 952, 955 (Tex.1992) (“The updated Restatement (Second) of Contracts § 261 omitted [the “no reason to anticipate”] requirement, explaining that many factors may excuse a failure to deal with contingencies, and that even if the event was reasonably foreseeable, or even foreseen, the contracting party may still be discharged.”) (emphasis added). The Texas Supreme Court “has long recognized Texas’ strong public policy in favor of preserving the freedom of contract.” Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 664 (Tex.2008). Freedom of contract, however, is not unlimited: “As a rule, parties have the right to contract as they see fit as long as their agreement does not violate the law or public policy.” Id. (quoting In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 129 & n. 11 (Tex.2004)); see also Sonny Arnold, Inc. v. Sentry Sav. Ass’n, 633 S.W.2d 811, 815 (Tex.1982). Merry Homes cannot indirectly receive benefits— monthly rental payments — from what the law says it cannot do directly. See Trammel Crow Co. No. 60 v. Harkinson, 944 S.W.2d 631, 634 (Tex.1997). Following our court’s prior precedents, we hold that the trial court correctly determined that this lease is illegal and void as against public policy because performance of Luu’s lease obligations would violate an ordinance directed toward protecting the public health and welfare.

Luu’s Attorney’s Fees

In its seventh issue, Merry Homes contends that the trial court erred in awarding attorney’s fees to Luu because the court erroneously determined that the lease was void; therefore, the award of attorney’s fees was, as a matter of law, neither equitable nor just. In suits brought under the Declaratory Judgment Act, attorney’s fees awards are within “the trial court’s sound discretion, subject to the requirements that any fees awarded be reasonable and necessary, which are matters of fact, and to the additional requirements that fees be equitable and just, which are matters of law.” Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998). Aside from stating in a heading that “[t]he award of attorney’s fees was error because, as a matter of law, the amounts awarded were not equitable and just,” Merry Homes cites to no authority, nor to any portions of the record that indicate that the trial court’s award of $23,500 to Luu for attorney’s fees is inequitable or unjust. See Tex.R.App. P. 38.1(i). Luu presented evidence at trial that he incurred $32,000 in attorney’s fees. Merry Homes’ attorney introduced evidence that Merry Homes incurred $6700 in fees. Merry Homes, neither at trial nor on appeal, presented any evidence suggesting that this amount of attorney’s fees was unreasonable, unnecessary, inequitable, or unjust. Accordingly, we hold that the trial court correctly awarded $23,500 in attorney’s fees to Luu.

Disregarding Particular Findings of Fact

In issue four, Merry Homes contends that the trial court erred in making certain findings of fact because those findings are not relevant to the issue of the lease’s enforceability and do not support the trial court’s judgment. A trial court’s findings of fact are binding unless challenged on appeal, and we may not disregard findings of fact unless the findings are so contrary to the overwhelming weight of the evidence as to be manifestly wrong. El Puerto de Liverpool v. Servi Mundo Llantera S.A. de C.V., 82 S.W.3d 622, 628 (Tex.App.-Corpus Christi 2002, pet. dism’d w.o.j.); Perna v. Hogan, 162 S.W.3d 648, 656 (Tex.App.-Houston [14th Dist.] 2005, no pet.). As discussed above, we held that both legally and factually sufficient evidence supports the trial court’s findings of fact. Whether findings are irrelevant or superfluous to the trial court’s judgment is not a valid basis for disregarding such findings on appeal. See also Speer v. Presbyterian Children’s Home, 847 S.W.2d 227, 283 & n. 4 (Tex.1993) (Gonzalez, J., concurring) (“Under our rules of procedure, an appellate court cannot disregard findings of fact — the appellate court can only deviate from such findings if there is no evidence to support the findings.”). Even disregarding the challenged findings, sufficient findings of fact remain to support the trial court’s determination that the lease required a nightclub or bar and nothing else. Merry Homes cannot show that any error committed by the trial court in making irrelevant findings either probably caused the rendition of an improper judgment or prevented Merry Homes from properly presenting its case on appeal. See Tex.R.App. P. 44.1(a).

Merry Homes further contends that the trial court erred in using Yu’s admission that the lease could not be performed legally against Merry Homes. A matter admitted pursuant to a request for admission is “conclusively established as to the party making the admission.” Tex.R. Civ. P. 198.3. Even without Yu’s admission, the facts support the trial court’s conclusion that Luu could not operate a business in the leased space consistent with both the City of Houston ordinance and the terms of the lease limiting the use of the premises exclusively to a nightclub or bar. Merry Homes thus failed to establish that any use of this admission against Merry Homes constitutes harmful error. See Tex.R.App. P. 44.1(a).

Conclusion

We hold that the trial court correctly determined that the lease was void because Luu could not perform his obligation under the lease to avoid violating a City of Houston ordinance. We further hold that the trial court’s award of $23,500 in attorney’s fees to Luu was not inequitable or unjust. We therefore affirm the judgment of the trial court.

      . Even if Keenan is applicable to this case involving a pre-existing illegality, as opposed to a supervening illegality, we note that the holding in Keenan relied heavily on the fact that Ellis County’s exercise of its option to prohibit the sale of alcohol was highly foreseeable at the time Keenan entered into the lease agreement and, as a result, Keenan should have protected himself by insisting on a contingency clause relieving him of his lease obligations if the county later adopted prohibition. See Houston Ice & Brewing Co. v. Keenan, 99 Tex. 79, 88 S.W. 197, 198 (1905). The Texas Supreme Court later observed that “[t]he foreseeability factor has, however, gradually decreased in importance,” and a party may still be discharged from performance even if the supervening event was reasonably foreseeable. Centex Corp. v. Dalton, 840 S.W.2d 952, 955 (Tex.1992). Under the more recent authority in Centex, Luu's failure to ensure that the lease contained a contingency clause excusing his performance upon denial of a liquor license, even if the denial of the license was reasonably foreseeable, does not require enforcement of the lease.

      . Merry Homes points out that section 9.2 of the Restatement (Second) of Property, which allows a tenant to terminate a lease if the intended use of the property later becomes illegal, begins by stating "[e]xcept to the extent the parties to a lease validly agree otherwise,” and contends that section 10(c) of the lease brings this case within the exception to section 9.2. See Restatement (Second) of Prop.: Landlord & Tenant § 9.2 (1977). Comment c to section 9.2 describes examples of "valid agreements otherwise,” including agreements that the lease will automatically terminate if the intended, but not sole permissible, use under the lease becomes illegal, and agreements that shift responsibility to the landlord to obtain a required license, permit or variance. See id. cmt. c. Comment c does not list an agreement such as section 10(c) of this lease, which would require Luu to continue his rental obligation even though his.only permissible use of the premises is illegal, as a "valid agreement otherwise.” See id.


author: GEORGE C. HANKS, JR., Justice.

text:
    Susan C. CONTE, Appellant, v. Louis M. DITTA, Guardian of the Estate of Doris L. Conte, an Incapacitated Person, Appellee.
    No. 01-05-00603-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 11, 2010.

