                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-12-00071-CV

Southwestern Bell Telephone, L.P.         §    From the 141st District Court

                                          §    of Tarrant County (141-208589-04)
v.
                                          §    January 24, 2013

Richard D. Chappell                       §    Opinion by Chief Justice Livingston

                                  JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was error in the trial court’s judgment. It is ordered that the judgment of the

trial court is reversed.   We render judgment for appellant Southwestern Bell

Telephone, L.P. on its breach of contract claim against appellee Richard D.

Chappell for $106,990. We also remand the cause to the trial court for the

limited purpose of considering the award of interest, attorney’s fees, and costs.
      It is further ordered that appellee Richard D. Chappell shall pay all of the

costs of this appeal, for which let execution issue.


                                     SECOND DISTRICT COURT OF APPEALS



                                     By_________________________________
                                       Chief Justice Terrie Livingston




                                          2
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-12-00071-CV


SOUTHWESTERN BELL                                                   APPELLANT
TELEPHONE, L.P.

                                          V.

RICHARD D. CHAPPELL                                                  APPELLEE


                                      ----------

           FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

      In    three   issues,   appellant   Southwestern   Bell   Telephone,   L.P.

(Southwestern Bell) appeals the trial court’s take-nothing judgment in favor of

appellee Richard D. Chappell. We reverse and render in part and reverse and

remand in part.




      1
      See Tex. R. App. P. 47.4.


                                          3
                                 Background Facts

         Southwestern Bell employed Chappell as a sales representative. Chappell

worked within the company’s win-back group, which focused on contacting

former commercial customers and attempting to make them long-term customers

again.      By the terms of his employment agreement, Chappell received

commissions from the sales he made. To be entitled to receive and keep any

commission on a win-back, Chappell had to make a sale to a new customer, that

customer’s lines had to be activated within six months of the sale, and that

customer had to issue a “letter of authorization” to Southwestern Bell.

         In February 2001, Chappell signed a “Document of Understanding” that

stated in part,

               I specifically understand that I will receive sales compensation
         payouts based on components of the 2001 Sales Compensation
         Plan. These payouts assume that I am meeting the pre-established
         sales objectives and retention criteria for designated products and
         services. I understand that if my total sales results for the year or
         the portion of the year that I am on the Plan do not meet these
         objectives and criteria by end of year or by the month I leave the
         plan, and because the incentive plans are cumulative to the end of
         the year, I understand there are circumstances where I may have
         received more compensation than I have earned.

                In the event of any overpayment or chargeback, I understand
         the overpayment or chargeback will be deducted from future
         scheduled sales compensation . . . . If I am not a participant in the
         2002 Sales Compensation Plan or I leave the 2001 Plan anytime
         during 2001, overpayment can be paid by sending a money order for
         the full amount to Southwestern Bell . . . . Upon 30 days of leaving
         the compensation plan, arrangements need to be made . . . for re-
         payment of any overpayments.




                                           4
In the same month that he signed the Document of Understanding, Chappell

signed a compensation election form in which he chose to be paid based on a

smaller base salary and a larger “sales incentive.” A year later, Chappell signed

a document titled “Sales Compensation Administrative Guide and Policies,”

which stated,

              In the event of any overpayment, I understand and agree to
        repay the overpayment. While on the 2002 Plan [the overpayment]
        will be trued up with the next scheduled sales compensation
        payout(s). If I am not a participant in the 2003 Sales Compensation
        Plan or I leave the 2002 Plan anytime during 2002, remittance for
        the overpayment can be made by certified check . . . . The total
        amount shall be recovered within three (3) months or as prescribed
        by state law.

              ....

              If I refuse to repay an overpayment, or make arrangements to
        do so, within 30 days of being notified, I understand that
        [Southwestern Bell] has the right to initiate collection actions . . . .

Chappell acknowledges that he understood while working for Southwestern Bell

that the effect of the documents that he signed in 2001 and 2002 was that he

agreed to repay any overpayments, or “chargebacks,” of commission that he had

received from Southwestern Bell but that he was not ultimately entitled to.2

        In December 2001, Chappell worked on a sale of approximately 1,300

lines   of   telephone    service   to   Allstate   Insurance   Company     (Allstate).

        2
       According to Leslie Pendergrass, who is a Southwestern Bell sales
manager, employees are entitled to keep a commission until the commission is
“trued up and [Southwestern Bell has] documentation to show otherwise.” [36,
39] Pendergrass described the “true up process [as] kind of like an auditing
process.”


