### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00713- CV

Tam ara Lynn Ramaker , Appellan t

v. Jeanett e Abbe, G ary Hobbs, Denise Lackey, Sh elly Matt son, S tacy M cCoy, Anita P aniagu a and Amber

Ross, Appellees

F ROM TH E CO UNTY COURT AT LAW NO . 4 O F WI LLIAM SO N COUNTY NO. 09- 0633 -CC4, HO NORAB LE JO HN MCM ASTER, JUDGE P RESIDING

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

Tamar a L y

nn Ramaker appea ls from the judgme nt that she take nothing by her claims for brea ch of contra ct ag ainst appellee s J eane tte Abbe, Gar y Hobbs, Denise L acke y , Shelly Mattson, Stacy McCoy , Anita Paniag ua and Amber Ross, and that appellee s rec over $5,000 in attorney ’s fee s from her. On appea l, Ramaker challeng es the trial court’s deter minat i o n s t h at the appellee s

wer e justified in repudia ting their boarding co n t ra ct s based on a brea ch by Ramaker and that appellee s wer e entitl ed to attorney ’s fees. Ramaker also contends that the trial court erre d by concluding that Ross, an instructor who taug ht horse- riding lessons at app el l an t ’s s table, did not brea ch a Riding I nstructor Ag ree ment betwee n them. We will aff irm the judgme nt with r espec t to the Boarding Contract, reverse the j udg ment with re s p ec t t o the R iding I nstructor Agr eeme nt and the attorne y ’s fe es aw ard, a nd rema nd this cause to the tria l court for further proce eding s.BACK GR OUND Appellee Ross g ave horse- riding lessons for the other appellee s an d a r r a n g ed to board appellee s’ horses at Ramaker ’s stables. Ross’s lessons wer e cover ed by a written Riding I nstructor Ag ree ment that re q uired Ross to pay a fee when she taug ht a lesson at Ramaker ’s stables. The
presc ribed fee varie d depending on the number of students, whethe r t he horses wer e boarde d at Ramaker ’s s t ables, and the leng th of the lesson. The ag ree ment also stated that any additions or chang es to the ag ree ment had to be made in writing.

Ross did not pay any fe es t o R amaker for lessons she conducte d at Ramaker ’s stables i n M ar ch 2009. Ross testified that she and Ramaker modified the ag ree ment via email to provide that Ross’s obliga tion to pay lesson fee s arose only if the student paid a fee for a particula r lesson in addition to the g ener al training fee R o ss char g ed. These emails wer e not offe red as evidenc e at tria l.

The boarding of appellee s’ horses was cover ed by a separ ate written ag ree ment. The
Boa rding Contract permitted Ramaker to terminate t h e co n t ra ct at her discretion, but require d b o ar d er s t o g ive 30 day s written notice befor e terminating pay ment. The Boa

rding Contract als o states as follows:

12. RUL ES AND REGUL ATI ONS—The Owner [of a boar d ed h o rse] ag ree s to abide by all the rules and reg ulations of the Stable and acknow ledg es rec eipt of same. Rules are posted on the bul letin boards a nd are subject t o chang e. Updates will be posted on the bulletin board and/or via e-ma il. Observa nce of the rules is absolutely mandatory and failure to obey the rules will result in Owner and horse( s) being asked to leave the Stables immediately and obtain boar ding e lsewher e.

The “Safe ty ” section of the stable’s rules and reg ulations states plainly : “No smoking in the barns.”

2Af t er a boarde r saw and photogr aphed Ramaker ’s employ ee smoking wh i l e working in the barn, appellee s remove d their horse s fr o m t he stables. They did not g ive 30 day s notice befor e leaving and did not pay for the month afte r removing their horses as presc ribed by the
Boa rding Contract.

