Court of Appeals of Texas, Second District, Fort Worth
COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY TRIAL COURT NO.
WALKER, MEIER, and SUDDERTH, JJ.
MEMORANDUM OPINION 
legal sufficiency issue and five factual sufficiency issues,
Appellants Miguel Ponce and Chrystal Ponce appeal the trial
court's judgment for Appellees James Diaz Jr. and Mary
Diaz. We affirm.
Factual and Procedural Background
trial, the parties agreed to these facts:
is a roofer. James and Mary, his wife of over forty years,
had a leaky roof over the porch of their residence on Wilson
Road. When James and Mary spotted some leftover roofing
material in the back of Miguel's truck, which was parked
at his house, they stopped to ask him about purchasing the
materials. Miguel was not home at the time, but his wife
Chrystal took down James's name and phone number and
handed Miguel's business card to James.
point, Miguel went to the Diazes' home and examined their
roof. He reported that the roof needed a lot of work, and he
offered to repair it. James told him that he could not afford
to repair the whole roof because he owned another house
(hereinafter, "the McCart house") that he was
trying to sell, but if he could sell the McCart house, then
he would probably call Miguel for the roofing job on their
Wilson Road home.
James and Miguel went to the McCart house and looked at it,
inside and outside. By everyone's account, the house was
in bad condition at that point. After seeing the McCart
house, Miguel offered to buy it, and on November 15, 2012,
all four parties met at the Ponces' house to discuss the
terms of the sale. During that meeting, Chrystal wrote out an
agreement, which all of the parties signed.
the parties agreed that Miguel would purchase the McCart
house for $30, 000, which would be paid "in two years
from the current date of November 15, 2012, " and that
Miguel would receive a $10, 500 credit against the purchase
price for "doing the roof and siding" on the Wilson
Road home. The agreement also provided that James would
receive an unspecified amount "at the closing of the
property" and that James would get "the remainder
of his property" within two years:
James did not read well, Mary read the agreement to him after
they returned home that evening.
James told Miguel that he would give him the key to the
McCart house once he removed his personal property from
inside of it. In December 2012, after James removed his
personal property from inside the McCart house and after
Miguel gave the Diazes $3, 000, James handed over the key to
the McCart house to Miguel.
notes written and typed on the face of the parties'
written agreement, indicated the following payments were made
by Miguel during the first year:
• On November 27, 2012, Miguel paid $2, 000, leaving an
outstanding cash balance due of $17, 500.
• On December 13, 2012, Miguel paid $3, 000, leaving
an outstanding cash balance due of $14, 500.
• On June 27, 2013, Miguel paid $1, 000, leaving an
outstanding cash balance due of $12, 500.
• On October 29, 2013, Miguel paid $1, 000, leaving an
outstanding cash balance due of $11, 500.
• On November 15, 2013, Miguel paid $1, 000, leaving an
outstanding cash balance due of $10, 500.
And a notation near the entry reflecting Miguel's
November 15, 2013 payment recited that the total amount of
cash that the Diazes had received to date was $9, 000.
August 2013, Miguel entered into an agreement to lease the
McCart house to Benny Lara, and he began collecting rent of
$650 per month from Lara in September. A copy of this lease
agreement was admitted into evidence.
paid all of the property taxes on the McCart house for 2013.
For 2014, Miguel paid half of the property taxes and James
paid half, although the record is unclear as to whether this
was by agreement, design, or happenstance.
parties agreed that a breach occurred in February 2014, but
they disagreed as to which of them committed a breach and in
what order. The parties do not dispute that Miguel never put
the roof on the Diazes' house and that although Miguel
installed some siding on the Diazes' house during the
first year of the agreement, he failed to paint it, as he had
agreed to do. Nor do the parties dispute that the Diazes did
not receive the full $30, 000 by November 15, 2014, and that
the Ponces still owed money on the house on that date. The
precise meaning of the contract and many other events that
transpired after its execution were contested at trial.
testified that his understanding of the agreement was that he
was buying the McCart house for $30, 000, that he was going
to put $10, 500 of work into the Wilson Road house, and that
he was going to pay the balance "on the closing in two
years." While he admitted that he did not pay the
outstanding balance by November 15, 2014, two years later, he
explained that he did not do so because litigation had
already commenced by then. And while Miguel did not
characterize the interim payments he made to James as down
payment installments, he did confirm that he made periodic
payments to James totaling $9, 000 over a period of time
subsequent to the signing of the agreement.
