                              NUMBER 13-08-246-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JACK A. COLMENERO, D/B/A COASTAL                                               Appellant,
HOME DESIGNERS, A/K/A JACK A.
COLMENERO, DESIGNER-BUILDER, INC.,

                                            v.

RODOLFO R. MARTINEZ, OLIVIA L.
MARTINEZ, AND LAREDO NATIONAL BANK,                                           Appellees.


                   On appeal from the 347th District Court
                         of Nueces County, Texas


                         MEMORANDUM OPINION

                   Before Justices Yañez, Garza, and Vela
                   Memorandum Opinion by Justice Vela

      This is an appeal from a judgment granted by the trial court in a contract action filed

by appellant, Jack A. Colmenero, d/b/a Coastal Home Designers a/k/a Jack A. Colmenero,

Designer-Builder, Inc. (“Colmenero”) against appellees, Rodolfo R. Martinez, Olivia L.
Martinez and Laredo National Bank (“the Martinezes”).1 By eight issues, Colmenero urges

that the judgment did not conform to the pleadings; that the trial court erred in the

admission of evidence; that there was no evidence to support the judgment; that the award

of attorney’s fees was improper; and that the trial court abused its discretion in not granting

his motion for new trial. We affirm.

                                             I. BACKGROUND

       Colmenero is a home builder. The Martinezes were his customers. The parties

signed a new home contract on October 16, 2003. Through Laredo National Bank (“LNB”),

Colmenero received interim financing of $228,000 to build the home. Colmenero agreed

to sell the Martinezes the residence for $343,190. The financing portion of the new house

contract stated:        “one or more third party mortgage loans in the total amount of

$308,527.00. If the property does not satisfy the lenders’ underwriting requirements for the

loan(s), this contract will terminate and the earnest money will be refunded to buyer.” The

contract was also subject to the buyer being approved for third party financing described

in an attached third-party financing condition addendum. After the home was built, LNB

would not lend the Martinezes the money because it did not appraise for the requested

loan amount. Colmenero sued LNB for violation of the Texas Deceptive Trade Practices

Act, fraud, breach of contract, quantum meruit, and promissory estoppel. He alleged

similar causes of action against the Martinezes. LNB settled with Colmenero. At the time

of trial, the only remaining claim against the Martinezes was breach of contract.

       At trial, which was before the trial court, Connie Rocha, formerly a mortgage officer



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           Laredo National Bank settled with Colm enero and is not a party to the appeal.

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at LNB, testified that the Martinezes filed a loan application with LNB. She stated that the

home in question had been appraised twice, and both times it failed to appraise for the

requested loan amount. According to Rocha, if the contract was conditioned upon third-

party financing, the Martinezes were unable to obtain a loan because the house did not

appraise for the required amount. She testified that the Martinezes contacted her many

times for approval of the loan.

        Robert Guerra, formerly a banker at LNB, testified that LNB had provided

construction financing for the project. The appraisal value of the property was insufficient

for the bank to make the loan to the Martinezes. He opined that LNB would not have

ordered an appraisal before a loan application was filed. However, he stated he had no

personal knowledge whether an application for the loan was filed before or after the parties

signed the new home contract.

       Colmenero testified that he took out a loan for $228,000 to build the home. On

cross examination, he acknowledged that the bank forgave the loan as part of the

settlement. He stated that he spent an additional $70,000 from his corporate funds to build

the home.     Colmenero testified that he received an additional $90,000 as part of

Colmenero’s settlement with LNB. He agreed that he knew the contract was subject to

financing at the time the parties entered into it, but he stated that he did not know that the

contract would terminate if the Martinezes did not obtain financing.          At the end of

Colmenero’s case-in-chief, the trial court granted the Martinezes’ motion for judgment. The

trial court also awarded the Martinezes $20,000 in attorney’s fees.




