Opinion
04-20-00539-CV
02-09-2022
Robert L. BRADLEY, Jr., Individually and as Independent Executor of the Estate of Margaret Bradley, Appellant v. Sandra S. CHAPMAN and Fred Lohmeyer, as Executor and Legal Representative of the Estate of Roger C. Chapman, Appellees
From the 198th Judicial District Court, Kerr County, Texas Trial Court No. 19373B Honorable M. Rex Emerson, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Irene Rios, Justice Lori I. Valenzuela, Justice.
MEMORANDUM OPINION
Rebeca C. Martinez, Chief Justice.
This is an appeal from a bench trial concerning a tennis court. Robert L. Bradley, Jr., individually and as Independent Executor of the Estate of Margaret Bradley, appeals from a judgment determining that he cannot enforce an agreement to use the court. We affirm.
Background
W.G. Kinney owned a tract of land in Hunt, Texas (the "Kinney Tract") on which he built a tennis court and other facilities. In 1977, Margaret Bradley purchased two acres out of the larger Kinney Tract (the "Bradley Lot"), which did not include the tennis court. Attached to the deed from Kinney to Margaret was a document containing an agreement (the "Tennis Court Agreement") regarding the use of the tennis court. The Tennis Court Agreement states:
It is understood and agreed that the 2-acre tract herein conveyed is part of a certain 4.975-acre tract owned by Grantor and that Grantor has constructed a tennis court, fences and related facilities (the "court") upon a portion of such 4.975 acre tract (which portion is not included within the 2-acre tract herein conveyed) for the sole use and benefit of Grantor and those parties to whom Grantor may assign portions of such 4.975-acre tract (including Grantee) and their heirs and assigns (the "owners"). The above conveyance is subject to the covenant and restriction, hereby made by Grantor, and the condition that the land upon which the court is presently located shall be used solely and exclusively for tennis court purposes only and solely by the owners and their authorized guests so long as any one or more of the owners shall contribute funds, as hereinafter set forth, to the maintenance of the court, and such covenant and condition shall be binding upon and be observed by Grantor, its assigns and their heirs and assigns and run in favor of and be enforceable by any person or persons (not defaulting as set forth below) who own any property which is part of such 4.975-acre tract. From time to time, not less often than each calendar year, the majority of the owners (not defaulting as set forth below) shall agree upon an amount of money (if any) necessary for upkeep and maintenance of the court, the amount contributed to be shared equally by the owners. In establishing the amount of the maintenance fund and reasonable rules and regulations for use of the court, each owner shall have one vote, and all such matters shall be determined by majority vote. Should any owner fail to contribute to the maintenance fund his proportionate amount so agreed upon within thirty (30) days of written notification of such amount from any other owner, the defaulting owner shall irrevocably and for all time lose his vote and all his rights to use the court; but this covenant shall continue to run in favor of the non-defaulting owner or owners as long as the share of the defaulting owner is paid by the other owners, or any of them.
In 1992, Roger and Sandra Chapman purchased the lot with the tennis court. In 2018, the tennis court needed repairs, and Sandra Chapman and Robert Bradley Jr. began discussions about resurfacing the court. On April 6, 2018, Sandra forwarded Robert an email with a proposal for resurfacing the court from Q-Sports, a company which had previously completed repair work on the court. The proposal outlined the maintenance to be completed on the tennis court along with a price of $5,433.00 plus tax. On June 1, 2018, Q-Sports completed the work and sent an invoice addressed to "The Bradleys & The Chapmans." Robert testified that he received the Q-Sports invoice in an email from Sandra.
In 2018, Robert was not an owner of the Bradley Lot; his mother, Margaret, owned the lot. Robert testified that he had a power of attorney to handle certain matters for his mother. Further, the live petition states that Robert acted on behalf of his mother in 2018. In 2019, Margaret conveyed an undivided half interest in the Bradley Lot to Robert, and in 2020, Margaret died. During trial and on appeal, Robert argues ownership in terms of the "Bradleys'" ownership of the Bradley Lot, even though different Bradley family members owned their lot from 1977 to the time of trial in September 2020. Robert has never argued that his mother should have received communications directly regarding the repairs. In light of the foregoing, we consider Robert to have acted on behalf of his mother regarding the Bradley Lot at all relevant times.
