Jimenez v. Dunham (Tex.App.- Houston [1st Dist.] Jul. 9, 2009) (Keyes)
(jury trial breach of contract judgment affirmed)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Keyes, Hanks and Bland
01-08-00117-CV Jose Raul Jimenez v. Teresa Dunham
Appeal from 113th District Court of Harris County
Trial Court Judge: Hon. Patricia Hancock
Trial Court Case #: 0442113
Appellant Jose Raul Jimenez appeals from a take-nothing judgment in a suit for breach of contract. In his
sole issue, Jimenez argues that the evidence presented at trial was factually insufficient to sustain the
jury's verdict that appellee did not breach the contract.
We affirm the judgment of the trial court.
On February 14, 2002, Jimenez agreed to purchase the Kool City Tejano Night Club in Houston, Texas
from appellee Theresa Dunham. The parties made, in relevant part, the following contract:
THIS AGREEMENT made this 14th day of February 2002 by and between Teresa Dunham (seller), and
Jose Raul Jimenez (buyer).
I. That in consideration of the mutual agreements to be kept and performed on the part of both parties
[Jimenez] does hereby agree to pay [Dunham] and [Dunham] agrees to accept $65,000 as total
purchase price for Kool City Tejano Night Club (a.k.a. Doc Holidays) payable as follows:
A. $20,000 as down payment for buying Kool City Tejano Night Club (a.k.a. Doc Holidays).
B. $45,000 Balance to be paid weekly/monthly payments.
II. This sale is conditional upon the following terms:
A. [Jimemez] agrees to pay the $2,000.00 monthly rent of Kool City Tejano Night Club (a.k.a. Doc
B. [Jimenez] shall pay for all utilities.
C. [Jimenez] shall be responsible for the Beer and Liquor Taxes as they become due.
D. [Jimenez] shall be responsible for all damages to property above, and or missing, destroyed etc.
III. Other terms to be observed by and between the parties [a]forementioned above:
A. If [Jimenez] cannot stand by his agreement on this legal document, he shall forfeit all monies that
have been transacted between both parties above.
B. [Jimenez] shall leave the Beer and Liquor inventory up to par as was from the ending inventory of
C. [Jimenez] agrees to be responsible for the entire operation of Kool City Tejano Night Club (a.k.a. Doc
Holidays). Also for any and all things relating to the above establishment including maintenance of
D. [Dunham] agrees to the above, so long as [Jimenez] keeps his agreement, and makes consistent
payments as mentioned above.
IV. Other Terms
[Jimenez] shall be responsible for all fines.
Jimenez and Dunham also agreed that the nightclub's liquor license would remain in Dunham's name
until its expiration in October 2002. They also agreed that the nightclub's utility bills would remain in
Dunham's name. During the performance of the agreement, Jimenez made a $20,000 down payment in
February 2002 and at least 5 monthly rent payments of $2,000 for March 2002, April 2002, May 2002,
June 2002, and July 2002. He also paid Dunham reimbursements for the utility expenses incurred during
the contract performance.
In September 2002, Dunham and Jimenez had a disagreement regarding the nightclub's monthly rent
payments and utility expenses, and Jimenez threatened to file suit against Dunham. On August 9, 2004,
Jimenez filed suit against Dunham alleging that Dunham had breached the contract. Dunham filed a
counterclaim alleging that Jimenez had breached the contract, Dunham amended her counterclaim on
May 27, 2005.
In the first trial, the jury found that Dunham breached the contract and awarded Jimenez $100,000 in
damages. Dunham filed a motion for judgment notwithstanding the verdict. The trial court denied
Dunham's motion, but it set aside the jury's verdict and ordered a new trial.
The second trial began on October 30, 2007. At trial, Jimenez testified that, in addition to the $20,000
down payment, he made eight monthly rent payments to Dunham totaling $16,000. He testified that he
made the first two or three payments without receiving a receipt from Dunham. He testified that he also
gave Dunham money to pay for the nightclub's utility expenses and that he made significant repairs to
the nightclub as well. Jimenez presented copies of cancelled checks made for rent payments through
July 2002 totaling $10,000. He also presented copies of cancelled checks for utility expenses totaling
Jimenez testified that, on September 5, 2002, Dunham "locked me out" of the nightclub. He testified that
she later told him that "her boyfriend [did] not want me to have, to have the club. She--when I had the
club, she always come [sic] and tell me she want the club back. In several occasion[s] told me that." He
testified that he did not voluntarily relinquish control of the nightclub. Dunham locked him out of the club
by changing the locks on the club.