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                                        II. ANALYSIS

1. Trial by Consent

       Colmenero first urges that the trial court signed a judgment that did not conform with

the pleadings because the judgment was based on the unpleaded affirmative defense of

failure of conditions precedent.

       A condition precedent is defined as a condition that must be performed before an

agreement between the parties becomes a binding contract or a condition that must be

fulfilled before any duty to perform arises under an existing contract. Wilson & Wilson Tax

Servs., Inc. v. Mohammed, 131 S.W.3d 231, 238 (Tex. App.–Houston [14th Dist.] 2004,

no pet.). When a defendant's liability on a contract depends on the performance or

happening of a condition precedent, the plaintiff must allege and prove that the condition

has happened or been performed or that there was a waiver of the condition precedent.

Parkview Gen. Hosp., Inc. v. Eppes, 447 S.W.2d 487, 490 (Tex. Civ. App.–Corpus Christi

1969, writ ref'd n.r.e.); see Hurst v. Rush, 514 S.W.2d 472, 475 (Tex. Civ. App.–Beaumont

1974, no writ).   In the absence of occurrence or performance of such a condition

precedent, there can be no breach of contract. Hurst, 514 S.W.2d at 475; Eppes, 447

S.W.2d at 490-91.

       Rule 67 of the Texas Rules of Civil Procedure provides that issues not raised by the

parties that are tried by express or implied consent shall be treated as if they had been

raised in the pleadings. TEX . R. CIV. P. 67. The trial court has broad discretion in

determining whether an unpleaded claim has been tried by implied consent of the parties.

Whatley v. Dallas, 758 S.W.2d 301, 306 (Tex. App.–Dallas 1988, writ denied). The trial



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court is to exercise that discretion liberally in favor of justice. Id.

       When the evidence upon the extrinsic issue is developed under circumstances

making clear that the parties understood such issue was in the case, and without either

party having urged an objection or complaint, implied consent is shown. Realtex Corp. v.

Tyler, 627 S.W.2d 441, 443 (Tex. App.–Houston [1st Dist.] 1981, no writ). To determine

whether the issue was tried by consent, the court must examine the record not for evidence

of the issue, but rather for evidence of trial of the issue. In re Walters, 39 S.W.3d 280, 289

(Tex. App.–Texarkana 2001, no pet.); Watts v. St. Mary's Hall, Inc., 662 S.W.2d 55, 58

(Tex. App.–San Antonio 1983, writ ref'd n.r.e.).

       Here, the evidence is clear that the issue regarding the failure of conditions

precedent was tried. In Colmenero’s opening statement, he urged that the contract

required the Martinezes to promptly seek financing for the house and use every reasonable

effort. During the Martinezes’ opening statement, counsel argued, without objection, that:

       it was contingent on certain things. There was [sic] two contingencies in this
       contract. One of the contingencies was on the first page of the contract
       where I highlighted . . . . ‘If the property does not satisfy the lenders
       underwriting requirements for the loan, this contract will terminate and the
       earnest money will be refunded to buyer.’

Counsel for the Martinezes also urged, without objection, that “the conditions precedent

for this contract to take effect were never met.”

       From the beginning of trial, it was clear that a primary issue to be tried in the case

was whether the conditions precedent had occurred. Colmenero made no objections to

the introduction of evidence regarding the failure of the conditions precedent.           We

conclude that the issue was tried by consent. Colmenero’s first issue is overruled.



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2. Evidentiary Issues

       In Colmenero’s second and third issues, he urges that the trial court erred in

admitting evidence of the home appraisals that LNB received and evidence that the

Martinezes applied for a home loan with LNB.

       The admission or exclusion of evidence is committed to the trial court’s discretion.

In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005); Gee v. Liberty Mut. Fire Ins. Co., 765

S.W.2d 402, 409-11 (Tex. 1988). To obtain reversal of a judgment based upon error in the

admission or exclusion of evidence, an appellant must show that the trial court’s error

probably resulted in an improper judgment. TEX . R. APP. P. 44.1; Nissan Motor Co. v.

Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). In order to preserve error in the admission

or exclusion of evidence, the record must reflect that the error was properly preserved.

       To preserve error in an erroneous admission of evidence, a party must do the

following: (1) present to the trial court a timely request, objection, or motion; (2) state the

specific grounds of the complaint, if the specific ground was not apparent from the context;

and (3) obtain a ruling before the testimony is offered and received. TEX . R. EVID .

103(a)(1); GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 613 (Tex.

App.–Houston [14th Dist.] 2001, pet. denied) (citing Rendleman v. Clarke, 909 S.W.2d 56,

58 (Tex. App.–Houston [14th Dist.] 1995, writ dism’d.)).

       During trial, Connie Rocha responded affirmatively when asked if the Martinezes

submitted a loan application for the new home contract. Colmenero did not object to the

question. Similarly, evidence of the home appraisals was admitted, without objection,

through the testimony of both Rocha and Guerra. Therefore, we hold that error was not



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preserved with regard to either the admission of the appraisals or the admission of

evidence that the Martinezes made a loan application with LNB. See TEX . R. EVID . 103(a)

(1). We overrule Colmenero’s second and third issues.

3. Sufficiency of the Evidence

       In a non-jury trial, the trial court serves as a fact finder and magistrate. Qantel Bus.

Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302, 306 (Tex. 1988) (Gonzalez, J.,

concurring). In Qantel, the court held that when a plaintiff rests his or her case, on motion

for judgment by a defendant, the trial court has the power to rule on both the factual and

legal issues and to make factual findings. Id. at 304. A trial court’s findings of fact are

reviewed for legal and factual sufficiency of the evidence; the same standard applied when

reviewing evidence supporting a jury finding. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.

1996) (per curiam).

       Legal and factual sufficiency of the evidence standards of review govern an appeal

of a non-jury trial on the merits. IKB Indus. (Nig.) Ltd. v. Pro-Line Corp., 938 S.W.2d 440,

445 (Tex. 1997). When a party appeals from a non-jury trial, it must complain of specific

findings and conclusions of the trial court. Carrasco v. Stewart, 224 S.W.3d 363, 367 (Tex.

App.–El Paso 2006, no pet.); see Serrano v. Union Planters Bank, N.A., 162 S.W.3d 576,

580 (Tex. App.–El Paso 2004, pet. denied). A general complaint challenging the trial

court's judgment does not present a justiciable question. Carrasco, 224 S.W.3d at 367;

Serrano, 162 S.W.3d at 580.

       A “no-evidence,” or legal sufficiency, point is a question of law which challenges the

legal sufficiency of the evidence to support a particular fact finding. Serrano, 162 S.W.3d



                                              7
at 579. An appellate court will sustain a legal sufficiency, or “no-evidence,” challenge if the

record shows: (1) the complete absence of a vital fact; (2) that the court is barred by rules

of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3)

that the evidence offered to prove a vital fact is no more than a scintilla; or (4) that the

evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson,

168 S.W.3d 802, 810 (Tex. 2005).

         We review a trial court's conclusions of law de novo. Austin Hardwoods, Inc. v.

Vanden Berghe, 917 S.W.2d 320, 322 (Tex. App.–El Paso 1995, writ denied). Erroneous

conclusions of law are not binding on the appellate court, but, if the controlling findings of

fact will support a correct legal theory, are supported by the evidence, and are sufficient

to support the judgment, then the adoption of erroneous legal conclusions will not mandate

reversal. Heritage Res., Inc. v. Hill, 104 S.W.3d 612, 621 (Tex. App.–El Paso 2003, no

pet.).

         Findings of fact made by the trial judge, sitting as the fact finder, enjoy the same

status as findings of a jury. Anderson v. City of Seven Points, 806 S.W.2d 791, 794

(Tex.1991); Heritage Res., 104 S.W.3d at 619. In reviewing a factual sufficiency point, we

must consider all of the evidence and determine whether the adverse finding was so

against the great weight and preponderance of the evidence that it was clearly wrong and

unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). We do not pass upon the

witnesses' credibility, nor do we substitute our judgment for that of the fact. Mar. Overseas

Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).