It is undisputed that on June 25, 2018, the Chapmans paid the entirety of the invoice. It is also undisputed that Robert sent Sandra a check for half of the invoice amount in September 2020, but Sandra refused the check. Other facts about payment, however, are disputed. Robert testified about a potentially duplicative payment his mother made to Q-Sports. Robert testified that days before trial, he located a cancelled check drawn from a bank account that his mother used outside of Robert's supervision. Robert believed this check indicated that Margaret paid the full amount owed to Q-Sports. Robert did not testify as to the payment date written on the check, and the trial court excluded introduction of a copy of the check into evidence following objections that the check had not been disclosed during discovery and was not authenticated. There was no testimony from a representative of Q-Sports to indicate whether Q-Sports had been paid twice.
Sandra and the Chapmans' bookkeeper testified that Sandra paid, and the record includes a cancelled check in the amount of the repairs. The check shows the name of Sandra's husband, Roger, who passed away in 2019.
Robert does not challenge the exclusion of the evidence on appeal.
Robert's counsel represented to the trial court that the owner of Q-Sports had died by the time of trial.
There also was contradictory evidence as to whether another family that owned a lot that was originally part of the Kinney Tract would participate in the tennis court repairs. Robert testified that a third family, the Alldays, had previously participated in repairs. When the latest repairs were proposed, one of the Alldays contacted Robert and asked him for the legal basis for any cost-sharing. Robert testified that his response "took some time" and "slowed things down a little bit." Ultimately the Alldays decided not to participate in cost-sharing for the repairs. According to Robert, the costs were to be split one half to the Bradleys and one half to the Chapmans. Robert identified the Q-Sports invoice dated June 1, 2018, that was addressed to "The Bradleys & The Chapmans" and noted, "It's down to two." Robert remarked as to another invoice that was excluded from evidence: "This was one-third. This is when the Alldays were still in, so I received this earlier than the one-half invoice." Later, Robert testified that the Alldays "dropped out" in 2010. Sandra testified that in May 2018, she had an email exchange with Robert regarding the repairs. A copy of their email exchange was admitted into evidence. It shows that on May 28, 2018, Sandra emailed Robert: "We'll pay our 1/3." Robert responded a few minutes later: "Okay… I am good for 1/3-or 1/2 should the Alldays (unexpectedly) pull out."
Robert does not challenge the exclusion of this evidence on appeal.
In May 2019, after Sandra had refused Robert's September 2018 check for half of the cost of the repairs, Robert filed suit on his behalf and as agent for his mother Margaret, alleging that the Chapmans breached the Tennis Court Agreement. Robert sought a declaratory judgment that the Tennis Court Agreement is valid and enforceable. Robert also requested specific performance of the agreement to obtain continued use of the tennis court. The Chapmans counterclaimed, seeking a declaratory judgment that the Tennis Court Agreement was not a valid and enforceable agreement.
In September 2019, Roger Chapman died and Fred Lohmeyer was substituted as a party to the case as the executor and legal representative of the estate of Roger Chapman. For simplicity, we will refer to Fred Lohmeyer and Sandra Chapman as "the Chapmans."
After a one-day bench trial, the trial court entered a judgment denying Robert's claim and request for a declaratory judgment and granting the Chapmans' request for a declaratory judgment that the covenant is not enforceable. The trial court found that the covenant "constitutes a hybrid affirmative real covenant and negative easement" and that "[t]he covenant is valid." The trial court also found that "[t]he covenant may not be enforced by [the Bradleys], because they did not tender their share of the maintenance payment timely, and therefore, 'irrevocably and for all time' lost the right to use the tennis court." Robert appealed to this court, arguing the evidence is factually and legally insufficient to support the finding that the Bradleys failed to timely pay for repairs, so as to lose their right to enforce the covenant. The Chapmans cross-appealed, contending the trial court erred in determining that the Tennis Court Agreement created a valid and enforceable agreement.
Sufficiency of the Evidence that the Bradleys Failed to Tender Timely Payment
On appeal, Robert challenges the trial court's finding that he failed to tender his share of the maintenance payment timely and therefore lost his right to use the tennis court. Assuming without deciding that the trial court's determination that the tennis court provision constituted a valid "hybrid affirmative real covenant and negative easement," we hold that the evidence supports the trial court's finding that the Bradleys breached the covenant by failing to tender their share of the maintenance payment timely.
