Affirmed in Part, Reversed and Remanded in Part, and Memorandum Opinion 

filed October 8, 2020.

In The

Fourteenth Court of Appeals

NO. 14-19-00629-CV

KB CONTRACTING AND KELLY S. BOCKEL, Appellants

V.

WM UNITED ENTERPRISES, INC., Appellee

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Cause No. 2016-40599

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

In this breach of contract case tried to the court, appellants KB Contracting 

and Kelly S. Bockel appeal from a judgment in favor of WM United Enterprises, 

Inc. In three issues, appellants contend that: (1) the trial court’s failure to find in 

their favor is against the greater weight and preponderance of the evidence; (2) the 

evidence is factually insufficient to support the judgment in WM United’s favor; and 
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(3) the evidence is factually insufficient to support a judgment against Kelly S. 

Bockel individually. 

After reviewing the record, we agree with appellant’s third issue that the 

judgment against Kelly S. Bockel individually is unsupported by factually sufficient

evidence. We reverse the judgment in part to the extent it imposes liability against 

Kelly S. Bockel individually. Finding no merit to appellants’ remaining issues, we 

affirm the remainder of the judgment. Because we sustain appellants’ factual 

insufficiency issue, we remand for a new trial as to Kelly S. Bockel’s individual 

liability.

Background

WM United contracted with Giro Realty, Inc. to clear land on Giro’s roughly 

25-acre property located in Harris County. WM United hired KB Contracting as a 

subcontractor to perform the work. WM United and KB Contracting did not sign a 

written contract, but they agreed verbally that KB Contracting would perform the 

land clearing and drainage work in accordance with a written proposal for a total of 

$291,000. The work was to be completed in three phases, and KB Contracting was 

to be paid periodically on completion of the work.

KB Contracting began performing the work, and WM United paid several of 

KB Contracting’s invoices totaling $241,000. There is evidence that KB 

Contracting did not fully complete the work. WM United alleges that KB 

Contracting failed to comply with the agreement in several respects, including by 

burning trees rather than hauling them off the property. Burning the trees, WM 

United contends, damaged the soil. 

WM United sued for breach of contract and named as defendants KB 

Contracting and Kelly S. Bockel. In its petition, WM United alleged that “KB 
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Contracting” is a “Texas company,” and that Kelly S. Bockel is “an individual and 

the owner of KB Contracting.” WM United sought as damages the amount it 

incurred in subcontracting with another company to complete the land clearing and 

clean the property. WM United also sought attorney’s fees. KB Contracting filed a 

counterclaim by which it sought to recover amounts allegedly due on the contract.1

Giro Realty intervened in the suit, seeking to remove a materialman’s lien 

filed by KB Contracting against Giro’s property. The trial court granted summary 

judgment to Giro and released KB Contracting’s lien. Giro is not a party to this 

appeal. 

The parties waived a jury, and the case proceeded to trial before the bench.

WM United’s Chief Executive Officer, William McMillen, testified that KB 

Contracting agreed with WM United to perform land clearing and drainage work on 

the property pursuant to the written proposal, which was admitted without objection. 

McMillen explained that the work was to be done in three phases: (1) clearing and 

hauling off trees, to be performed for $178,000; (2) draining a pond on the jobsite 

and leveling and grading the land, to be performed for $25,000; and (3) performing 

various site work, including “mucking out” the land and cutting “swells” for 

drainage, to be performed for $88,000. According to McMillen, KB Contracting

completed most of the first two phases, and WM United paid KB Contracting for 

this work. However, phase three was not completed, and WM United paid KB 

Contracting for only part of that work.2 When WM United’s personnel went to the 

jobsite, they discovered that KB Contracting had burned trees on the site, rather than 

hauling them off as the parties had agreed. McMillen explained that KB 

1 Kelly S. Bockel is also named as a party asserting the counterclaim.

2 McMillen testified to and provided evidence that WM United paid KB Contracting a total 

of $241,000. 
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Contracting’s tree burning created ashes and contaminated the soil. According to 

McMillen, WM United spent “more than [$]50,000” to clean up the site, including 

hauling away the burnt material and contaminated soil. Giro Realty did not pay WM 

United for this remediation work.

