Court of Appeals
Tenth Appellate District of Texas
10-21-00309-CV
Dick B. Simmons, Sr.,1 and Julie M. Simmons, Appellants
v.
White Knight Development, LLC, Appellee
On appeal from the
361st District Court of Brazos County, Texas Judge Steve Smith, presiding Trial Court Cause No. 18-001344-CV-361
CHIEF JUSTICE JOHNSON delivered the opinion of the Court.
MEMORANDUM OPINION ON REMAND This case is before us on remand from the Texas Supreme Court.
Factual Background
In 2015, White Knight Development, LLC executed a contract to purchase land in a Bryan subdivision from Dick and Julie Simmons for $400,000. The property had been subdivided subject to restrictions, including set-back requirements, and
1 Dick B. Simmons, Sr., died on February 22, 2026, while this case was pending on appeal.
Pursuant to Rule of Appellate Procedure 7.1(a)(1), we will proceed to adjudicate this appeal as if all parties were still alive and will continue to identify Dick B. Simmons, Sr., as an appellant in this case. See TEX. R. APP. P. 7.1(a)(1).
residents voted to extend the restrictions, such that they would be effective until January 1, 2016, with the potential to extend them further if residents voted accordingly by January 1, 2018.
White Knight became concerned that the restrictions could interfere with its plan to develop the property. So the parties agreed to amend the contract to include a “buy-back” provision, giving White Knight the option to require the Simmonses to repurchase the property if residents again voted to extend the restrictions. It provides:
2. “Buy Back” agreement. In return for valuable consideration, Seller agrees that if any of the Restriction concerns . . . are reinstated at any time prior to January 1, 2018, Buyer has the option (but not the obligation) to demand that Seller repurchase the Property. If Buyer exercises this option, Seller shall be required to repurchase the Property for the purchase price stated in the Sale Contract, minus any unpaid balance owed by Buyer under its promissory note with Seller within a 45 day period after this “Buy Back” agreement is requested to be executed.
The sale closed in May 2016, with White Knight paying the $400,000 purchase price in exchange for the property deed.
White Knight’s concerns proved well-founded when the residents voted to extend the restrictions in October 2016. So White Knight invoked the buy-back provision for which it had bargained, giving the Simmonses until December 23, 2017, to repurchase the property at the $400,000 sales price. But the fortyfive -day period came and went, and the Simmonses refused to buy back the land.
White Knight Dev., LLC v. Simmons, 718 S.W.3d 203, 206–07 (Tex. 2025).
Trial Court Proceedings
White Knight sued [the Simmonses] for breach of contract and fraudulent inducement of a real estate contract (and other theories), seeking both specific performance of the buy-back provision and “damages incurred as a result of [the Simmonses’]
conduct, including but not limited to, fees charged by banks or other financial institutions (including extension fees), taxes, interests, and other costs.” The Simmonses responded that a condition precedent to the buy-back provision—extension of the property restrictions—never occurred because those restrictions had expired. They counterclaimed for a declaration that the restrictions are invalid.
The case was tried to the bench. White Knight presented evidence that it suffered financial setbacks it attributed to the Simmonses’ breach. It originally financed its purchase of the Simmons property with a loan from MidSouth Bank. After the Simmonses refused to repurchase, White Knight defaulted on the MidSouth loan and paid a forbearance fee to avoid foreclosure. It took out a second loan to pay MidSouth, using the Simmons property and an unrelated property as collateral. After defaulting on the second loan, White Knight took out a third loan to refinance the unrelated property and pay off the note on the Simmons property. White Knight later transferred title in the unrelated property to the second lender to avoid foreclosure. All throughout, it paid property taxes and loan interest using a company credit card. There was testimony that “White Knight’s business essentially has come to a screeching halt” and the company is no longer functioning “in any capacity.”
The trial court found the Simmonses breached the contract.
