Court of Appeals of Texas, Sixth District, Texarkana
Submitted: December 27, 2019
Appeal from the County Court at Law Bowie County, Texas Trial
Court No. 18C0906-CCL
Morriss, C.J., Burgess and Stevens, JJ.
R. Morriss, III Chief Justice
this dispute arose, Billy Ray Johnson had bought a Texarkana
residence and financed his purchase through BancorpSouth
Bank. Later, Johnson sold the residence to Juan Peña
Garcia, subject to Johnson's existing bank obligation and
lien, in an arrangement under which Garcia paid Johnson $5,
000.00 down, plus $625.00 per month. At some point, however,
Johnson stopped paying the Bank, though Garcia had faithfully
paid Johnson until finding out about Johnson's default.
After the Bank foreclosed on the residence, it resold the
residence to Garcia for an additional purchase price. After a
bench trial, the County Court at Law of Bowie County found
that, because of Johnson's breach of contract, Garcia
should recover from Johnson $32, 300.00 in damages and $10,
240.00 in attorney fees.
pro se appeal, Johnson complains that the trial court erred
in excluding evidence, that the trial court erred in
admitting a buy-sell agreement, and that there was factually
insufficient evidence to support the trial court's
judgment. We affirm the trial court's judgment,
because (1) factually sufficient evidence supports the
judgment, (2) Johnson did not preserve his complaint
regarding the exclusion of evidence, and (3) Johnson did not
preserve any error regarding admitting the buy-sell
Factually Sufficient Evidence Supports the Judgment
Johnson-to-Garcia undated purchase agreement provided for the
sale of the residence located at 605 Blake Street in
Texarkana for the amount of $52, 000.00. The
agreement provided for a down payment of $5, 000.00 and
monthly payments in the amount of $625.00 to be paid to
Johnson starting on May 1, 2013. Both Garcia and Johnson
testified that Garcia had paid Johnson $5, 000.00 for the
down payment and that he had begun paying the $625.00 monthly
payment in May 2013. Garcia testified that he had made the
monthly payments through September 2017, although Johnson
thought that the last payment was in August 2017.
testified that Johnson had not disclosed that BancorpSouth
held a lien on the house, that Johnson ceased making payments
to BancorpSouth, and that Garcia stopped making payments when
he learned that Johnson was not paying BancorpSouth.
BancorpSouth foreclosed its mortgage on January 2,
2018. Garcia then entered into a buy-sell
agreement with BancorpSouth in February 2019 to purchase the
house for $46, 800.00. BancorpSouth conveyed the property to
Garcia by warranty deed with vendor's lien on March 26,
2019. The evidence also showed that Garcia incurred attorney
fees in the amount of $10, 240.00 before the hearing.
challenges the factual sufficiency of the evidence supporting
the trial court's judgment. "When challenging the
factual sufficiency of the evidence supporting an adverse
finding on which the appealing party did not have the burden
of proof, the appellant must demonstrate that there is
insufficient evidence to support the adverse finding."
Monasco v. Gilmer Boating & Fishing Club, 339
S.W.3d 828, 830 (Tex. App.-Texarkana 2011, no pet.).
"The evidence is sufficient to support the adverse
finding if the evidence is such that reasonable minds could
differ on the meaning of the evidence, or the inferences and
conclusions to be drawn from the evidence." Id.
at 830-31. "A challenge to the factual sufficiency of
the evidence will be sustained if the evidence is so weak or
the verdict is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust."
Id. at 831 (citing Cain v. Bain, 709 S.W.2d
175, 176 (Tex. 1986)). When an appeal is taken from a bench
trial, if there is sufficient evidence to support the trial
court's findings, we cannot substitute our conclusions
for those of the trial court. In re Marriage of
Braddock, 64 S.W.3d 581, 585 (Tex. App.-Texarkana 2001,
no pet.). When the trial court does not enter findings of
fact, we "will assume that the trial court made implied
findings of fact that support its ruling as long as those
findings are supported by the record, and we will affirm the
trial court's decision if it is correct on any theory of
law applicable to the case." Id.; Point
Lookout W., Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex.
elements of a claim for breach of contract are (a) a valid,
enforceable contract, (b) performance under the contract by
the claimant, (c) breach by the defendant, and (d) an injury
to the claimant caused by the breach." Great N.
Energy, Inc. v. Circle Ridge Prod., Inc., 528 S.W.3d
644, 668 (Tex. App.-Texarkana 2017, pet. denied). An
anticipatory breach occurs when "(1) a party to a
contract has absolutely repudiated the obligation; (2)
without just excuse; and (3) the other party is damaged as a
result." Berg v. Wilson, 353 S.W.3d 166, 174
n.11 (Tex. App.- Texarkana 2011, pet. denied) (citing
Pollack v. Pollack, 39 S.W.2d 853, 855 (Tex.
Comm'n App. 1931, holding approved)). "Repudiation
may be proven by words or actions by a contracting party that
indicate he is not going to perform his contract in the
future." Braddock, 64 S.W.3d at 585 (citing
Chavez v. Chavez, 577 S.W.2d 306, 307 (Tex. App.-El
Paso 1979, writ ref'd n.r.e.)). Repudiation "is
conduct that shows a fixed intention to abandon, renounce,
and refuse to perform the contract." Id.
(citing Hubble v. Lone Star Contracting Corp., 883
S.W.2d 379, 382 (Tex. App.-Fort Worth 1994, writ denied)).
testimony of Garcia and Johnson, along with the supporting
documentation, showed that they had a valid contract for the
sale of Johnson's house and that Garcia performed under
the contract up until the time he learned that Johnson was no
longer paying his note to BancorpSouth. Although it is
unclear how long Johnson had not paid BancorpSouth, his
nonpayment resulted in the property being foreclosed and sold
to BancorpSouth at a trustee's sale four months after
Garcia's last made payment. Johnson offered no excuse for
his failure to pay BancorpSouth or for acquiescing in the
property's foreclosure. Subsequently, Garcia purchased
the property from BancorpSouth for $32, 300.00 more than was
owed under his contract with Johnson. This evidence is
factually sufficient to support the trial court's finding
that Johnson committed an anticipatory breach of their
agreement, without just excuse, and that Garcia suffered
damages of $32, 300.00 as a result. We overrule this issue.
Johnson Did Not Preserve His Complaint Regarding the
Exclusion of Evidence
also complains that the trial court wrongfully excluded
certain documentary evidence that he attached as exhibits to
his brief. "The appellate record consists of the
clerk's record and, if necessary to the appeal, the
reporter's record." Tex.R.App.P. 34.1. Documents
attached to briefs as exhibits or appendices are not part of
the appellate record. Copeland v. Moreland, No.
06-14-00075-CV, 2015 WL 545679, at *2 (Tex. App.-Texarkana
Feb. 10, 2015, no pet.) (mem. op.). We are required to
consider a case solely on the appellate record; therefore, we
"cannot consider documents attached to briefs as
exhibits or appendices." Id. (citing Robb
v. Horizon Communities ...