NO. 12-07-00384-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KENNETH L. KEY, § APPEAL FROM THE 241ST

APPELLANT

V. § JUDICIAL DISTRICT COURT OF

D. BAILEY TYLER,

APPELLEE § SMITH COUNTY, TEXAS

 

MEMORANDUM OPINION

Kenneth L. Key appeals the trial court’s judgment in a lawsuit brought against him by D.

Bailey Tyler. Key raises five issues on appeal. We affirm.

BACKGROUND

Key sought to sell a building he owned in Smith County, Texas. Tyler entered into a written

contract with Key to purchase the building for $80,750. According to the contract, the closing date

of the sale was to be on or before October 31, 2002, or within seven days after objections to title had

been cured, whichever date was later. After a series of failed attempts to close the sale, Key, by

written letter, informed the title company that he was terminating the contract.

Tyler sued Key, alleging that Key had breached the real estate contract. Key brought a

counterclaim, alleging that Tyler had breached the contract. Following a bench trial, the trial court

signed a judgment awarding Tyler $131,250 in damages. The trial court also awarded Tyler

attorney’s fees. This appeal followed.
 Unchallenged findings of fact, absent fundamental error, are not subject to appellate review and must 1

be accepted by an appellate court as proven facts. Canal Ins. Co. v. Hopkins, 238 S.W.3d 549, 559-60

(Tex. App.–Tyler 2007, pet. denied) (citing Lovejoy v. Lillie, 569 S.W.2d 501, 504 (Tex. Civ. App.–Tyler

1978, writ ref’d n.r.e.) (op. on reh’g)).

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EVIDENTIARY SUFFICIENCY

In his third and fourth issues, Key argues that “The Evidence is Legally and Factually

Insufficient to Support the District Court’s Findings of Fact 3-36 and Conclusions of Law 2-8.”1

Standard of Review

A trial court’s findings of fact are reviewable for legal and factual sufficiency of the evidence

by the same standards that are applied in reviewing evidence supporting a jury’s verdict. Catalina

v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When reviewing a finding of fact for legal

sufficiency, we may set aside the finding only if the evidence at trial would not enable a reasonable

and fair minded finder of fact to make the finding under review. Canal Ins. Co. v. Hopkins, 238

S.W.3d 549, 557 (Tex. App.–Tyler 2007, pet. denied) (citing City of Keller v. Wilson, 168 S.W.3d

802, 827 (Tex. 2005)). In making this determination, we must credit favorable evidence if a

reasonable finder of fact could, and disregard contrary evidence unless a reasonable finder of fact

could not. Id. The finder of fact is the sole judge of the credibility of the witnesses and the weight

to be assigned to their testimony. Canal, 238 S.W.3d at 557 (citing City of Keller, 168 S.W.3d at

819). The finder of fact is free to believe one witness and disbelieve another, and reviewing courts

may not impose their own opinions to the contrary. Id. Accordingly, reviewing courts must assume

that the finder of fact decided all credibility questions in favor of the findings if a reasonable person

could do so. Id. If a reasonable finder of fact could have done so, we must assume that the finder

of fact chose what testimony to disregard in a way that was in favor of the findings. Canal, 238

S.W.3d at 557 (citing City of Keller, 168 S.W.3d at 820). A finder of fact “may disregard even

uncontradicted and unimpeached testimony from disinterested witnesses” where reasonable. Canal,

238 S.W.3d at 557 (quoting City of Keller, 168 S.W.3d at 819-20).

In addition, it is within the finder of fact’s province to resolve conflicts in the evidence.

Canal, 238 S.W.3d at 557 (citing City of Keller, 168 S.W.3d at 820). Consequently, we must

assume that, where reasonable, the finder of fact resolved all conflicts in the evidence in a manner

consistent with the findings. Id. Where a reasonable finder of fact could resolve conflicting
 The trial court’s written findings of fact and conclusion of law are attached as an appendix to this 2

opinion.