      Karen Lynn Watkins, McGinnis, Lo-chridge & Kilgore, L.L.P., Austin, TX, Steven J. Watkins, McGinnis, Lochridge & Kilgore, L.L.P., Houston, TX, for Appellant.
    Bradley Wayne Snead, Thomas C. Wright, Wright Brown & Close, LLP, Michael J. Cenatiempo, Cenatiempo & Ditta, L.L.P., Houston, TX, for Appellee.
    Louis Ditta, Cenatiempo & Ditta, LLP, Houston, TX, pro se.
    Panel consists of Justices ALCALA, HANKS, and BLAND.
   OPINION ON REMAND

GEORGE C. HANKS, JR., Justice.

This appeal is before us on remand from the Supreme Court of Texas. Ditta v. Conte, 298 S.W.3d 187 (Tex.2009). Having reversed our Court’s earlier judgment that this trustee-removal suit was barred by the four-year statute of limitations applicable to a breach-of-fiduciary-duty claim, the Supreme Court remanded the case for consideration of the merits of the appeal.

Appellee, Louis M. Ditta (“Ditta”), acting in his capacity as the Guardian of the Estate of Doris L. Conte (“Doris”), an Incapacitated Person, filed suit seeking the removal of appellant, Susan C. Conte (“Susan”), as trustee of the Conte Family Trust. After a bench trial, the probate court ruled in Ditta’s favor and issued two orders. The first order removed Susan as trustee, and the second order rrfodified the terms of the Conte Family Trust and appointed a successor trustee. In three issues, Susan argues that the probate court erred in (1) removing her from her position as trustee, (2) modifying the trust’s prescribed method of appointing successor trustees, and (3) appointing a successor trustee. We affirm in part and reverse and remand in part for orders consistent with this opinion.

Background

In 1987, Joseph and Doris Conte created the Joseph P. Conte Family Trust, an inter vivos trust that became irrevocable on the earlier of Joseph or Doris’s death. The Trust agreement named Joseph the original trustee. Upon Joseph’s death in 1993, per the terms of the Trust, Doris began serving as co-trustee along with her two children, Susan and Joseph, Jr. The co-trustees were obliged to create and fund three separate trusts for the primary benefit of Doris, during her lifetime. The co-trustees were to distribute quarterly income from a management trust to Doris, as well as principal amounts requested by Doris for “her comfort, health, support and maintenance, in order to maintain” the equivalent lifestyle to which Doris was accustomed at the time of Joseph’s death.

Initially, Joseph, Jr. managed the Trust’s day-to-day affairs. About two years later, Susan and Doris discovered that Joseph, Jr. was not administering the Trust in accordance with its terms. This discovery heralded a proliferation of litigation, including eight separate lawsuits between Susan and Joseph, Jr. In the course of one of these suits, Doris was declared mentally incapacitated. In an agreed order, Susan was appointed guardian of Doris’s person, and Louis Ditta, appellee in this case and an attorney, was appointed guardian of Doris’s estate. Due to the declaration of incapacity, Doris was removed from her position as a co-trustee of the Trust, leaving Susan and Joseph, Jr. with the joint responsibility of administering and managing the Trust.

In August 1998, Ditta sought appointment of a receiver to take over the Trust, claiming that the discord between Joseph, Jr. and Susan was materially injuring the Trust assets. Instead of appointing a receiver, the probate court entered an agreed order appointing a temporary successor trustee, Paula Miller. Pursuant to the order, the trustee powers of both Susan and Joseph, Jr. were temporarily suspended. In June 2000, Miller filed an accounting for the Trust with the court that covered March 8, 1993 (the date of Joseph’s death) to December 31, 1999. The accounting revealed that both Susan and Joseph, Jr. had become significantly indebted to the Trust by using Trust assets for personal expenses. The Trust agreement did not authorize payment of personal expenses of a trustee out of the Trust funds.

Susan initially contested the accounting, but the parties eventually entered into an agreed judgment in January 2001. The agreed judgment approved Miller’s accounting that Susan owed the Trust $420,423.32, plus accrued interest on the indebtedness at a rate of 6% per annum, and Joseph, Jr. also owed a larger debt to the Trust. The agreed judgment provided that collection of the amounts owed by Susan and Joseph, Jr. would be deferred during Doris’s lifetime, unless the probate court later found that Doris’s “financial needs” required earlier repayment. Miller continued to serve for more than six years as temporary successor trustee under the supervision of the court. Miller was charged with funding the three separate trusts, as expressed in the Trust, a task which Joseph, Jr. and Susan never completed during their administration of the Trust. Miller’s subsequent accountings brought the records up-to-date through September 2004. As of September 2004, with the accumulation of interest, Susan owed $515,534.32, Joseph, Jr. owed $899,529.80, and Conte Investments (a company held half by Susan and half by Joseph, Jr.) owed $702,276.34.

In January 2003, Ditta persuaded the probate court to remove Joseph, Jr. as trustee based on his violations of the Trust agreement. Thereafter, only Susan (whose trustee powers were suspended) and Miller (the temporary successor trustee) remained as trustees. On April 5, 2004, Ditta filed this suit, seeking Susan’s removal as trustee. On both April 27 and November 3 of that same year, Susan and Joseph, Jr., in their capacity as beneficiaries of the Trust, signed documents, pursuant to the terms of the Trust, to reappoint Susan as trustee if she were removed by the court in the removal proceeding initiated by Ditta.

Following a bench trial, the probate court removed Susan as trustee, modified the terms of the Trust regarding trustee succession, and appointed Frost Bank as successor trustee. This appeal followed. At some point during the pendency of the appeal, Frost Bank resigned from its position as trustee. The parties, including Ditta, entered into an agreed order appointing Susan temporarily as substitute successor trustee under a $1 million bond and supervised by the court as a dependent administrator. Despite Frost Bank’s resignation, the parties are in agreement that the case is not moot because controversies still exist as to the propriety of the trial court’s removal of Susan as trustee, its modification of the terms of the Trust, and its power to appoint a successor trustee.

On appeal, this Court reversed, holding that the trial court erred in removing Susan as trustee because Ditta’s removal action was barred by the four-year statute of limitations governing breach-of-fiduciary-duty claims. Additionally, our Court held that the probate court erred in modifying the terms of the Trust and appointing a successor trustee because it took those actions based on a time-barred petition. On discretionary review, the Texas Supreme Court held that “[n]o statute of limitations period applies in a trustee-removal suit.” Ditta, 298 S.W.3d at 192. On remand from the Texas Supreme Court, we consider the issues we did not reach.