Kelly S. Bockel, who was described at trial as KB Contracting’s owner, 

testified that WM United did not pay KB Contracting the full contract amount “up 

front” but rather sent partial payments as work progressed. According to Kelly, WM 

United paid invoices promptly at first, but payments on later invoices were slower 

to arrive. Kelly testified that WM United still owed KB Contracting $50,000. In 

support of her claim, Kelly pointed to WM United’s checks, the last of which noted 

on the check “Bal 50,000.00.” Kelly acknowledged that she had never been to the 

jobsite, so she could not comment on the status of the work performed. 

Kelly’s husband, William Bockel, testified about the job specifics. William 

stated that McMillen knew KB Contracting was burning trees on the site. According 

to William, McMillen kept demanding “more and more and more and more. And 

that’s why the payments – you see how the payments got slower and slower and 

slower and slower, and they weren’t paying them anymore.” William testified that 

“[e]verything was fine” on the site until the very end, when WM United got behind 

in paying KB Contracting’s invoices. William stated that WM United owed KB 

Contracting “63,000 some-odd dollars for the work,” but KB Contracting “waived 

the 13,000,” which is how KB Contracting calculated the $50,000 amount it sought 

to recover from WM United. On cross-examination, William acknowledged that 

KB Contracting’s agreement with WM United did not state that KB Contracting

could burn trees on the jobsite. When shown pictures of the jobsite, William 

identified “ashes from the burned spoils” still on site and “spoils of a burn pile.” 
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Additionally, he admitted that at least part of the jobsite had not been graded and 

leveled because WM United “wasn’t paying us.” 

The trial court signed a judgment in WM United’s favor, awarding it $50,000

recoverable from KB Contracting and Kelly S. Bockel, jointly and severally, as well 

as $11,200 in attorney’s fees. Kelly timely moved to modify the judgment, seeking 

to have her name deleted from the judgment as a liable party because the parties to 

the agreement are WM United and KB Contracting, not Kelly individually. WM 

United filed a response, in which it argued that KB Contracting was merely an 

assumed name for Kelly. WM United attached to its response an assumed name 

record from the Brazoria County Clerk indicating that Kelly Bockel is doing 

business as a sole proprietorship under the assumed name KB Contracting. WM 

United did not offer the assumed name record into evidence during trial. The trial 

court denied the motion to modify the judgment. 

Shortly thereafter, at KB Contracting’s request, the trial court signed the 

following findings of fact and conclusions of law:

1. Plaintiff WM United Enterprises and Defendants KB Contracting 

and Kelly S. Bockel had an agreement for Defendants to perform 

work at the property.

2. Plaintiff performed it obligations and paid Defendants for the work 

Defendants performed.

3. Defendants failed to complete the work.

4. Plaintiff hired another contractor to complete the work that 

Defendants failed to perform.

5. Plaintiff suffered actual damages in the amount of $50,000.

6. Plaintiff is entitled to reasonable and necessary attorney’s fees of 

$11,200.00.

7. Defendants/Cross-Plaintiffs failed to prove by a preponderance of 

the evidence that Plaintiff/Cross-Defendant did not comply with any 

agreement between Defendants and Plaintiff.
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8. Defendants/Cross-Plaintiffs failed to prove by a preponderance of 

the evidence that they provided goods and/or services that 

Plaintiff/Cross Defendant did not compensate[] them for

performing.

KB Contracting and Kelly S. Bockel timely appealed.

Analysis

Appellants present the following three issues for review: 

1. Was the trial court’s failure to find in favor of KB Contracting against the 

greater weight and preponderance of the evidence?

2. Is there factually sufficient evidence in the record to support the trial 

court’s judgment for WM United against KB Contracting and Kelly 

Bockel?

3. Is there factually sufficient evidence in the record to support the trial 

court’s judgment against Kelly Bockel as an individual?

All three issues present challenges to the factual sufficiency of the evidence.

