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Date: 09-30-2022

Case Style:

Robert L. Bradley, Jr., as Independent Executor of the Estate of Margaret Bradley v. Sandra S. Chapman and Fred Lohmeyer, as Executor and Legal Representative of the Estate of Roger C. Chapman

Case Number: 04-20-00539-CV

Judge: Rebeca C. Martinez

Court:

Fourth Court of Appeals San Antonio, Texas

On appeal from the

Plaintiff's Attorney:


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Defendant's Attorney: Catherine M. Stone
Natalie Friend Wilson
Steven L. Clack

Description:

San Antonio, Texas – Real Estate lawyer represented Appellant with appealing from a judgment determining that he cannot enforce an agreement.



W.G. Kinney owned a tract of land in Hunt, Texas (the “Kinney Tract”) on which he built
a tennis court and other facilities. In 1977, Margaret Bradley purchased two acres out of the larger
04-20-00539-CV
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Kinney Tract (the “Bradley Lot”), which did not include the tennis court. Attached to the deed
from Kinney to Margaret was a document containing an agreement (the “Tennis Court
Agreement”) regarding the use of the tennis court. The Tennis Court Agreement states:
It is understood and agreed that the 2-acre tract herein conveyed is
part of a certain 4.975-acre tract owned by Grantor and that Grantor
has constructed a tennis court, fences and related facilities (the
“court”) upon a portion of such 4.975 acre tract (which portion is
not included within the 2-acre tract herein conveyed) for the sole use
and benefit of Grantor and those parties to whom Grantor may
assign portions of such 4.975-acre tract (including Grantee) and
their heirs and assigns (the “owners”). The above conveyance is
subject to the covenant and restriction, hereby made by Grantor, and
the condition that the land upon which the court is presently located
shall be used solely and exclusively for tennis court purposes only
and solely by the owners and their authorized guests so long as any
one or more of the owners shall contribute funds, as hereinafter set
forth, to the maintenance of the court, and such covenant and
condition shall be binding upon and be observed by Grantor, its
assigns and their heirs and assigns and run in favor of and be
enforceable by any person or persons (not defaulting as set forth
below) who own any property which is part of such 4.975-acre tract.
From time to time, not less often than each calendar year, the
majority of the owners (not defaulting as set forth below) shall agree
upon an amount of money (if any) necessary for upkeep and
maintenance of the court, the amount contributed to be shared
equally by the owners. In establishing the amount of the
maintenance fund and reasonable rules and regulations for use of the
court, each owner shall have one vote, and all such matters shall be
determined by majority vote. Should any owner fail to contribute to
the maintenance fund his proportionate amount so agreed upon
within thirty (30) days of written notification of such amount from
any other owner, the defaulting owner shall irrevocably and for all
time lose his vote and all his rights to use the court; but this covenant
shall continue to run in favor of the non-defaulting owner or owners
as long as the share of the defaulting owner is paid by the other
owners, or any of them.
In 1992, Roger and Sandra Chapman purchased the lot with the tennis court. In 2018, the
tennis court needed repairs, and Sandra Chapman and Robert Bradley Jr. began discussions about
04-20-00539-CV
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resurfacing the court.
1
On April 6, 2018, Sandra forwarded Robert an email with a proposal for
resurfacing the court from Q-Sports, a company which had previously completed repair work on
the court. The proposal outlined the maintenance to be completed on the tennis court along with
a price of $5,433.00 plus tax. On June 1, 2018, Q-Sports completed the work and sent an invoice
addressed to “The Bradleys & The Chapmans.” Robert testified that he received the Q-Sports
invoice in an email from Sandra.
It is undisputed that on June 25, 2018, the Chapmans paid the entirety of the invoice.
2
It
is also undisputed that Robert sent Sandra a check for half of the invoice amount in September
2020, but Sandra refused the check. Other facts about payment, however, are disputed. Robert
testified about a potentially duplicative payment his mother made to Q-Sports. Robert testified
that days before trial, he located a cancelled check drawn from a bank account that his mother used
outside of Robert’s supervision. Robert believed this check indicated that Margaret paid the full
amount owed to Q-Sports. Robert did not testify as to the payment date written on the check, and
the trial court excluded introduction of a copy of the check into evidence following objections that
the check had not been disclosed during discovery and was not authenticated.3
There was no
testimony from a representative of Q-Sports to indicate whether Q-Sports had been paid twice.4
There also was contradictory evidence as to whether another family that owned a lot that
was originally part of the Kinney Tract would participate in the tennis court repairs. Robert
1 In 2018, Robert was not an owner of the Bradley Lot; his mother, Margaret, owned the lot. Robert testified that he
had a power of attorney to handle certain matters for his mother. Further, the live petition states that Robert acted on
behalf of his mother in 2018. In 2019, Margaret conveyed an undivided half interest in the Bradley Lot to Robert, and
in 2020, Margaret died. During trial and on appeal, Robert argues ownership in terms of the “Bradleys’” ownership
of the Bradley Lot, even though different Bradley family members owned their lot from 1977 to the time of trial in
September 2020. Robert has never argued that his mother should have received communications directly regarding
the repairs. In light of the foregoing, we consider Robert to have acted on behalf of his mother regarding the Bradley
Lot at all relevant times. 2 Sandra and the Chapmans’ bookkeeper testified that Sandra paid, and the record includes a cancelled check in the
amount of the repairs. The check shows the name of Sandra’s husband, Roger, who passed away in 2019. 3 Robert does not challenge the exclusion of the evidence on appeal. 4 Robert’s counsel represented to the trial court that the owner of Q-Sports had died by the time of trial.
04-20-00539-CV
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testified that a third family, the Alldays, had previously participated in repairs. When the latest
repairs were proposed, one of the Alldays contacted Robert and asked him for the legal basis for
any cost-sharing. Robert testified that his response “took some time” and “slowed things down a
little bit.” Ultimately the Alldays decided not to participate in cost-sharing for the repairs.
According to Robert, the costs were to be split one half to the Bradleys and one half to the
Chapmans. Robert identified the Q-Sports invoice dated June 1, 2018, that was addressed to “The
Bradleys & The Chapmans” and noted, “It’s down to two.” Robert remarked as to another invoice
that was excluded from evidence: “This was one-third. This is when the Alldays were still in, so
I received this earlier than the one-half invoice.”5
Later, Robert testified that the Alldays “dropped
out” in 2010. Sandra testified that in May 2018, she had an email exchange with Robert regarding
the repairs. A copy of their email exchange was admitted into evidence. It shows that on May 28,
2018, Sandra emailed Robert: “We’ll pay our 1/3.” Robert responded a few minutes later:
“Okay… I am good for 1/3—or 1/2 should the Alldays (unexpectedly) pull out.”
In May 2019, after Sandra had refused Robert’s September 2018 check for half of the cost
of the repairs, Robert filed suit on his behalf and as agent for his mother Margaret, alleging that
the Chapmans breached the Tennis Court Agreement. Robert sought a declaratory judgment that
the Tennis Court Agreement is valid and enforceable. Robert also requested specific performance
of the agreement to obtain continued use of the tennis court. The Chapmans counterclaimed,
seeking a declaratory judgment that the Tennis Court Agreement was not a valid and enforceable
agreement.
6