In so doing, it concluded that the Simmonses were precluded from asserting there were no valid restrictions on the property under the doctrine of quasi-estoppel. The trial court awarded White Knight specific performance of the buy-back provision, ordering the Simmonses to repurchase the property for $400,000. It also awarded White Knight $308,136.14 in “[a]dditional actual damages/consequential damages” for various costs incurred during the three-and-a-half year period from the date of breach (December 23, 2017) to trial.[ 2] It itemized the monetary award in its findings of fact and conclusions of law:
2 A footnote in the opinion here provides: “The trial court further awarded White Knight attorney’s fees, costs of court, and pre- and post-judgment interest.” Id. at 207 n.1.
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• $103,667.73 for expenses “related to” the Simmons property, including property taxes, forbearance and refinancing fees, and interest payments for the MidSouth loan and the two other loans it acquired to avoid defaulting on the MidSouth loan;
• $45,619.83 for property taxes owed in 2020 ($4,862.23 for the Simmons property and the rest for other properties);
• $8,211.57 in penalties related to past due property taxes for 2020 ($875.20 for the Simmons property and the rest for other properties);
• $59,318.00 in “operating loan interest” for White Knight “to continue business”;
• $74,802.00 in “loan interest related to another property that had to be refinanced to avoid foreclosure of ” the Simmons property; and
• $16,518.00 in “credit card interest” for White Knight to “continue business.”
The trial court found that—due to the Simmonses’ breach—
White Knight had to extend its financing with MidSouth Bank, pay a forbearance fee to avoid foreclosure, and secure financing from additional lenders. Finally, it found that White Knight’s “credit was damaged” and it “suffered significant additional expenses due to other projects that were not able to be completed due to continued expenses.”
Id. at 207–08.
Court of Appeals Proceedings
Both parties appealed. White Knight contended that the trial court erred by not finding in White Knight’s favor on its fraud claim, which was not addressed in the trial court’s judgment. The Simmonses presented several issues, including a challenge to the quasi-estoppel finding and the awards of both specific performance and damages.
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Id. at 208. This Court ultimately modified the trial court’s judgment by deleting the $308,136.14 “damage award” but otherwise affirmed the trial court’s judgment. Simmons v. White Knight Dev., LLC, 703 S.W.3d 136, 139 (Tex. App.—Waco 2023) (mem. op.), rev’d in part, 718 S.W.3d 203 (Tex. 2025).
In our opinion, we first addressed the Simmonses’ challenge to the trial court’s quasi-estoppel finding. See id. at 144–47. When we reviewed the evidence in the light most favorable to the trial court’s finding, we concluded that “the evidence supports the findings and judgment of the trial court regarding the applicability of the doctrine of quasi-estoppel relative to breach of contract and specific performance.” Id. at 147. Accordingly, we concluded that the evidence supports the trial court’s finding that the Simmonses were estopped from arguing the validity of the restrictions. Id.
We then turned to the Simmonses’ challenge to the trial court’s awards of both specific performance and damages. See id. at 147–49. We acknowledged that monetary compensation may be awarded alongside an award of specific performance “in narrow circumstances—when it is deemed necessary to place the parties in the same position as if the contract had been performed.” Id. at 149 (quoting Davis v. Luby, No. 04-09-00662-CV, 2010 WL 3160000, at *4 (Tex. App.—San Antonio Aug. 11, 2010, no pet.) (mem. op.)). We explained:
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The monetary compensation that is awarded by a trial court in connection with a judgment for specific performance is not classified as an award of damages for breach of contract, but rather is classified as an award incident to a decree for specific performance. Heritage Hous. Corp. [v. Ferguson], 674 S.W.2d [363,] 365 [(Tex. App.—Dallas 1984, writ ref ’d n.r.e.)]. The reasoning behind the award “‘is that the contract is being enforced retrospectively and the equities adjusted accordingly.’” Id.
(quoting Johnson v. Downing & Wooten Constr. Co., 480 S.W.2d 254[, 258] (Tex. Civ. App.—Houston [14th Dist.] 1972, no writ)).