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evidence either way, we must presume the finder of fact did so in favor of the findings. Canal, 238

S.W.3d at 557 (citing City of Keller, 168 S.W.3d at 821). Where conflicting inferences can be

drawn from the evidence, it is within the province of the finder of fact to choose which inference

to draw, so long as more than one inference can reasonably be drawn. Id. Therefore, we must

assume the finder of fact made all inferences in favor of the findings if a reasonable person could

do so. Id.

Regarding factual sufficiency challenges, where a party who did not have the burden of proof

on an issue asserts that the trial court’s finding of fact is contrary to the evidence, we must overrule

the complaint unless, considering all the evidence, the finding is clearly wrong and manifestly

unjust. Santa Fe Petroleum, L.L.C. v. Star Canyon Corp., 156 S.W.3d 630, 637 (Tex. App.–Tyler

2004, no pet.) (citing Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965)). In conducting our review,

we must consider all of the evidence that supports and that which is contrary to the finding.

Sembera v. Petrofac Tyler, Inc., 253 S.W.3d 815, 824 (Tex. App.–Tyler 2008, pet. filed) (citing

Sosa v. City of Balch Springs, 772 S.W.2d 71, 72 (Tex. 1989)). “Reversal [can] occur because the

finding [is] based on weak or insufficient evidence or because the proponent’s proof, although

adequate if taken alone, is overwhelmed by the opponent’s contrary proof.” Sembera, 253 S.W.3d

at 824 (quoting Santa Fe Petroleum, 156 S.W.3d at 637).

When reviewing factual sufficiency issues arising from a bench trial, we must remember that

the trial court, as the trier of fact, is the sole judge of the credibility of the witnesses. Canal, 238

S.W.3d at 557 (citing Santa Fe Petroleum, 156 S.W.3d at 638). The trial court may take into

consideration all of the facts and surrounding circumstances in connection with the testimony of

each witness and accept or reject all or any part of that testimony. Canal, 238 S.W.3d at 557-58

(citing Santa Fe Petroleum, 156 S.W.3d at 638). Where enough evidence is before the trial court

so that reasonable minds could differ on the meaning of the evidence, or the inferences and

conclusions to be drawn from the evidence, we may not substitute our judgment for that of the trial

court. Canal, 238 S.W.3d at 558 (citing Santa Fe Petroleum, 156 S.W.3d at 638).

Discussion2

The challenged findings, which are explicitly set forth in findings of fact 3-36, are supported
 To the extent that Key intended to raise a complaint in his third and fourth issues as to the trial court’s 3

determination of the law and application of the law to the facts, our resolution below of Key’s first, second,

and fifth issues renders further discussion unnecessary in all matters but those related to the trial court’s

written conclusions of law 7 and 8. To the extent that Key intended to assert that the trial court incorrectly

determined or applied the law to the found facts underlying conclusions of law 7 and 8, Key has either

failed to provide citation to the record or authority or failed to provide substantive argument. Therefore,

Key has failed to present the arguments for appellate review. See Strange v. Cont’l Cas. Co., 126 S.W.3d

676, 678 (Tex. App.–Dallas 2004, pet. denied).

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and contradicted by varying degrees of evidence. For instance, it is uncontroverted that “Key never

tendered to Tyler[,] or to the closing agent[,] the warranty deed from Scotty Cook to Key, and never

filed same for record himself with the County Clerk of Smith County, Texas. . . .” The evidence

related to the value of the property was vigorously contested. Tyler presented testimony from James

Justice, a real estate appraiser, that the property was worth $212,000 at the time relevant to the

proceedings. Justice’s opinion had support in that Justice used other comparable sales to obtain a

value per square foot of the building, and that value was within $100 of the county property tax

appraisal value for the relevant year. However, Key testified, based on his experience as a real

estate developer, that the property was worth between $150,000 and $155,000. 

