## In the Court of Appe als Sec on d Appellate District of Texas at Fort Worth

___________________________ No. 02

- 21

- 00254

- CV

___________________________

On Appeal from County Court at Law No. 3 Tarrant County, Texas Trial Court No. 2020

- 005207

- 3

Before Sudderth, C.J.; Kerr and W a llach , JJ

. Memorandum O pinion by Chief Justice Sudderth



### D YNOCOM 

### I NDUSTRIES 

### , I NC



### . , Appellant

V



### . T YPE 

### A M OTORS PORTS OF 

### T EXAS 

### , LLC , Appellee2 MEMORANDUM OPINION
After Appell an t Dy nocom In dustries , Inc

. ’ s agreement to manufacture and sell

a dynamometer to Appellee Type A Motorsports of Texas , LLC fell through, the parties asserte d competing breach o f contract claims, and the trial court , sitting as the factfinder, was req uired to choose between their competin g narratives

. Type A
offered t estimony and d ocumentary evidence that Dynocom had failed to notify it
that the machine had been manufactured and was re ady for full payment and delivery , while Dynocom offered contrary t estimony that it had notified Type A , b ut Type A
had failed to pay. T he trial co urt believed Type A , and Dy nocom now challenges the legal sufficiency of the trial court ’ s judgment

. 1 B e cause the case turn s on a credibility
deter m inatio n

— the province of the fact finder

— we wi ll affirm

. I. Backgrou nd
Alth ough the parties dispute the relevant facts , when reviewing the legal sufficiency of the evidence , we must view the record “ in the li g ht most favorable to

1 Dynocom r aises three issues in its br ief , but its sufficiency argument

— which forms the basis for two o f its three issue s

— is disp osi tive. We there fore do not reach Dynocom ’ s t hi rd issue, which challenges alternative theories of b r e ach

. See Tex. R. App. P. 47 .1 ; in fra note 1 6

. And we do not address th e supplemental issue Dynocom attempts to rais e in it s reply brief because “[t] he law is well

- settle d that a party cannot raise new issues i n a reply brie f. ” Midwestern Cattle Mkt g., LLC v. Nw. Cattle Feeders, LLC , No. 02

- 17

- 00274

- CV, 2018 WL 1414834, at * 6 (Tex. App.

— Fort Worth Mar. 22, 2018, pet. d enied) (mem. op.) ; see Anderson v. Innovativ e Insulati on

, Inc. , No. 02

- 21

- 00183

- CV, 2021 WL 5 7 42082, at *7 n .12 (Tex. App.

— Fort Worth Dec. 2, 20 21, no pet.) (mem. op.) ( reciting rule and declining to consider ne w argument raised in reply brief)

.3 the par ty in whose favor t h e [judgment] has been rendered

. ” G unn v . M cC oy , 554 S.W.3d 645, 658 (Tex. 2018)

. W e recit e the fac ts in that light.
A. Contract Type A is a motorspor t s services comp any that , among other things, buys, s e lls,
and service s race cars
. In 2019, Type A c o ntacte d D ynocom to purchase a dy namo mete r

— a p iece of ma chinery used to measu re the tor que of race car s and other high

- perfor mance veh icles

. 2 Dynocom , as the name imp lie s , manufactures and
sells dynamometers

. Type A ’ s owner , M a rtin Ro bertson , tour ed Dy noc o m ’ s manufactu ring facility
and met with Dynocom ’ s founder ( Paul Arseneau ) and its sales director ( Arseneau ’ s wife, Allison Blackstein 3 ) to di s cus s dynamometer pric ing, payment terms,

m anufact uring time, an d deli very arrange ments. Blackstein gave Rober tso n a quote

2 Dynocom ’ s founde r, Paul Ar seneau, explained that the typ e of dyn amometer at issue is a piece of machi n ery that is bol ted to the hub of a high

- perf ormance veh icle to measure “ wheel torque or a x le torque , ” a n d “ [ f ] rom that t orque [,] they can measur e acceleration, wo rk power , energy l oss, drivetrain loss, [and] a full slew of scientific paramet ers of a vehic l e. ”