In such an instance, “the court will enforce the equities of the parties in such a manner as to put them as nearly as possible in the position they would have occupied had the conveyance been made when required by the contract.” Id. at 366.
Simmons, 703 S.W.3d at 149.
We then explained, however, that we found nothing in the record in this case to indicate that the monetary award was an equitable award. Id. We noted that, to the contrary, the trial court had specifically indicated that it was awarding White Knight “actual damages/consequential damages” in the amount of $308,136.14 because of the Simmonses’ breach of contract. Id. We accordingly modified the trial court’s judgment by deleting the $308,136.14 monetary award, explaining that White Knight could not receive relief in the form of specific performance of the contract and then also receive damages for its breach. Id.
Supreme Court Proceedings White Knight filed a petition for review in the Texas Supreme Court, arguing that this Court erred in modifying the trial court’s judgment. See
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White Knight Dev., LLC, 718 S.W.3d at 208. The Simmonses, on the other hand, did not file a petition for review “challenging [this Court’s] judgment or, more specifically, [this Court’s] conclusion that the Simmonses were estopped from arguing that the restrictions are invalid.” Id. at 208 n.2. Accordingly, the supreme court did not address such argument. Id. But the supreme court did ultimately grant White Knight’s petition for review and reverse this Court’s judgment in part. Id. at 208, 214.
In its opinion, the supreme court initially reaffirmed the “black-letter law” that we relied upon, stating: “[S]pecific performance is an equitable alternative to legal damages. That is, a court may fashion a remedy including one or the other but not both.” Id. at 206. The supreme court then also “embrace[d]” the principle that we acknowledged in our opinion that “monetary compensation may be awarded alongside an award of specific performance ‘in narrow circumstances—when it is deemed necessary to place the parties in the same position as if the contract had been performed.’” Id. at 208 (quoting Simmons, 703 S.W.3d at 149). The supreme court explained, as we did:
[T]he monetary award is an equitable one, the purpose of which is to restore the party seeking specific performance to the position it would have occupied had the other party’s performance been timely by reimbursing it for property-related expenses incurred as a direct result of the delay between the time of the breach and the time of judgment.
Id. at 206.
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However, while we determined that there was nothing in the record in this case to indicate that the trial court’s monetary award was an equitable award, Simmons, 703 S.W.3d at 149, the supreme court determined that “[t]he trial court’s findings of fact and conclusions of law support a conclusion that a portion of the award was intended to account for the delay in performance and to adjust the equities accordingly rather than to award legal damages precluded by the equitable award of specific performance,” White Knight Dev., LLC, 718 S.W.3d at 211. The supreme court thus concluded that we erred in reversing the trial court’s entire monetary award “based solely on the trial court’s label of ‘actual damages/consequential damages’ without substantive analysis of its components.” Id. Accordingly, the supreme court reversed our judgment in part and remanded the case to us to review the trial court’s monetary award consistent with the principles announced in the supreme court’s opinion. Id. at 206, 214.
Issues on Remand
The parties filed supplemental briefing on remand, and the Simmonses’
brief on remand essentially raises four issues. In their first, second, and fourth issues, respectively, the Simmonses contend as follows:
• “There were no valid restrictions after January 1, 1956, because the requirements for renewal in the 1938 restrictions were not met.”
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• “The trial court erred in estopping the [Simmonses] from defending the claim of [White Knight] that the restrictions were no longer in effect as the issue of whether or not restrictions existed after January 1, 1956, was a question of law and neither [of the Simmonses] was trained in the law.”
• “The trial court entered the conclusion that [Julie Simmons] was the agent of her husband and she was his agent without any evidence or pleading to support this conclusion.”
White Knight responds that the Simmonses’ first and second issues are improperly attempting to reopen matters already resolved in this case and that the Simmonses’ fourth issue has been forfeited because the Simmonses are only now raising it for the first time.