                                           5
Southwestern Bell paid Chappell a large commission from that sale in early 2002.

Chappell resigned from Southwestern Bell in July 2002. At that time, he was

aware that at least some commissions that he had made in 2001 were being

charged back. He also knew that the Allstate sale was not final; he testified at

trial that he had worked on the sale “in the beginning, and then it [had] got[ten]

sent to . . . the implementation group.” According to Chappell’s testimony at trial,

at the time he left his employment, he believed that the Allstate representative

who had signed the agreement with Southwestern Bell had the authority to do so

and that the sale would eventually be completed.         But after resigning from

Southwestern Bell, Chappell did not contact anyone at Southwestern Bell to

check on the status of the sale.

      Southwestern Bell eventually determined that almost five hundred of the

lines that were to be part of the Allstate sale were already Southwestern Bell’s

lines and that the sale of the remaining lines could not be completed because the

representative from Allstate who had signed the contract did not have the

authority to bind individual Allstate franchisees.     Chappell testified at trial,

however, that he did not receive notice of any problem with the Allstate sale in

2002 or in the first several months of 2003.3



      3
        Pendergrass indicated that after Chappell left his employment with
Southwestern Bell, he could have called one of Southwestern Bell’s employees
to learn whether the Allstate sale had been completed and whether he was
entitled to keep the commission from that sale. Pendergrass also opined that
Chappell should have investigated the status of the lines subject to the Allstate

                                         6
      Pendergrass, who worked with Southwestern Bell at the same time that

Chappell did, testified that in 2002 and 2003, Southwestern Bell contacted

individual Allstate franchisees to attempt to secure the sales of the lines that

Chappell had originally attempted to sell.          According to Pendergrass,

Southwestern Bell did not begin the chargeback process in the summer of 2002

because it was attempting to “save the [Allstate] sale,” which, according to

Pendergrass, would have also saved Chappell’s commission. Pendergrass did

not know why, upon Chappell’s resignation from the company, someone did not

tell him that 491 lines that were part of the Allstate sale were already

Southwestern Bell’s customers and that he would need to return the commission

associated with those lines.

      In May 2003, Southwestern Bell sent two letters to Chappell stating that

overpayments totaling $106,990 had occurred in September 2002 (which was

after Chappell’s employment had ended).         The letters stated, “It is your

responsibility to reimburse the company for th[ese] erroneous payment[s].”

Also, the letters advised appellant to contact Southwestern Bell to arrange for

payment and that if he did not, Southwestern Bell would consider “any and all

appropriate means to attempt collection.” Upon receiving the letters, Chappell

called Southwestern Bell to ask what the overpayments related to, but

Southwestern Bell did not contact appellant again until suing him in late 2004.

sale, including whether those lines were already Southwestern Bell’s customers,
before submitting the sale order.


                                        7
      Southwestern Bell pled that Chappell had breached his contract with

Southwestern Bell by refusing to repay $106,990 in commissions.         Chappell

answered the suit by pleading laches.      Specifically, Chappell asserted that

Southwestern Bell’s breach of contract claim should have been barred because

Southwestern Bell was “unreasonable in asserting its request for reimbursement

over a year after [Chappell] was paid the sales commissions” and because

Chappell had already spent the commissions on living expenses and charitable

donations.   Chappell also asserted that the voluntary payment rule barred

Southwestern Bell’s suit.

      After denying motions for summary judgment filed by both parties, the trial

court conducted a bench trial in November 2011. During the trial, Chappell’s

counsel stated that if Southwestern Bell had notified Chappell sooner about

repaying the commissions, Chappell would have done so.         The parties then

stipulated that Southwestern Bell had overpaid Chappell. After receiving all of

the evidence, including testimony from Chappell, the trial court signed a take-

nothing judgment against Southwestern Bell. The court also signed findings of

fact and conclusions of law in which the court indicated that it had resolved the

suit against Southwestern Bell based on laches. The trial court concluded that

            1.    [Chappell] did not repay unearned sales commissions
      as requested by [Southwestern Bell] in a letter . . . .

            2.    [Southwestern Bell] knew as early as May 24, 2002, that
      it had paid commissions to [Chappell] on the Allstate contract that
      were unearned.