Appellee s filed suit, seeking decla rations that (1 ) t h e b oarding contra cts are illusory and/or unenfor cea ble, (2) Ramaker , not appellee s, brea ched the boardi n g co n trac ts, and (3) appellee s do not ow e Ramaker under the boarding contra ct. Ramaker filed counter claims, alleg ing that (1) appellee s brea ched their boarding contra cts by removing their horses without notice and faili n g t o p ay require d fee s, (2) appellee s made promises on which Ramaker relied by hiring worke rs and buy ing supplies, (3) appellee s Ross and Mat tson willfully and intentionally induced the rema ining appellee s to brea ch their contra cts, (4) appellee s conspired to interfe re with eac h others’ contra cts by org anizing the reloc ation of the horses to another boarding fac ility , and (5) Ross brea ched the Riding I nstructor Ag ree ment by failing to pay fac ility -use fee s based on the number of lessons g iven. After hear ing testimony and admitting evidenc e in a brief bench trial, the trial court rende red a judgme nt de clar ing that Ramaker (and not the appellee s) brea ched the riding -instructor
ag ree ment and the boarding contra cts, concluding that Ramaker take nothing by her counter claims, and aw arding appellee s $5,000 in attorney ’s fe es without specify ing a basis for the a

war d.

DISCUSSIO N Ramaker contends that the trial court err ed b y c o n c lu d in g th a t a p p ellees wer e justified in repudia ting their boarding contra cts based on a brea ch by Ramaker , that Ross d i d n ot brea ch the Riding I nstructor Ag ree ment betwee n them, and that appellee s wer e entitled to attorney ’s fee s. 3I n her reply brief, Ramaker asser ts that the decla

ratory judgme nt act is not a proper v eh i cl e fo r attorney ’s fe es in this case.

Be cause this wa s a non-jury trial in w hich no finding s of fac t or conclusions of law

wer e filed, we must presume that the trial court made all the n ec es s ar y fi n d ings to support its judgme nt. See Pharo v. Chambers Cnty. , 922 S.W .2d 945, 948 (Tex. 1996). We must aff irm the trial court judgme nt on any leg al theory that finds support in the evidenc e. See W orford v. Stamper , 801 S.W .2d 108, 109 (Tex. 1990). I n a trial to the court in which no finding s of fac t or conclusions of law are filed, the trial court’s judgme nt impli es all finding s of fa ct nec essar y to support it. Spir
Sta r A G v. K

i mi ch , 310 S.W .3d 868, 871-72 (Tex. 2010). When a repor ter’s rec ord is filed, howeve r, these implied finding s are not conclusive, and an ap p el l an t may challeng e them by raising sufficie ncy

of the e vidence issues. Sixth RMA Partners, L.P. v. Sibley , 111 S.W .3d 46, 52 (Tex. 2003). When such issues are raised, the applicable standard of revie w is the same a s that to be applied in the review of jury fi ndings or a trial court’s findings of fac t. Roberson v. Robinson , 768 S.W .2d 280, 281 (Tex. 1989).

The Boardin g Contrac t

Ramaker contends that the t rial court err ed by finding that appe l l ees were justified in repudia ting their boarding contra cts based on a brea ch by Ramaker

. She contends that appellee s failed to show that she materia lly brea ched the contra ct as re quired to per mit their noncompliance with the contra ct

. S

ee L a zy M Ranch, L td. v. T XI Ops. , LP , 978 S.W .2d 678 (Tex. App.—Austin 1998, pet. denied)

.

When one party to a contra ct commits a materia l brea ch of that contra ct, the other party is discharg ed or excu s ed from further perf ormanc e. Mustang Pipeline Co. v. Driver
4Pipeline Co ., 134 S.W .3d 195, 196 (Tex. 2004). The c ovenant br eac hed must be par t of mutually depende nt promises in order to excuse furthe r p erformanc e by the nonbrea ching party

. Hanks

v. GAB Bus. Servs., Inc. , 644 S.W .2d 707, 708 (Tex. 1982). Gene rally , the issue of whether a brea ch rises to the level of a materia l br eac h that will rende r the contra ct unenfor cea ble prese nts a dispute for resolution by the trier of fac t. Hiles v. Arnie & Co., P.C. , 14-12-00088- CV, 2013 WL 2120658, *8 (Tex. App.—Houston [14t h Dist.] Apr. 25, 2013, pet. filed) (citing Cont’l Dredging, Inc. v. DeKaize r ed , In c. , 120 S.W .3d 380, 394-95 (Tex. App.—Texarkana 2003, pet. denied)

