                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00056-CV




      IN THE MATTER OF THE MARRIAGE OF
 KRYSTAL REDDING BILLS AND BRADLEY GILL BILLS




         On Appeal from the 62nd District Court
                Lamar County, Texas
                Trial Court No. 81418




       Before Morriss, C.J., Carter and Moseley, JJ.
         Memorandum Opinion by Justice Carter
                                   MEMORANDUM OPINION
          The trial court denied Krystal Redding Bills’ request for a money judgment against her

former spouse, Bradley Gill Bills. Krystal appeals, arguing that the trial court erred in denying

her claim. We find no error and affirm the judgment.

I.        Background

          Krystal and Bradley were divorced in Lamar County in July 2012. The parties entered

into a property division agreement that was incorporated into the final decree of divorce. Among

the property awarded to Krystal under the final decree was a “2004 Nissan Maxima motor

vehicle . . . together with all prepaid insurance, keys, and title documents.” The decree also

divested Bradley of “all right, title, interest, and claim” in the 2004 Maxima. The final decree

required Bradley to pay the promissory note to Guaranty Bond Bank that was “given as part of

the purchase price of and secured by a lien on the 2004 Nissan Maxima” and to “indemnify and

hold [Krystal] and her property harmless from any failure to so discharge.”

          Several months after their divorce was final, Krystal’s daughter was in an accident in the

vehicle, and it was a total loss. Although Krystal had not insured the vehicle, Bradley paid to

insure it. Bradley’s insurance company paid Guaranty Bond Bank the balance then owing on the

note, and the rest of the proceeds of the value of the vehicle were paid to Krystal. 1 In addition,

Krystal’s daughter received $2,500.00 in personal injury protection benefits under Bradley’s

policy.



1
Although there is a conflict in the testimony regarding whom the insurance company paid, the parties agree that
Krystal received the proceeds.

                                                      2
            Krystal filed a petition for enforcement of the property division alleging that Bradley had

“failed and refused to reimburse [Krystal] the insurance proceeds paid to Guaranty Bond Bank

by the insurance company to pay the debt of the . . . Maxima . . . .” She also alleged that, since

Krystal was awarded the Maxima and the debt was awarded to Bradley, Bradley could not use

her property to pay his debts. 2 Krystal asked for a money judgment against Bradley for the

amount of the insurance proceeds paid to the bank. Bradley answered and filed a counter-

petition for enforcement. At the final hearing, Krystal testified that she did not know how much

Bradley paid to Guaranty Bond Bank, and neither party introduced competent evidence of either

the amount Bradley owed or the amount of money actually paid to the bank.

II.         The Trial Court Properly Denied Requested Relief

            When no findings of fact or conclusions of law are filed or requested in a nonjury

proceeding, “we infer that the trial court made all the necessary findings to support its

judgment.” Paragon Indus. Applications, Inc. v. Stan Excavating, LLC, 432 S.W.3d 542, 548

(Tex. App.—Texarkana 2014, no pet.) (citing Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.

1989) (per curiam)). If the implied findings are supported by the evidence, we must uphold the

judgment on any theory of law applicable to the case. Id. at 549; Giangrosso v. Crosley, 840

S.W.2d 765, 769 (Tex. App.—Houston [1st Dist.] 1992, no writ). Also, we defer to the trial

court’s resolution of conflicts in the evidence and its determinations of the weight to be given the

testimony. Bates v. Tesar, 81 S.W.3d 411, 425 (Tex. App.—El Paso 2002, no pet.).




2
    To the contrary, Krystal did not appeal the denial of her other requested relief.
                                                              3
            A property division agreement incorporated into a divorce decree is a contract between

the parties, and its meaning and legal force and effect are governed by the law of contracts.

Traylor v. Traylor, 789 S.W.2d 701, 703 (Tex. App.—Texarkana 1990, no writ).                 When

construing such an agreement, we are to “ascertain the true intentions of the parties as expressed

in the instrument.”             Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); McPherren v.