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       Here, the trial court made findings of fact and conclusions of law. They included a

finding that the home contract provided that if the property did not satisfy the lender’s

underwriting requirement for the loan(s), it would terminate. The trial court also found that

the Martinezes obtained two appraisals in an attempt to secure financing at LNB. These

findings were supported by the testimony at trial. The court also found that the property

did not satisfy the lender’s underwriting requirement because it did not appraise for an

amount sufficient for LNB to provide financing. This finding was also supported by the

evidence adduced at trial.     The court also found that the Martinezes made every

reasonable effort to obtain financing approval.      Rocha testified that the Martinezes

contacted her many times in an attempt to get the approval. The court concluded that the

contract was contingent upon the property satisfying the lender’s underwriting requirement

and that such was a condition precedent. The court also found that the contract was

conditioned upon financing pursuant to a third-party financing condition addendum. The

evidence shows that these conditions were not met.           The trial court’s findings are

supported by factually and legally sufficient evidence. Colmenero’s fifth issue is overruled.

       By issues four and six, Colmenero complains that the trial court erred in finding

failure of two conditions precedent, rather than one. Colmenero, however, seems to agree

in his brief that at least one condition precedent was not met. Based on the evidence

before it, the trial court determined that there were two conditions precedent and that both

had failed. The court based its conclusion on evidence that was not objected to at trial.

Because we previously held that there was sufficient support for the trial court’s findings,

we overrule Colmenero’s fourth and sixth issues.



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4. Attorneys’ Fees

       By issue seven, Colmenero urges that the trial court abused its discretion when it

awarded attorney’s fees to the Martinezes. Generally, we review a trial court's decision to

grant or deny attorney's fees for an abuse of discretion, and we review the amount

awarded as attorney's fees under a sufficiency of the evidence standard. See Bocquet v.

Herring, 972 S.W.2d 19, 21 (Tex. 1998); EMC Mortgage Corp. v. Davis, 167 S.W.3d 406,

418 (Tex. App.–Austin 2005, pet. denied). A trial court abuses its discretion if its decision

is arbitrary, unreasonable, and without reference to guiding principles. Mercedes-Benz

Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). No objection was made to

counsel’s testimony that he has been licensed to practice since 1980. Counsel stated that

he had attended depositions, prepared motions, engaged in discovery and that $20,000

for his time was a reasonable fee. While this was certainly not a detailed statement of fees

expended in this case, in the absence of objection, we cannot say that the trial court erred

in either awarding fees or erred in the amount it awarded. See TEX . R. APP. P. 33.1; City

of Portland v. Shiba, 976, S.W.2d 856, 860-61 (Tex. App.–Corpus Christi 1998, writ ref’d

n.r.e.). Colmenero’s seventh issue is overruled.

5. Motion for New Trial

       By issue eight, Colmenero complains that the trial court abused its discretion in

overruling his motion for new trial. We review a trial court's denial of a motion for new trial

for abuse of discretion. In the Interest of R.R., 209 S.W.3d 112, 114 (Tex. 2006). The trial

court’s findings and conclusions were supported by the evidence. Colmenero argues that

fact issues were raised concerning whether the Martinezes sought financing and the



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degree of diligence exercised by them. These issues were resolved by the trial court with

respect to its fact-finding authority. Colmenero also argues that he had properly preserved

his evidentiary objections and urged that the judgment was void. The trial court was within

its discretion to deny the motion for new trial for the same reasons we have previously

discussed in the opinion. Colmenero’s eighth issue is overruled.

                                     III. CONCLUSION

       The judgment of the trial court is affirmed.




                                                      ROSE VELA
                                                      Justice

Memorandum Opinion delivered and
filed this 20th day of November, 2008.




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