Discussion

A. Removal of Susan as Trustee

Susan argues that the trial court erred in removing her from her position as the sole remaining trustee of the Trust. Specifically, she argues that there is no evidence supporting the trial court’s stated reasons for her removal and the removal action was barred by the doctrines of election of remedies and waiver.

1. Bar on Removal Action

Susan argues that the removal action is barred or waived because of an earlier settlement. Susan points to a settlement agreement between the parties relating to her indebtedness to the Trust for money used on personal expenses. Susan contends that the settlement was an “election of remedies” precluding or waiving removal action.

We reject this argument because, as the Supreme Court held, the removal action seeks to prevent future injury, which is distinguishable from a monetary settlement remedying past injury. Id. The Supreme Court rejected Susan’s earlier claim that the statute of limitations for breach of fiduciary duty applies to a trustee-removal action. Id. Because the removal suit seeks to prevent future harm to the Trust, Susan’s past settlement of monetary claims does not preclude or waive removal actions to prevent future harm. See id.

2. Merits of Susan’s Removal

Additionally, Susan argues that there was no evidence supporting the trial court’s stated reasons for her removal. At Susan’s request, the trial court issued findings of fact and conclusions of law, which provided in part:

1. As co-trustee of the Trust, Susan C. Conte materially violated the terms of the Trust by paying her personal expenses out of the Trust.
2. Susan C. Conte’s violation of the terms of the Trust resulted in a material financial loss to the Trust.
3. Susan C. Conte’s violation of the terms of the Trust resulting in her removal is a breach of trust.
4. Susan C. Conte is personally indebted to the Trust, therefore, her personal interests are adverse and in conflict with her duties as trustee.
5. Extensive litigation and hostility between Susan C. Conte and Joseph P. Conte, Jr. adversely affected their ability as co-trustees to administer the Trust consistent with its purpose.

Susan concedes that the stated reasons for her removal are proper grounds but argues that there is no evidence supporting the court’s stated reasons.

a) Standard of Review

A court may, in its discretion, remove a trustee on the petition of an interested person and after hearing if “the trustee materially violated or attempted to violate the terms of the trust and the violation or attempted violation results in a material financial loss to the trust” or “in the discretion of the court, for other cause.” Act of May 22, 2003, 78th Leg., R.S., ch. 550, 2003 Tex. Gen. Laws 1871, 1872 (amended 2005) (current version at Tex. Prop.Code Ann. § 113.082(a) (Vernon 2007)). Accordingly, we review a court’s removal of a trustee under an abuse of discretion standard. Id.; see, e.g., Kappus v. Kappus, 284 S.W.3d 831, 838 (Tex.2009).

A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex.1999). When reviewing matters committed to the trial court’s discretion, we may not substitute our own judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). Under the abuse of discretion standard, we review the evidence in the light most favorable to the order and indulge every presumption in favor of the trial court’s order. See id. at 839—40; Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.-Houston [1st Dist.] 1993, writ denied). A trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would in a similar circumstance. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985). If some probative and substantive evidence supports the order, there is no abuse of discretion. Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex.App.Houston [1st Dist.] 2007, no pet.).

b) Analysis

The probate court gave three reasons for removing Susan: (1) Susan’s prior use of Trust funds to pay personal expenses materially violated the terms of the Trust, resulting in a material loss to the trust; (2) Susan’s indebtedness to the Trust and concurrent responsibility to collect on that debt if Doris needed the funds created an inherent and continuing conflict of interest; and (3) Susan’s tenuous relationship with Joseph, Jr. impaired the performance of her trustee duties. Susan argues that the record does not support these conclusions.

First, Susan argues that there is no evidence that she materially violated the terms of the Trust in a manner that caused a material financial loss to the Trust. Contrary to Susan’s assertion, Paula Miller provided testimony and accounting schedules that showed Susan’s use of Trust money for personal expenses. Specifically, due to disputes over the Trust, Doris, Susan, and Joseph, Jr. entered into an agreed order appointing Paula Miller as temporary successor trustee to conduct an accounting of the Trust. Miller testified at trial that her accounting of the Trust revealed that Susan used money from the Trust to pay personal expenses during her tenure as a co-trustee. Miller documented these expenses in a schedule that was admitted at trial. Miller determined that Susan used a total of $420,428.32 of Trust money on personal expenses. Miller also discovered that money from the Trust was impermissibly used by Conte Investments, Inc., a company owned 50/50 by Susan and Joseph, Jr.

As of September 2004, due to the accrual of interest, the amount owed to the Trust by Susan amounted to $515,534.32 for her personal expenses and $702,276.34 for impermissible lending of Trust money to Conte Investments. The Trust did not allow for Susan, as a trustee, to use money from the Trust to pay for personal expenses. Nor do the terms of the Trust permit a trustee to lend funds of the Trust to himself or to an entity owned by the trustee personally.

All parties, including Susan, signed an agreed judgment approving of Miller’s accounting, acknowledging Susan’s indebtedness to the Trust for her misuse of funds, and deferring collection of the indebtedness during Doris’s lifetime, unless her financial needs required collection. The “Agreed Final Judgment on Accounting,” which Susan approved, conclusively shows that she is indebted to the Trust for improper use of Trust funds while serving as a co-trustee. At the time of trial in February 2005, Miller estimated the liquid assets of the Trust to be less than $200,000 and anticipated those assets would be exhausted by the end of May 2005.

Susan argues that, because she entered into the agreed judgment acknowledging her indebtedness, the amounts cannot be classified as a loss to the Trust. Susan argues that the assets cannot be considered a loss until a demand for payment is refused. Susan cites no authority to support her position.

Susan’s argument presumes that her ac-knowledgement of indebtedness to the Trust cures any harm to the extent that we cannot consider the misappropriations a loss. In essence, she asserts that the previous agreed judgment precludes us from considering her indebtedness as a loss. If the statute were interpreted in the way Susan suggests, a monetary recovery for a trustee’s breach would preclude removal under Section 113.082(a)(1) for a material violation of the trust resulting in material financial loss. See Tex. PROp.Code ANN. § 113.082(a). Such a narrow interpretation of the statute would be in conflict with the Supreme Court’s opinion. See Ditta, 298 S.W.3d at 192. Specifically, Susan’s emphasis on the accounting characterization and resolution of the past harm is misplaced; removal actions “exist to prevent the trustee from engaging in further behavior that could potentially harm the trust.” Id. The Supreme Court explained, “[a]ny prior breaches or conflicts on the part of the trustee indicate that the trustee could repeat her behavior and harm the trust in the future.” Id.

