Affirmed and Memorandum Opinion filed August 21, 2018.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00840-CV

  CARMAX BUSINESS SERVICES, LLC, A SUBSIDIARY OF CARMAX
               AUTO SUPERSTORES, Appellant
                                         V.

                 BRANISHIA ANNETTE HORTON, Appellee

             On Appeal from the County Civil Court at Law No. 1
                           Harris County, Texas
                      Trial Court Cause No. 1071212

                  MEMORANDUM OPINION
      Appellant CarMax Business Services, LLC appeals from an adverse judgment
on its breach of contract claim. In its first issue, CarMax contends that the evidence
conclusively established all elements of its breach of contract claim. In its second
issue, CarMax argues that no legally or factually sufficient evidence supports the
trial court’s implied findings in favor of appellee Branishia Horton’s affirmative
defenses. Finally, in its third issue, CarMax argues that the trial court’s award of
damages in Horton’s favor fails either as a matter of law or for insufficient evidence.

      We conclude that the record contains legally and factually sufficient evidence
to support the trial court’s implied finding that Horton established her affirmative
defense of release. Therefore, we need not consider CarMax’s first issue or the
evidentiary support for appellee’s other affirmative defenses. However, because
Horton presented no evidence of compensable damages, we sustain CarMax’s third
issue and modify the judgment to delete the award of damages. Accordingly, we
affirm the trial court’s judgment as modified.

                                    Background

      CarMax sued Horton for breach of contract. CarMax alleged the following
facts. On January 25, 2013, Horton agreed to purchase a car from CarMax for
$18,856.82. Horton financed the purchase price with Santander Consumer USA,
Inc. d/b/a RoadLoans (“Santander”). Pursuant to the financing agreement, Horton
agreed to pay Santander $456.16 per month, for seventy-two months. Horton made
several payments. A third party was responsible for causing an accident and
damaging Horton’s vehicle beyond repair. Horton continued to make payments on
the note to Santander following the accident. Later, Santander told Horton over the
phone that the car was “paid off,” and Horton then received a letter from Santander,
advising that Horton’s account was “paid in full.” At that point, Horton ceased
making payments under the note.

      On July 2, 2015, Santander assigned its interest in the financing agreement to
CarMax. CarMax later sued Horton, seeking the balance on the financing agreement
for Horton’s car, which was $16,193.37.

      Horton asserted a number of affirmative defenses against CarMax’s breach of
contract claim, including release, quasi-estoppel, and accord and satisfaction.


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According to Horton, she timely made all monthly payments until her car was
deemed totaled, and she received a release from Santander from any further
payments. Horton also asserted counterclaims for breach of contract and negligence.

      After a bench trial, the trial court signed a judgment in Horton’s favor,
awarding her $7,375 in damages and ordering that CarMax take nothing on its claim.
No party requested findings of fact and conclusions of law. CarMax appeals the trial
court’s judgment.

                                        Analysis

      CarMax raises three issues for our review, all challenging the legal and factual
sufficiency of the evidence supporting the trial court’s judgment. The first two
issues attack both the legal and factual sufficiency of the evidence supporting the
trial court’s implied findings that (1) CarMax did not establish its breach of contract
claim or (2) Horton established an affirmative defense. CarMax’s third issue
challenges is the legal and factual sufficiency of evidence to support the trial court’s
damages award.

A.    Standard of Review for Challenges to Evidentiary Sufficiency

      There are no findings of facts or conclusions of law included in our record,
and the record does not reveal whether either party requested findings and
conclusions. In a nonjury trial, when findings of fact and conclusions of law are
neither filed nor timely requested, all necessary findings in support of the trial court’s
judgment are implied. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.
1992). When a reporter’s record is filed, an appellant may challenge implied
findings by factual or legal sufficiency points, just as it could challenge jury findings
or a trial court’s written findings of fact. Id. at 84. If the evidence supports the
implied findings, we must uphold the trial court’s judgment on any theory of law


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applicable to the case. In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984) (per curiam).

      When a party attacks the legal sufficiency of an adverse finding on which he
did not have the burden of proof, he must demonstrate on appeal that no evidence
supports the finding. Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex.
2014) (per curiam). We review the evidence in the light most favorable to the
appealed finding and indulge every reasonable inference that supports it. City of
Keller v. Wilson, 168 S.W.3d 802, 821-22, 827 (Tex. 2005); Graham Cent. Station,
442 S.W.3d at 263. But the fact finder is the sole judge of the credibility of the
witnesses and the weight to give their testimony, and it is the province of the fact
finder to resolve conflicts in the evidence. City of Keller, 168 S.W.3d at 819-20. If
the evidence at trial would enable reasonable and fair-minded people to differ in
their conclusions, then the fact finder must be allowed to do so, and we may not
substitute our judgment for that of the fact finder. Id. at 822.