5 Robert does not challenge the exclusion of this evidence on appeal. 6 In September 2019, Roger Chapman died and Fred Lohmeyer was substituted as a party to the case as the executor
and legal representative of the estate of Roger Chapman. For simplicity, we will refer to Fred Lohmeyer and Sandra
Chapman as “the Chapmans.”
04-20-00539-CV
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After a one-day bench trial, the trial court entered a judgment denying Robert’s claim and
request for a declaratory judgment and granting the Chapmans’ request for a declaratory judgment
that the covenant is not enforceable. The trial court found that the covenant “constitutes a hybrid
affirmative real covenant and negative easement” and that “[t]he covenant is valid.” The trial court
also found that “[t]he covenant may not be enforced by [the Bradleys], because they did not tender
their share of the maintenance payment timely, and therefore, ‘irrevocably and for all time’ lost
the right to use the tennis court.” Robert appealed to this court, arguing the evidence is factually
and legally insufficient to support the finding that the Bradleys failed to timely pay for repairs, so
as to lose their right to enforce the covenant. The Chapmans cross-appealed, contending the trial
court erred in determining that the Tennis Court Agreement created a valid and enforceable
agreement.
SUFFICIENCY OF THE EVIDENCE THAT THE BRADLEYS FAILED TO TENDER TIMELY PAYMENT
On appeal, Robert challenges the trial court’s finding that he failed to tender his share of
the maintenance payment timely and therefore lost his right to use the tennis court. Assuming
without deciding that the trial court’s determination that the tennis court provision constituted a
valid “hybrid affirmative real covenant and negative easement,” we hold that the evidence supports
the trial court’s finding that the Bradleys breached the covenant by failing to tender their share of
the maintenance payment timely.7