In their original briefing in this Court, the Simmonses challenged the trial court’s quasi-estoppel finding. But at that time, the Simmonses did not raise a challenge to the trial court’s conclusion that each of them acted as the agent for the other in their conduct related to the transactions made the basis of White Knight’s claims. Accordingly, in our original opinion, we did not address any challenge to the trial court’s conclusion that the Simmonses each acted as the agent for the other in their conduct related to the transactions made the basis of White Knight’s claims. See TEX. R. APP. P. 47.1.
We addressed the Simmonses’ challenge to the trial court’s quasi-
estoppel finding in our original opinion. See Simmons, 703 S.W.3d at 144–47. As explained above, when we reviewed the evidence in the light most favorable to the trial court’s finding, we concluded that “the evidence supports the
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findings and judgment of the trial court regarding the applicability of the doctrine of quasi-estoppel relative to breach of contract and specific performance.” Id. at 147. In other words, we concluded that the evidence supports the trial court’s finding that the Simmonses were estopped from arguing the validity of the restrictions. Id.
The Simmonses did not thereafter file a petition for review in the Texas Supreme Court “challenging [this Court’s] judgment or, more specifically, [this Court’s] conclusion that the Simmonses were estopped from arguing that the restrictions are invalid.” White Knight Dev., LLC, 718 S.W.3d at 208 n.2. Accordingly, the supreme court did not address such argument. Id.
Instead, White Knight was the only party in this case that filed a petition for review challenging this Court’s judgment. See id. at 208 & n.2. In its petition for review, White Knight raised only one issue, i.e., that this Court erred in modifying the trial court’s judgment by deleting the $308,136.14 monetary award because the trial court properly balanced the equities and awarded White Knight monetary damages for the Simmonses’ delay incident to granting specific performance. Accordingly, in addressing White Knight’s petition for review, the supreme court analyzed only the sole issue raised by White Knight. See id.
After considering White Knight’s issue, the supreme court then reversed this Court’s judgment, but only in part. Id. at 206, 214. In its opinion, the
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supreme court specifically stated only that it was remanding the case to us to review the trial court’s monetary award consistent with the principles announced in its opinion. Id. Consequently, we need not address the Simmonses’ first, second, and fourth issues on remand because such issues are not concerned with our review of the trial court’s monetary award consistent with the principles announced in the supreme court’s opinion. See TEX. R. APP. P. 47.1; Kuo v. Regions Bank, No. 05-22-01325-CV, 2026 WL 166375, at *4 (Tex. App.—Dallas Jan. 21, 2026, no pet.) (mem. op.) (concluding court of appeals need not address on remand issues that party failed to raise in petition for review and that supreme court did not address or conclude were decided incorrectly); Guibot v. de Gonzalez, 367 S.W.3d 442, 448 (Tex. App.—Houston [14th Dist.] 2012, pet. denied).
In their third issue on remand, the Simmonses contend that the trial court’s monetary award was improper because “[t]he damages awarded to [White Knight] were not foreseeable to [the Simmonses] at the time the contract amendment was made and were excessive.” White Knight’s response is that the Simmonses forfeited this issue because, in their original briefing in this Court, the Simmonses’ issue regarding the trial court’s monetary award was only a “categorical challenge” that the trial court erred in awarding both specific performance and damages for breach of contract. White Knight stresses in its brief on remand that, in the Simmonses’ previous briefing in this
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case, the Simmonses “never challenged the judgment’s damages award on any narrower ground, such as factual insufficiency, excessiveness, or improper ‘tethering’ of specific items.” But the supreme court’s mandate remanded this case to us for further proceedings, and the supreme court’s opinion specifically instructs us “to review the [trial court’s] monetary award consistent with the principles” that the supreme court announced in its opinion. White Knight Dev., LLC, 718 S.W.3d at 206. We must follow the supreme court’s pronouncement. See Guibot, 367 S.W.3d at 448.