. The dete rm i nation of whether a brea ch is a materia l brea ch of the contra ct nece ssarily turns on the fac ts of eac h case . Advanc e Components , In c. v. Goods tein , 608 S.W .2d 737, 739 (Tex. Civ. App.—Dallas 1980, w rit ref ’d n.r.e .) ( citing Bowen v. Briscoe , 453 S.W .2d 287, 289 (Tex.1970)). Citi ng the Restatement (Second) of Contracts, section 241 (1981), the Texas Supreme Court noted five c ircumstance s signific ant in deter mining whe ther a

failure to perfor

m is material:
(a) the extent to which the injured party will be d ep ri v ed of the benef it which he rea sonably

expected; (b) the extent to which the injured party can be adequately compensa ted for the part of that bene fit of which he will be deprive d; (c) the extent to which the party failing to pe rfor m or to of fer to pe rfor

m will suffe r forf eiture; (d) the likelihood that the party failing to perf orm or to offe r to perf

orm will cure his failure , taking acc ount of the circ umstances including any rea sonable a ssuranc es; (e ) the extent to which the behavior of the party failing to perf orm or to offe r to perf orm comports with standar ds of g ood faith and f air de aling

. Mustang Pipeline , 134 S.W .3d at 199. Another fac tor rele vant to assessing t h e materia lity of the brea ch is the extent to which it rea sonably appea rs to the i n

j u re d p ar t y that delay may preve nt
5or hi n der him in making rea sonable substitut e arr ang ements. Id. (citing Restatement (Second) of

Contracts § 242 (1981) ).

Although Ra maker

did not expressly challeng e the suff iciency of the e vidence , her complaint that the trial court err ed by finding a materia l brea ch implicat es t h e s ufficie ncy of the evidenc e. When revie wing leg al sufficie ncy of the evidenc e, we revie w the evidenc e i n the light

most favor able to the challeng ed finding and indulge ever y rea sonable infere nce that would support it. City of Keller v. W

ilson , 168 S.W .3d 802, 822 (Tex. 2005). We must c redit evidenc e favor able

to the trial court’s decision if a rea sonable fac tfinder could and disreg ard all contra ry evidenc e that

a rea sonable fac tfinder could ignor e. Id

. at 827. We will sustain a n o-evide nce complaint when the record shows that (1) there is a co m p l et e absenc e of a vit al fact, (2) the court is barr ed by law

or the rules of evidenc e from considering the only evidenc e offe red to prove a vi tal fac t, (3) the

ev i d en ce offe red to prove a vital fac t is no more than a mere scintilla, or (4) the ev i d en ce conclusively establishes the opposite of a vital fac t. Servic e Corp. Int’l v. Guerra , 348 S.W .3d 221,
228 (Tex. 2011). More than a scintilla of evidenc e exis ts if the evidenc e “rises to a level that would enable rea sonable and fair- minded people to differ in their conclusions.” Id

. When a party attacks the fac tual sufficie ncy of the evidenc e on an adver se finding on an issue upon which the other party had the burden of proof, the attack i n g p arty must show that the evidenc e is insufficient to support the finding

. McM illin v. State Farm Lloyds , 180 S.W .3d 183, 201 (Tex. App.—Austin 2005, pet. denied) . We must consider and we igh a ll the evidence , and we should set aside the judgment only if it is so contra

ry to the overw helming weigh t o f the evidenc e as to be clea rly wrong . Cain
v. Bain , 709 S.W .2d 175, 176 (Tex. 1986).

6Ramaker contends th at the prohibition on smoking was not a condition of the contra ct

and that its violation by a stab le employ ee was not materia l so as to justify canc ellation of the

contra ct. She re lies on this formulation of the applica ble law:

I f the terms of a contra ct are fairly susceptible of an interpre tation which will preve nt a for feiture , they will be so construed.