      When a party attacks the factual sufficiency of the evidence pertaining to a
finding on which the party did not have the burden of proof, we may set aside the
finding only if it is so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust. Bennett v. Comm’n for Lawyer Discipline, 489 S.W.3d
58, 66 (Tex. App.—Houston [14th Dist.] 2016, no pet.). We consider all the
evidence, but we will not reverse the judgment unless “the evidence which supports
the [] finding is so weak as to [make the finding] clearly wrong and manifestly
unjust.” Star Enter. v. Marze, 61 S.W.3d 449, 462 (Tex. App.—San Antonio 2001,
pet. denied); see also Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).
The amount of evidence necessary to affirm is far less than the amount necessary to
reverse a judgment. GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d
599, 616 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).

      This court is not a factfinder. Maritime Overseas Corp. v. Ellis, 971 S.W.2d

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402, 407 (Tex. 1998). Instead, the trier of fact—in this case the trial court—is the
sole judge of witness credibility and the weight afforded their testimony. GTE
Mobilnet, 61 S.W.3d at 615-16. Therefore, we may not pass upon the witnesses’
credibility or substitute our judgment for that of the trial court, even if the evidence
would also support a different result. Id. “If we determine that the evidence is
factually insufficient, we must detail the evidence relevant to the issue and state in
what regard the contrary evidence greatly outweighs the evidence in support of the
challenged finding; we need not do so when we affirm.” Bennett, 489 S.W.3d at 66.

B.    Application

      1. Take-nothing judgment against CarMax

      CarMax sued, as Santander’s assignee, to recover damages from Horton’s
breach of the financing agreement with Santander. Horton asserted a number of
affirmative defenses in response. After the bench trial, the court ordered that
CarMax take nothing in its claim against Horton. Because no findings of fact or
conclusions of law appear in our record, we have no way of telling whether the trial
court ruled as it did because CarMax did not prove its contract claim or because the
court found that Horton proved one of her affirmative defenses.

      We assume arguendo that CarMax established conclusively its breach of
contract claim, and consider whether legally and factually sufficient evidence exists
to support the trial court’s implied finding that Horton established an affirmative
defense, specifically the defense of release.

      A release is a writing providing that a duty or obligation owed to one party is
discharged immediately or on the occurrence of a condition. In re OSG Ship Mgmt.,
Inc., 514 S.W.3d 331, 344 (Tex. App.—Houston [14th Dist.] 2016, no pet.). A
release is a contract subject to the rules of contract construction. Williams v. Glash,


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789 S.W.2d 261, 264 (Tex. 1990). A release extinguishes a claim and bars recovery
on the released matter. OSG Ship Mgmt., 514 S.W.3d at 344.

      Horton testified that she was in a car accident that damaged her vehicle
beyond repair, and the other driver was at fault. Horton called Santander to inform
the company that the vehicle was considered totaled. At Santander’s request, Horton
provided the contact information for the adjustor handling the claim for the other
driver’s insurance company. Horton believed that “Santander knew that the vehicle
was totaled and was kept in the loop with the insurance claim.” Horton continued
to make payments to Santander after the accident.

      Horton later called Santander to make a payment over the phone and was told
that “the car’s paid off.” Horton also received a letter from Santander stating that
Horton’s account was “paid in full.” At that point, Horton did not believe that she
owed Santander any further payments and that “as far as what [Horton] was
communicated with from them on [her end], things were satisfied.” Horton assumed
that the other driver’s insurance company had paid Santander.

      We conclude that the above evidence is legally sufficient proof of release. In
its reply brief, CarMax asserts that the letter was not admitted as evidence at trial.
However, CarMax fails to explain why the trial court could not consider Horton’s
unobjected-to testimony about the letter as evidence supporting a finding of release.
CarMax does not identify any other element of the purported release that is not
supported by sufficient evidence, nor does CarMax contend that the release is subject
to avoidance on grounds such as fraud or mistake. See Williams, 789 S.W.2d at 264
(release is subject to avoidance “just like any other contract”). Further, after
reviewing the entire record under the appropriate standard, we cannot say that the
trial court’s decision is so against the great weight and preponderance of the evidence
such that it is clearly wrong and manifestly unjust. See PNS Stores, Inc. v. Munguia,

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484 S.W.3d 503, 510-11, 517 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
Accordingly, we conclude that factually sufficient evidence supports the trial court’s
implied finding that Santander discharged Horton of any remaining obligation to
continue making loan payments, which amounts to a release. See, e.g., In re J.P.,
296 S.W.3d 830, 835 (Tex. App.—Fort Worth 2009, no pet.) (notice from attorney
general providing that child support obligation was paid in full was release
purportedly discharging father of the full amount of arrearages).