7 The trial court’s findings were contained in the judgment and the trial court did not issue a separate document
containing findings of fact or conclusions of law. Although findings of fact should not be recited in a judgment, it
does not affect the validity of the findings in this case because the trial court did not make any separate written findings
that could possibly conflict with the findings made in the judgment. See TEX. R. CIV. P. 299a (stating findings of fact
should not be recited in a judgment but should be filed as a separate document); see also In re C.A.B., 289 S.W.3d
874, 881 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (“If, as in this case, the findings contained in the judgment
are not supplanted by findings filed separately under Rules 297 and 298, findings improperly included in a judgment
still have probative value and are valid as findings.”). Further, the parties did not complain about the lack of separate
findings in the trial court and do not complain about it on appeal. See Howe v. Howe, 551 S.W.3d 236, 247 (Tex.
App.—El Paso 2018, no pet.) (accepting findings in the judgment as the findings of fact for purposes of appeal because
04-20-00539-CV
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A. Legal and Factual Sufficiency Standard of Review
The standard of review for factual and legal sufficiency challenges is the same whether a
judge or a jury served as fact finder. Marincasiu v. Drilling, 441 S.W.3d 551, 557 (Tex. App.—
El Paso 2014, pet. denied). In an appeal from a judgment rendered after a bench trial, the trial
court’s findings of fact have the same weight as a jury’s verdict, and we review the legal and
factual sufficiency of the evidence used to support them just as we would review a jury’s findings.
Smith v. Reid, No. 04-13-00550-CV, 2015 WL 3895465, at *4 (Tex. App.—San Antonio June 24,
2015, pet. denied) (mem. op.). When confronted with both legal- and factual-sufficiency points,
we should first examine legal sufficiency. In re J.M.T., 617 S.W.3d 604, 608 (Tex. App.—San
Antonio 2020, no pet.).
In a legal-sufficiency challenge, we consider whether the evidence at trial would enable a
reasonable and fair-minded factfinder to reach the verdict under review. City of Keller v. Wilson,
168 S.W.3d 802, 827 (Tex. 2005). We “must credit favorable evidence if reasonable jurors could,
and disregard contrary evidence unless reasonable jurors could not.” Id. We will only reverse the
judgment if: (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by
rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact,
(3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence
establishes conclusively the opposite of the vital fact. Id. at 810. We view evidence in the light
most favorable to the ruling on a legal sufficiency challenge, indulging every reasonable inference
in the trial court’s favor. Id. at 822. The record contains more than a mere scintilla of evidence if
reasonable minds could form differing conclusions about a vital fact’s existence. King Ranch, Inc.
the parties did not raise the complaint in the trial court); see also Tate v. Tate, 55 S.W.3d 1, 9 n.4 (Tex. App.—El Paso
2000, no pet.) (findings contained within judgment prepared by party could be considered because party waived
complaint).
04-20-00539-CV
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v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Conversely, the record is insufficient when the
evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or
suspicion of its existence. Id.; Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
In a factual-sufficiency challenge, we consider and weigh all the evidence, and can set
aside a verdict only if the evidence is so weak or the finding is so against the great weight and
preponderance of the evidence that it is clearly wrong and manifestly unjust. Golden Eagle
Archery, Inc. v. Jackson, 116 S.W.3d 757, 761–62 (Tex. 2003). When reviewing the sufficiency
of the evidence supporting a trial court’s findings, “we do not serve as a fact finder, pass upon the
credibility of witnesses, or substitute our judgment for that of the trier of fact, even if there is
conflicting evidence upon which a different conclusion could be supported.” Hausman v.
Hausman, 199 S.W.3d 38, 41 (Tex. App.—San Antonio 2006, no pet.). In a bench trial, the trial
court, as the factfinder, is the sole judge of the credibility of the witnesses and the weight to be
given their testimony. Golden Eagle Archery, 116 S.W.3d at 761.
B. Applicable Law
When construing written contracts, the court’s duty is to ascertain the intentions of the
parties as expressed in the written instrument. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex.
1983). We discern intent from the agreement itself, and the agreement must be enforced as written.
See Wells Fargo Bank, Minn., N.A. v. North Cent. Plaza I, L.L.P., 194 S.W.3d 723, 726 (Tex.
App.—Dallas 2006, pet. denied). We must favor an interpretation that affords some consequence
to each part of the agreement so that none of the provisions is rendered meaningless. Id. If the