regard to the siding work Miguel had agreed to install,
Miguel's testimony was inconsistent as to when he began
that work, although he conceded he never finished it. First,
he testified that he began in the summer of 2013, that he
paid five workers to do the work, that they finished the work
in five days, and that James supervised the work. Miguel said
that the siding he used was new but because it was leftover
material from other jobs, the siding was "all different
colors, " and he had planned to paint it. Later, he
testified that he did not recall when he began the work,
other than he knew that it was not in the winter and
that-except for painting-he had finished the work. In
subsequent testimony, he said that the reason he did not
paint the siding was because he had to wait until the summer
to paint it, but by that time James had said the contract was
no good and would not let him.
also admitted that one or two pieces of siding were damaged
and needed replacement and that he needed to trim a piece or
two that had shifted out of place. Again, he testified that
he needed to wait until summer to make the adjustments
"because it was in February when that happened, and [he]
couldn't cut it because the vinyl would break because it
was below 32." At trial, Miguel valued the siding he
installed at $3, 000 and estimated that the paint job would
have cost him another $800.
regard to the roof repairs on the Diazes' home, Miguel
testified that they had originally agreed to install regular
shingles for the roof. That agreement changed when Miguel
told James that he could get tin roofing for almost the same
price, even though a tin roof is typically much more
expensive. James told Miguel that he would prefer a metal
roof, so Miguel agreed to install a metal roof instead
"because [he] thought [they] were doing good on the
business deal." The tin shingles Miguel planned to use
were materials left from another, bigger job; they were
scratched and in assorted colors but were otherwise new, and,
as with the siding, "all [they had] to do [was] just
paint them." But Miguel admitted that he never put the
roof on James's house, again because James told him the
contract was no good and would not allow Miguel to do the
work. Miguel estimated that the labor for the roofing
installation would have cost around $800.
to Miguel, he was in the process of leaving the roofing
materials at James's house in February 2014 when James
told him that he wanted more money. Miguel replied that he
could not give James any more money because they needed to
reserve some money for the closing. Miguel testified that he
then offered to James, "[L]et me finish the roof and
paint the house, and then we'll discuss that." When
James insisted that he needed the money, Miguel said that he
proposed going to closing right then. Miguel claimed that it
would have taken $10, 000 to close and that he had $10, 000
asked why he did not pay James at least a part of the $10,
000 he claimed to have had on hand, Miguel testified: "I
didn't want to give him the money. I said, let's go
close, because I've already given you too much money. I
said, let's go to close. He says, no, I want you to
finish the project here first. I said, okay."
James pressed him about finishing the work, Miguel said that
he told James,
I said, the siding needs to be painted in the summertime.
That's when I want to do the roof, I said, first, and
then we'll come back and paint the siding. And there
were, like, one or two pieces that were out of place. Siding,
during the wintertime and the summertime, it moves, so I just
needed to cut it a little bit, like a length, in order - -
it's, like, two pieces that I saw that were damaged that
I needed to cut. So I said I couldn't cut it, because it
was in February when that happened, and I couldn't cut it
because the vinyl would break because it was below 32. I
said, in the summertime, I'll come and fix that.
Meanwhile, I said, I got all the material here for the roof.
I just need to do the roof first, and then we'll do all
the painting later, so that's when he said that the
contract is no good.
Miguel said that James reiterated his insistence that the
contract was no good in a later phone conversation when
Miguel requested that they go to closing. Miguel also claimed
that he twice offered to pay James all of the money before
the November 2014 deadline if James would give him the deed
and that he even offered James more money to close because he
had not completed the agreed-upon work.
regard to the McCart house, Miguel said that his original
plan had been to demolish the McCart house, but after
receiving the key from James in December 2012 he saw that it
could be remodeled, so he decided to convert it into a rent
house instead. He testified that he had replaced the wiring
and sheetrock and reinstalled the plumbing because the copper
pipes had been stolen. According to Miguel, he hired four
workers to clean up the McCart house, taking "at least
four trailers of trash to the dump." Miguel's
workers lived in the house for a month or two while painting
and cleaning it. Miguel estimated that he put approximately
$10, 000 worth of materials and labor into the McCart house.
testified that at one point, the wind had caused a tree to
fall on the shed, that he had notified James and Mary, and
after they came over and took everything they wanted, he then
cut up the shed and cleaned up the debris. According to
Miguel, at the time he demolished the shed, none of
James's personal property remained inside. Yet in March
2014, Miguel filed a small claims action and a sworn
complaint for eviction seeking an order to compel James to
remove his property from the garage of the McCart