. . . Unless the conside ration in a c ontrac t is expressed in terms w

h ic h u n mi s takably will demand a forf eiture for nonperf

ormanc e, a mer e bre ach of

such terms will not authorize the ca ncellation of the contra ct.

Henshaw v. Texas Natural Res. Found. , 216 S.W .2d 566, 570 (Tex. 1949); see also Reilly v. Rangers Mgmt., Inc ., 727 S.W .2d 527, 530 (Tex. 1987)

. I n a m o re rec ent case , the Texas Supreme Court explained further that a “cove nant, as distinguished from a condition prec edent, is an ag ree ment to
act or ref rain from acting in a cer

tain way . Br eac h of a covena nt may g ive rise to a cause of action for damag es, but does not aff ect the enfor cea

bility of the rema ining provisions of the contra ct unless the breach is a material or total breac h .” Solar Applications Eng’g, Inc. v. T.A. Operating Corp. , 327 S.W .3d 104, 108 (Tex. 2010) (citation omitted) (empha sis added)

. For feiture s will be 1
avoided unless contra ct lang uag e admits of no other construction or results in a construction that is unreasona

ble, inequitable, or

oppressive. Lazy M Ranch , 978 S.W .2d at 681 (citing Reilly , 727 S.W .2d at 530).

Ramaker als o contends that appellee s’ claim fails beca use they proved no damag es. 1 Appellee s did not seek damag es, however, only a declara tion that they wer e ex cused from further perf ormanc e by Ramaker ’s materia l brea ch of the contra ct. The Texas Supreme Court’s formulation o f t h e s tandar d for finding a materia l brea ch that excuses further perf ormanc e does not require a finding of actua l damag es. See Mustang Pipeline Co., Inc. v. Driver Pipeline Co., Inc. , 134 S.W .3d 195, 199 (Tex. 2004); see also Hernande z v. Gulf Group Lloyds , 875 S.W .2d 691, 693 (Tex. 1994). 7The trial court conclude d that Ramaker materia lly brea ched the contra ct, but did not

make written finding s or conclusions. We must m ake f indings ne cessa

ry to support the judgme nt so long a s those finding s are supported by the re cord. W

orford , 801 S.W .2d at 109. 2
L eg ally and fac tually sufficie nt evidenc e supports an implied finding that the safe ty and secur ity of the horses—spec ifically , protec tion from fire cau s ed by cig are tte smoking—wa s part of the contra ct betwee n the boarde rs and Ramaker

. The Boa rding Contract provided that “Stable
ag ree s to provide ade quate f eed and facilities for normal and reasonable car e re quired to maintain the health and well-be ing of the horse( s).

. . . The standard of car e ap plicable to stable is that of ordinary car e of a prudent horse owner .” The Boa rding Contract incorpora

tes the rules into its terms by providing that the horse owner “ag ree s to abide by all the rules and reg ulations of the stable.

. . . Observa nce of the rules is absolutely mandatory and failure to obey the rules will result i n Owner

Although there are no written findings of fact or conclusions of law, the court stated the 2 following on the re cord a t the end of the trial Now, it is rea sonable for the Court to assume that one of t h e p ri m ar y reasons that people, or one of the primary conce rns that’s in peoples’ minds when they board their animals, which I understand are prec ious to them, is tha t those animals be in a safe , secur e place

. . . . Ramaker Stables, [m ade] a rule about no smoking very clea r under No. 15 under Safety , y ou shall not smoke