Initially Susan denied that she was indebted to the Trust, and had it not been for Miller’s accounting, the misuse of funds likely would have gone undiscovered. Susan’s acknowledgement of her indebtedness after being caught does not cure the harm to the trust relationship. Additionally, we observe that Susan’s indebtedness to the trust is not a documented loan, nor is it a secured loan. Susan has not attempted to repay the amounts owed. It was within the trial judge’s discretion to conclude that the money was a loss, as it was taken out of the Trust and has not been repaid.

Susan also argues without supporting authority that, if there was a loss to the Trust, it was not material. Susan points to the fees charged by Miller for serving as a temporary successor trustee in comparison to the amount of her debt. Susan draws this comparison in an effort to minimize the amount she owes to the Trust. But the propriety of Miller’s services is uncontested in this proceeding.

We conclude that the trial court did not abuse its discretion in concluding that Susan materially violated the terms of the Trust. Similarly, the court did not abuse its discretion in finding that there was material financial loss to the Trust as a result of the breach.

Because we conclude that the trial court was within its discretion in removing Susan as trustee, we need not address the trial court’s other grounds supporting the removal.

We overrule Susan’s first issue.

B. Modification of Trust and Appointment of Successor Trustee

In her second point, Susan argues that the trial court erred in appointing a successor trustee. Specifically, Susan argues that the trial court erred by modifying the terms of the Trust to allow the court to deviate from the Trust’s terms for appointing a successor trustee.

In the court’s findings of fact and conclusions of law, the court concluded, in relevant part:

6. This Court has the equitable power to deviate from the terms of the Trust agreement and the statutory power to modify the terms of the Trust agreement due to changes in circumstances since the creation of the Trust by the grantors.
7. It is in the best interests of the Trust and Doris L. Conte to deviate from the terms of the Trust agreement and modify the terms of the Trust agreement for appointing a successor trustee as a result of Susan C. Conte’s removal, due to changed circumstances, including the following, (i) improper use of funds of the Trust by Susan C. Conte and Joseph P. Conte, Jr. to pay their personal expenses while serving as co-trustees, (ii) substantial indebtedness owed to the Trust by Susan C. Conte and Joseph P. Conte, Jr., (iii) lack of sufficient liquidity of the Trust to meet the needs of the primary beneficiary of the Trust, Doris L. Conte, and (iv) extensive litigation between Susan C. Conte and Joseph P. Conte, Jr., while serving as co-trustees which interfered with the proper administration of the Trust.
8. Further, under the circumstances set forth above, it is impractical, inexpedient, and would substantially impair the accomplishment of the purposes of the Trust to permit Susan C. Conte and Joseph P. Conte, Jr., to re-appoint Susan C. Conte as trustee upon her removal.
9. Further, given this Court’s familiarity with the administration of the Trust for over six and one-half years, and the concurrent jurisdiction of this court with the Harris County Texas District Court in matters involving inter vivos trusts, it is in the best interest of the Trust for this Court to appoint the successor trustee rather than a district judge of Harris County, Texas.

The Texas Trust Code requires that, on the removal of a sole trastee, a successor trustee must be appointed by the court in accordance with the terms of the trust instrument. Tex. Prop.Code Ann. § 118.088(a) (Vernon 2007). In this case, the terms of the Trust provided that, in the event that the position of trustee became vacant, a series of persons would have an opportunity to appoint the successor trustee. The Trust gave the power of appointment first to Joseph, Sr., and if not exercised by Joseph, Sr. within 30 days, then Doris had the opportunity to appoint a successor. If neither Joseph Conte, Sr. nor Doris Conte appointed a successor in the first sixty days after the position of trustee was vacated, the majority of adult beneficiaries had a thirty-day window within which they could appoint a successor trustee.

The Trust in this case clearly shows the grantor’s intent to leave decisions regarding the management of the Trust to his wife and children. The Trust also states that “[n]o individual Trustee shall receive any compensation for serving under this instrument.” However, the Trust provides for “fair and reasonable compensation” for a corporate trustee.

The court is permitted to modify the terms of a trust if, due to circumstances not known to or anticipated by the settler, compliance with the terms of the trust would defeat or substantially impair accomplishment of the purposes of the trust. Act of May 9, 1985, 69th Leg., R.S., ch. 149, § 1,1985 Tex. Gen. Laws 676 (amended 2005) (current version at Tex. PROP. Code Ann. § 112.054(a)(2) (Vernon 2007)). The court, however, does not have unfettered discretion to modify the Trust in any way it chooses. If the court finds that modification is proper, the court must exercise its discretion to modify “in the manner that conforms as nearly as possible to the intention of the settlor.” Id. (current version at Tex. Prop.Code Ann. § 112.054(b) (Vernon 2007)).

In the court’s conclusions of law, it concluded that it would be “impractical, inexpedient, and would substantially impair the accomplishment of the purposes of the Trust to permit Susan C. Conte and Joseph P. Conte, Jr., to re-appoint Susan C. Conte as trustee upon her removal.” It appears that the trial court justified its modification of the Trust on the presumption that under the Trust’s terms, Susan and Joseph, Jr., as a majority of the adult beneficiaries, would have the power to appoint a successor trustee and they would use that power to reappoint Susan.

As previously noted, the Trust expresses the grantor’s clear intention to leave the power to appoint a successor trustee to his wife and children. The preceding paragraph in the Trust addresses resignation of a trustee, requiring that notice be given to the grantors or beneficiaries. Notably, this paragraph specifies that “if the person entitled to receive notice is a minor or an incompetent, such notice shall be delivered to ... such incompetent’s guardian.” This provision shows that the grantor anticipated the possibility of guardianship in drafting the Trust agreement. Significantly, while the guardian is entitled to receive notice on behalf of the ward, the Trust agreement does not provide that the guardian can exercise a ward’s power of appointment. After reviewing the language of the Trust, it is clear from the terms that the grantor did not intend the power to appoint a successor trustee to be exercisable by a guardian on the ward’s behalf. The omission of language giving the guardian power is significant given the specific inclusion of such language in the paragraph directly before. Because we must interpret the document in such a way that gives effect to each and every provision without rendering any parts meaningless, we cannot interpret a grant of power to “the Wife” to extend to the wife’s guardian. See Alpert v. Riley, 274 S.W.3d 277, 288 (Tex.App.-Houston [1st Dist.] 2008, pet. denied).

Because Doris was unable to exercise the power to appoint, that power would have been left to “a majority of the adult Beneficiaries.” It can be inferred from the trial court’s conclusions of law that it also arrived at this interpretation. The court went on to conclude that it would be “impractical, inexpedient, and would substantially impair the accomplishment of the purposes of the Trust to permit Susan C. Conte and Joseph P. Conte, Jr., to reappoint Susan C. Conte as trustee upon her removal.” Based on this conclusion, the court determined it was in the best interest of the Trust for the court to appoint a successor.

