### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00606
- CV

Robert Penta , Appellant

v. Easy Street Capital, LLC , Appellee

FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1- GN -20-002334 , THE HONORABLE JAN SOIFER , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N After a bench trial, Robert Penta appeals from the judgment awardi ng Easy Street Capital, LLC , ( ESC ) recovery on a personal guaranty of a loan for a real

- estate purchase . ESC sought to recover a deficiency remaining on t h e note after ESC ’ s foreclosure s ale of the pr operty

. Penta challenges th e trial cour t’ s admission of E SC ’ s expert ’s testimo ny on fair market value , the conclusion that ESC ’s delinque ncy fee is no t usurious i nterest , the de nial of Pent a’ s affirmative defe n se of settlement and compromise, and the amounts awar ded for fair market v alue , inter est , and total deficienc y. We will modify the judgment in part and affirm the judgment as modif ied

.

BACKGROUND
Penta bought improved real property on Greenwood A venue in Austi n , Texas , in February 2018 , intending to r esell the property

. ESC loaned Penta the purchase price plus amounts for renovation , equaling a total of $790,000 availab le to be drawn

. Penta mad e a Note
to ESC secured by the prope rty and Penta ’ s persona l guaranty. Interest of 11.9% annually was2 due and payable month ly beginning April 1, 2018 , a nd con tinuing until March 1, 2019, when the entire b alance of the loan was due a nd payable. Payment s made 10 days or mor e late prompted a delinquency charge of 5 % of the un paid portion of the s chedu led payment

. Additionally, if the outstanding princip al balanc e was no t paid within 10 days of the maturit y date, ESC would

assess a del inqu ency c harge of 5 % of the outstanding prin cipal balance (plus all accrued but

u n paid interest) ; Penta and ESC expressly agreed in the Note “ that the charges set forth h erein

ar e reasonable compensation to [ESC] for the handling of suc h late pay ments. ”
E SC ’ s Fe bruary 2 8, 20 19 billing statement showed a principal balance of $512,27 7. 1 9 1 and a total balance of $523,690.98 , which included unpaid interest amounts from previ ous mont hs

. ( Penta made $59,504.17 in inter est payments during the loan period

. ) When Penta failed to pay th e balance due by March 10, 2019, ESC accelerated the N o te and deman ded payment. When Penta failed to pay , ES C sent notice of foreclosure.
Penta o btained a temporary restr aining order agains t the foreclos ure sale o n May 3, 2019

. On May 16, 2019, t he parties entered a Rule 11 Settlement Agreement ( R ule 11

a g ree ment) in “ final settlement ” of Penta ’ s claims against ESC , which included claims for breach of contrac t and fraud

. ESC agreed not to foreclose on the pro perty until August 6, 201 9. Penta

a g reed to releas e all claims a lleged against ESC and to dismiss his injunction s uit , not to seek
any injunction against an August foreclosure, and no t to file bankruptcy to discharge the N ote

. Penta agree d th at t he payof f for the note would include all unpaid princip al, all unpa id interest at the original unmat ured ra te, and collection costs to date.

1 P enta testified that he paid $500 ,000 for the property

. ESC ’ s in debtedness calculation summary lists “ initial funding ” on the date of pur chase as $400,000, f ollowed b y $ 112,277.19 in principal draw s
.3 ESC foreclosed on the property on August 6, 2019 , and bought the property at t he sale for $513,000. ES C partne r Casey Denton testified that th is amount included ESC ’ s estimate

o f the fair market value plus $27, 000 in back taxes. ESC then ma de minor improvements to the propert y and sold the property as two par cels to third parties for $523,021.58 i n January 2020

. ESC ’ s summary of inde bte dness al located $1 98, 464.50 in value to 1181 Greenwood and $324,557 .08 in value to 1183 Greenwood.
ESC sued to recover amounts not recovered through the sale

. After a bench trial, the cou rt fo und that Penta owed ESC $114,955.43 in damages, $61 , 605 in atto rney ’ s fees, $6 , 932.89 in costs, prejudgment interest at 18% , p lus post

- judgme nt in terest a t 5%.