. . . I find that Ms. Ramaker broke her own rule. Her employ ees act as her ag ents, they are an extension of her. . . . [The] Court finds that there was a materia l brea ch in the contra ct by Ms. Ramaker causing these people t o b el i ev e that their animals are no longe r housed in a safe and secur e location. Ther efor e, their immediate remova l of those animals the Court finds as a rea sonable re sponse to that, to what they had witnessed. This statement contains fac tual finding s not made in the wri t t en j u d gm ent. We are not bound by the court’s oral statement beca use the written judgm en t co n t ro ls over the oral statement. See Thomas v. Martinez , 217 S.W .3d 680, 684 (Tex. App.—Dallas 2007, no pet.); Nine Gree nway Ltd. v. Heard, Goggan, Blair & W illiams , 875 S.W .2d 784, 787 (Tex. App.—Houston [1st Dist.] 1994, writ denied)

. We can, however , infer findings and conclusions t hat s upport the j udg m en t an d are supported by

the re cord. W

orford v. Stamper , 801 S.W .2d 108, 109 (Tex. 1990).

8and horse( s) being asked to leave t he Stables immediately and obtain boarding elsewhe re.” The

stables would not ref

und rents paid if the stables reque sted the b o ar d er to leave

. The Ramaker Stables Rules and Reg ulations stated in its prea mble in p ar t as fo llows: “The se rules are an extension of y our boarding contra ct. Non-c ompliance is a brea ch of contra ct. Observa nce of these rules is absolutely mandatory .” The rules are a mix of direc tives to “y ou” owner s and o b jective decla rations of rule s of the stables. There is no pr ovision directly addre ssing whe ther stableha nds

are bound o r exempt from the rules, but the clea r implication—at least of objectively stated rules—is that all persons at the stables are bound by them. Rule 15 provided in rele vant p ar t as fol l o ws : “S af

ety —Absolute[ly ] NO GL ASS is allowed on the premises. No alcoholic drinking while ridi ng . I f any medication y ou[] are taking states not to drive or may cause [] drowsiness, do

not ride either. No smoking in the barns.” The smoking ban is not limit ed to the horse owner s but is stated as a g ener al prohibition. The rec ord supports an impl i ci t fi n d i n g that the smoking ban applied to eve ry one in the bar n, including Ra maker

and her employ ees. The parties disputed whether the stablehand smoking in the barn was a minor issue

or was inconsistent with a core service of the stables—maintaining the health and well-be ing of the horses as would a prudent horse owner . Ramaker ag ree d when testify ing that her “sole job in taking in other’s animals for boarding is to g ive those animals a safe place to live,” and ag ree d that “fire is

a dang er to the car e and safe ty of horses.” But she asser ted that the smoking ban was based on her pref ere nce, “ not a safe ty

issue.” She downplay ed the risk posed by the smoking employ ee, noting that he wa s s t an ding on a concr ete surfa ce—a lbeit leaning into a stall—and held a g arde n hose. Ramaker also produce d an email from appellee Denise L acke y that Ramaker arg ues shows that disputes over the proper amount of s h av i n gs for L acke y ’s horse’ s stall floor wer e a much bigg er

9fac tor in L acke y ’s depar ture than the smoking inci d en t

. L ac key beg an the email talking about the shaving s, but also wrote as follows: “Of even more importance , y ou also brea che d y o u r o wn
contra ct by knowing ly allowing y our staff and others to smoke in the barn, (witnessed by my self and well documented) wher e my horse was stalled. This showed a willful disreg ard for the safe ty of my horse and my own safe ty when I was on the premises.” Other witnesses char acte rized the smoking ban as a safe ty -driven r

ule. Horse owner

J eane tte Abbe testified tha t “it is very unsafe for a horse

to be in an ar ea that they ’re smoking.” Abbe testified that, when she lear ned a stablehand was smoking on the premises, she decide d that her horse had to leave the stables no matter what beca use of the dang er. Her husband, Der y l Abbe, said he was conce rned “that the barn could possibly catc h fire and my horse, locked in the stable, being unable to be remove d.” Horse owner Shelly Mattson testified that she panicke d when s h e s aw the employ ee smoking beca use she felt her horse was in je opardy

