Reverse and Remand; Opinion Filed May 4, 2015.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-13-01422-CV

                           TEXANS CREDIT UNION, Appellant
                                         V.
                           RICHARD C. BRIZENDINE, Appellee

                       On Appeal from the County Court at Law No. 2
                                   Dallas County, Texas
                           Trial Court Cause No. CC-13-00481-B

                             MEMORANDUM OPINION
                          Before Justices Francis, Evans, and Stoddart
                                   Opinion by Justice Evans
       After a trial before the court, Texans Credit Union appeals from the take-nothing

judgment on its lawsuit against Richard C. Brizendine to recover the balance due under a loan

agreement executed by Brizendine and his former wife. In three issues, Texans generally asserts

the trial court’s judgment should be reversed and judgment rendered against Brizendine because

the evidence conclusively established his contractual liability for the debt. After reviewing the

record, we agree that the evidence established each element of Texan’s breach of contract claim

as a matter of law. Accordingly, we reverse the trial court’s judgment and remand the cause to

the trial court to render judgment against Brizendine for $14,443.857 plus interest and to

determine the issue of Texan’s attorney’s fees.

       In 1990, Brizendine and his wife Molly signed an agreement promising to repay with

interest cash advances Texans made under a “Texchek” account. When the couple divorced in
1999, the decree ordered Molly to pay, as a part of the division of the marital estate, the $14,477

balance then due on the Texans account.

       In 2013, Texans sued Brizendine alleging a default under the agreement and an

outstanding balance due of $14,766.57 as of March 2012. The matter proceeded to a trial before

the court and judgment was rendered that Texans take nothing on their claim. Among other

things, the trial court made the following findings of fact: (1) the divorce decree provided Molly

was solely responsible for the payment of the Texans debt; (2) Texans’s account records did not

show to whom advances were made from 2007 through 2012; (3) Brizendine never lived in

North Carolina; and (4) Brizendine denied receiving any cash advances from Texans after his

divorce from Molly. In its conclusions of law, the trial court determined Texans did not establish

it had advanced money to Brizendine from 2007 through 2012 and Brizendine was not jointly

liable for money advanced to Molly between 2007 and 2012 because they were not married

during that time.

       Texans now appeals from the take-nothing judgment arguing that Brizendine was

contractually bound to repay the money advanced to Molly, their divorce did not bar Texans’s

claim against Brizendine, and the evidence was insufficient to support the trial court’s finding

that Texans did not know to whom they made advances from 2007 through 2012. We agree.

       In an appeal from a bench trial, we review a trial court’s findings of fact under the same

sufficiency of the evidence standards used with respect to jury findings. Ortiz v. Jones, 917

S.W.2d 770, 772 (Tex. 1996) (per curiam). Where, as here, our record contains a reporter’s

record of the trial proceedings, findings of fact are not conclusive if the contrary is established as

a matter of law or there is no evidence to support the findings. Brockie v. Webb, 244 S.W.3d

905, 908 (Tex. App.—Dallas 2008, pet. denied). We review the trial court’s conclusions of law

de novo. Fulgham v. Fischer, 349 S.W.3d 153, 157 (Tex. App.—Dallas 2011, no pet.). We are

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not bound by the trial court’s erroneous conclusions of law. See Bantuelle v. Williams, 667

S.W.2d 810, 818 (Tex. App.—Dallas 1983, writ ref’d n.r.e.) (per curiam).

          To prevail on its breach of contract claim, Texans was required to present evidence: (1)

of an existing contract, (2) performance of the contract by Texans, (3) breach of the contract by

Brizendine, and (4) damages from the breach. See Nat’l Health Res. Corp. v. TBF Fin., LLC,

429 S.W.3d 125, 131(Tex. App.—Dallas 2014, no pet.).

          Texans’s recovery specialist Michelle Welch testified that Brizendine and Molly

executed an application and contract with Texans for a Texchek account. Welch also indicated

the contract required a written statement to terminate an individual’s liability as to the amounts

advanced. She further testified that Texans performed under the contract by making advances to

the account when requested and that Brizendine defaulted by failing to make payments as they

became due. She indicated that Texans was the owner and holder of the contract and that the

total amount outstanding on the account was $14,443.87. The application, contract, account

history from September 2007 through September 2012, and Texans’s demand letter addressed to

Brizendine were admitted into evidence.

          On cross-examination, Welch was questioned about who received an advance on March

2012. She responded, “it either went into her checking account or it could have gone to Mr.

Brizendine or it could have gone to Molly.” Additionally, Welch indicated that the names on the

account as of September 2007 were Molly and Brizendine.

          Brizendine testified that he was divorced from Molly in 1999 and had not used the

Texans account since then.             Brizendine also introduced into evidence his divorce decree

providing that Molly was responsible for paying the balance of the Texans account. 1 At the close

of evidence, Brizendine’s counsel argued that after their divorce, Brizendine was no longer

   1
       At the time of the divorce, the balance on the account was $14,477.


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responsible for advances made to Molly and there was no evidence that he received any

advances after the divorce.

       The undisputed evidence before the trial court, however, established that Brizendine

signed the contract as a co-borrower obligating him to repay advances made on the Texans

account and that he never terminated his liability under the contract by providing Texans with

written notice. The payment history from 2007 through 2012 lists both Molly and Brizendine on

the account and reflects a balance due and owing of $14,443.87. It is well-settled that a court in

a divorce action has no power to disturb rights that creditors lawfully hold against the parties.

See Blake v. Amoco Fed. Credit Union, 900 S.W.2d 108, 111 (Tex. App.—Houston [14th Dist.]

1995, no writ.); Swinford v. Allied Fin. Co. of Casa View, 424 S.W.2d 298, 301 (Tex. Civ. App.–

Dallas 1968, writ dism’d); see also Brister v. Bank of Am., N.A., No. 03-00-00610-CV, 2001 WL

893456 at *2 (Tex. App.—Austin Aug. 9, 2001, no pet.) (mem. op.);. Accordingly, the evidence

conclusively establishes all elements of Texans’s breach of contract claim against Brizendine.

       A review of the findings of fact and conclusions of law suggests that the trial court

determined that Texans could only recover from Brizendine if it established that he actually

received the advances Texans made on the account from 2007 through 2012. In its conclusions

of law, the trial court reasoned that because Brizendine was no longer married to Molly at that

time, he was not liable for her debts. Texans’s lawsuit, however, was not based on joint and

several liability for marital debts but on Brizendine’s contractual liability based on the agreement

he signed. Simply stated, Brizendine’s divorce did not release him from his contractual liability

to Texans for advances made to an account on which he remained a named borrower. See id.




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       We reverse the trial court’s judgment and remand the cause to the trial court to render

judgment against Brizendine for $14,443.857 plus interest and to determine the determine the

issue of Texan’s attorney’s fees.




                                                   / David Evans/
                                                   DAVID EVANS
131422F.P05                                        JUSTICE




                                             –5–
                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

TEXANS CREDIT UNION, Appellant                        On Appeal from the County Court at Law
                                                      No. 2, Dallas County, Texas
No. 05-13-01422-CV          V.                        Trial Court Cause No. CC-13-00481-B
                                                      Opinion delivered by Justice Evans, Justices
RICHARD C. BRIZENDINE, Appellee                       Francis and Stoddart participating.

       In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court to render judgment against
Richard C. Brizendine for $14,443.87 plus interest and to determine the issue of Texan’s
attorney’s fees.

       It is ORDERED that appellant Texans Credit Union recover its costs of this appeal from
appellee Richard C. Brizendine.


Judgment entered this 4th day of May, 2015.




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