3 Rober t s o n testified that Blackstein a nd Arseneau owned Dynocom, and A rs eneau confirmed that he founded the company and own e d 90% o f it. Blackste in , though , test ified that neit her she nor Ar seneau were owners and that she did not know who ow ned Dyn o c om .4 for the discounted 4 purchase pr ice of $60,000 with a n estimated delivery time of 12 to
14 weeks. 5
After t he meeting, Robertso n (acting for Type A) placed an order with Dyno com, an d he worked thr ough Blackstein as his exclusive point of co nt a ct. 6 Blackstein prepared an “order confirmation ” contract that mirror ed the terms of Dynocom ’s quot e , and Robertson signed the contract

. I n that contract, Dynocom agreed to sell the machine for $60,000 , and Type A agreed to pay “ 50% d own [and] 50% due b efo r e equipment ships

. ” Type A also

“ agree [d] to provide paymen t for shipping to [ D ynocom] as soon as practicable b ut in no event longer than th ree (3) days followin g notifica tion that the prod ucts are ready for shipment

. ” A s f or the d elivery timeframe, the contract repeated the delivery
estimate of 12 to 14 weeks , b ut c autioned that “ [d] eliver y dates [we] re contingent
upon paym ent received and are subject to change , ” and that Dynocom “ reserve [d] the

4 The parties agreed that $60,000 was a di scounted price , although they di sagreed regarding th e reason for the dis count. Dynoco m ’ s item ized quote indicated that the normal price would have been $84,995.

5 The q uo te was provided to Type A ’ s related entity , Evolutio n Race De vel opment, but Ty pe A was t he en tity that ul timately purchased the m achine.

6 Blac kstein testified that she wa s the primary cont act but th at other indi viduals at Dynocom also communi cated wi th Type A regarding the st atu s of Ty pe A ’ s order. But Arseneau indicated that Black stein had primary responsibility for communicating with Rober t s on , a nd Robertson t esti fi ed that “ all of [his] communic ation after the initia l intr oduction

. . . was d irectly wi th [Blackstein]

. ”5 right to a djust the deliv ery schedule at time of order to r eflect the then[ -]current production sched ule. ” Within days of signing the contract on April 30, 2019 , Robertson te xted
Blackstein with Type A ’s mailing address and e

- mail address , D ynocom sent Type A

an invoice for the machine, and Type A paid the $3 0,0 0 0 down payment. B. Delivery Delays
T he dynamometer was not ready to ship within 1 2 to 14 weeks. A fter more
than 16 weeks

— on Se pt emb er 7, 201 9— Robertson sent Blackstein a text message to
ask when the ma chine would be ready to ship

. Blackste in , rece ivi n g the text on a Sa turday, promised that the dynamometer would be ready “ [v]ery soon ” and that she
would check on its s tatus o n Monday

. B ut she never follow e d up

. Robertson t exted

a gain tha t We dn esday (Se pt ember 11) , and again Bl a ck ste in agreed to che ck , but again
she failed to follo w throu gh. Nine days later, the cycle re peated

. Then, in mid -Se ptember , a new routine began. Blackstein began repeatedly
pro mising t h at th e machine would be ready to ship i n a few weeks : [ Robertson :] Can I get i nfo on w hen my dyno will be ready ? [ Blackstein :] Sure � � � a few weeks [ Robertso n :] Thank you [ Formattin g altered and time stamp s omitted .] The same e xchange repeated a lmost
four weeks later, in mid

- October :6 [ Blacks tein :] 3 w eeks dynos will be ready [Robertson :] Great thanks [ Formattin g alt ered and time st amp s omit ted .] And again five weeks after that , in late
November: [ Blackstein :] Hi [e

- mail address] good email to send invoice to ? Dyno will be ready week of December 9th [Robertson : ] Yes that i s correct. Thanks [ Form a ttin g altered and time st amp s o m itted .] Then the text message s stopped

. F o r si x months, there was no communication between the parties

. 7 D ynocom did not update Type A on the machine ’s statu s , n or did Type A follow up with Dynocom

. 8 Finally, in June 2020, the routine restarted : [R oberts on :] I ’m assuming the dyno i s ready to pick up?