. Mattson testified that she also saw Ramaker ’s boy friend smoking “out there .” When appellee s’ counsel asked a witness about the dan ger s of smoking, the court interjec ted, “As to pitching a match on hay , the Court g ets it.”
L eg ally and fac tually sufficie nt evidenc e support an i m p l i cit conclusion that the stablehand’ s violation of the smoking ban was a materia l brea ch of the contra ct. I n exchang e for the boarde rs’ money , Ramaker ag ree d to maintain the health and well-be ing of the horses as would a prudent owner . Smoking was forbidden by what the rules document itself termed a safe ty rule. The boarde rs testified that the stablehand’ s smoking in the barn left them conce rned, panicke d , and believing th at t h ei r h o rs es wer e in dang er of being trappe d in a burning barn. This supports the trial court’s deter

mination that the boarde rs rea sonably expected the Stable to comply with the safe ty provisions of the contra ct. Th e d ep ri vation of the benef it rea sonably expected under the contra ct

10supports the trial court’s finding of a materia l brea ch. See Mustang Pipeline , 134 S.W

. 3d at 199

(citing Restatement (Second) of Contracts § 241(a) ). The evidenc e also supports the conclusion that monetary damag es would not compensa te the boarde rs. One owner testified that she felt she neede d

to remove her horse “no matter what” beca use of the dang er. The discrepa ncy betwee n Ramaker ’s denial that smoking in the stable was a safe ty issue—despite the smoking ban being listed in the “saf ety ” para g raph of the rules—and the b oarde rs’ conce rns about fire supports a view that Ramaker could n o t cu re t h e problem t o the boarders’ satisfaction. Ramaker testified t hat t he boarde rs’ depar

ture infli cted unrec overa

ble losses for customiz ed fee d she had alre ady purcha sed for those hor ses and wa g es for an employ ee she had hired to car e for them. The c osts impos ed on Ramaker by her employ ee’ s misdeed, however, are not so subst antial as to outweig h the evidence favor ing the trial court’s finding that the stablehand smoking in the stable was a materia l brea ch that excused the boar ders f

rom furthe r complianc e with the B oarding Contract. Cf. Mustang Pipeline , 134 S.W .3d at 199.

I n addition to assessing this case pursuant to the Restatement’s fac tors adopted by the
supreme court, we conclude that the trial court did not err by implicitl y concluding that the contra ct is not fairly susceptible of an interpre tation that bars a forf eiture. See Henshaw , 216 S.W .2d at 570. Holding that the violation of the s m o k i n g b an was not materia l would impose an asy mmetrical rela tionship on the parties. The smoki ng ban is important to the contract—it is a rule that applies without exception and its violation expressly permits i m m ed i ate termination of the contra ct by the stable. The failure of the contra ct t o spell out the conseque nce of smoking by an employ ee of t he st ables is not dispositi ve. The risks posed by smoking in the barn—including, as i n d i ca ted by the boarde rs, a fire capa ble o f i n ciner ating the horses in their stalls—are prese nt whether the

11smoking is attributed to Ramake r or the boarde rs. The fac t tha t the safe ty -driven no-smoking rule

was violated by an employ ee of the stables who is re sponsible for providingservice s to the horses heig htens the seriousness of the brea ch. There is no evidenc e prese nted that supports an interpre tation of the contra ct to have differ ent conseque nces and reme dies depending on which party
to the contra ct smokes in violation of the rules of the stable. To hold that the stables can terminate the contra ct if a boarde r smokes in the barn, but that a boarde r lacks that reme dy when a stablehand commits the same violation, would be unreasonable, inequitable, and oppressive—f actor s that indicate materia l brea ch. See Lazy M Ranch , 978 S.W .3d at 6 8 1

. The trial court did not err by implicitl y concluding that, beca use violation of the smoking ban was a material brea ch of the

contra ct, it excused the boarde rs from f urther pe rfor

mance under the contra ct.