agreement can be given a certain and definite legal meaning, it is not ambiguous, and we construe
the agreement as a matter of law. See Coker, 650 S.W.2d at 393.
A party breaches a contract when the party fails to perform an act that it has expressly or
impliedly promised to perform. Examination Mgmt. Servs., Inc. v. Kersh Risk Mgmt., Inc., 367
04-20-00539-CV
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S.W.3d 835, 844 (Tex. App.—Dallas 2012, no pet.). For timely performance to be a material term
of the contract, the contract must expressly make time of the essence or there must be something
in the nature or purpose of the contract and the circumstances surrounding it making it apparent
that the parties intended that time be of the essence. See Kennedy Ship & Repair, L.P. v. Pham,
210 S.W.3d 11, 19 (Tex. App.—Houston [14th Dist.] 2006, no pet.).
C. Analysis
Robert contends that the evidence is legally and factually insufficient to support the trial
court’s finding that he failed to timely pay for maintenance of the tennis court, as required by the
Tennis Court Agreement.
i. Legal Sufficiency Challenge
We first address Robert’s legal sufficiency challenge. The Tennis Court Agreement
required that the owners and authorized guests of the tennis court could use the tennis court:
so long as any one or more of the owners shall contribute funds, as hereinafter set
forth, to the maintenance of the court, and such covenant and condition shall be
binding upon and be observed by Grantor, its assigns and their heirs and assigns
and run in favor of and be enforceable by any person or persons (not defaulting as
set forth below) who own any property which is part of such 4.975-acre tract.
The Agreement further states, “[s]hould any owner fail to contribute to the maintenance fund his
proportionate amount so agreed upon within thirty (30) days of written notification of such amount
from any other owner, the defaulting owner shall irrevocably and for all time lose his vote and all
his rights to use the court.”
Viewing the evidence in the light most favorable to the trial court’s judgment, we hold the
evidence is legally sufficient to support the trial court’s finding that the Bradleys “did not tender
their share of the maintenance payment timely.” The trial court could reasonably have reconciled
and weighed the evidence to find that timely payment was due on or around July 1, 2018, and that
payment was untimely when tendered in September 2018. The evidence at trial showed that on
04-20-00539-CV
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April 6, 2018, Sandra forwarded Robert an email with a proposal for resurfacing the tennis court
from Q-Sports. On May 28, 2018, Robert responded to Sandra by email stating: “Okay… I am
good for 1/3—or 1/2 should the Alldays (unexpectedly) pull out.” Robert testified that he received
a Q-Sports invoice in an email from the Chapmans. The invoice that is in the record from Q-Sports
is addressed to the “The Bradleys & The Chapmans” and is dated June 1, 2018. As to this invoice,
Robert testified, “It’s down to two;” Robert testified as to an earlier invoice that is not in the record,
“This was one-third.” Later at trial Robert testified, that the “Alldays dropped out in 2010.” The
trial court excluded evidence of a cancelled check from an unspecified date that, according to
Robert, shows that his mother paid the entire Q-Sports invoice.8
The only other payment Robert
asserts is his attempt in September 2018 to pay for half of the amount of the Q-Sports invoice.
Sandra rejected Robert’s September 2018 check.
Robert contends that the evidence is insufficient to show whether he was obligated to pay
half of the maintenance costs or a third of the costs because it was uncertain whether the Alldays
would participate. However, the evidence can be reconciled, as we presume the trial court did, to
reach the conclusion that by June 1, 2018, it was settled that the Bradleys and the Chapmans would
each owe half of the Q-Sports invoice of that date. Robert further argues that his share of the
payment was never due because the Bradleys and Chapmans did not follow the formality of
holding an annual meeting to determine maintenance costs. While it is true that the owners did
not hold an annual meeting, the trial court reasonably could have determined that the parties
waived this formality. See Broughton Assocs. Joint Venture v. Boudreaux, 70 S.W.3d 324, 328
8 Robert did not challenge the exclusion of this evidence on appeal, and we do not consider it. See Walker v. Schion,
420 S.W.3d 454, 457 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (stating evidence excluded in the trial court
which is not challenged on appeal cannot be considered on appellate review); York v. Samuel, No. 01-05-00549-CV,
2007 WL 1018364, at *3 (Tex. App.—Houston [1st Dist.] Apr. 5, 2007, pet. denied) (mem. op.) (explaining that
because the appellant failed to challenge the trial court’s ruling that affidavits relied upon were hearsay, the evidence
could not be considered on appeal).
04-20-00539-CV