We agree with the court that Susan’s removal as trustee rendered her unqualified to serve as trustee. In determining whether a trustee should be removed, the court can consider prior breaches or conflicts, without limitation, so long as potential harm exists. Ditta, 298 S.W.3d at 192 (“Any prior breaches or conflicts on the part of the trustee indicate that the trustee could repeat her behavior and harm the trust in the future.”). Accordingly, we observe that reappointment cannot be utilized to reinstate a trustee that the court previously removed.

However, the trial court erred in giving itself the power to appoint a successor trustee. Upon finding that it was not feasible for Susan to be reappointed, the court should have modified the terms of the Trust “in the manner that conforms as nearly as possible to the intention of the settlor,” as required by Section 112.054(b) of the Property Code. Act of May 9, 1985, 69th Leg., R.S., ch. 149, § 1, 1985 Tex. Gen. Laws 676 (amended 2005). Rather than limiting its exercise of discretion in light of the grantor’s intentions, the court modified the Trust by depriving Susan and Joseph, Jr. the opportunity to suggest a suitable trustee. Rather than of making its own determination of what would be best, the court’s modification should have been guided by the grantor’s clear intention to allow the beneficiaries to appoint a successor trustee. See Tex. Prop.Code Ann. § 112.054(b) (providing that court should modify trust “in the manner that conforms as nearly as possible to the intention of the settlor”).

While Susan’s removal disqualified her from reappointment as trustee, her missteps in her fiduciary role as trustee do not strip away her rights as a beneficiary. Per the terms of the Trust, the power to appoint a successor trustee was left to “a majority of the adult Beneficiaries.” The grounds for Susan’s removal as trustee have no bearing on her rights as a beneficiary. The court should have allowed Susan and Joseph, Jr. to select a successor trustee and simply modified the Trust by restricting their choice of successor trustee to someone whom it had not previously removed. Such a restriction would address the problem recognized by the court, while still giving effect to the grantor’s intentions.

While we agree modification was necessary, the trial court erred by not exercising its discretion in a manner that conformed to the grantor’s intent. See Tex. Prop.Code Ann. § 112.054(b). We conclude that that the trial court abused its discretion in modifying the terms of the Trust and by appointing the successor trustee because the court should not have given itself the authority to appoint a successor in place of a majority of the adult beneficiaries.

We sustain Susan’s second issue.

Conclusion

We affirm the trial court’s judgment, in part, as to the removal of Susan as trustee. We reverse, in part, as to the modification of the terms of the Trust and the court’s appointment of a successor trustee, and remand for orders consistent with this opinion.

      . Generally described, these suits were as follows:
      1. A suit for declaratory judgment, filed by Doris and Susan, seeking a declaration that a separate suit, filed by both Doris and Susan, to remove Joseph, Jr. as co-trustee would not violate the “no contest” clause in the Trust agreement.
      2. A suit filed by Susan seeking a protective order against Joseph, Jr. subsequent to an incident of family violence and assault.

        3. A suit filed by Joseph, Jr., against Susan and Doris, alleging that the two women had no authority, in their capacities as co-trustees, to direct the affairs of Joe Conte Toyota, Inc.
      4. A suit filed by Susan against Joseph, Jr. for fraud, conversion, and breach of fiduciary duty.
      5. A suit for declaratory judgment, filed by Susan alone, seeking a declaration that a suit by Susan to remove Joseph, Jr. as trustee would not violate the "no contest” clause of the Trust agreement.
      6. A suit filed by Susan against Joseph, Jr. and tiis attorneys for conversion and interference with the conduct of the day-today administration of the Trust.
      7. A suit filed by Joseph, Jr., against Susan and Doris, seeking the rescission of a settlement agreement entered into by the co-trustees and a trust accounting.
      8. An application filed by Joseph, Jr. for the appointment of a temporary guardian for Doris and a motion contesting that application filed by Susan.

      . The Trust provided that, should the position of trustee become vacant, a series of persons would have an opportunity to appoint the successor trustee. If neither Joseph Conte, Sr. nor Doris Conte appointed a successor in the first sixty days after the position of trustee was vacated, the majority of adult beneficiaries had a thirty-day window within which they could appoint a successor trustee.

      . Citation references statute in effect at time of trial court’s judgment.

      . For the purposes of this opinion, we use the terms "grantor” and "settlor” interchangeably. We note that in the Trust agreement, Joseph, Sr. refers to himself as the "grantor.” The Trust Code uses the term "settlor” to mean creator of a trust, but also provides that the terms "grantor” and "testor” mean the same as "settlor.” Tex. Prop.Code § 111.004.

      . We note that Ditta serves as guardian of Doris’s estate, giving him the power to manage her property. Susan serves as guardian of Doris’s person, giving her power over Doris’s care, supervision, protection, and medical decisions.


author: PAUL E. DANIELSON, Justice.

text:
    2009 Ark. 79
    Bernice Martin RUSSELL, Appellant, v. WATSON CHAPEL SCHOOL DISTRICT, Appellee.
    No. 08-1034.
    Supreme Court of Arkansas.
    Feb. 19, 2009.
    Rehearing Denied April 22, 2010.
    Mitchell, Blackstock, Barnes, Wagoner, Ivers & Sneddon PLLC, by: Mark T. Burnette, Little Rock, for appellant.
    Bridges, Young, Matthews & Drake PLC, by: Michael J. Dennis and John P. Talbot, Pine Bluff, for appellee.
   PAUL E. DANIELSON, Justice.

| following our remand to the circuit court in this matter involving the Teacher Fair Dismissal Act (TFDA), see Watson Chapel Sch. Dist v. Russell, 367 Ark. 443, 241 S.W.3d 242 (2006) (Russell I), appellant Bernice Martin Russell now appeals from the circuit court’s order dismissing her complaint against appellee Watson Chapel School District (the District). In this appeal, Ms. Russell makes two assertions: (1) that the circuit court erred as a matter of law and made clearly-erroneous findings; and (2) that this court should not abandon its reasoning in Hamilton v. Pulaski County School District, 321 Ark. 261, 900 S.W.2d 205 (1995). We affirm the circuit court’s order.

The preliminary facts in this matter were adequately set forth in our prior opinion. See Russell I, supra. Suffice it to say, in 2002, the District’s school board voted not to renew Ms. Russell’s contract with the District. She then filed suit in the Jefferson County Circuit 12Court, alleging that the school board’s action was void because the District failed to comply with the notice provision contained within the TFDA, Arkansas Code Annotated §§ 6— 17-1501-6-17-1510 (Repl.1999 & Supp. 2001). The circuit court entered judgment in Ms. Russell’s favor, finding that the notice provided to Ms. Russell was insufficient under section 6-17-1506(b)(2)(B) (Repl.1999). In addition, the circuit court awarded Ms. Russell $77,137 in contract damages.