The Ridi ng In struct or Agr eem ent

Ramaker urg es that we rende r judgme nt awa rding her damag es for Ross’s brea ch of the Riding I nstructor Ag ree ment. She contends that no evidenc e supports the trial court’s conclusion that Ross did not brea ch t h e Riding I nstructor Ag ree ment and that the only evidenc e is that Ross brea ched it by failing to pay fee s for lessons provided at the stables. On appea l, Ross contends that the trial cour

t impli citly

found that she and Ramaker modified the Riding I nstructor Ag ree ment to permit her to provide lessons wi t h o ut pay ing Ramaker if the student did not make a pay ment specific ally

for the le sson. 3

Ross did not expressly plead that the Riding I nstructor Ag ree ment was modified. 3 Contract modificati o n i s an aff irmative defe nse, and parties must aff irmatively plead any matter constituting an a

voidance or an aff

irmative defe nse or risk waiving the unpleade d matter. Te x . R. Civ

. P

. 9 4 ; see Phillips v. Phillips , 820 S.W .2d 785, 789 (Tex. 1991). An unpleade d issue never theless m ay b e deeme d tried by consent when evidenc e on the issue is develope d under circ umstances indicating that both parties understood the issue was in the case , and the other party 12The elements of a brea ch-of -contra ct cause of action ar e t h at (1) a valid contra ct exis ted betwee n the parties; (2) one party p er fo rmed or tender ed perf ormanc e; (3) the other party brea ched the contra ct; and (4) the brea ch damag ed the perf orming party

. See C.W

. 100 Louis Henna, Ltd. v. E l C

h ico Rest., L.P. , 295 S.W .3d 748, 752 (Tex. App.—Austin 2009, no pet.). A modification of a contra ct must satisfy the elements of a contra ct: a meeting of the minds supported by consideration. Hathaway v. Gene ral M ills, Inc

. , 711 S.W .2d 227, 228 (Tex. 1986). Whether a

contra ct is modified depends on the parties’ intentions and is a question of fac t. Id. at 228-29. The burden of proving modification rests on the pa rty asser ting the modific ation. Id. at 229.
At trial, there wa s no dispute that the Riding I nstructor Ag ree ment was a valid

contra ct, that Ramaker permitted Ross to conduct lessons in her are na in Marc h 2009, and that Ross did not pay for those lessons. Unless Ross was somehow excused from pay ing fac ility -use fee s for those lessons, Ramaker

was da mag ed in the amounts she wa s not paid for the le ssons conducted.
Ross contends that the following testimony provides the nece ssary s u p p o rt for her claim of modifica tion:

A. I had emails back and forth with Ms. Tami Ramaker stating that i f m y curr ent ag ree ments for my training includes my lesson fee s and that if I did not g et extra compensa tion for those lessons then I would not g ive her c ompensation. And I had a re ply from her wher e she a cknowledg ed that.

failed to make an appropr iate complaint. Emerson Elec. v. American Permane nt W are , 201 S.W .3d 301, 309 (Tex. A

pp.—Dallas 2006, no pet.). To deter mine whether an issue wa s tried by consent, the revie wing court must examine the rec ord, not mere ly for evidenc e of the issue, but for evidenc e of trial of the issue. Id. A party who allows an issue to be tried by consent and who fails to raise the lack of a pleading befor e submissi on of the case cannot later raise the pleading defic iency for the first time on appea l. See Roark v. Stallw orth Oil and Gas, Inc. , 813 S.W .2d 492, 495 (Tex. 1991). There was some testimony on the issue, but no arg ument reg arding it. Appellant did not reply to appellee s’ claim that the issue was tried by consent, focusing instead on the merits of the arg ument. We likewise will addre ss the merits. 13Q. All rig ht. And that was the me thod y ou wer e oper ating under, c orre ct?

A. Yes. Q. Do y ou owe he r any

money ?
A. No.

