Brownhawk, L.P. v. Monterrey Homes, Inc., 327 S.W.3d 342

Brownhawk, L.P. and Monterrey Homes, Inc. entered into an earnest-money contract (Sept. 21, 2006) for Brownhawk to convey unimproved land in El Paso County with Brownhawk to complete specified improvements by May 31, 2007.
Monterrey paid $25,000 initially and $200,000 later into escrow; city approval of preliminary subdivision plat required changes, including a drainage flume.
An April 30, 2007 amendment extended Brownhawk’s deadline to May 30, 2007 with a 45-day automatic extension and tied closing to ‘Completion of Development’ as defined by Brownhawk’s remaining obligations and Monterrey’s Builder obligations.
The amendment subdivided responsibilities: Brownhawk to finish earthwork, sidewalks, streets, and utilities; Monterrey to complete certain rock/retaining walls and sidewalks along Dos Palmas Drive, with closing not delayed by Monterrey’s non-completion of those items.
Monterrey could terminate if Brownhawk failed to complete improvements by the amended deadline; Brownhawk alleged Monterrey failed to construct By-Builder improvements; the parties never closed.
On Aug. 16, 2007 Monterrey terminated the contract; Brownhawk sued for breach; Monterrey counterclaimed for Brownhawk’s failure to meet the extended deadline.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether finding fourteen (drainage-related plans) is supported	Brownhawk argues Monterrey’s drainage-flume revisions required by revised plans void Monterrey’s knowledge/consent.	Monterrey contends revisions occurred post-amendment and Brownhawk agreed to follow the original amendment plans.	Overruled; issue deemed non-reversible on this basis.
Whether Brownhawk breached (finding fifteen) and Monterrey did not (finding sixteen)	Brownhawk contends Monterrey’s failure to construct By-Builder improvements excused its own nonperformance.	Monterrey argues Brownhawk failed to complete improvements by the amended deadline, justifying its termination and Brownhawk’s breach.	Brownhawk’s breach claim is unsupported; Monterrey did not breach; finding fifteen and sixteen affirmed (Brownhawk breached).
Attorney’s fees award adequacy	Brownhawk contends the $49,450 attorney’s fees award is unsupported.	Monterrey asserts the fee affidavit supports a reasonable award.	Affirmed; the award was supported by evidence and not an abuse of discretion.

Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991) (sufficiency review standards for findings of fact)
Quick v. Plastic Solutions of Texas, Inc., 270 S.W.3d 173 (Tex.App.-El Paso 2009) (sufficiency review depending on burden of proof)
O'Neil v. Mack Trucks, Inc., 542 S.W.2d 112 (Tex. 1976) (context for sufficiency review and standard)
Driver Pipeline Co., Inc., 134 S.W.3d 195 (Tex. 2004) (material breach sequencing in mutual breach scenarios)
Mustang Pipeline Co., Inc. v. Driver Pipeline Co., Inc., 134 S.W.3d 195 (Tex. 2004) (relationship of breach chronology in contract disputes)
Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264 (Tex.App.-Amarillo 1988) (no-evidence and great-weight standards of review)
Tate v. Tate, 55 S.W.3d 1 (Tex.App.-El Paso 2000) (no-pet portion of appellate standards)
Ames v. Ames, 776 S.W.2d 154 (Tex. 1989) (standard for factual sufficiency review)
Kimsey v. Kimsey, 965 S.W.2d 690 (Tex.App.-El Paso 1998) (weight/credibility and sufficiency review)
Ragsdale v. Progressive Voters League, 801 S.W.2d 880 (Tex. 1990) (attorney’s fees and discretion framework)
Alford v. Johnston, 224 S.W.3d 291 (Tex.App.-El Paso 2005) (evidence sufficiency for fee awards)
F-Star Socorro, L.P. v. City of El Paso, 281 S.W.3d 103 (Tex.App.-El Paso 2008) (fee award reasonableness standards)
Manon v. Tejas Toyota, Inc., 162 S.W.3d 743 (Tex.App.-Houston [14th Dist.] 2005) (fee-shifting and reasonableness considerations)