7 D uring th is six

- month period, in March 2020, the Texas G o ver nor issued a disaster procla mation “certi fy ing that COVID

- 19 poses an imm inent threat of disaster

. ” The Governor of t he S t at e of Tex., Proclamation 41

- 3720 , 45 Tex. Reg. 2094, 209 4

– 95 (2020) ( issued Mar . 13, 20 2 0)

. And i n the week s that followed, t he Gov ernor issued “ a flurry ” of executive orders that were “ designed to mitiga te COVID

- 19 ’ s spread ” but that “ meaningfully changed Texans ’ day

- to

- day activities

. ” In re Luther , 620 S.W.3d 715, 718

– 19 (Tex. 2021 ) (or i g. proceeding) ( discussing executive orders issue d in M a rch and April 2020) ; see , e.g. , The Governor of the State of Tex., Exec. Order G A

- 08 , 45 Tex. Reg. 2271, 2 271 (2020) ( issued Mar. 19 , 2020)

.

8 Robertson test i fied at trial that he did not follow up fo r several months because he “ got pre occup ied with an ot her business ” of his that was ve ering towards bankruptcy due to market condi tions.7 [ Blackstein :] Hello Marty nice t o hear from you! A h n o it ’s not but it can be � �

� � [Robertson :] When can you guys turn i t out ?

. . . . We would like to get it as soon as you guys can put it toget her. [ Blackstein :] Understood! Will get you an update tomorrow [ Formattin g altered and time stamp s omitted. ]
A no ther month passed, and Blackstein called to a sk if she and Ar sen eau could come to Type A ’ s f acility to make sure Type A had sufficient elec trical equi pment for
the dynamometer to operate
. Then, on t he morning of the scheduled visit, Blac ks tein

texte d Robertson and c anceled b ecause Arseneau w as “ home with a re pair guy. ” The parties resc heduled for the next month , August 2020

. By t h en, Typ e A had b egun to pursue its legal options. T yp e A ’s atto rney sent Dynocom a demand letter in early August , notifying Dynocom that it had breached its

contract by failing to ma nufacture the dynamometer or s hip it to Type A, a nd “demand[ ing ] that [Dynocom] im mediate ly retur n Type A ’s p ayment in the amount of $30, 000. ” Meanwhile, Type A continued to t ry to work with Dynocom to complete
the deal outside of court , and Robertson be gan pressin g Dynocom to commi t to a delivery date

. When Blackstein and Arseneau f inally v isited Type A ’s facility to review
its electrical equipment , Robertson referenced the demand letter and warned that “if8 [Dynocom] couldn ’t give [Type A] a reasonable commit ment of a time to comple te [the dynamometer ] and deliver it , ” then Type A w ould “hav e no choice b ut to file
suit

. ” D espite the ultimatum , when Robertson texted in the days that followed,
Bl ackst ein continued to stall : [ Roberts on :] I n e ed a date you can have the Dyno ready. Need an email from you on what I can expect

. [ Blacks tein :] Ye s wil l sen d this week gears will [b]e completed on S e ptember 15 th
Blackstein then asked Rober tson to verify a “ good e

- mail address , ” and
Robert son prov i ded a new one. But the end of the week came and Blackstein still had

not specified a deliver y date vi a text or e

- mail

. Robertson followe d up one l ast time : [Roberts on :] Need an email with commitment date that I can agr ee to toda y or I will have to proce ed with the suit

. Blackstein never provided a commitment date

— via text message , e

- mail, or otherwise

— and Robertson never received a final invoice or o ther notification that the dynamomete r was ready for full payment and delivery