No emails conc erning pay ment for lessons we re of

fer ed or a dmitted with thi s testimony

. Ross’s testimony lacks any indication of consider at i o n convey ed to Ramaker in exchang e for this alleg ed modification. Consideration is a barg ained- for prese nt exchang e in return for a promise. See Roark v. Stallworth Oil & Gas, Inc. , 813 S.W .2d 492, 496 (Tex. 1991). When

a party ag ree s to do no more than that which she is alre ady bound to do under an exis ting contra ct, the orig inal consideration for the exis ting contra ct is not sufficie nt to support a modification. Arthur J. Gallagher & Co. v

. Dieterich , 270 S.W .3d 695, 702 (Tex. App.—Dallas 2008, no pe t.). Ross’s

t es t i m ony shows that Ramaker would provide the same service to Ross under the al l ege d modification as under the Riding I nstructor Ag ree ment in r eturn for the same or no compensa tion. The rec ord contains no evidenc e of additional consideration provided for this alleg ed modification and thus no evidenc e to s upport any implicit finding that the parties proper ly modified the R iding
I nstructor Ag ree ment to excuse Ross from pay ing Ramaker fac ility -use fee s for lessons conducte d in Ramaker ’s are na during Marc h 2009. We must reve rse the judgme nt deny ing Ramaker rec overy on her c laim that Ross breache d the Riding I nstructor Ag ree ment.

Ramaker contends that we must rende r judgme nt in her favor b as ed on the

ev i dence of brea ch of the Riding I nstructor Ag ree ment. Ross admitted that she taug ht lessons i n Marc h and did not pay Ramake r fo r t h em . The trial court admitted a “L essons Boa rd” on which

14instructors wrote their names indicating when they had taug ht lessons. Ross’s name appea rs on that cale ndar e ight times in Marc h.

The rec ord does not provide sufficie nt information for us to rende r j u d g ment, howeve r. The Riding I nstructor Ag ree ment sets out differ ent amounts of fee s due depending on such fac tors as the leng th of the lesson, the number of st udents, and the boarding status of t he st udent. 4
The L essons Boa

rd lists starting t i m es for eig ht training sessions adjac ent to appellant’ s name, but lists a schedule d ending time for at most three of them, and contains no information about how long the sessions actua ll y l as t ed

. I t contains no information about the s tudents—how many there

wer e or whether they wer e boarde rs. L acking this information, we cannot calc ulate the fee s alleg edly due based on the rate s listed in the Riding I nstructor Ag ree ment. Be cause we cannot calc ulate this unliquidated damag es amount, we must rema nd t h e entire issue of the brea ch/modification of the Riding I nstructor Ag ree ment for a new tria l. See Tex. R. App. P . 44.1(b).

Attor ney’s fees

Ramaker contends that the trial court err ed by awa rding attorney ’s fee s to appellee s beca use they are based on what she arg ues is an err oneous judgme nt. Although we are aff irming the judgme nt with respe ct to claims conce rning the Boa rding Contract, we are reve rsing and rema nding the j udg ment with respe ct to claims rela ting to the Riding I nstructor Ag ree ment. The trial court

awa rded attorney ’s fee s to appellee s without apportioni ng the awa rd based on claim or individual appellee. B eca use we are reve rsing and rema nding a portion of the judg ment on which

The Riding I nstructor Ag ree ment set out the following fee structure : for a half-hour lesson; 4 $5; f or one-hour lessons for boarde rs, $10 for a private lesson, $7.50 per person for a semi-private lesson up to f

our boarde rs; and for

non-boar ders, $15 f

or a pr ivate lesson and $10 per person for a semi-private lesson. 15the attorney ’s fee s awa rd was based for further proce eding s—a portion of the judgme nt that involves only one appellee , Ross—we also reve rse the awa rd of attorney ’s fee s and rema nd that issue for

rec onsideration following further proce eding s.

CONCLUSION
We aff irm the judgme nt with respe ct to claims conce rning t h e Boa rding Contract.
We reve rse that por

tion of the judg ment finding that Ramaker take nothing on her claim that Ross brea ched the Riding I nstructor Ag ree ment and rema nd that issue for further proce eding s. We a lso

reve rse the a

war d of attorne y ’s fe es and r emand that issue f or fur ther proc eeding s.

J eff Rose, J ustice
Be fore J ustices Pury ear , Pemberton, and Rose Affir med in part; Rever sed and Rema nded in par

t Filed: Jul y

18, 2013

16