DISCUSSION
Penta contends th at the trial court abused its discretion by admitting expert testi mony, determining the fair market value of prop erty, determini ng tha t h e owed interest, concluding that the delinqu ency fee is not usury, d enying his affirmative defense of settlement and compr omise, and determining the amount of the deficiency.

F air market v alue a nd expert testimo ny of fa ir mar ke t value By issue two, Pen ta conte nds that the trial court ab used its discretion in deter mining the fa ir market value of the property. By issue one, he contends that the trial court abused its discretion by admitting ESC ’ s expert ’ s testim on y abou t the fa ir market value of the property at the time of foreclosure and by finding that value was $520,00 0.
Be cause the f oreclosure sale price was less tha n the unpai d balance of the indebte dness secured by the real property, ESC alleged a defic iency existed and sought to

recover the deficiency through Penta ’ s guaranty of the loan. In response , Pen ta ask ed the tr i al4 court to dete rmine the fair market value of the real property as of the date of the forec losure sal e pursuant to Texas Property Code § 51.003(b). T hat section provides :
The fair market value shall be determined by the finder of fact after th e introdu c tion by the part ies of com petent evidence of the value. Competent evidence of value may include, but is not limited to , the following: (1) expert opinion testimony; ( 2) comparable sales; (3) anticipated marketing time and holding cos ts; ( 4) cos t of sa le ; and (5) the necessity and amount of any discount to be applied to the future sales price or the c ashflow generated by the property to arrive at a current fair marke t value.

Tex. Prop. Code § 51.003(b) ( e mph asis added)

. If the fair market value at the t i me of foreclosure e xceeds t h e actua l price pa id at the foreclosure sale, the former property owner is entitled to a n offs et of that excess against any award of a deficiency in the foreclosure

- sale proceeds used to satisfy the amount of indebtedne s s remain i ng. Id. § 51.003 (c)

. T he Legislat ure did not expressly define the term “ fair market value ” in § 51.003 but indica te d the m eaning by listing the types of evidence that can show fair market va lu e
. Plai nsCapital Bank v. Martin , 459 S.W.3d 550 , 55 6 (Tex. 2 015 ).
T he fa ct find er can reasonab ly select a fair market value that is within a range of competent evidence of v alues in evidence. Silberstein v. Trustmark Nat ’ l Bank , 533 S.W.3d 40 3, 413 (Tex. App.

— Houston [1 4 th Dist. ] 2016 , pet. den ied ) ; Pr eston Reser ve, L.L.C. v. Compass Bank , 373 S.W .3d 652, 666 ( Tex. App.

— Houston [14th Dist.] 2012, no pet.) (citing State

v. Huffstutler , 871 S.W.2d 955, 959 (Tex. App.

— Austin 1994, no writ) )

. As lo ng as a rationa l basis for the calculation of damages exi st s, a findin g w ill not be disregard ed merely because its

r easoning in arriving at its figure may be unclear. Pleasant v. Bradford , 260 S.W.3d 546, 559 (Tex. App.

— Austin 2008, pet. deni ed)

. O nly if the v alue lies outside the range of testimo ny will we find the eviden ce fails to support the verdict. Callejo v. Brazos Elec. Po wer Co

– op., Inc. ,5 755 S.W.2d 73, 75 (Tex. 1988)

. A factfin der is not bound to accept valuation expert te stimony.
Preston Reserve , 373 S.W.3 d at 666 (citing Callejo , 755 S.W.2d at 75 ). The tria l cou rt admi tted ESC ’ s expert ’ s tes timony and valuation, Pen ta ’ s valuation based on the Tr avis Central Appraisal D istric t ’ s (TCAD ’ s ) appraised value s ; 2 Penta ’ s February 2018 purcha se price ; the actual August 6, 2019 foreclosure

