Affirmed and Memorandum Opinion filed August 21, 2018. 

In The 

Fourteenth Court of Appeals 

NO. 14-17-00840-CV

CARMAX BUSINESS SERVICES, LLC, A SUBSIDIARY OF CARMAX 

AUTO SUPERSTORES, Appellant 

V.

BRANISHIA ANNETTE HORTON, Appellee 

On Appeal from the County Civil Court at Law No. 1 

Harris County, Texas 

Trial Court Cause No. 1071212 

M E M O R A N D U M O P I N I O N

Appellant CarMax Business Services, LLC appeals from an adverse judgment 

on its breach of contract claim. In its first issue, CarMax contends that the evidence 

conclusively established all elements of its breach of contract claim. In its second 

issue, CarMax argues that no legally or factually sufficient evidence supports the 

trial court’s implied findings in favor of appellee Branishia Horton’s affirmative 

defenses. Finally, in its third issue, CarMax argues that the trial court’s award of 
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damages in Horton’s favor fails either as a matter of law or for insufficient evidence. 

We conclude that the record contains legally and factually sufficient evidence 

to support the trial court’s implied finding that Horton established her affirmative 

defense of release. Therefore, we need not consider CarMax’s first issue or the 

evidentiary support for appellee’s other affirmative defenses. However, because 

Horton presented no evidence of compensable damages, we sustain CarMax’s third 

issue and modify the judgment to delete the award of damages. Accordingly, we 

affirm the trial court’s judgment as modified. 

Background

CarMax sued Horton for breach of contract. CarMax alleged the following 

facts. On January 25, 2013, Horton agreed to purchase a car from CarMax for 

$18,856.82. Horton financed the purchase price with Santander Consumer USA, 

Inc. d/b/a RoadLoans (“Santander”). Pursuant to the financing agreement, Horton 

agreed to pay Santander $456.16 per month, for seventy-two months. Horton made 

several payments. A third party was responsible for causing an accident and 

damaging Horton’s vehicle beyond repair. Horton continued to make payments on 

the note to Santander following the accident. Later, Santander told Horton over the 

phone that the car was “paid off,” and Horton then received a letter from Santander, 

advising that Horton’s account was “paid in full.” At that point, Horton ceased 

making payments under the note. 

On July 2, 2015, Santander assigned its interest in the financing agreement to 

CarMax. CarMax later sued Horton, seeking the balance on the financing agreement 

for Horton’s car, which was $16,193.37. 

Horton asserted a number of affirmative defenses against CarMax’s breach of 

contract claim, including release, quasi-estoppel, and accord and satisfaction. 
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According to Horton, she timely made all monthly payments until her car was 

deemed totaled, and she received a release from Santander from any further 

payments. Horton also asserted counterclaims for breach of contract and negligence. 

After a bench trial, the trial court signed a judgment in Horton’s favor, 

awarding her $7,375 in damages and ordering that CarMax take nothing on its claim. 

No party requested findings of fact and conclusions of law. CarMax appeals the trial 

court’s judgment. 

Analysis 

CarMax raises three issues for our review, all challenging the legal and factual 

sufficiency of the evidence supporting the trial court’s judgment. The first two 

issues attack both the legal and factual sufficiency of the evidence supporting the 

trial court’s implied findings that (1) CarMax did not establish its breach of contract 

claim or (2) Horton established an affirmative defense. CarMax’s third issue 

challenges is the legal and factual sufficiency of evidence to support the trial court’s 

damages award. 

A. Standard of Review for Challenges to Evidentiary Sufficiency 

There are no findings of facts or conclusions of law included in our record, 

and the record does not reveal whether either party requested findings and 

conclusions. In a nonjury trial, when findings of fact and conclusions of law are 

neither filed nor timely requested, all necessary findings in support of the trial court’s 

judgment are implied. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 

1992). When a reporter’s record is filed, an appellant may challenge implied 

findings by factual or legal sufficiency points, just as it could challenge jury findings 

or a trial court’s written findings of fact. Id. at 84. If the evidence supports the 

implied findings, we must uphold the trial court’s judgment on any theory of law 
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applicable to the case. In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984) (per curiam). 

When a party attacks the legal sufficiency of an adverse finding on which he 

did not have the burden of proof, he must demonstrate on appeal that no evidence 

supports the finding. Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 

2014) (per curiam). We review the evidence in the light most favorable to the 

appealed finding and indulge every reasonable inference that supports it. City of 

Keller v. Wilson, 168 S.W.3d 802, 821-22, 827 (Tex. 2005); Graham Cent. Station, 

442 S.W.3d at 263. But the fact finder is the sole judge of the credibility of the 

witnesses and the weight to give their testimony, and it is the province of the fact 

finder to resolve conflicts in the evidence. City of Keller, 168 S.W.3d at 819-20. If 

the evidence at trial would enable reasonable and fair-minded people to differ in 

their conclusions, then the fact finder must be allowed to do so, and we may not 

substitute our judgment for that of the fact finder. Id. at 822.