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(Tex. App.—Waco 2002, no pet.) (“A condition precedent may also be waived, and the waiver of
a condition precedent may be inferred from the conduct of a party.” (citing Sun Expl. & Prod. Co.
v. Benton, 728 S.W.2d 35, 37 (Tex. 1987))); see also G.T. Leach Builders, LLC v. Sapphire V.P.,
LP, 458 S.W.3d 502, 511 (Tex. 2015) (“Waiver—the intentional relinquishment of a known
right—can occur either expressly, through a clear repudiation of the right, or impliedly, through
conduct inconsistent with a claim to the right”) (quotation omitted). Robert testified that the
owners never held an annual meeting and divided maintenance costs informally. Cf. In re Allstate
Vehicle & Prop. Ins. Co., 549 S.W.3d 881, 889 (Tex. App.—Fort Worth 2018, orig. proceeding)
(holding party waived its appraisal right, even though the appraisal clause was a condition
precedent, because party’s conduct was inconsistent with the assertion of its right).
Robert further contends that even if he breached the Tennis Court Agreement by failing to
timely tender payment for maintenance, the breach was not material and therefore does not support
the trial court’s finding that he lost his rights under the agreement. We disagree. By stating the
penalty for default in the same sentence as the obligation to timely pay, the agreement makes clear
that time is of the essence. See Deep Nines, Inc. v. McAfee, Inc., 246 S.W.3d 842, 846 (Tex.
App.—Dallas 2008, no pet.) (determining time was of the essence because contract provided a
specific cure period if payments were not made and that party would be in default if it failed to
pay within this period). The agreement provides, after stating the obligation, a “defaulting owner
shall irrevocably and for all time lose his vote and all his rights to use the court.” Courts that have
construed contracts with similar provisions and structures have upheld findings, as we do here,
that time is of the essence. See, e.g., Breakfront, LLC v. Sw. Guar. Inv’rs, Ltd., No. 04-15-00609-
CV, 2017 WL 1244449, at *3 (Tex. App.—San Antonio Apr. 5, 2017, pet. denied) (mem. op.)
(holding provisions of a settlement agreement supported the jury’s implied finding that timely
payments were an essential part of the agreement because although contract did not contain words
04-20-00539-CV
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“time is of the essence,” the agreement provided that a party who made more than two late
payments would be in default and the entire judgment would be enforceable); Henry v. Masson,
333 S.W.3d 825, 836 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (concluding there was legally
sufficient evidence to support jury finding that appellant materially breached a settlement
agreement which required him to deliver initial drafts of partnership windup steps within 14 days
of execution of settlement agreement because appellant failed to do so within 14-day time period
and there was evidence that it was an important benefit of the settlement agreement to timely
possess appellant’s drafts). Because the Tennis Court Agreement made timely payment essential,
untimely payment was a material breach. See Deep Nines, Inc., 246 S.W.3d at 846.
Viewing this evidence in the light most favorable to the trial court’s ruling and indulging
every reasonable inference in the trial court’s favor, there is more than a scintilla of evidence that
Robert was aware of his contractual obligation to pay for half of the maintenance costs and failed
to timely do so in violation of the Tennis Court Agreement. See King Ranch, 118 S.W.3d at 751.
ii. Factual Sufficiency Challenge
Likewise, the evidence is factually sufficient to support the trial court’s finding that the
Bradleys failed to timely tender payment under the Tennis Court Agreement and therefore lost
their right to use the tennis court. The evidence at trial showed that Robert was aware of his
obligation under the Tennis Court Agreement and failed to meet it. Sandra forwarded an email
with a summary of the work that Q-Sports planned to complete on the tennis court along with the
price. Q-Sports subsequently sent an invoice to Robert, which Robert stated he received. The
evidence also shows that Robert did not attempt to make payment until three months after the
invoice was sent, even though the Tennis Court Agreement requires payment thirty days after
written notice. Applying the principles by which our factual sufficiency review is governed, we
cannot conclude that the trial court’s finding that Robert failed to timely pay his share of the
04-20-00539-CV
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maintenance cost is against the great weight and preponderance of the evidence. See Golden Eagle
Archery, 116 S.W.3d at 761–62. Robert’s factual sufficiency challenge is overruled.

Outcome: The evidence is legally and factually sufficient to support the trial court’s finding that the Bradleys failed to timely pay for maintenance of the tennis court and therefore lost their right to use the tennis court. The judgment of the trial court is affirmed.9

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