No finding challenged by Key is completely without support in the evidence. Instead, Key

has challenged findings that were made after reviewing favorable evidence. Some of that evidence

was uncontroverted and some was disputed. We reiterate that, where reasonable, we must assume

that the trial court resolved questions of credibility and conflicts in the evidence in favor of its

findings. See Canal, 238 S.W.3d at 557-58. Likewise, where conflicting inferences can be drawn

from the evidence, it is within the province of the finder of fact to choose which inference to draw,

so long as more than one inference can reasonably be drawn. See id. Having reviewed the entire

record, we have detected no instance where the evidence at trial would not enable a reasonable and

fair minded finder of fact to make the findings under review. See id. at 557. Likewise, we have

detected no instance where the trial court’s findings were clearly wrong and manifestly unjust. See

Santa Fe Petroleum, 156 S.W.3d at 637. Therefore, we hold that the evidence was legally and

factually sufficient to support the complained of findings. See Canal, 238 S.W.3d at 557; Santa Fe

Petroleum, 156 S.W.3d at 637. We overrule Key’s third and fourth issues.3
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CONTRACT CONSTRUCTION

In Key’s first issue, he argues that Tyler was not entitled to a favorable judgment because

she failed to satisfy a condition precedent to the contract: tendering cash for the property by the

October 31, 2002 closing date. In Key’s second issue, he argues that the closing date could not have

been orally extended because such an oral modification of the closing date was barred by the statute

of frauds.

Standard of Review

An appellate court reviews a trial court’s construction of an unambiguous contract de novo.

MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650 (Tex. 1999). In performing

a de novo review, we exercise our own judgment and redetermine each legal issue. Quick v. City

of Austin, 7 S.W.3d 109, 116 (Tex. 1999). When construing a written contract, courts ascertain the

intent of the parties as expressed in the instrument. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa.

v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). Courts examine and consider the entire

writing in an effort to harmonize and give effect to all the provisions of the contract so that none will

be rendered meaningless. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). If there is no

ambiguity in the instrument, its construction is a question of law for the court. See id. Interpretation

of a contract becomes a fact issue, to be resolved by extrinsic evidence, only when application of

pertinent rules of construction leaves a genuine uncertainty as to which of two meanings is proper.

Id. at 393-94. We will uphold conclusions of law on appeal if the judgment can be sustained on any

legal theory the evidence supports. Canal, 238 S.W.3d at 561.

Discussion

To establish a breach of contract, a party must present evidence of the existence of the

contract sued upon, the party’s compliance with the terms of the contract or that the party is ready,

willing and able to comply but has a valid excuse for nonperformance, and defendant’s breach of

the contract. Roberts v. Clark, 188 S.W.3d 204, 209 (Tex. App.—Tyler 2002, pet. denied). When

a party fails or refuses to perform an act that it expressly promised to do, that party breaches the

contract. Id. Here, Tyler placed the contract for the sale of property into evidence. Key has not

challenged the trial court’s conclusion of law that the contract between Key and Tyler was valid and

enforceable at all times. Further, Key admittedly terminated the contract on approximately

February 19, 2003, without delivering the property to Tyler. Nonetheless, Key argues that such
6

termination without fulfilling his promises under the contract was not a breach because the sale did

not close timely and the contract provided that time was of the essence. As support for this

proposition, Key cites our prior decision in Roberts v. Clark. Key’s reliance on Roberts is

misplaced.

In Roberts, the buyers agreed to provide to the sellers the purchase price of the contract on

or before May 1, 2000. Id. at 210. The sellers agreed that, if the buyers made payment, they would

provide the buyers with a warranty deed. Id. The buyers did not tender payment on or before

May 1, 2000 and, therefore, the buyers breached the contract. Id. at 211-12.

As in Roberts, Tyler agreed to pay the purchase price at closing. But, unlike Roberts, the

closing was to occur on “October 31, 2002, or within 7 days after objections to title have been

cured, whichever date is later . . . .” (emphasis added). The contract further provided that “Buyer’s

failure to timely object or terminate [based on defects in title] is a waiver of Buyer’s right to

object[,] except that Buyer will not waive the requirements in Schedule C of the commitment.”

Thus, the contract between Key and Tyler mandated that the requirements in Schedule C had to be

satisfied and could not be waived by Tyler. When read in conjunction with the language of the

contract related to the closing date, the closing could not occur until the requirements in Schedule

C of the commitment for title insurance were satisfied. It is uncontroverted that one of those

requirements, that Key file a warranty deed from Scotty Cook to Key with the County Clerk of

Smith County, was not met prior to February 19, 2003, the date Key terminated the contract.