                                       8
           3.    [Southwestern Bell’s] delay in requesting return of the
      unearned commissions paid to [Chappell] until its notice letter dated
      May 13, 2003, was an unreasonable delay.

             4.   [Chappell] made financial decisions to his detriment due
      to [Southwestern Bell’s] unreasonable delay in requesting the return
      of the unearned commissions . . . .

             5.    Requiring [Chappell] to repay the unearned
      commissions under the extraordinary set of circumstances present in
      this case . . . would be a grave injustice to [Chappell]. [Emphasis
      added.]

      Southwestern Bell filed a motion for new trial in which it contended that it

had conclusively proved its breach of contract claim, that laches should not have

applied to the claim based on the law or on the evidence presented at trial, and

that, more particularly, there was “no evidence that . . . [Chappell] suffered any

harm as a result of any . . . delay.” In the motion for new trial, Southwestern Bell

asked the trial court to award it $106,990 through a new judgment. The trial

court did not expressly rule on the motion for new trial, and Southwestern Bell

brought this appeal.

              The Trial Court’s Erroneous Application of Laches

      In its first issue, Southwestern Bell contends that the trial court erred by

entering its twelfth finding of fact.   In its second issue, Southwestern Bell

contends that the trial court erred by concluding that laches barred Southwestern

Bell’s breach of contract claim.

      Laches is an affirmative defense. See Tex. R. Civ. P. 94 (“In pleading to a

preceding pleading, a party shall set forth affirmatively . . . laches . . . and any



                                         9
other matter constituting an avoidance or affirmative defense.”); In re Bahn, 13

S.W.3d 865, 871 (Tex. App.—Fort Worth 2000, orig. proceeding). Thus, in the

trial court, Chappell had the burden to prove the elements of laches by a

preponderance of the evidence. See Moore v. Kitsmiller, 201 S.W.3d 147, 151

(Tex. App.—Tyler 2006, pet. denied); Ballard v. Breigh, 262 S.W. 886, 891 (Tex.

Civ. App.—Fort Worth 1924, no writ).

      Breach of contract claims are subject to a four-year statute of limitations.

Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 203 (Tex. 2011).

“Generally[,] in the absence of some element of estoppel or such extraordinary

circumstances as would render inequitable the enforcement of [a plaintiff’s] right

after a delay, laches will not bar a suit short of the period set forth in the limitation

statute.” Barfield v. Howard M. Smith Co. of Amarillo, 426 S.W.2d 834, 840 (Tex.

1968).    When it applies,4 laches requires proof of an unreasonable delay in



      4
        In part of its second issue, relying on a decision from the Corpus Christi
Court of Appeals, Southwestern Bell argues that as a matter of law, laches
cannot bar a breach of contract claim. See Wayne v. A.V.A. Vending, Inc., 52
S.W.3d 412, 415 (Tex. App.—Corpus Christi 2001, pet. denied) (holding that
laches applies in a defense against the assertion of equitable rights and may not
be used to defend against “breach of contract, a legal right”); but see City of Fort
Worth v. Johnson, 388 S.W.2d 400, 403 (Tex. 1964) (indicating that laches may
apply in a case concerning legal rights); Regent Intern. Hotels, Ltd. v. Las
Colinas Hotels Corp., 704 S.W.2d 101, 106 (Tex. App.—Dallas 1985, no writ)
(explaining that although “some appellate courts have viewed laches as a
defense against the enforcement of equitable rights, the Texas Supreme Court
and many appellate courts have included legal rights as well”). Because our
resolution of another argument presented by Southwestern Bell requires us to
reverse the trial court’s judgment and to render judgment for Southwestern Bell
on its breach of contract claim, we decline to address whether laches generally

                                           10
asserting a right to relief and a “good faith and detrimental change in position

because of the delay.” In re Laibe Corp., 307 S.W.3d 314, 318 (Tex. 2010) (orig.

proceeding) (emphasis added); Frequent Flyer Depot, Inc. v. Am. Airlines, Inc.,

281 S.W.3d 215, 229 (Tex. App.—Fort Worth 2009, pet. denied) (“A party

asserting the defense of laches must show both an unreasonable delay by the

other party in asserting its rights and harm resulting to it because of the delay.”),

cert. denied, 130 S. Ct. 2061 (2010); see also Gulf, Colo. & Santa Fe Ry. Co. v.