. C. Law suit
Fin ally, on September 1, 2020

— more than a year after the dynamometer ’ s init ial 12

- to

- 1 4

- week delivery p eriod had expire d

— Type A fil ed suit. Ty pe A alleged
that D ynocom ’ s fail ure t o deliver the d yn amometer breached the contract, and it sought the return of its $30, 000 down payment. Dynocom responded by arguing , as9 bot h an affirmative defense and a counterc laim , tha t Dynocom had breached the

contract “ by fai ling and re fu sing to pay the balance of the purchase price

. ”
D. Bench Tr ial
The case was tried to the benc h

. The central factual disp ute , and the f ocus of the partie s ’ competing testimony , was whet he r Dyn ocom had no tified Type A that its dynam ometer had b een comp leted and was ready for full pay ment and del ivery.
Robertson testified to the text

- message excha nges recounted above a nd
confirmed that almost all of his communications with Blackstein had o ccurred v ia text
message with “maybe two to three phon e cal ls du ring the entire time frame. ” C opies
of the text

- message exchanges were admitted into evidence.
Robertson stated that, as the text messages showed, he had never received
notifi ca tion that t he dynamo meter had b een c omplet e d or was ready for payment or delivery

. H e never received an invoice for the machine , was never asked to pay for
the dynamometer ’ s shipping costs in anticipa tion of deli very , and he was never asked

to pay the f inal $30, 00 0 on th e ma c hine

. Blackst ein disputed this. 9 She testified tha t Dynocom had a dynamometer ready for delivery at almost every anticipated de adline ; there wa s a dy na mometer

9 Although the b ench tri a l was conduc ted via Zoom , Dynocom ’ s trial counsel
w as in the same room as Blackstein througho u t her testimony, and co unsel was repeatedly chastised for coaching the witnes s . The trial court warned that it wo uld take such coachin g “ into account when [it] d etermine[d] the credibility of the answers given by the witness

. ”10 ready fo r del ivery 12 to 14 weeks a fter Type A placed its order, there was a dynamom eter read y approximately “ 3 weeks ” after h er October text anticipating the

same, and ther e was a nother dynamometer “ ready [th e] week of December 9 th ” as he r text message had anticipated

. She claimed that, on each occasion , she called or e

mailed Robertson to notif y him that the machine was ready, and on the latte r two
occasions , she “ e

- mailed an invoice to him. ” But n o e

- mail s or invoice s were admitted into evid e nce to s u pport h er testimony , nor was there any documentar y evidence o f Blackstein ’ s alleged p hone call s to Robe rt son . 10
Arsene au al so testified

. Unlike Blackstein, Arseneau ackn owledged that there was a delay beyond the initial 12

- to

- 14 week timeframe

. But he agreed w i th
Bl ackstein t hat Type A ’ s dynamometer was ready the week of December 9 , 201 9

. He
di d not claim to have notified Type A that the dynamometer was ready at that time , though ; 11 h e only de scribe d the comp any ’ s procedures , wh ich inclu ded e

- ma iling a

10 D uring Blacks tein ’ s testi m ony, she indicated that th e e

- mails and call log s documenting her a lleged com munications with Robert son had been overlooked when Dynocom had gathered documents fo r production in discovery , and Dynocom ’ s trial counsel reference d previous trial court ruling s that had excluded these and ot her documents that had no t be e n produced in discover y . W hatever the reason , Blackstein ’ s alleged e

- mails , invoices, and call logs we re not admitted into evidence , and Dyno co m does not challenge th e exclusion of these docume n ts on ap peal.

11 Arsen e au testified that h e had seen an e

- mail that Blackstein sent to Robertson, and that , o n one occasion , he had instructed he r to call Roberts on via phone

. Arse ne a u did not discuss the content or date of eit her of these communic ations

.11 final invoice to the customer when the dynamometer wa s ready for full payment and
deli very
. A r sen eau furthe r tes tified that, when he and Blackstein visited Ty pe A ’s facility
in Au gust 2 020

— after Type A had sent its demand letter

— A r seneau told Rob ertson
that the dynamometer would be ready by the end of Sep tembe r
. Blacks tein
remembered s imilarly, a nd sh e point ed t o her subsequent te xt message to Robertson
that the “ gears w[ould] [b]e comp leted on S e ptember 1 5th ” as support for the
S e ptember deliv ery estimate

. But Blacks tein and Arseneau disagreed as to whether
the machine had actually be en ready fo r delivery i n September 2020