The trial court's findings were contained in the judgment and the trial court did not issue a separate document containing findings of fact or conclusions of law. Although findings of fact should not be recited in a judgment, it does not affect the validity of the findings in this case because the trial court did not make any separate written findings that could possibly conflict with the findings made in the judgment. See Tex. R. Civ. P. 299a (stating findings of fact should not be recited in a judgment but should be filed as a separate document); see also In re C.A.B., 289 S.W.3d 874, 881 (Tex. App.-Houston [14th Dist.] 2009, no pet.) ("If, as in this case, the findings contained in the judgment are not supplanted by findings filed separately under Rules 297 and 298, findings improperly included in a judgment still have probative value and are valid as findings."). Further, the parties did not complain about the lack of separate findings in the trial court and do not complain about it on appeal. See Howe v. Howe, 551 S.W.3d 236, 247 (Tex. App.-El Paso 2018, no pet.) (accepting findings in the judgment as the findings of fact for purposes of appeal because the parties did not raise the complaint in the trial court); see also Tate v. Tate, 55 S.W.3d 1, 9 n.4 (Tex. App.-El Paso 2000, no pet.) (findings contained within judgment prepared by party could be considered because party waived complaint).
A. Legal and Factual Sufficiency Standard of Review
The standard of review for factual and legal sufficiency challenges is the same whether a judge or a jury served as fact finder. Marincasiu v. Drilling, 441 S.W.3d 551, 557 (Tex. App.- El Paso 2014, pet. denied). In an appeal from a judgment rendered after a bench trial, the trial court's findings of fact have the same weight as a jury's verdict, and we review the legal and factual sufficiency of the evidence used to support them just as we would review a jury's findings. Smith v. Reid, No. 04-13-00550-CV, 2015 WL 3895465, at *4 (Tex. App.-San Antonio June 24, 2015, pet. denied) (mem. op.). When confronted with both legal- and factual-sufficiency points, we should first examine legal sufficiency. In re J.M.T., 617 S.W.3d 604, 608 (Tex. App.-San Antonio 2020, no pet.).
In a legal-sufficiency challenge, we consider whether the evidence at trial would enable a reasonable and fair-minded factfinder to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We "must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." Id. We will only reverse the judgment if: (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact. Id. at 810. We view evidence in the light most favorable to the ruling on a legal sufficiency challenge, indulging every reasonable inference in the trial court's favor. Id. at 822. The record contains more than a mere scintilla of evidence if reasonable minds could form differing conclusions about a vital fact's existence. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Conversely, the record is insufficient when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence. Id.; Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
In a factual-sufficiency challenge, we consider and weigh all the evidence, and can set aside a verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761-62 (Tex. 2003). When reviewing the sufficiency of the evidence supporting a trial court's findings, "we do not serve as a fact finder, pass upon the credibility of witnesses, or substitute our judgment for that of the trier of fact, even if there is conflicting evidence upon which a different conclusion could be supported." Hausman v. Hausman, 199 S.W.3d 38, 41 (Tex. App.-San Antonio 2006, no pet.). In a bench trial, the trial court, as the factfinder, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Golden Eagle Archery, 116 S.W.3d at 761.
B. Applicable Law
When construing written contracts, the court's duty is to ascertain the intentions of the parties as expressed in the written instrument. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). We discern intent from the agreement itself, and the agreement must be enforced as written. See Wells Fargo Bank, Minn., N.A. v. North Cent. Plaza I, L.L.P., 194 S.W.3d 723, 726 (Tex. App.-Dallas 2006, pet. denied). We must favor an interpretation that affords some consequence to each part of the agreement so that none of the provisions is rendered meaningless. Id. If the agreement can be given a certain and definite legal meaning, it is not ambiguous, and we construe the agreement as a matter of law. See Coker, 650 S.W.2d at 393.
A party breaches a contract when the party fails to perform an act that it has expressly or impliedly promised to perform. Examination Mgmt. Servs., Inc. v. Kersh Risk Mgmt., Inc., 367 S.W.3d 835, 844 (Tex. App.-Dallas 2012, no pet.). For timely performance to be a material term of the contract, the contract must expressly make time of the essence or there must be something in the nature or purpose of the contract and the circumstances surrounding it making it apparent that the parties intended that time be of the essence. See Kennedy Ship & Repair, L.P. v. Pham, 210 S.W.3d 11, 19 (Tex. App.-Houston [14th Dist.] 2006, no pet.).