The District appealed to this court, asserting, among other things, that the notice that was sent to Ms. Russell substantially complied with the TFDA. In examining this issue, we concluded that in order for a reviewing court to determine whether a notice of nonrenewal substantially complied with the TFDA, the circuit court must examine not only the notice of nonrenewal, but also any record of the school-board hearing made pursuant to Ark.Code Ann. § 6-17-1509(c)(4) (Supp.2001). We further observed:

[ JA] review of the testimony and exhibits presented by both sides at a school-board hearing is necessary to determine whether a school district’s written notice was sufficient to enable a reasonable teacher to prepare a defense. Ark.Code Ann. § 6 — 17—1506(b)(2)(B).
In determining the sufficiency of the notice, a circuit court should examine a school district’s notice within the context of what actually occurred during the school-board hearing. Furthermore, when a record of the hearing has been made pursuant to Ark.Code Ann. § 6-17-1509(c)(4), a circuit court must review the notice in conjunction with the hearing transcript and compare the evidence the school district presented to support the charges against the teacher with the actual defense that he or she was able to present as a counter to that evidence. To do otherwise, would undermine the clear intent of the General Assembly that a notice will be deemed sufficient if a “reasonable teacher can prepare a defense.”

367 Ark. at 447, 241 S.W.3d at 245. Accordingly, we reversed and remanded the matter, holding that the circuit court erred when it ruled on the sufficiency of the notice of nonrenewal without first examining the transcript of the school-board hearing. Specifically, we remanded to the circuit court for “a determination of the sufficiency of the nonrenewal notice based upon a full review of the evidence presented at the school-board hearing.” Id. at 449, 241 S.W.Bd at 246.

Upon remand, the circuit court scheduled a hearing, which was continued. The circuit court then received a letter from the District’s counsel, which stated that he and Ms. Russell’s counsel agreed that a hearing might be unnecessary and suggested that both parties submit simultaneous proposed findings of fact and conclusions of law. It does not appear from the record that any hearing was held, nor any proposed precedent filed. Nonetheless, the circuit court filed its order on May 2, 2008, in which it found that the District “did comply with the notice requirements of the Teacher Fair Dismissal Act (TFDA).” The |4circuit court, noting that it had reviewed the school-board transcript, delineated the reasons for nonre-newal contained in the notice and found that the “statements made during the hearing by [Ms. Russell] and on her behalf indicate[d] that [she] had the opportunity to review the documents presented by the [District] at the hearing and to defend against all issues raised in the notice.” Accordingly, the circuit court concluded:

6. That Plaintiff specifically addressed each numbered issue numerous times throughout the hearing, referencing documents contained in her personnel file as she testified, (see pgs. 53, 61, and 68 of the hearing transcript)
7. That after reviewing the nonrenewal notice along with the statements of Plaintiff and her representative, this court finds that Defendant did comply with the notice requirements set forth in Ark.Code Ann. § 6-17-1506(b)(2)(B).

The circuit court then dismissed Ms. Russell’s cause. She now appeals.

Ms. Russell argues, as her first point on appeal, that the circuit court erred as a matter of law and made clearly-erroneous findings. She claims that the circuit court failed to follow this court’s mandate and that she was left to “guesswork and speculation” as to the reasons for the nonrenewal recommendation. The District counters that viewing the record in its entirety, the circuit court’s finding that the notice of nonrenewal was sufficient was not clearly erroneous. It contends that the circuit court had evidence before it that the notice of nonrenewal was adequate to allow Ms. Russell to prepare a defense and, for that reason, the circuit court’s order should be affirmed.

Our standard of review in matters involving the TFDA is limited to whether the circuit court’s decision was clearly erroneous. See, e.g., Moffitt v. Batesville Sch. Dist, 278 |5Ark. 77, 643 S.W.2d 557 (1982); Ark. R. Civ. P. 52(a). See also Olsen v. East End Sch. Dist., 84 Ark.App. 439, 143 S.W.3d 576 (2004). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that an error has been committed. See Omni Holding & Dev. Corp. v. C.A.G. Invs., Inc., 370 Ark. 220, 258 S.W.3d 374 (2007). Facts in dispute and determinations of credibility are within the province of the fact-finder. See id.

The TFDA provides that a nonre-newal by a school district shall be void unless the school district substantially complies with the provisions of the Act. See Ark.Code Ann. § 6-17-1503(e) (Supp. 2001). At issue in the instant case is whether the District substantially complied with the provisions of section 6-17-1506(b)(2)(B). We hold that it did.

In order for the District to have substantially complied with section 6-17-1506(b)(2)(B), the notice of recommended nonrenewal was required to include “a statement of the reasons for the recommendation, setting forth the reasons in separately numbered paragraphs so that a reasonable teacher can prepare a defense.” Thus, the relevant inquiry is whether the notice of nonrenewal was sufficient such that a reasonable teacher could defend against the reasons given.

In Russell I, we held that, in determining the sufficiency of a notice of nonrenewal, a circuit court should examine a “school district’s notice within the context of what actually occurred during the school-board hearing.” 367 Ark. at 447, 241 S.W.3d at 245. We further | (¡observed that such a review must be conducted in order to determine whether a reasonable teacher could have prepared a defense. See id. This is because the events of the hearing itself are at least some evidence of whether a reasonable teacher could defend.

Here, the circuit court, after reviewing the transcript of the school-board hearing, concluded that the notice of nonrenewal was sufficient based upon the fact that Ms. Russell was able to defend on all issues raised. While the circuit court did not base its conclusion on whether a reasonable teacher could defend, it is clear to this court that the circuit court’s conclusion regarding the sufficiency of the notice of nonrenewal was not clearly erroneous. It is evident from a review of both the notice of nonrenewal and the school-board hearing that the notice substantially complied with the section 6-17-1506(b)(2)(B), such that a reasonable teacher could prepare a defense. Accordingly, we hold that the circuit court did not clearly err in finding that the notice of nonrenewal complied with section 6-17-1506(b)(2)(B).

For her second point, relying on Hamilton v. Pulaski County School District, 321 Ark. 261, 900 S.W.2d 205 (1995), Ms. Russell argues that her notice of nonrenewal lacked completeness. She contends that the notice of nonrenewal failed to comply with the statute as it relied on her personnel file and contained reasons based upon the generic reasons set forth in the statute, both of which she claims this court rejected as sufficient reasons in 17.Hamilton. The District responds that Hamilton is distinguishable, in that the standard for the District at that time was strict compliance and that, in Ms. Russell’s case, she received responses from the District to her requests for more information.