When a party attacks the factual sufficiency of the evidence pertaining to a 

finding on which the party did not have the burden of proof, we may set aside the 

finding only if it is so contrary to the overwhelming weight of the evidence as to be 

clearly wrong and unjust. Bennett v. Comm’n for Lawyer Discipline, 489 S.W.3d 

58, 66 (Tex. App.—Houston [14th Dist.] 2016, no pet.). We consider all the 

evidence, but we will not reverse the judgment unless “the evidence which supports 

the [] finding is so weak as to [make the finding] clearly wrong and manifestly 

unjust.” Star Enter. v. Marze, 61 S.W.3d 449, 462 (Tex. App.—San Antonio 2001, 

pet. denied); see also Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). 

The amount of evidence necessary to affirm is far less than the amount necessary to 

reverse a judgment. GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 

599, 616 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).

This court is not a factfinder. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 
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402, 407 (Tex. 1998). Instead, the trier of fact—in this case the trial court—is the 

sole judge of witness credibility and the weight afforded their testimony. GTE 

Mobilnet, 61 S.W.3d at 615-16. Therefore, we may not pass upon the witnesses’ 

credibility or substitute our judgment for that of the trial court, even if the evidence 

would also support a different result. Id. “If we determine that the evidence is 

factually insufficient, we must detail the evidence relevant to the issue and state in 

what regard the contrary evidence greatly outweighs the evidence in support of the 

challenged finding; we need not do so when we affirm.” Bennett, 489 S.W.3d at 66. 

B. Application 

1. Take-nothing judgment against CarMax 

CarMax sued, as Santander’s assignee, to recover damages from Horton’s 

breach of the financing agreement with Santander. Horton asserted a number of 

affirmative defenses in response. After the bench trial, the court ordered that 

CarMax take nothing in its claim against Horton. Because no findings of fact or 

conclusions of law appear in our record, we have no way of telling whether the trial 

court ruled as it did because CarMax did not prove its contract claim or because the 

court found that Horton proved one of her affirmative defenses. 

We assume arguendo that CarMax established conclusively its breach of 

contract claim, and consider whether legally and factually sufficient evidence exists 

to support the trial court’s implied finding that Horton established an affirmative 

defense, specifically the defense of release. 

A release is a writing providing that a duty or obligation owed to one party is 

discharged immediately or on the occurrence of a condition. In re OSG Ship Mgmt., 

Inc., 514 S.W.3d 331, 344 (Tex. App.—Houston [14th Dist.] 2016, no pet.). A 

release is a contract subject to the rules of contract construction. Williams v. Glash, 
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789 S.W.2d 261, 264 (Tex. 1990). A release extinguishes a claim and bars recovery 

on the released matter. OSG Ship Mgmt., 514 S.W.3d at 344. 

Horton testified that she was in a car accident that damaged her vehicle 

beyond repair, and the other driver was at fault. Horton called Santander to inform 

the company that the vehicle was considered totaled. At Santander’s request, Horton 

provided the contact information for the adjustor handling the claim for the other 

driver’s insurance company. Horton believed that “Santander knew that the vehicle 

was totaled and was kept in the loop with the insurance claim.” Horton continued 

to make payments to Santander after the accident. 

Horton later called Santander to make a payment over the phone and was told 

that “the car’s paid off.” Horton also received a letter from Santander stating that 

Horton’s account was “paid in full.” At that point, Horton did not believe that she 

owed Santander any further payments and that “as far as what [Horton] was 

communicated with from them on [her end], things were satisfied.” Horton assumed 

that the other driver’s insurance company had paid Santander. 

We conclude that the above evidence is legally sufficient proof of release. In 

its reply brief, CarMax asserts that the letter was not admitted as evidence at trial. 

However, CarMax fails to explain why the trial court could not consider Horton’s 

unobjected-to testimony about the letter as evidence supporting a finding of release. 

CarMax does not identify any other element of the purported release that is not 

supported by sufficient evidence, nor does CarMax contend that the release is subject 

to avoidance on grounds such as fraud or mistake. See Williams, 789 S.W.2d at 264 

(release is subject to avoidance “just like any other contract”). Further, after 

reviewing the entire record under the appropriate standard, we cannot say that the 

trial court’s decision is so against the great weight and preponderance of the evidence 

such that it is clearly wrong and manifestly unjust. See PNS Stores, Inc. v. Munguia, 
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484 S.W.3d 503, 510-11, 517 (Tex. App.—Houston [14th Dist.] 2016, no pet.). 