Jimenez also testified that Dunham later proposed that they become partners in the business and that
he agreed to form a partnership with her, but that after they agreed to form the partnership, she
continued to lock him out of the nightclub. He also testified that he made a $2,510 payment on
September 3, 2002 to Dunham to "share expenses" associated with the operation of the club and that
he made a memo note on the face of the check that this payment was for "shar[ing] 50/50 Kool City
expenses." He testified that he never paid Dunham a fee to use her liquor license while operating the
On cross examination, Jimenez testified that the nightclub made no profits during the 7 months he
controlled it. He also testified that he made the July 2002 and August 2002 monthly rental payments in
cash. He testified that he never failed to make the monthly rental payments, as required under the
Dunham testified that Jimenez had failed to make any monthly rental payments after July 2002. She also
testified that, on August 7, 2002, Jimenez relinquished his keys to the nightclub and told her he no
longer wanted to own the club. On September 3, 2002, Jimenez gave her a check for $2,510.00 to
reimburse her for various expenses the nightclub had incurred while he was operating it. She testified
that, on September 3, 2002, she proposed that they form a partnership to operate the club and that
Jimenez agreed to form a partnership. Jimenez later returned to the nightclub in September 2002 to
discuss the allocation of expenses. During the discussion, Jimenez told her he planned to file suit
against her, effectively dissolving the partnership. Dunham stated:
I don't think him [sic] or I actually literally breached the contract, because I didn't throw him out. We kind
of came to an agreement because we both didn't have money. And neither party--he doesn't want to
admit to it, which is fine with me, but I will admit to it. That's why we were going to go into--but it never
got, you know, put down. That's why he gave me back the club.
Dunham presented copies of the nightclub's utility bills and tax bills.
In rebuttal, Jimenez testified that he made monthly rental payments for July 2002 and August 2002. He
also testified that the $2,510 payment on September 3, 2002 was a monthly rental payment and not a
reimbursement for expenses previously incurred while he was operating the nightclub.
The trial court charged the jury with answering four questions. The jury answered "no" to the first
question: "Did [Dunham] breach the agreement?" Because the jury answered "no" to the first question, it
did not answer the second question regarding Jimenez's damages.
The jury answered "yes" to the third question: "Did [Jimenez] breach the agreement?" Because the jury
answered "yes" to the third question, it answered the fourth question regarding Dunham's damages.
The jury found that Dunham suffered no damages and assessed her damages as zero.
On November 15, 2007, Jimenez filed a motion for new trial and for judgment not withstanding the
verdict. On January 14, 2008, the trial court denied Jimenez's motions. On February 13, 2008, Jimenez
filed his notice of appeal.
In his sole issue, Jimenez argues that the evidence presented at trial was factually insufficient to sustain
the jury's finding that Dunham did not breach the contract. Jimenez argues that the $2,510 payment
made to Dunham on September 3, 2002 was a monthly rental payment for September 2002 and that
Dunham locked him out of the club on or about September 5, 2002, thereby breaching the contract.
Standard of Review
When reviewing a jury verdict to determine the factual sufficiency of the evidence, a court of appeals
must consider and weigh all the evidence, and it should set aside the verdict only if it is so contrary to
the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d
175, 176 (Tex. 1986); El Expresso, Inc. v. Zendejas, 193 S.W.3d 590, 596 (Tex. App--Houston [1st Dist.]
2007, no pet.).
Breach of Contract
The essential elements in a suit for breach of contract are that: (1) a valid contract existed; (2) the
plaintiff performed or tendered performance; (3) the defendant breached the contract; and (4) the
plaintiff was damaged as a result of the breach. Luccia v. Ross, 274 S.W.3d 140, 146 (Tex.
App.--Houston [1st Dist.] 2008, pet. denied). At trial, Jimenez testified that he made a $2,510.00
payment to Dunham on September 3, 2002 as a monthly rental payment and not as reimbursement for
expenses previously incurred while he was operating the nightclub. He also testified that he made a
memo note on the face of the September 3 check, stating that the payment was for "shar[ing] 50/50 Kool
City expenses." He testified that Dunham changed the locks on the nightclub and locked him out of the
club on or about September 5, 2002, preventing him from completing the payment schedule and from
performing under the contract, and thereby breaching the contract.
However, Dunham presented conflicting testimony that Jimenez failed to make any rent payments after
July 2002 and that he voluntarily relinquished control of the club on August 7, 2002 by giving Dunham
the keys to the nightclub and telling her he no longer wanted to own the club, breaching the contract
between them. She testified that, contrary to Jimenez's testimony, Jimenez gave her the $2,510.00
payment on September 3, 2002 as reimbursement for expenses previously incurred while he operated
Jimenez has failed to provide any discussion of the facts or any legal authority to substantiate his claim
that the evidence was factually insufficient to sustain the jury's finding that Dunham did not breach the
contract. He merely reiterated his jury argument that Dunham's locking him out of the club constituted a
breach. Without more, Jimenez has failed to demonstrate that the jury's finding that Dunham did not
breach the contract was so contrary to the overwhelming weight of the evidence as to be clearly wrong
and unjust. See Cain, 709 S.W.2d at 176; El Expresso, Inc., 193 S.W.3d at 596.
We overrule Jimenez's sole issue.
We affirm the judgment of the trial court.
Evelyn V. Keyes
Panel consists of Justices Keyes, Hanks, and Bland.