C. Analysis
Robert contends that the evidence is legally and factually insufficient to support the trial court's finding that he failed to timely pay for maintenance of the tennis court, as required by the Tennis Court Agreement.
i. Legal Sufficiency Challenge
We first address Robert's legal sufficiency challenge. The Tennis Court Agreement required that the owners and authorized guests of the tennis court could use the tennis court:
so long as any one or more of the owners shall contribute funds, as hereinafter set forth, to the maintenance of the court, and such covenant and condition shall be binding upon and be observed by Grantor, its assigns and their heirs and assigns and run in favor of and be enforceable by any person or persons (not defaulting as set forth below) who own any property which is part of such 4.975-acre tract.
The Agreement further states, "[s]hould any owner fail to contribute to the maintenance fund his proportionate amount so agreed upon within thirty (30) days of written notification of such amount from any other owner, the defaulting owner shall irrevocably and for all time lose his vote and all his rights to use the court."
Viewing the evidence in the light most favorable to the trial court's judgment, we hold the evidence is legally sufficient to support the trial court's finding that the Bradleys "did not tender their share of the maintenance payment timely." The trial court could reasonably have reconciled and weighed the evidence to find that timely payment was due on or around July 1, 2018, and that payment was untimely when tendered in September 2018. The evidence at trial showed that on April 6, 2018, Sandra forwarded Robert an email with a proposal for resurfacing the tennis court from Q-Sports. On May 28, 2018, Robert responded to Sandra by email stating: "Okay… I am good for 1/3-or 1/2 should the Alldays (unexpectedly) pull out." Robert testified that he received a Q-Sports invoice in an email from the Chapmans. The invoice that is in the record from Q-Sports is addressed to the "The Bradleys & The Chapmans" and is dated June 1, 2018. As to this invoice, Robert testified, "It's down to two;" Robert testified as to an earlier invoice that is not in the record, "This was one-third." Later at trial Robert testified, that the "Alldays dropped out in 2010." The trial court excluded evidence of a cancelled check from an unspecified date that, according to Robert, shows that his mother paid the entire Q-Sports invoice. The only other payment Robert asserts is his attempt in September 2018 to pay for half of the amount of the Q-Sports invoice. Sandra rejected Robert's September 2018 check.
Robert did not challenge the exclusion of this evidence on appeal, and we do not consider it. See Walker v. Schion, 420 S.W.3d 454, 457 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (stating evidence excluded in the trial court which is not challenged on appeal cannot be considered on appellate review); York v. Samuel, No. 01-05-00549-CV, 2007 WL 1018364, at *3 (Tex. App.-Houston [1st Dist.] Apr. 5, 2007, pet. denied) (mem. op.) (explaining that because the appellant failed to challenge the trial court's ruling that affidavits relied upon were hearsay, the evidence could not be considered on appeal).
Robert contends that the evidence is insufficient to show whether he was obligated to pay half of the maintenance costs or a third of the costs because it was uncertain whether the Alldays would participate. However, the evidence can be reconciled, as we presume the trial court did, to reach the conclusion that by June 1, 2018, it was settled that the Bradleys and the Chapmans would each owe half of the Q-Sports invoice of that date. Robert further argues that his share of the payment was never due because the Bradleys and Chapmans did not follow the formality of holding an annual meeting to determine maintenance costs. While it is true that the owners did not hold an annual meeting, the trial court reasonably could have determined that the parties waived this formality. See Broughton Assocs. Joint Venture v. Boudreaux, 70 S.W.3d 324, 328 (Tex. App.-Waco 2002, no pet.) ("A condition precedent may also be waived, and the waiver of a condition precedent may be inferred from the conduct of a party." (citing Sun Expl. & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987))); see also G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 511 (Tex. 2015) ("Waiver-the intentional relinquishment of a known right-can occur either expressly, through a clear repudiation of the right, or impliedly, through conduct inconsistent with a claim to the right") (quotation omitted). Robert testified that the owners never held an annual meeting and divided maintenance costs informally. Cf. In re Allstate Vehicle & Prop. Ins. Co., 549 S.W.3d 881, 889 (Tex. App.-Fort Worth 2018, orig. proceeding) (holding party waived its appraisal right, even though the appraisal clause was a condition precedent, because party's conduct was inconsistent with the assertion of its right).
