                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                   No. 07-14-00087-CV


                MARKUS MILLER AND CELIA MILLER, APPELLANTS

                                           V.

                              BOB DURHAM, APPELLEE

                      On Appeal from the County Court at Law No. 3
                                 Lubbock County, Texas
              Trial Court No. 2012-567,938, Honorable Judy Parker, Presiding

                                    August 19, 2014

                           MEMORANDUM OPINION
                  Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellants, Markus Miller and Celia Miller, appeal from a final judgment granted

to appellee, Bob Durham, in a breach of contract action against the Millers. Durham

sued the Millers for breach of a grazing lease and the Millers answered, filed a cross-

claim and asserted certain affirmative defenses. Following a bench trial, judgment was

rendered in favor of Durham for $75,450 together with pre- and post-judgment interest

and reasonable attorney’s fees. Pursuant to the Millers’ request, the trial court filed

findings of fact and conclusions of law. The Millers subsequently moved for a new trial,
and the motion was overruled by operation of law. Thereafter, the Millers perfected this

appeal.


       The Millers now bring forth two issues.       First, the Millers contend that the

evidence was both legally and factually insufficient to support the trial court’s judgment.

Second, they contend that the affirmative defense of repudiation was conclusively

established by the evidence. Disagreeing with the Millers, we will affirm.


                          Factual and Procedural Background


       This lawsuit centers around a grazing lease entered into between the Millers as

lessee and Durham as lessor. The term of the lease was from January 1, 2010, until

December 31, 2014. The lease covered approximately 889 acres of land in Lubbock

and Hale Counties of Texas. The lease called for lease payments of $25,250 per year,

payable in quarterly installments of $6,312.50 each quarter on the first of January, April,

July, and October of each year covered by the lease. There were other standard terms

to the lease, such as the lease terms could only be amended by a written document

signed by all parties; however, the lease did not contain an “act of God” or “force

majeuere” clause.


       The testimony at trial showed that the Millers first began placing their cattle on

the leased premises in May of 2010. The leased grazing land consisted of three distinct

tracts. The tracts were further divided by internal fencing thereby allowing a user to

ascertain which portions of the grazing land to use at any particular time. Beginning in

2010, the area of the state where the tracts are located began experiencing extreme




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drought conditions. According to the testimony, during the entire time the cattle were on

the leased premises, there was very little new growth grass.


      The testimony from Durham and Markus Miller had some differences; however,

the differences were in interpretation of the comments made. It is clear from the record

that Durham had very concrete ideas about how to properly graze the property and

maintain the viability of the grass for future use. Likewise, from the testimony produced

by the Millers, it is clear that the Millers’ position was that the steps they were taking

would allow continued grazing of the leased property while maintaining the ability of the

grass to regenerate when rain came.


      The Millers point to testimony that at some time on Tract 3 of the leased

premises, Durham opened one or more of the internal gates that allowed the cattle to

move from one pasture to another.        Additionally, the Millers contend that, finally,

Durham requested that they remove the cattle from the tract entirely. Durham agreed

that he might have opened a gate but denied that he ordered the cattle be removed

from the tract. Rather, Durham contends that he requested that the Millers do that, and

they acquiesced to the suggestion. The record reflects other incidents that the Millers

term as incidents that effectively breached the contract because Durham ordered cattle

to be removed; and Durham insists that these incidents were ones in which he made

suggestions or recommendations to which the Millers agreed.


      After hearing the evidence, the trial court found that the Millers had breached the

contract and entered a judgment that Durham collect $75,450 in damages. Further, the




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trial court subsequently filed findings of fact and conclusions of law. As pertinent to this

appeal, the findings of fact are as follows:


       (4)    The lease contract was performed by both parties in accordance
              with the terms of the contract through December 31, 2011.

       (5)    The [appellants] failed to pay the quarterly installment due on
              January 1, 2012, and no further payments were paid by [appellant]
              under the terms of the contract.

       (6)    The [appellee] performed all obligations required of him through
              January 1, 2012.

       (7)    [Appellee] did not interfere with the use or possession of the leased
              premises in any material way during the term of the contract.

       (8)    The [appellants] failed to perform their obligation for the payment of
              quarterly lease payments, beginning with the first quarter of the
              year 2012.