. Arseneau stated
that the dynamometer was rea dy , while Blackst ein testified that it was not

. E . Judg ment After hearing the parties ’ competing test imony , t he trial court entered judgment
fo r Typ e A. It aw arded Ty pe A $30, 00 0 in actual damages

— the amount of i ts original down payment

— plu s atto rney ’ s fees and prejudgm ent interes t, and it o rdered t hat Dy nocom take not hing o n its counterclaim.
II. Su f ficiency of the Evidence
The cen tral dispute on appeal is the same as it was at tria l: whether Dyn ocom

no tified Type A that the dynamometer w as ready for full pay ment and delivery. O nly

now, Dynoc om raises the issue as a suffi ciency challenge. Dynocom claims that the evidence conc lusive ly established that it had notif ied Typ e A that the machine was ready for full payment and de livery and that the re was12 no evid ence to s upport the trial court’ s impl ied fin ding 12 to the contrary

. 13 It presents
this argument in multiple forms , claiming that ( 1) there is no evidence that Typ e A

s atisfi ed all conditions precedent to delivery because it did not fu lly p a y for the dynamo meter , (2) there is no evidence that Type A p erform ed its own contra ctual obligations beca use it did no t fully pay for the dynamometer , a nd (3) Type A
material ly breach ed th e cont ract by failing to pay for the dynamometer , excusin g Dyn o com ’ s su bsequent failure to deliver the mach ine

. However, a l l of these

a rguments are pr emised on Type A ’s assert ion that the “undisputed ” evidence

“ conclusively establishe d th at Dyn ocom n otifi ed Type A that the dyno was ready for
d elivery on the week of December 9, 2019 , ” thus triggering Type A ’ s contractual payment obligation

. Dynocom ’ s re al challenge, then, is to the sufficie ncy of the
evide nce to support the trial court ’s impli ed fin din g th at Dynocom never n otified Type A that the dynamometer was ready for full payment and deliver y . 14 To prevail on its legal sufficiency challenge, Dynocom must show that (1) the
record contains n o ev idence of a vital fact necessary to the challenged findi ng , ( 2) the

12 The trial court did not file findings of fact or conclusions of law , but the judgment implie s all findings of fa ct necess ary to support it. Shields Ltd. P’sh ip v. B radberry , 5 26 S.W.3d 471, 480 (Tex. 2017).

13 D ynocom ’ s brief frames its sufficiency ch a ll enge as two i ssues .

14

All pa rties agree t hat Type A was re quired to pay the remainder of the p urchase price after it received notifi catio n that the dynamometer was completed and
re ady for delivery but before d elivery would actually occu r
.13 r ules of law or of evidence bar the court from considering the only evidence offered
to prov e a vital fact , (3) there was no more than a mere sc intilla of evidence offered to
prove a v ital fact , or (4) the e vidence conclusively establishe s the oppos ite of a vital
fact

. S ee Gunn , 554 S.W.3d at 658

. We view the evidence in a light most fav or able to the challeng ed finding, indul ging every reasonabl e inference in its favor , consider i ng al l support ive e vidence t hat a reasonable factfinder cou ld , an d dis regard ing contrary evidence unless a reasonable factfinder could not. Id. at 658 ; Cent. Rea dy Mix Concrete
Co. v. Islas , 228 S.W.3d 649, 651 (Tex. 200 7 ); City o f Keller v. Wilson , 168 S.W.3d 802,
827 (Tex . 2005). The evidence supporting the ch alleng ed fi nding co nstitutes more
than a sc intilla if it would enable reaso nable and fair

- minded people to differ in the ir
conclusions ; it constitutes a scintilla or less i f it does “ no more than cre ate a mere

su rmis e or su sp icion ” about the vital fact ’ s e xisten ce . See Gunn , 554 S.W.3d at 658

. General ly , “ evidence becomes conclusive (and thus cannot be d isregarded) when it concerns physical facts that cannot be denied.” Catholic Diocese of El Paso v.
Porter , 6 22 S .W.3d 824, 834 (Tex. 2021) . In the abse nce of phys ical eviden ce , wh en a

c hallenged finding hinges on competing witnesses ’ testimony regarding a vital fact ’ s existence , the fact fin der is free to believe one wit ness over another , and reasonabl e and f air

- min ded people can differ in their conclusio ns . S ee i d

. at 834 (overruling legal sufficiency challenge because “ [ i] n the absence of physic al evidence such as receipts [documenting the disputed transaction] , the jury was free to believe either [ o ne witnes s ’ s ] t estimony or [ the other ’ s] ” ); Hutchison v. Pha rris , 158 S.W.3d 554, 568 (Tex.14 App.