McBride, 159 Tex. 442, 453, 322 S.W.2d 492, 500 (1958) (op. on reh’g) (“Mere

lapse of time raises no presumption of laches. It must be an unreasonable delay

which has worked injury to another person.”); Mandril v. Kasishke, 620 S.W.2d

238, 242 (Tex. Civ. App.—Amarillo 1981, writ ref’d n.r.e.) (“The burden of proving

the essential elements of laches is on the party asserting it, and the failure to

prove any one or more of the elements is fatal.”).

      In part of its second issue, Southwestern Bell contends that Chappell

presented “no evidence that he detrimentally changed his position” because of

the delay in Southwestern Bell’s informing him that it was charging back

$106,990. We construe this argument, along with Southwestern Bell’s request

for rendition of a judgment in its favor, as a challenge to the legal sufficiency of

the evidence to prove the prejudice element of Chappell’s laches affirmative




applies to breach of contract claims. See Tex. R. App. P. 47.1; Dickinson v.
Dickinson, 324 S.W.3d 653, 659 n.2 (Tex. App.—Fort Worth 2010, no pet.).


                                         11
defense. See Milton M. Cooke Co. v. First Bank & Trust, 290 S.W.3d 297, 302

(Tex. App.—Houston [1st Dist.] 2009, no pet.).

      A trial court’s findings of fact have the same force and dignity as a jury’s

answers to jury questions and are reviewable for legal sufficiency of the evidence

to support them by the same standards. Catalina v. Blasdel, 881 S.W.2d 295,

297 (Tex. 1994); Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.

1991); see also MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660,

663 n.3 (Tex. 2009). Conclusions of law may not be challenged for evidentiary

sufficiency, but they may be reviewed to determine their correctness based upon

the facts. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.

2002).

      We may sustain a legal sufficiency challenge only when (1) the record

discloses 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 a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999).      In determining whether there is legally

sufficient evidence to support the finding under review, we must consider

evidence favorable to the finding if a reasonable factfinder could and disregard

evidence contrary to the finding unless a reasonable factfinder could not. Cent.

Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller


                                        12
v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). Anything more than a scintilla

of evidence is legally sufficient to support the finding. Cont’l Coffee Prods. Co. v.

Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Leitch v. Hornsby, 935 S.W.2d 114,

118 (Tex. 1996). But 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, the

evidence is no more than a scintilla and, in legal effect, is no evidence. Kindred

v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

      In its tenth finding of fact, the trial court determined that Chappell received

notice of an overpayment of commissions in May 2003. In its twelfth finding of

fact, the trial court found that because of Southwestern Bell’s unreasonable delay

in “the handling of the request for reimbursement of commissions, [Chappell]

made charitable contributions; twice paid income taxes on the commissions from

the Allstate contract; and . . . used the remainder of the commissions paid to him

for . . . normal living expenses[,] which for all purposes, [Chappell was] unable to

recover once paid.” Southwestern Bell contends that there is no evidence to

support the latter finding.

      The evidence at trial established that Chappell made the Allstate sale in

late December 2001.       He received a commission from that sale in “roughly”

February 2002.      Before receiving the commission, in 2001, Chappell gave

$22,637 to his church; Chappell conceded at trial that this donation had “nothing

to do with” the Allstate sale.    Chappell also gave $10,325 to his church in

February 2002, which was shortly after he received the commission but was


                                         13
before Southwestern Bell learned that he was not entitled to it.5        Chappell

testified that the $10,325 donation in February 2002 was the only donation that

year that was “tied to any of the orders that [were] the basis of the chargebacks”

at issue. Thus, because Chappell’s 2001 donations to his church were made

before he received the Allstate commission and because the February 2002

donation was made before Southwestern Bell was aware that Chappell was not

entitled to the commission, we conclude that there is no evidence to support the

trial court’s finding that Southwestern Bell’s alleged “unreasonable delay in the

handling of the request for reimbursement of commissions” caused Chappell to

make charitable contributions that he otherwise would not have made.