- sale price ; an d the January
2 020 sale prices of t he individual lots. T he trial court ’ s finding of a fair market value on August 6, 2019 , of $520,000 i s within the extre mes of the values prof fered by ESC ’ s ex pert ($436,000) and Penta (over $1 million ) . It is more than Penta ’ s 2018 pu rchase price ($500,0 00), more than the foreclosure sale price ($513,000), but slight ly discounted from the combined sale price 3 in January 2020 ( $523, 021.58 )

. T he trial cou rt reasonably departed from the v aluations from the parties ’ witn esses
. N o evid ence explain ed the basis for TCAD ’ s valuation on which Penta based his valuation

. T he TCAD v alues consistently departed from the prices paid by buy ers

— including
Penta

. I n 2018 , when TCAD valued the property at $989,191 , Penta paid $500,000 for i t. In
20 19, when TCA D va lued it at $1,037,914, the property sold for $513,000 a t the A ugust 2019 foreclosure sale

. Though Penta claimed he “ would have sold i t for over a million dollars , ” he did
not se ll it despite h olding the property for 18 month s
. Penta lis te d the 1181 G reenwood Avenue

2 Penta testified that the property ’ s va lue at the time of foreclosure was over a milli on dollars because TCAD “ had it appraised for over a million doll a r s, and I would have sold it for over a million dollars. ” TCAD valued t he prope rty at $989,191 in 2018 and at $1,037,914 in 2019.

3 The prope rty sold a s t wo lots to different buyers

. 1183 Greenwood Avenue sold for $198, 464.50 on January 24, 2020, a nd 118 1 Greenwood Avenue s old for $ 324,557.08 on January 29, 2020

. In 2 021, TCAD valued 118 3 Gre enwood at $415, 100 and 11 81 Gr eenwood at $635,49 9 f or a combined va lue of $1,050, 599.6 lot for $649,000 in 2019 but was unable to sell it for that amount; Penta testified he could not recall if he received an offer at that price. The p roperty sold as two parcels to t hird parties in January 2020 for a com bined $52 3,021.58

. T he discrepancies between the TCAD values and what any of the three buyers pai d for the property between 2018 and 2020 support the trial

co urt ’ s reje ction of TCAD ’ s valuation a s establishing the fair ma rket value for this propert y . Similarly, t he trial court w as not bound to accept ESC ’ s expert ’ s valuation of the property that was several thou sand dollars below the contemporaneous sales prices. The trial court did not explain the basis for its fin d ing of fact th at the fair ma r ket value of the property was $520,000 at the time of t he foreclosure sale, but t he cou rt could reasonably have relied on evidence of the s ales prices to Penta eighteen months before and to third par ties fi ve - and

- a - half months after the foreclosure. Pen t a argues that the record lacks evidence that the mar ket conditions between the foreclosu re sale and the January 2020 sale were comparable or evidence that justified its di scount of $3,021.58 from the January 2020 sale. He
conte nds that the market conditio ns were di fferent because the J anu ary 2020 sale split th e
p roperty , while the foreclosu re sale transferred them as a pack age. T he Texas Supreme Court, however , has held that requir ing parties t o show comparable market conditions be tween the foreclosur e sa le and the fut ure sale “ would be ad ding words to § 51.0 03. We refuse to do that in the abs ence of clear legislative intent to reach a different result from that reached by applying the plain la nguage of the statute, or to prevent t he statute from yielding an absurd or non sensical result

. ” Martin , 459 S.W.3d a t 556

. T he trial court could reasonably have cre dited Penta with

some improvements or looked at the r ate of increase of the val ue between Penta ’ s February 2018
p ur chase and th e third

- party buyers ’ Ja nua ry 2020 purcha se price

— an increa se of $23,021.58 , or roughly a $1,000 mon thl y increase acros s 23 mon ths. T he trial court ’ s discount of $3,021.587 from the January 2020 sale to the foreclosure

- sale dat e five

- and

- a - half months earlier is le ss than that $1 ,00 0 per month ra te , thus assessing a value high er than the straight