At the outset, we address WM United’s argument that appellants have waived 

their arguments due to inadequate briefing. Under our rules of appellate procedure, 

briefs must contain “a clear and concise argument for the contentions made with 

appropriate citations to authorities and the record.” Tex. R. App. P. 38.1(i). As WM 

United notes, the argument section of appellants’ brief includes no legal citations. 

However, the table of authorities includes citations to case law, and appellants 

discuss the record adequately in other sections of the brief. In the interest of justice 

and noting our duty to construe the briefs liberally, we will consider those arguments 

we can reasonably discern as presented in support of appellants’ stated issues. See 

@.C.T.S. @dvanced Computer Tech. Servs., LLC v. Lexington Auto Repair, Inc., 
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No. 14-16-00497-CV, 2017 WL 3662465, at *4 (Tex. App.—Houston [14th Dist.] 

Aug. 24, 2017, no pet.) (mem. op.).

A. Standard of Review 

When reviewing the factual sufficiency of the evidence, we examine the entire 

record, considering all the evidence both in favor of and contrary to the finding. Vast 

Constr., LLC v. CTC Contractors, LLC, 526 S.W.3d 709, 723 (Tex. App.—Houston 

[14th Dist.] 2017, no pet.) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) 

(per curiam)). When a party attacks the factual sufficiency of an adverse finding on 

an issue on which it had the burden of proof, the party must demonstrate on appeal 

that the adverse finding is against the great weight and preponderance of the 

evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam). 

And 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, 709 S.W.2d at 176. 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). “ 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.
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We apply these standards mindful that this court is not a fact finder. Maritime 

Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). The trier of fact is the 

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

Mobilnet, 61 S.W.3d at 615-16; see City of Keller v. Wilson, 168 S.W.3d 802, 819-

20 (Tex. 2005). Therefore, we may not pass upon the witnesses’ credibility or 

substitute our judgment for that of the fact finder, even if the evidence would also 

support a different result. GTE Mobilnet, 61 S.W.3d at 615-16.

B. Breach of Contract

Appellants’ first two issues challenge the factual sufficiency of the evidence 

to support the trial court’s finding that KB Contracting breached its agreement with 

WM United. To prevail on a breach of contract claim, a party must show: (1) the 

existence of a valid contract between the plaintiff and the defendant; (2) performance 

or tendered performance by the plaintiff; (3) breach of the terms of the contract by 

the defendant; and (4) damages sustained by the plaintiff as a result of the breach. 

See West v. Triple B Servs., LLP, 264 S.W.3d 440, 446 (Tex. App.—Houston [14th 

Dist.] 2008, no pet.); see also Vast Constr., 526 S.W.3d at 718 n.6. Whether a party 

has performed under a contract is a fact question. See Vast Constr., 526 S.W.3d at 

718.

McMillen testified that WM United and KB Contracting had a valid 

agreement for KB Contracting to perform certain land clearing and dredging work, 

that WM United performed under the contract by paying KB Contracting for the 

work done, that KB Contracting breached the agreement by burning trees on the 

property rather than removing and hauling them off, and that WM United spent 

$50,000 to clean up the damage to the property caused by KB Contracting’s breach. 

McMillen testified that WM United had to load the burned material and 

“contaminated soil” onto dump trucks, haul it out, and then level off the property. 
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McMillen explained that the remediation work WM United performed was worth 

“more than” $50,000. McMillen agreed that WM United had to hire equipment to 

do all that work, and that WM United never was paid for that work. 

On the other hand, William Bockel testified that KB Contracting performed 

the agreement fully and that WM United refused to pay $50,000 still owed. 

Although the parties presented conflicting evidence at least on the breach 

element, the fact finder chose which facts to accept, and in a bench trial the court is 

the sole judge of the witnesses’ credibility and the weight given to their testimony. 

See, e.g., City of Keller, 168 S.W.3d at 819. We may not pass on the witnesses’

credibility or substitute our judgment for the fact finder’s, even if the evidence 

clearly would support a different result. Maritime Overseas Corp., 971 S.W.2d at 

407. Here, the trial court, as fact finder, credited McMillen’s testimony and did not 

credit William’s version of events. 