— Fort Worth 2005, no pet. ) ( recognizing that, in a ba ttle of competing evidence ,

“ it is the sole prerogative of the [fac tfinder] to determine the weight and cre dibility of
th e witnesses, the obligation of the respe ctive advoc ates to persuade them , and our obligation to s ee that the process was fair and carri ed out according to the rules ” (internal quotation mar ks omitted) ) ; see also Allen v. Hutchison Const., Inc

. , No. 03

- 00

- 0 0743

- CV, 2002 WL 275219, at *5 (Tex. App

. — Aust in Fe b. 28, 2002, pet. denied) (n ot de signated for publication) (holding that evidence was suffici ent to support challenged fi ndings because “ the issue came down to credibility, as both parties
pr esented confli cting testimony ” and “[i] t was within th e tria l cou rt ’ s discretion to
resolve the conflicts ”)

. H ere , the parties presented c ompeting testimony as to w hether Dynocom had notified Typ e A that the dynamo meter was ready for full payment and deliv ery
. Robert son tes tified that he had never been not if

i ed th at the dynamometer was ready

. He produced Blackstein ’ s text messages

— physical evidence

— to c orrobora te his
story , but it is hard to imagine what physical evidence Robertson could have offered

to con clusively estab lish that this was the sum total of his commu n ications with Dynocom

. F or that, he relied on his testimony

. And Blackstein di sputed this testi mony ; she claimed that the text messages

were not the sum total of their communications. Blackst ein testif ied that she repeatedly notified Ro bert s on t hat th e machine was read y for full payment and delivery, that she repe atedly e

- mailed him invoices , and t ha t she repeatedly requested15 full payment

. A lthough Arseneau ’ s testimon y offered some support fo r her stor y , he did not testify that he had p erson ally wit ne s sed any of the alleged notifications

. And Dynocom did not offer any e

- mails, invoices, phone logs , or other physical evidence

to validate Blacks tein ’s testimony

. As presented, this case was the quintesse ntial he

said , she

- said disp ute
. Dynoco m ’ s trial t heory rec ognized as much . It argued that Blackstein ’ s

tes timony prove d th at she had sent Robertson e

- mail and invoice notification s , and

t hat although there was no physical evidence d ocumenting such e

- mai ls and invoices , their existence was sup port ed by t he e

- mail references in the p arties ’ tex t

- message conversation s . 15 But o n appeal, Dyno com attempts to distance itself from the
undocumented e

- mails and inv oices

.

15 During Typ e A ’ s c ross

- ex amination of Blackstein , Blacks tein and Dyn ocom ’s tria l counsel admitted t hat there was no documentary evidence of notification: [Type A Counsel: ] A n d we h ave nothing in writing from [Dynocom] that ’ s in evidence that states that you ’ re demand i ng p ayment or expecting payment or that has to be paid b y a certain date or anything of that nature so that you would deliver the dyno , do we? [ Blackstein :] Ye s, you d o. [Type A Counsel:] What do we have in evidence that shows that? [ Blackstein :] The o rd er c onfirmati on that ’ s signed by Marty Thom p son. [sic] [Type A Co unsel:] Since then , you neve r sent a single document, we don ’ t have any documents in eviden c e w here y ou16 D ynocom now argues that Blackstein ’ s text mes sage that the dynamometer

“ will be r ea dy week o f December 9 th ” was itself a notification that the dynamometer was ready for f ull payment and deliver y . We disagree. A s tatement that the dynamometer “ will be ” ready is not the same as a stateme nt that it i s r eady for payment and delivery

