OPINION
Tоmas Zuniga and Berlinda A. Zuniga appeal the trial court’s take-nothing judgment. The judgment denies the Zunigas statutory relief on their claim that Margaret L. Velasquez failed to timely transfer title pursuant to a contract for deed. Because the Zunigas did not establish as a matter of law that аll payments due under the contract were paid in full prior to demanding legal title, we affirm the judgment of the trial court.
Background
On June 1, 1996, the Zunigas entered into an executory contract (or “contract for deed”) with Velasquez to purchase a house *772 located at 1119 W. Summit. The contrаct for deed provided for immediate possession by the Zunigas, but Velasquez was to retain title until the Zunigas paid the full purchase price, at which time Velasquez would convey the property to the Zunigas by general warranty deed. Under the contract for deed, the Zunigas cоuld either pay a cash price of $37,000 or a deferred payment price of $57,228.49, less a cash down payment of $3,200. The deferred payment price called for 143 payments of $375.20, plus a final payment of $374.89 due on June 1, 2008. Payments more than 15 days late were to be assessеd a 5% late fee. Additionally, the contract for deed provided that if the Zunigas did not pay the property taxes directly, the Zunigas would reimburse Velasquez for property tax payments she made, subject to an 8.5% interest charge.
On October 29, 2004, the Zunigas gave Velasquez two cаshier’s checks totaling $14,517.93, asserting that they constituted the final payment under the contract for deed. The Zunigas asked Velasquez to transfer title to the property, but Velasquez refused, claiming the Zunigas owed her $1,694.49 for the 2004 property taxes. In January of 2005, the Zunigas paid Velasquez $1,649.49 аnd renewed their demand that she convey the property to them; Velasquez again refused to transfer the title because she had a mortgage on the property and the Zunigas’s early payoff amount was insufficient to pay off her mortgage. In October of 2005, the Zuni-gas filed suit, сlaiming Velasquez violated section 5.079(a) of the Texas Property Code by failing to convey title within 30 days after final payment was made, and seeking attorney’s fees and statutory liquidated damages in the amount of $182,000 through October 1, 2005. See Tex Peor Code Ann. § 5.079(a), (b) (Vernon 2004) (providing that a seller of property covered by an executory contract who fails to convey legal title to the purchaser more than 30 days after the final payment is made is liable to the purchaser for liquidated damages in the amount of $250 per day from the 31st day to the 90th day after final payment is madе, and $500 per day for each day after the 90th day after final payment is made). After being served ■with citation, Velasquez immediately forwarded a signed warranty deed to the Zunigas’s attorney. Thereafter, Velasquez filed her original answer, asserting that because the title had been transferred subsequent to the filing of the lawsuit, the Zunigas had not been harmed, and thus were not entitled to damages. Less than one month before trial was set, Velasquez filed an amended answer, arguing that because a balance was still due and owing on the property, no final payment hаd ever been made, and therefore she had no duty to transfer the title to the Zunigas. In support, Velasquez alleged that a balance remained due on the property because the Zunigas: 1) only paid her $375 each month, not $375.20 as required under the contract for deed; 2) fаiled to make timely monthly installment payments and therefore owed late fees; 3) owed interest on property tax payments that were made late; and 4) owed $45 on the 2004 property taxes because the Zunigas paid her $1,649.49 — not $1,694.49 as required — due to a transposition error.
Following a bench trial, the trial court rendered a take-nothing judgment against the Zunigas, concluding they were not entitled to damages or attorney’s fees. The trial court made the following findings of fact, now challenged on appeal:
(7) During the period that the Plaintiffs were required to make monthly installment payments to the Defendant, most of the payments were late, as were several of the reimbursed tax payments. The late pay *773 ment penalties were not shown by the evidence presented as fully paid by the Plaintiffs;
[[Image here]]
(10) The 2004 taxes to be reimbursed to thе Defendant was in the sum of $1694.49. The 2004 tax reimbursement was for $1649.49[,] being $45.00 short of the true tax figure; and
[[Image here]]
(12) The Plaintiffs failed to meet [their] burden that the balance owing on the Contract for Deed was fully paid to the Defendant.
Additionally, the trial court made the following pertinent conclusions of law:
(2) The еvidence and testimony presented by the Plaintiffs did not meet such burden of proof and left a doubt as to the balance remaining due to several factors:
[[Image here]]
b. the late installment payments and late tax reimbursement payments were not proven as having been paid;
c. the shоrtage of each monthly installment payment was not proven as having been paid[J
Discussion
On appeal, the Zunigas challenge the trial court’s factual findings and legal conclusions that they did not pay Velasquez all amounts due under the contract for deed. We review the trial court’s findings for legal and factual sufficiency of the evidence.