      CarMax alternatively argues that, even if Santander released Horton from her
obligations under the financing agreement, the release defense fails as a matter of
law because CarMax is not bound by a release executed by a third party. CarMax
contends that Santander had no authority to bind CarMax to the release. See, e.g.,
Anderson Furniture Co. v. Roden, 255 S.W.2d 345, 352 (Tex. Civ. App.—Amarillo
1952, writ ref’d n.r.e.) (a release does not bind one who is not a party to it). However,
CarMax assumed all rights and obligations enjoyed or owed by Santander when
CarMax took assignment of the note. As assignee, CarMax stood in Santander’s
shoes and could assert only those rights that Santander could have asserted. See Gulf
Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 420 (Tex. 2000). CarMax therefore
was bound by Santander’s release of Horton’s payment obligation, which
extinguished any claim and barred recovery on the released matter. OSG Ship
Mgmt., 514 S.W.3d at 344.

      Because the trial court’s implied finding that Horton proved her affirmative
defense of release is supported by legally and factually sufficient evidence, we must
uphold the trial court’s take-nothing judgment against CarMax. W.E.R., 669 S.W.2d
at 717. We overrule CarMax’s first and second issues.




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      2. Award of damages to Horton

      In its third issue, CarMax argues that there is no evidence to support the trial
court’s award of damages to Horton. We agree.

      At the conclusion of the bench trial, Horton’s attorney testified as to his fees,
which were $250 per hour, for 29.5 hours. Those fees total $7,375, which is the
amount awarded to Horton as damages in the trial court’s judgment. Horton did not
present any other evidence of alleged damages.

      Horton argues that she prevailed on her breach of contract and negligence
counterclaims and that her attorney’s fees were appropriate measures of damages
under either theory. She cites no statute or case law to support her assertion. Horton
asserted a breach of contract counterclaim against CarMax in the alternative to her
affirmative defense of release. Because we conclude that legally and factually
sufficient evidence supports the trial court’s implied finding of release in Horton’s
favor, the court would not have reached Horton’s alternative counterclaim for breach
of contract. Even assuming CarMax breached its contract with Horton, however,
she cannot recover attorney’s fees as her sole damages. “[T]here must be a recovery
of money, or at least something of value; otherwise, the attorney’s fee award cannot
be described as an ‘addition’ to the claimant’s relief.” Kenneth Leventhal & Co. v.
Reeves, 978 S.W.2d 253, 257-58 (Tex. App.—Houston [14th Dist.] 1998, no pet.)
(internal quotation omitted). There being no evidence of any actual damages that
Horton suffered as a result of CarMax’s alleged breach, she is not entitled to an
award of attorney’s fees under a breach of contract theory. See id.; RAS Grp., Inc.
v. Rent-A-Center East, Inc., 335 S.W.3d 630, 641-42 (Tex. App.—Dallas 2010, no
pet.) (attorney’s fees incurred in defending breach of contract and tort claims not
considered actual damages).

      Similarly, if the trial court found that Horton prevailed on her negligence
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claim, she cannot recover attorney’s fees. See Parkway Co. v. Woodruff, 901 S.W.2d
434, 441 n.9 (Tex. 1995).

      Horton also seems to contend that she had to hire an attorney to defend against
CarMax’s breach of contract claim. But a party who successfully defends a breach
of contract claim is not entitled to recover attorney’s fees unless the contract provides
for it. Horton does not identify any provision of a contract that would permit her to
recover her attorney’s fees. See Thottumkal v. McDougal, 251 S.W.3d 715, 718-19
(Tex. App.—Houston [14th Dist.] 2008, pet. denied); Wilson & Wilson Tax Servs.,
Inc. v. Mohammed, 131 S.W.3d 231, 240 (Tex. App.—Houston [14th Dist.] 2004,
no pet.).

      We sustain CarMax’s third issue and modify the trial court’s judgment to
delete the award of $7,375 to Horton.

                                      Conclusion

      We affirm the trial court’s judgment as modified.



                                         /s/       Kevin Jewell
                                                   Justice



Panel consists of Justices Jamison, Wise, and Jewell.




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