- line rate of increase

. T he trial court was not presented with a binary choice between v alues. Evidence correspo nding
to the precise amount found is not essential to with s tand an evident iar y - sufficiency challenge.
S

ee Pleasant , 2 60 S.W.3d at 559

. Because the trial court fou nd a fair market value within the range of the values in evidence , we cannot disregard its finding merely because its reasoning in arriving at its figu re i s not compl etely clear

. Id

. ; s ee also S ilberstein , 533 S.W.3d at 4 13

. Because that re a sonable value was within a clo se range of purchase prices ind ependent of ESC ’ s e xpert ’ s value, we need not address whether the tri al court erred by admitt ing ESC ’ s expert ’ s tes timony because the court appear s to have dis regarded th at value

. See Tex. R. App. P. 47.1

. We overrule issue two and do not reach issue one
.

I n terest By issue three, P enta contends that the trial court erred by determining that he

owe d $47,641.68 in i nterest after he wa s declared in default. Penta challen ges only the application of the default interest rate for interest that accrued in February 2019 before he was declared in default in March 2 019. We look to the four corners of the No te to determine if it states unambi guously how the interest sho uld have been calculated. See EMC Mor t g. C orp.

v. Davis , 167 S.W.3d 406, 413 (Tex. App.

— Austin 200 5, pet. denied).
T he N ote provides that , until matur i ty, the loan balance bear s an interest rate of 11.9%. Interest was due and payable monthly as it accrued “ unti l 3/1/2019, wh en the entire balan ce her e of, principal and accrued interest remaining unpaid , shall be then due and payable. ”8 Ma tured, un p a id pri ncipal and interest bears interest “ fro m matur ity until paid , at the Maximum
Rate ” which was 18%

— t he statutory ceiling set by Texas Finance Code § 303.009.
Penta did not make the payment due on March 1, 2019. Penta contends that the trial court a bused its discr etion by applying the 18% rate to interest that a ccrued in February an d that th is Court sho uld either mod ify the judgment or remand to the trial court to adjust the
amount of inter est. E SC con t ends that the trial court correctly calculated the interest due in
M arch to “ retroactively ” bear th e 18% rate b ecause Penta failed t o pay the daily int erest that

accr ued starting on th e date of his last payment on F ebruary 1, 2019. Penta does not dispute that he was in default beginning in March 2019 and does not dispute that he remained in def ault

. T he only disp ute is when the 18% i nterest r a te was properly first ap plied.
T he N ote was not ma ture before M arc h 1, 2019

. ESC ’ s Denton testified that

“ March 2019 is when [Penta ] first defaulted. ” No evidence shows that ESC accel erated the maturity of the N o te b efore the missed March 2019 payment. Under the plain terms of th e Note , inte rest accrued “ until maturity, on the balan ce of that prin ci pal sum advanced and remaining unpaid, at the rate of eleven and 90/100 percent (11.90% ) per annum, ” cal culated on the bas is of
a 360

- da y year. The Note matured on March 1, 2019, so th e heightened interest rate was trigger ed on that maturity date. We conclude that t he trial court erred by assessing the
contractua l 18% interest rate on the amounts from February 2019 that were d u e and payable

on March 1

. We sustain issue three

. U sing the for mu la prescribed by the Note, we recalculate the interest assessed at 18% beginning on March 1 , 2019 , rather than Febru ary 1 , 2019 , and continuing up to the August 6, 2019 foreclosure usin g t he 360

- day method. The amount due and

un paid on the March 1 , 2019 mat urity date was $512,277.19. That a mount, m ultipl ied b y the9 18% annual interest rate f o r five month s plus six days in Au gust , divided by 360, yields $39,957.62 in interest rather than th e $ 47,641.68 fou nd by th e trial court.