Accordingly, we conclude that factually sufficient evidence supports the trial court’s 

implied finding that Santander discharged Horton of any remaining obligation to 

continue making loan payments, which amounts to a release. See, e.g., In re J.P., 

296 S.W.3d 830, 835 (Tex. App.—Fort Worth 2009, no pet.) (notice from attorney 

general providing that child support obligation was paid in full was release 

purportedly discharging father of the full amount of arrearages). 

CarMax alternatively argues that, even if Santander released Horton from her 

obligations under the financing agreement, the release defense fails as a matter of 

law because CarMax is not bound by a release executed by a third party. CarMax 

contends that Santander had no authority to bind CarMax to the release. See, e.g., 

Anderson Furniture Co. v. Roden, 255 S.W.2d 345, 352 (Tex. Civ. App.—Amarillo 

1952, writ ref’d n.r.e.) (a release does not bind one who is not a party to it). However, 

CarMax assumed all rights and obligations enjoyed or owed by Santander when 

CarMax took assignment of the note. As assignee, CarMax stood in Santander’s 

shoes and could assert only those rights that Santander could have asserted. See Gulf 

Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 420 (Tex. 2000). CarMax therefore 

was bound by Santander’s release of Horton’s payment obligation, which 

extinguished any claim and barred recovery on the released matter. OSG Ship 

Mgmt., 514 S.W.3d at 344. 

Because the trial court’s implied finding that Horton proved her affirmative 

defense of release is supported by legally and factually sufficient evidence, we must 

uphold the trial court’s take-nothing judgment against CarMax. W.E.R., 669 S.W.2d 

at 717. We overrule CarMax’s first and second issues. 
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2. Award of damages to Horton 

In its third issue, CarMax argues that there is no evidence to support the trial 

court’s award of damages to Horton. We agree. 

At the conclusion of the bench trial, Horton’s attorney testified as to his fees, 

which were $250 per hour, for 29.5 hours. Those fees total $7,375, which is the 

amount awarded to Horton as damages in the trial court’s judgment. Horton did not 

present any other evidence of alleged damages. 

Horton argues that she prevailed on her breach of contract and negligence 

counterclaims and that her attorney’s fees were appropriate measures of damages 

under either theory. She cites no statute or case law to support her assertion. Horton 

asserted a breach of contract counterclaim against CarMax in the alternative to her 

affirmative defense of release. Because we conclude that legally and factually 

sufficient evidence supports the trial court’s implied finding of release in Horton’s 

favor, the court would not have reached Horton’s alternative counterclaim for breach 

of contract. Even assuming CarMax breached its contract with Horton, however, 

she cannot recover attorney’s fees as her sole damages. “[T]here must be a recovery 

of money, or at least something of value; otherwise, the attorney’s fee award cannot 

be described as an ‘addition’ to the claimant’s relief.” Kenneth Leventhal & Co. v. 

Reeves, 978 S.W.2d 253, 257-58 (Tex. App.—Houston [14th Dist.] 1998, no pet.)

(internal quotation omitted). There being no evidence of any actual damages that 

Horton suffered as a result of CarMax’s alleged breach, she is not entitled to an 

award of attorney’s fees under a breach of contract theory. See id.; RAS Grp., Inc. 

v. Rent-A-Center East, Inc., 335 S.W.3d 630, 641-42 (Tex. App.—Dallas 2010, no 

pet.) (attorney’s fees incurred in defending breach of contract and tort claims not 

considered actual damages). 

Similarly, if the trial court found that Horton prevailed on her negligence 
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claim, she cannot recover attorney’s fees. See Parkway Co. v. Woodruff, 901 S.W.2d 

434, 441 n.9 (Tex. 1995).

Horton also seems to contend that she had to hire an attorney to defend against 

CarMax’s breach of contract claim. But a party who successfully defends a breach 

of contract claim is not entitled to recover attorney’s fees unless the contract provides 

for it. Horton does not identify any provision of a contract that would permit her to 

recover her attorney’s fees. See Thottumkal v. McDougal, 251 S.W.3d 715, 718-19 

(Tex. App.—Houston [14th Dist.] 2008, pet. denied); Wilson & Wilson Tax Servs., 

Inc. v. Mohammed, 131 S.W.3d 231, 240 (Tex. App.—Houston [14th Dist.] 2004, 

no pet.). 

We sustain CarMax’s third issue and modify the trial court’s judgment to 

delete the award of $7,375 to Horton. 

Conclusion 

We affirm the trial court’s judgment as modified. 

 

 /s/ Kevin Jewell 

 Justice 

Panel consists of Justices Jamison, Wise, and Jewell.