. Co mpare , e. g. , Will , Webs ter ’ s Third New International
D ictio nary 2616 (2002 ) (defin ing “will ” as “ used to e xpress simple futurity , ” and

“ used to express desire, ch oice, will ingness, [or] consent ” ) , with Be , Webster ’ s Third
New International D ictiona ry 189 ( 2002 ) , (d ef ining “be ” as “to have an objective

e xistence , ” to “ have reality or actuality, ” or “to have, maintain, or occupy a place,
si tuation, or position ”) , and Is, Webster ’ s Third New Interna tional D ictionary 1197 (2002 ) ( recognizing “is ” as a f o r m of “ b e ” and d ef ining it as “that wh ich is factual, empirical, a ctually the case, o r spatiotemporal

— contrasted w ith ou ght ”)

. This is particularly true given the conte xt of Blackstein ’ s text message , which c ame after a

state, hey, before we send this, you got to pay or I need your payment now, or anyt hi ng o f that
na ture, do we? [Blackstein:] Ye s , I sent him copies of the invoice with the balance owed. [Type A Counsel:] But we have no e

- mail in evidence tha t sh ows th at you sent the invoice, do we? [Dynocom C ounsel : ] That ’ s correct. [ Blackstein :] T ha t ’ s correct
. Okay. Per my attorney that ’ s c orrect.17 series of similar ly anticipatory tex t s tha t had all c u lminated in delays

. Even if Dy nocom ha d a rgue d this theory at trial, a reasonable factfinder could have concluded
that the “ wil l be ready ” message wa s not itself a notification that the dynamometer

was actually ready for full payment or deliv e ry

— either a t the time of the m essage or on a date certain

. Ultimately, then, t he trial court was presented with a credibility assessment : it
could believe Rober t s on ’s version of events or Blac ks te i n ’s. Both versions were supported by more than a s cintil la of testi monial ev idence , an d t he fact finder chose t o believe Rob ert son ’ s version

. It is the factfinder ’s prerogative to “ cho ose to believe
one wit ness and [t o ] disbelieve another [; r] eviewing co urts cannot impose t heir own opin ions

. ” City of Kel ler , 1 68 S.W.3d a t 819 ; se e Catholic Diocese of El Paso , 622 S.W.3d at
834 (quoting City of Keller )

. Because the ev idence was not conclusive and the factfi nder was “ t he sole judg e[ ] of the credibility o f the witnesses and the weight to give their testimo ny , ” w e overrule Dy nocom ’ s sufficien cy chal lenge. City of Keller , 168 S.W.3d at 819

. And
because this issue is dispositive, we d ecline to ad dress Dynocom ’ s other argu ment s . 16
See Tex. R. App. P. 47.1

.

16 D ynocom ’ s third issue challenges alternative theories of breach that it claims Type A re lied upon at t r ial , arguing that Dynocom was not con tractually required to deliver the machine on a date cert ai n b efore it had receiv ed ful l p ayment and i t was not r equired to submit a second inv oice for the machine

. But Ty pe A did not argue these theories at trial , and it d oes not rely o n them on appeal

. Regardles s, beca use we hav e already sus tained the trial court ’ s judg ment on the theory of breach advanc ed at18 III
. Conclusion
Th e parties each presented more than a s ci ntilla of evi dence to su pport thei r competing narrat ives. The trial court made a credib ility determination , and the
evidence is suf ficient to support it. Accord ingly, we affirm the trial court ’ s jud gm ent. Tex. R. App. P. 4 3.2(a)

. /s/ Bonnie Sudderth
Bonnie Sudderth Chie f Justice
De li vered: April 21, 2022

trial

— failure to notify Type A th at the dynamometer was ready for full payment and delivery

— we need not address Dynocom ’ s alternative a rguments
. See Tex. R. App. P. 47.1 ; c f. Rosemond v. Al

- Lahiq , 331 S.W.3d 764, 766 (Tex. 2011) (recognizing that “[ i] n the absence of findings o f fact or conclus ions of law, a trial court ’ s judgment will be upheld on any theory supported by the record ”).