Del inquency fee By issue four, Penta cont ends that the trial court e rred as a matter of law by concluding that the delinquency fee o f $25,613.85 is not considered inte rest for purposes of the

usu ry prohibition and , accordingly , t hat ESC di d not impose usurious interest above the statut ory

ce ilin g of 18%. To resolve this issue, w e must explore the meaning an d interplay of statutes concerning delinquency fees , inter est, and usury. Our objective in construing a statut e is t o ascertain legisla tive intent. First Am. Title Ins. v. Combs , 258 S.W.3d 627, 635 (Tex. 2008). W e discern legislative intent from the
statute ’ s language because it is “ ‘ the truest manifestation ’ of what lawmakers intended

. ” Id

. ( quoting Alex Shes huno ff Mgmt. Servs., L.P. v. Jo hnson , 209 S.W.3d 644, 651

- 52 (Tex. 2006)). If statutory language is unambiguous, we will interpret and apply the statute according to its plain meaning unless a different meaning is apparent from the context or the plain m e anin g leads to absurd res ults. In re Ford Motor Co. , 442 S.W.3d 265, 280 (Tex. 2014) (orig. proc eeding). In determining a statute ’ s meaning, we consider the statute as a whole rather than construing specific provisions in isolati on. Id

. Undefined term s are the refore afforded t heir ordinary meaning unless a different or more precise definition is a pparent from the context of the st atute,

see Tex. Gov ’ t Code § 311.011(a); TGS

- NOPEC Geophysical Co. v. Combs , 340 S.W.3d 432, 439 (Tex. 2011), because we can n ot give an undefined term a me aning that is disharmonious or inconsistent with other provisions i n the statute, see Texas Dep ’ t of Transp. v. Needham , 82 S.W.3d 314, 318 (Tex. 2002). If an undefined term has multiple common meanin gs, it i s not10 necessaril y amb iguous; rather, we wi ll ap ply the definition most consistent with the context of the statutor y scheme. Southwest Royalties, In c. v. Hegar , 500 S.W.3d 400, 405 (Tex. 2016).
T he Legisla ture has capped the amount of interest that a lender can charge on a n installment loan at 18 % , s ee Tex. Fin. Code § 303.009 , and has permitted the assess ment of deli nquency charges calcul ated at up to and including 5% of the unpaid installment pa yment :
In addition to the interest authorized by th is chapt er, the parties t o a commercial loan may a gree and stipulate for: (1) a delinquency charge on the amount of any insta llment or other amo unt in default for a period of not less than 10 days in an amount not to exceed five percent of the total amount of the installment

. . . .
Id. § 306.006. The Leg islature defined interest as
compensation for the use, forb earance, or detention of money. The term does not include time price differential, regardless of how it is denominated . The term does not inclu de compe nsati on or other amounts that are determin ed or stated by this code or other applicable law not to cons titute interest or that are permitted to be contracted for, charged, or received in addition to interest in connection with an extension of credit.

Id. § 3 01 .002(4).
P enta contends th at the Le gislature did not permit lenders to add 5% interest as a delinq uency charge to the entire balance of the loan , essentiall y raising the maximum interest
rate to 23%

. He arg ues that the “ installment ” payment on whic h a del inquency c harge can be

ass essed can not be one that includes the entire prin cipal

. Because t he Leg islature did not define

“ installment, ” Penta cites dictionaries to find the comm on meaning of the term

. He ci tes dictionary definitions of installment as “ a sum of mon ey due as one of sever al equal payments11 for something , spread o ver an agreed period of time ” 4 and “ something that is less than the whole

. ” 5 He argu es that the balloon pa yment that included the en tire principal cannot satisfy th ese d efinition s
. We fin d no binding authority excludi ng a balloon agreement or a balloon payment from the definition of “ installment. ” Though some cases mention “ installment ” and “ balloon
p ayment ” discr etely , 6 those cases do not hold that the balloon payment is not an installment.
Ot her court s have treated the balloon payment as a n installment payment of a different amount.
T he Texa rkana Court of Appeals described the payments for a land

- purchase contr act as

“ payable in twenty

- three equal monthly installments of $354.6 4 each, with a final installme nt (a

‘ b alloon ’ installment) equal to the then

- remaining principal and interest due on the obligation

. ” Gnerer v. Johnson , 227 S.W.3d 385, 387 (Tex. App.