       (10)   Written demand for payment of the unpaid balance under the lease
              contract was provided to the [appellants] on April 12, 2012, to which
              [appellants] did not respond.

       Based upon its findings of fact, the trial court entered the following conclusions of

law:

       (1)    The [appellants] breached the contract of the parties by failing to
              pay installments due under the contract after January 1, 2012.

       (2)    There was no breach of the contract by [appellee].

       (3)    There was no failure of consideration . . . to be provided by the
              [appellants] under the contract.

       (4)    There was no rescission, repudiation or waiver [by] the [appellee]
              related to the enforcement of the contract.

       The Millers now appeal contending the evidence is both legally and factually

insufficient to sustain the judgment of the trial court. Additionally, the Millers contend




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that the evidence conclusively established repudiation of the contract by appellee.

Disagreeing with the Millers, we will affirm the trial court.


                                 Sufficiency of the Evidence


Standard of Review


       According to City of Keller v. Wilson, “‘[n]o evidence’ points must, and may only,

be sustained when the record discloses one of the following situations: (a) a complete

absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence

from giving weight to the only evidence offered to prove a vital fact; (c) the evidence

offered to prove a vital fact is no more than a mere scintilla; [or] (d) the evidence

establishes conclusively the opposite of the vital fact.” 168 S.W.3d 802, 810 (Tex.

2005). Our review requires viewing the evidence in the light most favorable to the

verdict, crediting favorable evidence if reasonable jurors could, and disregarding all

contrary evidence unless reasonable jurors could not.           Id. at 807.   We may not

substitute our judgment for that of the trier of fact as long as the evidence would allow

reasonable and fair-minded people to differ in their conclusions. Id. at 822. This is but

another way of saying that, as long as there is more than a scintilla of evidence to

support the jury’s answer to the fact question at issue, the legal sufficiency challenge

must fail. See Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex. 2004).

The fact finder is the only judge of the witnesses’ credibility and the weight to be given

their testimony. See City of Keller, 168 S.W.3d at 819.


       In a factual sufficiency review, we consider all of the evidence both supporting

and contrary to the fact finder’s answer to the fact question at issue. See Plas-Tex, Inc.


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v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). Because Durham bore the

burden of proof at trial, we will only reverse if we find that the evidence supporting the

fact finder’s finding is so weak or so contrary to the finding as to be clearly wrong and

manifestly unjust. See Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d

264, 276 (Tex. App.—Amarillo 1988, writ denied).            When conducting a factual

sufficiency review, we may not substitute our judgment for that of the fact finder.    See

Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). Additionally,

the fact finder is the sole judge of the credibility of the witnesses and the weight to be

given to their testimony. See id.


                                        Analysis


      Initially, the Millers contend that there was legally insufficient evidence to support

the trial court’s factual findings. Specifically, they contend that Durham requested that

the Millers remove the cattle from one pasture to another.            Eventually, Durham

requested that the Millers remove all the cattle from the grazing pastures. The Millers

conclude that this testimony indicates that it was Durham and not the Millers who first

breached the contract. However, Durham testified that he never required the Millers to

remove the cattle.    Instead, Durham testified that he made recommendations and

requests that the cattle be moved and ultimately removed.              Durham’s position

throughout was that the Millers acquiesced to the requests voluntarily. Throughout the

trial, when the issue of the discussions regarding moving the cattle from one pasture to

another or, ultimately, from the pasture to other locations, the term “requests” was

emphasized.



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       The trial court heard this testimony as the fact finder and found in finding of fact 4

that “[t]he lease contract was performed by both parties in accordance with the terms of

the contract through December 31, 2011.” Further, in finding of fact 7, the trial court

found that, “[Durham] did not interfere with the use or possession of the leased

premises in any material way during the terms of the contract.” The cumulative effect of

these findings is that Durham’s requests were not a breach of the contract.

Remembering that the fact finder is the sole judge of the credibility of the witnesses and

the weight to be given their testimony, the findings of fact 4 and 7 are supported by the

testimony. See City of Keller, 168 S.W.3d at 819. Accordingly, there is more than a

scintilla of evidence to support the trial court’s findings of fact on the issue of whether

Durham first breached the lease. See Tarrant Reg’l Water Dist., 151 S.W.3d at 552.

Accordingly, the Millers’ issue that the evidence was legally insufficient to support the

trial court’s judgment is overruled.