Ms. Russell’s argument is without merit, as this court’s decision in Hamilton was under a prior version of the statute. In Hamilton, this court considered the sufficiency of a teacher’s notice of nonrenewal. There, we did observe that “teachers [were] entitled to rely on a simple and complete statement of reasons as to nonre-newal of their contracts.” 321 Ark. at 267, 900 S.W.2d at 208 (quoting Allen v. Texarkana Pub. Schs., 303 Ark. 59, 63, 794 S.W.2d 138, 140 (1990)). We further observed that “[m]ere recitation of the generic categories of inefficiency and noncompliance with written regulations and policies tells a teacher nothing about the reasons for nonrenewal” and that “[w]ith-out that information, preparation for a hearing is well nigh impossible.” Id., 900 S.W.2d at 208.

At that time, the General Assembly required that “[t]he notice of recommended nonrenewal of a teacher shall include a simple but complete statement of the reasons for such recommendation.” Id. at 266, 900 S.W.2d at 207 (quoting Ark.Code Ann. § 6 — IT—1506(b) (Supp.1991)). However, in 1999, the General Assembly amended section 6-17-1506, deleting the “simple but complete” language and substituting “setting forth the reasons in separately numbered paragraphs so that a reasonable teacher can prepare a defense.” Act 852 of 1999, § 1.

The language of section 6-17-1506(b)(2)(B) as it stands now simply cannot be | sconstrued the same as the former language of “simple but complete.” It is clear that the General Assembly, by its amendment, did not intend for school districts to send a notice of nonrenewal with no basis whatsoever; however, it is also just as clear that the current language of the statute does not require the specificity previously required under the prior version of the statute. Instead, the contents of the notice must now only consist of reasons in separately numbered paragraphs such that a reasonable teacher can prepare a defense. In sum, our decision in Hamilton was based on prior law and not the reasonable-teacher standard, and Ms. Russell’s reliance on that decision is misplaced.

For the foregoing reasons, we affirm the circuit court’s order.

      .The notice of nonrenewal sent to Ms. Russell provided, in pertinent part:
      I am recommending that your current contract as Special Education Supervisor not be renewed. My reasons are:
      1. You have responded evasively to questions from administrators, rather than clearly and honestly.
      2. You have argued with administrators, rather than cooperate with their attempts to work with you.
      3. You have neglected your duty by failing to improve your professional conduct as requested by administrators, even though administrators have attempted to assist you through discussions, memos, reprimands, evaluations, and individual improvement plans.
      4.Your conduct materially interferes with your continued performance of the duties of Special Education Supervisor because success in this difficult position requires a person to behave in a cooperative, reliable, and diplomatic manner.

      . We have long held that we may affirm a circuit court’s order if the circuit court reached the right result, albeit for the wrong reason. See Arkansas Diagnostic Ctr., P.A. v. Tahiri, 370 Ark. 157, 257 S.W.3d 884 (2007).


author: PER CURIAM.

text:
    2009 Ark. 82
    K.L., a Minor, Appellant, v. STATE of Arkansas, Appellee.
    No. 09-86.
    Supreme Court of Arkansas.
    Feb. 19, 2009.

      Sara M. Hartness, Monticello, for appellant.
    No response.
   J^MOTION FOR RULE ON CLERK

PER CURIAM.

K.L., a minor, by his attorney, Sara M. Hartness, has filed a motion for rule on clerk. K.L. was initially convicted of sexual indecency with a child in the Juvenile Court of Desha County. The juvenile court entered an order of adjudication or disposition on August 15, 2008, and on September 12, 2008, a second order of adjudication and disposition was filed, changing the conviction to rape. K.L. filed his first notice of appeal from the original order on September 17, 2008, filed an amended notice of appeal on September 22, 2008, and tendered his record to this court’s clerk on January 14, 2009.

Arkansas Rule of Appellate Procedure-Civil 4(a) (2008) provides that a notice of appeal shall be filed within thirty days from the entry of the order being appealed. Here, KL.’s initial notice of appeal was not timely filed, as it was due to be filed no later than September 15, 2008. Because K.L.’s first notice of appeal was untimely, we treat the instant motion as one for belated appeal, and we grant the motion. See, e.g., Young v. State, 375 Ark. |2366, 290 S.W.3d 605 (2009).

This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said:

Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.

356 Ark. at 116, 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he or she has erred and is responsible for the failure to perfect the appeal. See id. When it is plain from the motion, affidavits, and record that relief is proper under either rule based on error or good reason, the relief will be granted. See id. If there is attorney error, a copy of the opinion will be forwarded to the Committee on Professional Conduct. See id.

It is plain from KL.’s motion that there was error on Ms. Hartness’s part. Pursuant to McDonald v. State, supra, we grant KL.’s motion for belated appeal and forward a copy of this opinion to the Committee on Professional Conduct.

Motion for belated appeal granted.


author: JIM GUNTER, Justice.

text:
    2009 Ark. 112
    Genre Jamison PAGE, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 08-322.
    Supreme Court of Arkansas.
    March 5, 2009.
    Cullen & Co., PLLC, Little Rock, by: Tim Cullen, for appellant.
    Dustin McDaniel, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   JIM GUNTER, Justice.

11 This appeal arises from the conviction of Appellant Genre (pronounced “John Ray”) Jamison Page a/k/a “Money Ray” for capital murder and his sentence of life imprisonment without parole plus ten years, which includes an enhancement for use of a firearm. His sole point on appeal is that the circuit court erred in denying his motions for directed verdict. Because Appellant was sentenced to life imprisonment, our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(a)(2) (2008). We find no error and affirm.

A review of the record reveals the following. Bianca Lavonda, the victim’s fian-cée, testified that on February 21, 2007, she was with Stephanie Frazier, Appellant’s girlfriend, when Stephanie and Appellant began arguing and Appellant began “roughhousing” Stephanie. Bianca testified that she knew Appellant as “Money Ray.” According to Bianca, when she told Appellant to stop fighting with Stephanie, Appellant came over and slapped |2Bianca twice. At that time, she and Stephanie got into Stephanie’s car and drove to Bianca’s house at 3317 West 10th Street. When they arrived at Bianca’s house, Eli Payne, Gloria Tate (Bianca’s mother), Bianca’s little brother, and other friends were there. Bianca testified that Eli became upset when she told him what had happened with Appellant. Gloria, Bianca, and Eli drove to the store and saw Appellant while they were driving. Eli got out of the car and began arguing and fist fighting with Appellant.