— Tex arkana 2007 , no pet. )

. Th e Tyler Court of Appeals described a repayment pla n as fo llows: “ [T] he borrower was allowed to repay the loan in unequal monthly installments by making eleven monthly installment [s] of $200.00 and a final balloon installment of $ 9,671.34. ” Talbert v. Fir st Na t ’ l Bank in C enter , 664 S.W.2d
126 , 131 (Tex. App.

— Tyler 1983 , writ re fuse d n.r.e.). We consider the Legislature ’ s silence to

4 Penta cite d , “ ’ Installment, n1. ’ Oxford English Dictionary Online, March 2022, https://www.google.com/search?q=installment+definition&rlz=1C1GCEU_enUS966 US96 6&oq=installment+definition&aqs=chrome..69i57j0i512l3j0i22i30l 6.3221j1j7& s our ceid=chrom e&ie=UTF

- 8 , Accessed 2 May 2022. ”

5 Pent a cite d , “ Installment

. The Law Dictionary , 2002, Anderson Publishing Compa ny
. ”

6 See, e.g., CDB Software, Inc. v. Kroll , 992 S.W.2 d 31, 38 (Tex. App.

— Houston [ 1st Dist.] 1998 , pet. denied ) ( loan “ payabl e in five

- year installments, with a balloon pay ment due in May 199 5 ” ) ; Gen eral Fin. Se rvs., Inc. v. Prac tice Place, Inc. , 897 S. W.2d 516, 518 (Tex. App.

— Fort Worth 1995 , no writ ) ( “ p ayable i n quarterly installments, with a balloon payment due ” )

.12 mean that t he term “ installment ” is not limited to equal payments an d does not exclu de a balloon
paym ent. Here, the paym ents d ue were eleven installment s comprising interest plus no p rin cipal, follo wed b y a twelfth payment comprising interest plus all prin cipal. 7 We conclude that t he balloon payment i s an “ installment ” within the meaning of Texas Financ e Code § 306. 006(1). 8 Penta argues that the delinquency charge is interest a nd , when added to the 18 % interest charged upo n his default, exceeds the maximum amount allowed. But the Note ’ s terms fit the statutory param eters for allowable delinquency ch arges, which are not i nterest

. A s set out above, “ interest ” i s “ compensation fo r the us e, forbearance, o r detention of money ” and not

“ compensation or other amounts that are determined or stated by this code

. . . that are permitted to be contracted for, charged, or received i n addition to interest in connection with an extension of credit. ” Tex. Fin. Code § 301.002(4). Delinquency charges are such a permitted non

- interest charge. P arties to a commercial loan may agree to “ a delinquency charge on the am ount of any installmen t or other amount in default for a period of not less than 10 days in an amount not to exceed five percent of the total amount of the in stallment . . . . ” Id. § 306.006. Pen ta and ESC reached such an agreement in the Note :
If a pa yment is ma de 10 days or more late, Makers will be charged, in addition to inter est, a delinqu ency charge of 5% of the unpaid portion of the regularly scheduled payment. Additionally, upon maturity of this Note, if the outstanding

7 The fa c t that the del inquency charg e c an be assessed on the entire pr incipal balance on t he unpaid balloon payment does not al ter our con clusion. In a n agreement where installment payments were eq ual and in cluded prin cipal, the delinquency charge could have bee n asses sed on the entire princip al if the debtor mad e late payments on every install ment including principal.

8 O ur c o n clusion is consistent with t he ho lding of the Waco Court of Appeals in Carter v. Enn is Paint, Inc. , No. 10

- 13

- 00118

- CV, 2014 WL 60919 48, at *3 ( Tex. App.

— Waco Nov. 13, 2014, no pet.) (mem. op.) . That court held that a 5% delinquency charge could be assess ed against the entire amount due w hen a note was accelerated

. Id

.13 principal balance (plus all accrued but unpaid interest) is not paid within 10 days of the maturity date , Makers will be charged a d elinquency charge of 5% of the sum of the outstanding principal balance (plus all accrued but unpaid interest ). Makers agree with Holder that the c harges set forth herei n are reasonable compensati on to Holder for the handling of such late pa yments.