McPherren, 967 S.W.2d 485, 490 (Tex. App.—El Paso 1998, no pet.). We examine the entire

agreement and attempt to harmonize and give effect to every provision of the agreement. Coker,

650 S.W.2d at 393 (citing Universal C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154, 158 (Tex.

1951)). All provisions are considered with reference to the entire agreement, and no single

provision, taken alone, will be given controlling effect. Id. If the agreement is worded such that

it can be given a definite or certain legal meaning, then it is not ambiguous. Id.; McPherren, 967

S.W.2d at 490. Krystal does not assert that the agreement in this case is ambiguous. 3

            It is clear that the agreement awards Krystal the 2004 Maxima free of any right, title,

interest, and claim of Bradley. It is also clear that the agreement did not award Krystal the

vehicle free of any right or claim of Guaranty Bond Bank. Rather, the agreement specifically

references the bank’s purchase money lien and the debt owed to the bank. Further, while the

agreement obligates Bradley to pay the debt owed to the bank, it does not specify when or how

he is to pay it. It specifically requires him to pay the promissory note, and making the payments

as they come due is one means of fulfilling that obligation. At the hearing on the parties’ cross-

petitions to enforce, Bradley testified that he made payments to Guaranty Bond Bank as they


3
    Krystal argued to the trial court that “the divorce decree is clear.”
                                                                4
came due until the accident, when the proceeds from his insurance policy were used to pay the

remaining balance.

            In regard to insurance for the vehicle, the agreement only awards Krystal the “prepaid

insurance.” Krystal does not contend, and no evidence was proffered at the hearing, that the

insurance proceeds she sought were from this prepaid insurance policy. The agreement does not

address responsibility for insuring the vehicle after expiration of the prepaid insurance policy.

Bradley purchased appropriate insurance in case the automobile sustained damage. Although

there was some evidence that the bank may have required Bradley to insure the vehicle,

regardless, he paid the policy premiums. As a result of his maintaining insurance, when the

insurance company determined the vehicle was a total loss, it not only paid the bank the

remaining balance on the note, it also paid Krystal the remaining balance of the value of the

vehicle. 4 Thus, not only did the insurance policy fulfill Bradley’s obligation to pay the debt, it

also benefitted Krystal by paying her the equity in the vehicle.

            Krystal sought a money judgment against Bradley for the amount of the insurance

proceeds paid to the bank. “The elements of a breach of contract claim are: 1) existence of a

valid contract; 2) performance or tendered performance by the plaintiff; 3) breach of the contract

by the defendant; and 4) damages to the plaintiff resulting from the breach.” Taub v. Houston

Pipeline Co., 75 S.W.3d 606, 615 (Tex. App.—Texarkana 2002, pet. denied). The burden is on

the plaintiff to establish that she has suffered loss as a result of the defendant’s breach. Id. at

617. She must also establish the amount of loss within a reasonable degree of certainty; the


4
    The exact amount paid to Krystal is not shown in the record.
                                                            5
amount may not be speculative. Id. In this case, there was no competent evidence proffered at

the hearing of the amount the insurance company paid to the bank. Even if Krystal had a valid

claim for the insurance proceeds, she failed to establish any damages, and her claim against

Bradley was properly denied.

         Thus, the evidence supports the trial court’s implied findings that Krystal did not

establish a breach of the property division agreement by Bradley and that she did not establish

any damages.         These findings support the trial court’s take-nothing judgment in favor of

Bradley. 5

III.     Conclusion

         We affirm the judgment of the trial court.




                                                                  Jack Carter
                                                                  Justice



Date Submitted:             October 22, 2014
Date Decided:               November 4, 2014



5
 On appeal, Krystal asserts for the first time that the trial court erred in denying her relief because the facts support a
judgment for money had and received and for unjust enrichment. Krystal did not assert this claim in any pleading or
in argument to the trial court. If a claim is not asserted in the trial court, it may not be raised on appeal. Dreyer v.
Greene, 871 S.W.2d 697, 698 (Tex. 1993). Since this issue was not raised in the trial court, it was waived. See
Carrizales v. Tex. Dep’t of Protective & Regulatory Servs., 5 S.W.3d 922, 925 (Tex. App.—Austin 1999, pet.
denied). In addition, in her reply brief, Krystal asserts for the first time that Bradley had a duty to indemnify her
against the loss of the vehicle. An appellant is not permitted to raise an issue in a reply brief that was not included in
the original brief. TEX. R. APP. P. 38.3; Tipps v. Chinn Exploration Co., No. 06-13-00033-CV, 2014 WL 4377813,
at *4 (Tex. App.—Texarkana 2014, no pet. h.) (mem. op.). Since an issue raised for the first time in a reply brief is
waived, we do not consider it. TEX. R. APP. P. 38.3.
                                                            6