       When considering the factual sufficiency of the evidence, we do not view the

evidence in the light most favorable to the trial court’s judgment; rather, we must review

all of the evidence and determine whether the evidence supporting the fact finder’s

finding is so weak or so clearly contradictory to the finding as to be clearly wrong or

manifestly unjust. See Raw Hide Oil & Gas, Inc., 766 S.W.2d at 276. However, as in a

legal sufficiency review, the fact finder is the sole judge of the credibility of the

witnesses and the weight to be given to their testimony. See Golden Eagle Archery,

Inc., 116 S.W.3d at 761.


       Again, the Millers focus their appeal on the conflicting testimony, with a view that

Durham first breached the contract by forcing the Millers to move cattle and, ultimately,

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to remove the cattle from the leased premises. While the evidence is present that might

have allowed the trial court to make such a finding, the trial court, upon hearing the

testimony of the witnesses, chose to believe Durham’s version of the facts, that is, that

Durham made recommendations and the Millers acquiesced to them.                    These

recommendations, according to the testimony, were never delivered in the form of

demands but were simply recommendations. The Millers chose to accept them and

acted accordingly. Ultimately, the question of whether the drought forced the removal of

the cattle from the leased premises is not before the Court because the record is clear

about one aspect: the contract at issue did not contain an act of God or force majeure

clause. Therefore, the drought would not be an excuse for performance of the contract.

See GT & MC, Inc. v. Tex. City Ref., Inc., 822 S.W.2d 252, 259 (Tex. App.—Houston

[1st Dist.] 1991, pet. denied). The Millers could have denied Durham’s request and kept

all of the cattle on the lease; however, they chose not to.


       As the fact finder, after hearing the evidence and viewing the witnesses as they

testified, the trial court chose to believe Durham’s version of the facts. We cannot say

that such a finding is supported by such weak evidence or is so clearly contradictory to

the trial court’s finding as to be clearly wrong or manifestly unjust. See Raw Hide Oil &

Gas, Inc., 766 S.W.2d at 276. Accordingly, the evidence is factually sufficient to support

the trial court’s judgment.    The Millers’ contention that the evidence was factually

insufficient to support the judgment is overruled.




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                                       Repudiation


       The Millers’ second issue contends that the evidence conclusively established

that Durham repudiated the contract. This, according to the Millers’ theory, means that

they were then excused from performance of their contractual obligations. To establish

repudiation the Millers would have to show that Durham absolutely and unconditionally

refused to perform the contract without just cause. See El Paso Prod. Co. v. Valence

Operating Co., 112 S.W.3d 616, 621 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)

(op. on reh’g). To support this proposition, the Millers refer the Court to the testimony at

trial discussed in the previous section.


       As stated above, the trial court heard this testimony and concluded that Durham

had not breached the contract and, in its conclusions of law, that Durham had not

repudiated the contract. Further, the Millers’ own conduct was inconsistent with the

conclusion that Durham had repudiated the contract.            The decision to continue

performing under the contract was in the hands of the Millers, yet they chose not to

continue performing. Neither did the Millers opt to rescind the contract. These options

are the ones that were open to the Millers under the repudiation affirmative defense.

See Bumb v. Intercomp. Techs., L.L.C., 64 S.W.3d 123, 125 (Tex. App.—Houston [14th

Dist.] 2001, no pet.) (citing Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203,

211 (Tex. 1999)). Rather, the record reflects that the Millers opted to remove the cattle

from the lease and, subsequently, tried to make a partial payment to continue the lease.

Such action does not show repudiation of the contract by Durham.




                                             9
      The evidence shows that Durham had made suggestions and recommendations

to the Millers regarding the rotation of the cattle in the pastures in question and,

ultimately, he suggested that they remove the cattle all together. It was within the

Millers’ control to accept or refuse the recommendations and suggestions.           Their

decision to remove the cattle was not as a result of Durham’s absolute and

unconditional refusal to perform the contract. See El Paso Prod. Co., 112 S.W.3d at

621. Therefore, repudiation was not conclusively proven. The Millers’ second issue is

overruled.


                                          Conclusion


      Having overruled the Millers’ issues, we affirm the trial court’s judgment.




                                                Mackey K. Hancock
                                                    Justice




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