Viewing the evidence as a whole, appellants have not demonstrated that the 

trial court’s liability findings are against the great weight and preponderance of the 

evidence. See Francis, 46 S.W.3d at 242. Accordingly, we overrule appellants’ first 

two issues. 

C. Judgment Against Kelly S. Bockel Individually

In a third issue, appellants challenge the judgment against Kelly individually. 

Though appellants could have briefed this issue more thoroughly, they at least have

asserted that the evidence is factually insufficient to support the judgment and that 

WM United made no effort to prove Kelly’s individual liability under the agreement. 

In response, WM United contends that KB Contracting and Kelly are one and the 

same because Kelly is merely doing business under the assumed name of KB 

Contracting; thus, an agreement with KB Contracting is an agreement with Kelly.
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An assumed name under which an individual does business is a sole 

proprietorship, and under Texas law the sole proprietor and the sole proprietorship 

are one and the same person. CA Partners v. Spears, 274 S.W.3d 51, 62 n.6, 69 

(Tex. App.—Houston [14th Dist.] 2008, pet. denied). WM United attached to its 

appellate brief a copy of an assumed name record from the Brazoria County Clerk 

supporting its argument that Kelly is doing business under the assumed name of KB 

Contracting. But WM United has not established that the assumed name document 

was introduced into evidence at trial, and our record reveals that it was not. With 

limited exceptions not relevant here, an appellate court may not consider matters 

outside the appellate record. See Tex. Cent. Partners, LLC v. Grimes County, 580 

S.W.3d 824, 830 (Tex. App.—Houston [14th Dist.] 2019, no pet.); In re C.C.E., 530 

S.W.3d 314, 317 n.1 (Tex. App.—Houston [14th Dist.] 2017, no pet.). For purposes 

of conducting a factual sufficiency review, we are limited to considering only 

evidence introduced at trial. See CBS Outdoor, Inc. v. Potter, No. 01-11-00650-CV, 

2013 WL 269091, at *16 (Tex. App.—Houston [1st Dist.] Jan. 24, 2013, pet. denied) 

(mem. op.). Thus, we may not consider the assumed name document WM United 

filed with its brief.

As the plaintiff, it is WM United’s burden to plead and prove a basis for 

liability against the defendants. See Tex. R. Civ. P. 47 (requisites of plaintiff’s 

pleading), 301 (judgment must conform to pleadings). Only parties to a contract 

may be held liable for the contract’s breach. See Rapid Settlements, Ltd. v. Green, 

294 S.W.3d 701, 706 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (contract 

cannot bind non-party). 

The judgment grants recovery to WM United against both KB Contracting 

and Kelly. In its findings of fact, the trial court did not find that KB Contracting was

an assumed name for Kelly; rather, the court found that WM United had an 
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agreement with both KB Contracting and Kelly. Yet, the written proposal itself 

shows the agreement was between only WM United and KB Contracting. At trial, 

no one testified that Kelly was a party to the agreement. Thus, we conclude that the 

finding that WM United had an agreement with Kelly is not supported by factually 

sufficient evidence. We sustain appellants’ third issue.

The remedy for a judgment based on factually insufficient evidence is a new 

trial.

3

 Cressman Tubular Prods. Corp. v. Kurt Wiseman Oil & Gas, Ltd., 322 S.W.3d 

453, 462-63 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Appellants 

request that we render judgment on their own affirmative claim but have not 

specifically prayed for remand. As a general rule, however, we can grant parties less 

relief than requested. E.g., Zaidi v. Shah, 502 S.W.3d 434, 445 (Tex. App.—

Houston [14th Dist.] 2016, pet. denied) (collecting cases). We do so here. 

Conclusion

We affirm the portion of the judgment granting recovery in WM United’s 

favor against KB Contracting. We reverse the portion of the judgment granting 

recovery in WM United’s favor against Kelly S. Bockel individually, and we remand 

for a new trial as to Kelly’s individual liability consistent with this opinion.

/s/ Kevin Jewell

Justice

Panel consists of Justices Christopher, Jewell, and Zimmerer.

3 Appellants do not assert a legal sufficiency challenge.