Therefore, the deadline for closing had not yet passed on February 19, 2003, and Key’s termination

of the contract resulted in a breach.

Because the deadline for closing had not passed on October 31, 2002, which was the earliest

closing date specified in the contract, Tyler’s failure to tender cash for the property on that date did

not result in a breach of the contract or a violation of a condition precedent of the contract. Further,

because the closing provision of the contract was in writing, the extension of the closing date, which

resulted from Key’s failure to satisfy an unwaivable objection to title, did not violate the statute of

frauds. We overrule Key’s first and second issues.

COUNTERCLAIM

In Key’s fifth issue, he argues that the trial court should have granted his counterclaim for

breach of contract. Based upon our construction of the contract, as well as our review of the trial
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court’s findings of fact, we have held that Tyler did not breach the contract. By the terms of the

contract, the closing deadline had not passed when Key terminated the contract, and thus, Key, not

Tyler, breached the contract by failing to fulfill his promises. We overrule Key’s fifth issue.

DISPOSITION

We affirm the judgment of the trial court.

 BRIAN HOYLE 

 Justice

Opinion delivered September 24, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)
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APPENDIX

The following written findings of fact and conclusions of law were signed by the trial court

and entered into the record:

FINDINGS OF FACT

1. Kenneth L. Key, as Seller, and D. Bailey Tyler, as Buyer, entered into a contract

for the sale of that certain real property at 1023 North Glenwood, Tyler, Texas,

effective October 16, 2002.

2. The contract provided for a purchase price of $80,750.00 to be paid to Key and did

not contemplate seller financing.

3. The contract provided that Key would provide to Tyler a commitment for title

insurance and that Tyler would not waive the requirements appearing on Schedule

C of the commitment.

4. The contract provided that the sale would close on October 31, 2002, or within

seven days of the date on which Tyler’s title objections, if any, were cured,

whichever was later.

5. Key did not furnish a commitment for title insurance to Tyler until it was delivered

by the title company to Tyler on or about November 13, 2002.

6. Schedule C of the title commitment listed as an item to be cured by Key the filing

of a written warranty deed from Scotty Cook to Kenneth L. Key covering Cook’s

interest in the title to the property.

7. Although Key had in his possession the deed from Scotty Cook, he never filed it for

record with the County Clerk of Smith County, Texas, never tendered it to Tyler,

and never tendered it to a closing agent at a closing on the sale of the property.

8. Key knew that Tyler was securing a loan for the purchase price from Southside

Bank in Tyler, Texas.

9. A closing of the sale of the property was scheduled for December 2, 2002, at the

offices of Boren-Scott Abstract Company in Tyler, Texas, and Key was advised of

the closing by Nikki Perryman, the realtor representing Tyler.

10. After October 31, 2002[,] and prior to December 2, 2002, Tyler incurred substantial

expenses for a survey, an appraisal, an environmental study, and preparation of

closing documents.

11. On December 2, 2002, Tyler appeared at the closing and was ready to close.

12. Key did not appear in person at the closing on December 2, 2002, but

communicated by telephone an objection to the real estate commissions proposed

to be paid as reflected on the closing statement for that closing and therefore

refused to close.

13. Key did not raise on December 2, 2002, as an objection to closing[,] the failure of

the sale to close by October 31, 2002.
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14. Between December 2, 2002[] and December 18, 2002, the realtors who had

competing claims to the real estate commission agreed in writing to divide between

them the 6% commission provided for by the contract.

15. Subsequent to the agreement between the realtors, the closing was rescheduled for

December 18, 2002, at the Law Offices of Ralph E. Allen in Tyler, Texas, and Key

was advised by Perryman of the time and place of the closing.

16. On December 18, 2002, Tyler appeared at the closing and was ready to close.

17. Key did not appear at the closing on December 18, 2002, and failed to advise either

Tyler, Perryman, or the closing agent, Ralph Allen, that he would not appear.

18. When contacted to explain why he failed to appear, Key made various excuses, but

never stated that he objected to the closing due to the failure of the sale to close on

October 31, 2002.