      Next, the evidence does not establish that Chappell “twice paid income

taxes on the commissions from the Allstate contract.”6 Through exhibits at trial,

Chappell introduced his 2001 and 2002 tax returns.          We have located no

evidence, however, establishing that Chappell’s 2001 tax liability was related to

his February 2002 commission from the Allstate sale. Chappell’s 2002 tax return


      5
       The record indicates, and the trial court found, that the earliest date
Southwestern Bell received notice that there were problems with any of the lines
subject to the Allstate sale was May 2002. Texas courts have held that the
relevant period of delay for laches does not begin until a cause of action matures.
See Stergios v. Forest Place Homeowners’ Ass’n, Inc., 651 S.W.2d 396, 401
(Tex. App.—Dallas 1983, writ ref’d n.r.e.); Yeo v. Yeo, 581 S.W.2d 734, 740
(Tex. Civ. App.—San Antonio 1979, writ ref’d n.r.e.).
      6
       We will examine the sufficiency of the evidence to support this finding
even though Chappell contends in his brief that his tax payments are “not
relevant to any issue in this case.”


                                        14
reported $150,594 as income from “wages,” which presumably includes the

commission from the Allstate sale. At trial, Chappell testified that he would not

have paid taxes on the commission if he had known that Southwestern Bell

wanted it back. But he also stated that he was aware that it was possible to

amend a tax return. During his testimony, he engaged in the following exchange

with Southwestern Bell’s counsel:

             Q. And you’re aware that if you find an error that would
      result in you getting a larger return, then you can [resubmit a tax
      return], right?

            A.   Right.

            Q.   And you can actually get back that tax money, right?

            A.   I’m assuming so.

           Q. If everything goes the way it should, you should get that
      money back?

            A.   Right.

Because Chappell acknowledged at trial that he could have amended his tax

return to reduce his 2002 tax liability and because he received Southwestern

Bell’s demand for payment in May 2003, when amending the 2002 return was

legally appropriate,7 we conclude that there is no evidence to prove that




      7
       We take judicial notice that federal law allows three years from the time a
tax return is filed to claim a refund or credit for the overpayment of an imposed
tax. See 26 U.S.C.A. § 6511(a) (West 2011); see also Tex. R. Evid. 202 (stating
that a court may take judicial notice of a public statute at any stage of a
proceeding).


                                       15
Southwestern Bell’s alleged unreasonable delay in demanding payment

prejudiced Chappell with regard to his taxes.

      Finally, for two reasons, the evidence does not raise anything more than a

surmise or suspicion that Chappell detrimentally changed his position with

respect to household expenses because of the delay in demanding payment until

May 2003.8 First, at trial, Chappell testified that after subtracting the $10,325 that

he gave to his church from the commissions that Southwestern Bell overpaid, he

spent the remaining money on household bills, including house payments.

Chappell admitted, however, that he had “no idea” and could not “even guess”

about how much of the money he spent between the time he received it in 2002

and the time that he received Southwestern Bell’s May 2003 letters that

demanded repayment.        When Southwestern Bell’s counsel asked Chappell

whether he could testify that he had spent even more than $1,000 on household

bills, Chappell replied, “I have no idea what the total amount was.”

      Second, even if Chappell had presented specific testimony about spending

part of the commission on household bills between the time that Southwestern

Bell learned that he was not entitled to the commission and the time that it

notified him of that fact, Chappell did not present evidence that he incurred or

paid any particular household expense that he would not have otherwise incurred


      8
       Chappell testified that other than donations to his church and taxes, the
only other payments made based on an assumption that he would be able to
keep the Allstate commission were household bills.


                                         16
or paid if he would have been notified of his duty to repay the commission earlier.

Chappell testified generally that he spent money that he would not have spent if

he had known before May 2003 he was not entitled to the commissions, but

Chappell did not testify about when this money was spent (critically, whether the

money was spent before or after Southwestern Bell learned of the overpayment),

how the money was spent (for example, on the aforementioned donation to his

church or on household expenses), or how much of the overall commission was

spent before he received Southwestern Bell’s letters in May 2003. Moreover, we

note that in an analogous case in which a bank waited many months before

suing to collect deficiencies after foreclosing on real property, we held that

neither the appellants’ assumption of more debt in the interim period nor the

accrual of interest on the deficiencies in the interim period were “extraordinary”

circumstances that justified applying laches. Brink v. Fid. Bank of Fort Worth,

966 S.W.2d 684, 685 (Tex. App.—Fort Worth 1998, no pet.).

      For all of these reasons, we hold that there is not more than a scintilla of

evidence to support the trial court’s findings that there was a detrimental change

in Chappell’s financial position that was caused by Southwestern Bell’s delay

between the time that it learned of the overpayment of commissions until May

2003, when it demanded that Chappell repay them. See Martinez, 977 S.W.2d

at 334.   Therefore, the trial court’s related conclusion of law that the delay

caused Chappell to suffer financial detriment is incorrect. See Marchand, 83

S.W.3d at 794.