Robert further contends that even if he breached the Tennis Court Agreement by failing to timely tender payment for maintenance, the breach was not material and therefore does not support the trial court's finding that he lost his rights under the agreement. We disagree. By stating the penalty for default in the same sentence as the obligation to timely pay, the agreement makes clear that time is of the essence. See Deep Nines, Inc. v. McAfee, Inc., 246 S.W.3d 842, 846 (Tex. App.-Dallas 2008, no pet.) (determining time was of the essence because contract provided a specific cure period if payments were not made and that party would be in default if it failed to pay within this period). The agreement provides, after stating the obligation, a "defaulting owner shall irrevocably and for all time lose his vote and all his rights to use the court." Courts that have construed contracts with similar provisions and structures have upheld findings, as we do here, that time is of the essence. See, e.g., Breakfront, LLC v. Sw. Guar. Inv'rs, Ltd., No. 04-15-00609-CV, 2017 WL 1244449, at *3 (Tex. App.-San Antonio Apr. 5, 2017, pet. denied) (mem. op.) (holding provisions of a settlement agreement supported the jury's implied finding that timely payments were an essential part of the agreement because although contract did not contain words "time is of the essence," the agreement provided that a party who made more than two late payments would be in default and the entire judgment would be enforceable); Henry v. Masson, 333 S.W.3d 825, 836 (Tex. App.-Houston [1st Dist.] 2010, no pet.) (concluding there was legally sufficient evidence to support jury finding that appellant materially breached a settlement agreement which required him to deliver initial drafts of partnership windup steps within 14 days of execution of settlement agreement because appellant failed to do so within 14-day time period and there was evidence that it was an important benefit of the settlement agreement to timely possess appellant's drafts). Because the Tennis Court Agreement made timely payment essential, untimely payment was a material breach. See Deep Nines, Inc., 246 S.W.3d at 846.
Viewing this evidence in the light most favorable to the trial court's ruling and indulging every reasonable inference in the trial court's favor, there is more than a scintilla of evidence that Robert was aware of his contractual obligation to pay for half of the maintenance costs and failed to timely do so in violation of the Tennis Court Agreement. See King Ranch, 118 S.W.3d at 751.
ii. Factual Sufficiency Challenge
Likewise, the evidence is factually sufficient to support the trial court's finding that the Bradleys failed to timely tender payment under the Tennis Court Agreement and therefore lost their right to use the tennis court. The evidence at trial showed that Robert was aware of his obligation under the Tennis Court Agreement and failed to meet it. Sandra forwarded an email with a summary of the work that Q-Sports planned to complete on the tennis court along with the price. Q-Sports subsequently sent an invoice to Robert, which Robert stated he received. The evidence also shows that Robert did not attempt to make payment until three months after the invoice was sent, even though the Tennis Court Agreement requires payment thirty days after written notice. Applying the principles by which our factual sufficiency review is governed, we cannot conclude that the trial court's finding that Robert failed to timely pay his share of the maintenance cost is against the great weight and preponderance of the evidence. See Golden Eagle Archery, 116 S.W.3d at 761-62. Robert's factual sufficiency challenge is overruled.
Conclusion
The evidence is legally and factually sufficient to support the trial court's finding that the Bradleys failed to timely pay for maintenance of the tennis court and therefore lost their right to use the tennis court. The judgment of the trial court is affirmed.
Because we overrule Robert's issue and affirm the judgment, we need not decide the Chapmans' issue on cross-appeal, which presents an alternative ground for affirmance. See Tex. R. App. P. 47.1 (providing the opinion must address every issued "raised and necessary to final disposition of the appeal"); see also Riggs & Ray, P.C. v. State Fair of Tex., No. 05-17-00973-CV, 2019 WL 4200009, at *6 (Tex. App.-Dallas Sept. 5, 2019, pet. denied) (mem. op.) (refusing to consider cross-appeal because the appeal's holding disposed of the cross-appeal).