19. Over the next two months following December 18, 2002, Key and Perryman had

repeated conversations concerning the scheduling of the closing, but Key never

mentioned that he considered the failure to close the sale on October 31, 2002[] as

a reason for his refusal to appear for closing.

20. Another closing was scheduled for February 17, 2003, at the Law Offices of Ralph

E. Allen in Tyler, Texas, and Key was advised by Perryman of the time and place

of closing.

21. Tyler appeared at the closing on February 17, 2003, and was ready to close.

22. Key did not appear at the closing on February 17, 2003, and failed to advise either

Tyler, Perryman, or the closing agent, Ralph Allen, that he would not appear.

23. On February 19, 2003, Key advised Ralph Allen in a telephone conference that if

Allen would secure and provide to Key a contract amendment executed by Tyler

extending the closing date to February 17, 2003, Key would appear at Allen’s office

that afternoon to close on the sale to Tyler.

24. Pursuant to Key’s representation and request, Allen prepared a contract amendment

extending the closing date to February 17, 2003, obtained Tyler’s signature, and

faxed a copy of the signed amendment to Key.

25. After receiving the faxed amendment, Key prepared, signed, and faxed back to

Allen[,] on February 19, 2003, a written termination of the contract reciting as the

reason the failure of Tyler to close on October 31, 2002.

26. Prior to February 19, 2003, Key had not communicated to Tyler, Perryman, or

Allen his intent to terminate the contract, either orally or in writing.

27. Prior to the attempts to close on December 2, 2002, on December 18, 2002, and on

February 17, 2003, Key had communicated to Perryman his agreement to appear

for closing on those dates.

28. On February 17, 2003, the market value of the property was $212,000.00.

29. As a result of Key’s failure to close, Tyler suffered loss-of-bargain damages in the

amount of $131,250.00.
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30. Tyler had complied with all of Buyer’s obligations under the contract the times of

the closings scheduled for December 2, 2002, December 18, 2002, and February 17,

2003.

31. The contract provides that a prevailing party on a suit on the contract will recover

its reasonable attorney’s fees.

32. Tyler incurred reasonable and necessary attorney’s fees in the prosecution of her

case through trial of her case through trial in the amount of $16,906.50.

33. In the event of an appeal to the Court of Appeals, Tyler will incur reasonable and

necessary attorney’s fees in the amount of $7,800.00.

34. In the event of a petition for a writ of error to the Texas Supreme Court, Tyler will

incur reasonable and necessary attorney’s fees in the amount of $5,850.00.

35. Key never sought to schedule a closing prior to the first closing date scheduled on

December 2, 2002.

36. Key waived his right to insist on a closing date any sooner than December 2, 2002,

by those facts recited in Findings 5, 7, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22,

26, 27, and 35.

CONCLUSIONS OF LAW

1. The contract between Key and Tyler was valid and enforceable at all times.

2. Under the terms of the contract and facts found above, Tyler was not obligated to

close the sale until Key tendered to Tyler or to the closing agent the warranty deed

from Scotty Cook to Key, or until he filed same with the County Clerk of Smith

County, Texas.

3. Because Key never tendered to Tyler or to the closing agent the warranty deed from

Scotty Cook to Key, and never filed same for record himself with the County Clerk

of Smith County, Texas, the time for closing the sale had never expired prior to

Key’s written termination of the contract on February 19, 2003.

4. No act occurred by which Tyler violated the Statute of Frauds.

5. Key breached the contract with Tyler and Tyler is entitled to recover actual

damages in the amount of $131,250.00 as a result of such breach.

6. Tyler did not breach the contract with Key.

7. Tyler is entitled to recover pre-judgment interest on the amount of $131,250.00 at

the rate of 8% from March 22, 2004 (180 days from the date of filing of Plaintiff’s

Original Petition) to the date of judgment, the per diem amount of which is $28.76

per day.

8. Tyler is entitled to reasonable attorney’s fees of $16,906.50, with an additional

$7,800.00 in the event of an appeal to the Court of Appeals on which Tyler prevails,

and an additional $5,850.00 in the event of a petition for writ of error to the Texas

Supreme Court on which Tyler prevails.