T h e provision meets the statutory parameters for when the char ge can be assessed (when t he payment was 10 days late) , the amount that can be assessed (5 % of the unpaid outstanding prin cipal installment) , and why it can be collected ( as compe nsation for the h andling of the late payment)

. Se e id. Because the delinquency charge is , by terms of the Note , a handling fee for late payments , the trial court did not e rr by concluding that the $25,613.85 was not inter est a nd did not cause the Note to charge a usuriou s interest rate

. We overrule issue four

.
Settlement and compromise By issue five, Penta contends that the trial court erred as a matter of law by rej e cting h is affirmative de fense of compromise and settlement that wa s base d o n t he theory that the Rule 11 a greement con trolled the amount o f damages available to ESC. Penta bore the burden of pro of on his affirmative defense

. See Te al Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass ’ n , 593 S.W.3d 324, 333 (Tex. 202 0) ; Zorrilla v. Aypco Const r. II,
LLC , 469 S.W.3d 143, 156 (Tex. 2015 ) . Accordingly , we will const rue th is issue as an assertion by Penta that he proved, as a matt er of law, all vital f acts in support of his affirma tive defense

. RM Crowe Prop. Servs. Co. , L.P. v. Strategic Energy, L.L.C. , 348 S.W.3d 444, 448 (Tex. App.

— Dallas 2011 , no pet. )

. When assessing a matter

- of

- law challenge, w e first examine the record for evidence that supp orts the adverse finding, cred iting favorable evidence if a reasonable f act finder14 could, while disr egarding all evidence to the contrary, unless a reasonable fact finder could not. City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005); Dow Chem. Co. v . Francis , 46 S.W.3d 237, 241 (Tex. 2001)

. If there is no evidenc e to s upport the adverse finding, w e then examine the entire record to determine if the contrary proposition is established as a matter of law. Dow , 46 S.W.3 d at 241. The issue will be sust ained only if the contrary pro position is conclusively established. Id

. W hen one or more elements of a cause of action have been found by the trial court in the c ourt ’ s findings of fact and conclusions of law, omitted unrequested el ements, when supported by evidence, will be supplied by presumption in support of the ju dgment

. Tex. R. Civ . P. 299. Thu s, when the trial court makes express findings on at least one element of a claim, implied findings on the omitted unrequested element s are deemed to have b een made in support of the jud gment. See Vickery v. Comm issio n for Lawy er D iscipline , 5 S.W.3d 241, 252 (Tex. App.

— Houston [14th Dist.] 1999, pet. denied). It is the appellant ’ s duty to attack the express and implied findings. Long v. Long , 234 S.W.3d 34, 4 2 (Tex. App.

— El Paso 2007, pet . denied). Penta contends that the t rial court should have concl uded that ESC breached the Rule 11 agree ment by see king in thi s lawsuit a deficiency based on costs and charges that accrued after the May 28, 2019 filing of th e Rule 11 agreement. A breach

- of

- contract claim requires proof of ( 1) a valid contract, (2) per forma nce of the contract by the claimant , (3) breach by the other party, and (4) dam ages to the claimant. See USAA Tex. Lloyds Co. v. Men chaca , 545 S.W.3d 479, 501 n.21 (Tex. 2018).15 The parties ’ disagreement centers on the me anin g of the P ayoff P rovisio n , numbered paragraph 4 of the Rule 11 agreement