BMC Software Belg., N.V. v. Marchand,
In order to recover damages under section 5.079 of the Texas Property Code, the Zunigas were required to prove they fulfilled the terms of the contract for deed, and Velasquez failed to convey title within 30 days after receiving the final payment. See Tex. Prop.Code Ann. § 5.079(a). Although the Zunigas believed the final payoff amount to be correct at the time it was paid, they now concede they owe Velasquez for amounts that were not paid under the contract for deed. In fact, the evidence at trial conclusively established that the Zunigas failed to pay off the contract for deed. First, Velasquez testified that most of the 101 installment payments she receivеd were in the amount of $375.00, as opposed to $375.20 as required by the contract for deed, and therefore most of the monthly installment payments made by the Zunigas were short by twenty *774 cents. The Zunigas did not dispute making most payments in the amount of $375.00. 1 Second, the evidence showed, and the Zunigas concede, that they did not pay the late fee for the October 2004 installment payment. Third, the evidence was uncontroverted that the Zunigas still owed $45 for the 2004 property taxes due to a transposition error. Finally, Velasquez testified that from 1997 to 2001, the Zunigas did not reimburse her for thе taxes by the specified deadline, and that the Zunigas further did not pay any of the late fees incurred by the late payments. In response, the Zunigas did not present any evidence to prove they paid the tax reimbursements on time, nor did they refute Velasquez’s claim that they failеd to pay the interest due on late property tax reimbursement payments.
Despite conceding the twenty cent shortages, the October 2004 late fee, interest on the late tax reimbursement payments, and the $45 that was not paid for the 2004 property taxes, the Zunigas cоntend any deficiency was more than satisfied by excessive late fees they paid to Velasquez.
2
Specifically, they argue Velasquez routinely demanded a $25 late fee instead of the 5% late fee — equating to $18.75 — provided for in the contract for deed. At trial, the Zunigas did рresent evidence that on August 29, 2003 they made the equivalent of 25 late fee payments for late monthly payments incurred during the time period of 2001 to mid-2003. The Zunigas also testified they made seven other late fee payments prior to 2001, although copies of these checks were not admitted into evidence. Thus, the Zunigas maintain they overpaid Velasquez $200.00, which should offset any amount Velasquez claims was not paid under the contract for deed.
3
We disagree that such an offset, if even owed, triggered a duty to transfer title. The right of offset is an affirmative defense which must be pleaded and proved by the party asserting it.
See Brown v. Am. Transfer & Stomge Co.,
Because the Zunigas did not establish as a matter of law that the amounts owed under the contract for deed were fully paid, wе hold the evidence is legally sufficient to support the judgment. In addition, the evidence presented does not show that the trial court’s findings are clearly wrong or unjust so as to render the evidence factually insufficient. Furthermore, the trial court’s conclusions of law were not erroneous as a matter of law.
4
There was sufficient evidence in the record that the Zunigas did not fully pay the amount owed under the contract for deed, and therefore the trial court did not err in denying their claims. Section 5.079 imposes a harsh penalty
5
on a noncomplying seller, and therefore the Zunigas were required to demonstrate that they made all payments as called for under the contract for deed. The Zunigas failed to meet this exacting burden of proof.
See Flores v. Millennium Interests, Ltd.,
Notes
. The Zunigas, however, contend that even though each monthly installment was short $0.20, the fact that Velasquez accepted each payment for $375.00 should waive any further claim to the additional $0.20 owed for each installmеnt. The Zunigas do not cite any authority for this position, and the contract for deed undisputedly required payments in the amount of $375.20.
. The Zunigas calculate the total amount at issue as $130.49, which includes interest on all late payments; however, when Velasquez was questioned at trial as to whether that figure reasonably encompassed all amounts due under the contract for deed, she stated that it did not.
.The Zunigas also claim they are owed unearned finance charges pursuant to the prepayment clause in the contract for deed; howevеr, they presented no evidence at trial as to a dollar amount they are allegedly owed for early payment.
. The Zunigas challenge the trial court’s conclusion of law that because the Zunigas were not harmed by Velasquez's delay in delivering the deed, it would be unjust to penalize Velasquez. Section 5.079 does not include a requirement that the buyers be harmed, and such a requirement would undermine the underlying purpose of the statute. Tex. Prop. Code Ann. § 5.079 (Vernon 2004). This court has held that a similar provision in the Property Code does not require purchasers to show actual harm, and we believe the same result is applicable to section 5.079.
See Marker v. Garcia,
. Although the Texas Supreme Court has not decided "whether the assessment of ‘liquidated damages’ in section 5.079[is] compensatory or penal in nature,” the court has noted that the formula for computing damages is severe and that the "underlying character” of the statute is "penal in nature.”
Flores v. Millennium Interests, Ltd.,