                                        17
      Chappell argues that the trial court’s judgment is alternatively supportable

by the court’s conclusion of law that requiring Chappell to “repay the unearned

commissions under the extraordinary set of circumstances present in this case

. . . would be a grave injustice.” The supreme court has stated that laches should

not bar an action on which a statute of limitations has not run unless allowing the

action would cause a grave injustice. Caldwell v. Barnes, 975 S.W.2d 535, 538

(Tex. 1998). We have not found any authority, however, indicating that a finding

of a grave injustice may support laches when evidence of one of the basic

elements of laches (an unreasonable delay and harm caused by the delay) is

lacking, and the supreme court has indicated otherwise. See id. (describing “a

good faith change of position by another to his detriment” as an “essential

element[] of laches”).

      Because we hold that there is not more than a scintilla of evidence to

support the trial court’s twelfth finding of fact and that the trial court’s resulting

conclusion of law about an essential element of Chappell’s laches affirmative

defense—prejudice caused by the delay—is incorrect, we sustain Southwestern

Bell’s first and second issues.

                             Voluntary Payment Rule

      In its third issue, Southwestern Bell contends that the voluntary payment

rule did not bar its breach of contract claim. The common law voluntary payment

rule provides that “money voluntarily paid on a claim of right, with full knowledge

of all the facts, in the absence of fraud, duress, or compulsion, cannot be


                                         18
recovered back merely because the party at the time of payment was ignorant of

or mistook the law as to his liability.” Miga v. Jensen, 299 S.W.3d 98, 103 (Tex.

2009). The supreme court has indicated that the voluntary payment rule does

not apply in a breach of a contract suit. BMG Direct Mktg., Inc. v. Peake, 178

S.W.3d 763, 775 (Tex. 2005) (“It is true that, to the extent the subject matter of

Peake’s claims is covered by the parties’ contract, the [voluntary payment] rule

would not apply.”); see also Tex. S. Rentals, Inc. v. Gomez, 267 S.W.3d 228, 243

(Tex. App.—Corpus Christi 2008, no pet.) (“[T]he voluntary payment defense

does not apply to a simple breach of contract action.”). The trial court did not

make findings of fact or conclusions of law based on the voluntary payment rule,

and appellee does not contend that application of the rule supports the trial

court’s judgment. Thus, we sustain appellant’s third issue and hold that the trial

court’s judgment cannot be supported by the voluntary payment rule. See Tex.

R. Civ. P. 299 (“The judgment may not be supported upon appeal by a presumed

finding upon any ground of recovery or defense, no element of which has been

included in the findings of fact . . . .”); Victore Ins. Co. v. City of Bowie, 23 S.W.3d

499, 504 (Tex. App.—Fort Worth 2000, pet. denied).

                           Conclusion and Disposition

      When we sustain a legal sufficiency issue, it is our duty to render judgment

for the appellant because that is the judgment the trial court should have

rendered. AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 595 (Tex. 2008); Vista

Chevrolet, Inc. v. Lewis, 709 S.W.2d 176, 176 (Tex. 1986); see Tex. R. App. P.


                                          19
43.3; City of The Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 748 (Tex.

App.—Fort Worth 2008, pet. dism’d). In the trial court, Chappell stipulated that

apart from his laches affirmative defense, he owed Southwestern Bell the money

that Southwestern Bell was seeking in its breach of contract suit. Thus, having

sustained each of Southwestern Bell’s three issues, we reverse the trial court’s

judgment, and we render judgment for Southwestern Bell on its breach of

contract claim for $106,990. See Tex. R. App. P. 43.2(c), 43.3. Southwestern

Bell has asked us to remand this case to the trial court for the limited purpose of

allowing the trial court to consider awarding “interest, attorneys’ fees, and costs,”

and we do so. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (West 2008);

Tex. R. App. P. 43.2(d); Rey v. Lara, No. 02-11-00002-CV, 2011 WL 6260871, at

*4 (Tex. App.—Fort Worth Dec. 15, 2011, no pet.) (mem. op.) (remanding a case

for a determination of awarding attorney’s fees after reversing a trial court’s take-

nothing judgment on a breach of contract claim and rendering judgment on the

contract for the appellant).




                                                    TERRIE LIVINGSTON
                                                    CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DELIVERED: January 24, 2013




                                         20