Bianca testified that once Eli and Appellant separated, Eli, Bianca, and Gloria returned to Bianca’s house. Bianca stated that Eli was standing by Bianca’s car that was parked on the side of the street in front of the house while Bobby Ray Moore, a mechanic, was on the ground repairing the car. Bianca was walking up the stairs toward the front door of her house when she turned around and saw a four-door white box car with the back window busted out driving toward the car. When the car passed in front of Bianca’s car, Bianca saw “Money Ray lift up the gun and shoot one time, just once.” At trial, Bianca identified Appellant as “Money Ray” and the person she saw shoot the gun. She testified that Appellant was in the driver’s seat of the car and shot through the passenger window. After the shooting, Bianca called Stephanie and asked her for Money Ray’s real name. She stated that Stephanie gave her the name “John Ray Peterson.” Bianca wrote this name down on a piece of paper and gave it to Gloria, who then gave it to police.

Gloria testified that on the day of Eli’s murder, Stephanie and Bianca arrived at the house appearing upset and Stephanie looked like she had “been jumped on.” Gloria then |sdrove Eli to the store. When Eli saw Appellant, he jumped out of the car and began fighting with Appellant. After the fight, Eli got back into the car, and they returned to the house at 3317 West 10th Street to have a barbeque. Gloria testified that she was talking to Eli and then turned and began walking up the stairs to the house. She turned back around to ask Eli about the potato salad when she saw Appellant drive up and “pull a gun up towards the window and never rolled the window down.” She described the car as “a square-like white car, like the old-fashioned cars, like my grandfather or my mother used to have.” She also testified that the back window was busted out. Gloria testified that she yelled, “Jump, Eli. Run, Eli.” According to Gloria, Eli did jump and tried to run, but was hit by the bullet in his side. Gloria testified that Appellant then “drove down the street so slowly like he hadn’t done anything.” Gloria stated that, at a later date, the police gave her a photo spread to look at and she identified Appellant as the person who shot Eli.

Bobby Ray Moore testified that he was at the house when the shooting occurred because he was doing mechanic work on a car outside of the house. He stated that he was lying on the ground on the passenger side of the car by the tires working on the front brakes. He said that he thought the owner of the car was named Isaiah or Isaac, but did not know his real name.

Bobby testified that he saw a white car “coming kind of fast towards me,” but that this |4did not bother him because he just wanted to finish his work and go home.

He said the car was a white, four-door Oldsmobile with the back window knocked out. He stated that the car slowed down as it approached him. He testified that he noticed Eli standing on the sidewalk on the driver’s side of his car. Bobby testified that the white car stopped, and he heard a shot. He then heard Eli say “Oh, I’m shot. I’m shot.” Bobby testified that he could see the person in the car and he saw a black handgun. He also testified that he picked Appellant out of a photo spread provided to him by police.

Stephanie Frazier testified that, at the time of Eli’s murder, she and Appellant were involved in a romantic relationship. On February 21, 2007, she and Bianca were driving down 12th Street when they saw Appellant on the corner of 12th Street and Booker Street. Stephanie stated that they stopped and Bianca got out of the car and started wrestling with Appellant. She testified that it was not violent, but rather “like a brother and sister thing.” Stephanie stated that Bianca got back into the car and started yelling at Appellant. According to Stephanie, Bianca said, “I’m about to go get my boyfriend.” She testified that Appellant put his hand in the car and slapped Bianca. Bianca then sped off with Stephanie still in the car. Stephanie testified that once they were back at Bianca’s house, Bianca jumped out of the car and began yelling at Eli. Stephanie testified that she told Eli that she did not want him to get anything started with Appellant. Stephanie said that she left Bianca and Eli at the house and drove off. After the shooting, Bianca called her and asked for Appellant’s name. Stephanie stated that she gave Bianca the name “Genre Peterson.” 15Stephanie testified that she gave Bianca the last name “Peterson” because “I had known him for four or five years, and had sex -with him on at least one occasion, probably more, but I didn’t know his last name.”

Officer Jeff King of the Little Rock Police Department testified that he took a criminal mischief report on February 21, 2007, at 3:03 p.m., the same day as Eli’s shooting. King testified that the person who filed the report was Appellant Genre Page. Appellant told King that his child’s mother threw a bottle and busted out the back window of his vehicle, which was a white, four-door 1984 Chevy Celebrity. The incident took place at the corner of 19th and Woodrow, approximately seven blocks south and one block east of 12th and Booker. The information that King obtained from Appellant included that he was born on May 3, 1981, and that his address was 3702 West 6th Street. Detective John White testified that at the time of Appellant’s arrest for Eli’s murder, Appellant’s address was 3702 West 6th Street, and he gave police a date of birth of May 31,1981.

On appeal, Appellant asserts that the circuit court erred in denying his motion for directed verdict because none of the physical evidence found at the scene links Appellant to the shooting and that the eyewitness testimony is inconsistent and does not support the conclusion that Appellant fired the shot that killed Eli. Appellant further contends that Bianca, Gloria, and Bobby’s testimony that they each were able to see across the passenger side of the vehicle and positively identify the driver from their different vantage points is “inherently improbable and borders on physically impossible.”

| BOn appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. See Johnson v. State, 375 Ark. 462, 291 S.W.3d 581 (2009). We will affirm the circuit court’s denial of a motion for directed verdict if there is substantial evidence, either direct or circumstantial, to support the jury’s verdict. See id. This court has repeatedly defined substantial evidence as “evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture.” Id. (quoting Hoyle v. State, 371 Ark. 495, 501, 268 S.W.3d 313, 318 (2007)). Furthermore, this court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. See id.

Based on the testimony of the eyewitnesses, we hold that there is sufficient evidence to support the jury’s verdict in this case. There were three eyewitnesses who testified, identifying Appellant as the person who fired the shot that killed Eli Payne. Each of the three eyewitnesses also testified to seeing a white, boxlike car with the back window “busted” or “knocked” out being driven by Appellant. We have held that the testimony of one eyewitness alone is sufficient to sustain a conviction. See Davenport v. State, 373 Ark. 71, 281 S.W.3d 268 (2008). Furthermore, the jury is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. In the present case, we cannot say with assurance that the testimony of the witnesses identifying Appellant as the shooter was “inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon.” Id. Viewing the evidence in the light most favorable to the State, we hold that there is ^substantial evidence to support Appellant’s conviction. Accordingly, we affirm the circuit court’s denial of Appellant’s motion for directed verdict.

In compliance with Arkansas Supreme Court Rule 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Appellant, and no prejudicial error has been found. Boldin v. State, 373 Ark. 295, 283 S.W.3d 565 (2008).

Affirmed.

      . Bobby refers to Eli Payne as either ‘‘Isaiah,” "Isaac,” or "Eli” throughout his testimony-