. 9 I n that pr ovision, Penta agreed “ that the payoff for Defendant ’ s Real Estate Lien Note dated February 7 , 201 8 shall include all unp aid prin cipal, all un paid interest at the ori gin a l unmatured rate, and co llection costs to date. ” Elsewhere in the Rule 11 agreement , ESC agreed not to foreclose on the property until August 6,
20 19. Pe nta agr eed to dismiss the sui t for injunctive relief , n ot seek an injunction against the August f orec losure , and not declare bankruptcy to avoid the debt to ESC. Penta did not attempt
to enjoin the foreclosure, file bankru ptcy, or pay off the N ote.
Penta a rgues th at the Rule 11 agreement limit ed his liability in exchange f or him
agree ing not to fur ther delay the foreclosure o r see k a bankruptcy stay. By contrast, ESC contends tha t the R u le 11 agreement d efined a lower

- cost am ount to pay off the loan that P enta did not avail him self of and tha t the Note and its terms controlled the foreclosure s ale and computation of the a moun t owed and the d eficiency. Penta testified that he unders t ood that the parties were r es olving their disputes in the Rule 11 agreement and not merely delayi ng them. He argues that it would make no sense to merely d elay the fore closure without further conc essions from ES C and to give up his right to injunc tive or ban kruptcy relief in e xchange for nothi ng.

9 Penta argues that the Rule 11 agreeme nt is ambiguo us. Ambig uity mer ely allow s the court to consi de r evidence extrin sic to the contract and to consid er extraneous matters to construe the provision. S ee Mescalero Energy, In c. v. Under writers Indem. Gen. Agency , 56 S.W. 3d 313, 319 (Tex. App.

— Houston [ 1st D ist.] 2001 , no pet .). ESC contends that the tr ial court correctly found that the agreeme nt was not ambiguous but does not cite wher e that finding occurred. We see no such finding in t he judgment or fin dings of fa ct and conclusion of law. In open court, i n context of a dis cussion of the parties ’ under standing of the meaning of the P ayo ff P r ovision , the trial court stated, “ It

— it doesn ’ t say either of t h ose things. But I und erstand that those are the specific things that you all think that it m eans. ” For p urposes of thi s op inion , we will assume witho ut deciding that the agreement is a mbiguous

. Assuming ambiguity in f avor of Penta does not alter our resolution of the ap peal. See Tex. R. App. P. 47.1.16 But Penta did not get nothing i n exchange for his con cessions

. He ga ine d a litigation

- free delay of foreclosure for t h ree mo nths , during which he attem pted to sell the property for an amount that would have recouped more than the foreclosure sale did

. ESC extend ed a lower intere st rat e for the payoff in ex change for full payment of the N ote without the expense of forecl osure. Penta did not exercis e his right to pay off t he Note at the lower rate. The record supports th e trial court ’ s implicit conclusion that , absent th e payoff, ESC could
pursue foreclosu re under the previous agree ments. T he record does not demonstrat e as a matter of law that ESC brea ched the Rule 11 a greement or that its terms affected th e amounts ESC could recover through foreclosure when the foreclosure

- postponeme nt period expired.
We overrule issue five

.
Def i ciency By issue six, Penta contends tha t the t rial court e rr ed in determin ing the amount of deficiency that existed as pres cribed by Texas Property Code § 51.003. He reiterates his
conten tions (1) that the R ule 11 ag reeme nt limited his indebte dness under the N ote to the unpaid
p r i n cipal, unpai d inter est at the unmatured rate, a nd collection costs as of the date of the agreement ; (2 ) that the trial court erred in determining t he fair market value of the proper ty; and ( 3 ) th at the court erred in award ing the 5% delinquenc y charge. We will not re visit t he se arguments addresse d abo ve but note t hat the deficiency is reduced to address the reduced interest
rate properly applica ble in February 2019

. We sustain issu e six to the e xtent that it concerns the er roneous award of interest at the higher rate for Fe br uary 2019. Otherwise, we o verrule issue six

.17 CONCLUSION
We modify the judgment by reducing the $ 47,641.68 in interest found by the trial
court to $39,957.62

. We further modify the judgment by reducing the damage awar d to $107,271.37. We affirm the judgment as modified.

____________________________________ ______ Darlene Byrne , Chief Justice Before Chief Justice Byrne, Justice s Tri ana and Smith Modifi ed in Part, Affirmed as Modified Filed: October 31, 2023