In its opinion, the supreme court articulated the following general principles:
We conclude a trial court does not abuse its discretion by awarding an equitable monetary award (regardless of its label) alongside a decree of specific performance for breach of a contract for the sale of real estate so long as the monetary award is necessary to place the parties in the same position as if the contract had been performed in full and on time. Each category of expenses awarded must be (1) directly traceable to the defendant’s delay in performance, (2) foreseeable at the time of contracting, and (3)
commercially reasonable. When, as here, the nonbreaching seller is in possession of the land during the delay, any expense awarded must also be incurred in connection with the care and custody of the particular property in dispute.
White Knight Dev., LLC, 718 S.W.3d at 213.
The supreme court further described in part how these general principles would apply to this case specifically. See id. at 211–12. In considering the principle that expenses must be directly traceable to the defendant’s delay in
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performance, the supreme court stated that “any expenses White Knight incurred before performance was due (and therefore before the breach), such as property tax and interest incurred before the Simmonses’ deadline to repurchase the property, are not caused by the breach and therefore unrecoverable.” Id. In considering the principle that expenses must be foreseeable at the time of contracting, the supreme court also explained:
Here, the Simmonses reasonably could foresee that White Knight would be responsible for paying property taxes on the Simmons property after the time for performance given the Simmonses’
refusal to repurchase, even if the applicable tax rate and total amount owed were not known. But other expenses included in the monetary award—e.g., interest paid on loans to continue business operations and property tax paid on properties other than the one that was the subject of the repurchase agreement—were far more attenuated, unforeseeable, and thus unrecoverable.
Id. at 212. Relying on these statements from the supreme court’s opinion, the Simmonses argue that an award that includes losses from other projects or “operating loan interest” is improper because such expenses were unforeseeable and unrecoverable. We agree.
Within its monetary award to White Knight, the trial court included $45,619.83 for property taxes owed for 2020 and $8,211.57 in penalties related to past due property taxes for 2020. The 2020 property taxes and penalties were incurred after the Simmonses’ breach of the buy-back provision of the contract, but the amount of $45,619.83 includes only $4,862.23 for the Simmons property while the remainder is for other properties. Similarly, the
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amount of $8,211.57 includes only $875.20 for the Simmons property while the remainder is for other properties. Pursuant to the principles announced in the supreme court’s opinion, expenses incurred for properties other than the Simmons property were unforeseeable and thus unrecoverable as part of an equitable monetary award made alongside a decree of specific performance. See id. at 212–13. Therefore, the amount awarded to White Knight for property taxes owed for 2020 is reduced from $45,619.83 to $4,862.23, and the amount awarded to White Knight for penalties related to past due property taxes for 2020 is reduced from $8,211.57 to $875.20. See id.
Additionally, within its monetary award to White Knight, the trial court included $59,318 for “operating loan interest” for White Knight “to continue business,” $74,802 in “loan interest related to another property that had to be refinanced to avoid foreclosure of ” the Simmons property, and $16,518 in “credit card interest” for White Knight to “continue business.” However, pursuant to the principles announced in the supreme court’s opinion, expenses that White Knight incurred for interest paid on loans to continue business operations were unforeseeable and thus unrecoverable as part of an equitable monetary award made alongside a decree of specific performance. Id. at 212. The amounts of $59,318, $74,802, and $16,518 are therefore deleted from the monetary award to White Knight. See id.
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On the other hand, within its monetary award to White Knight, the trial court included $103.667.73 for expenses “related to” the Simmons property. The evidence indicates that these expenses were incurred after the Simmonses’ deadline to repurchase the property and before the judgment was signed in this lawsuit. Furthermore, the evidence indicates that these expenses were incurred specifically in connection with the care and custody of the Simmons property. The expenses include property taxes, forbearance and refinancing fees, and interest payments for the MidSouth loan that White Knight originally obtained to finance the purchase of the Simmons property and for the two other loans White Knight acquired to avoid defaulting on the MidSouth loan.
The Simmonses argue that these expenses are unrecoverable because the evidence White Knight introduced to prove its entitlement to these expenses, Plaintiff ’s Exhibit No. 78, a summary of White Knight’s damages, was improperly admitted. More specifically, the Simmonses complain that White Knight did not make available for examination or copying the supporting documents for the summary as required by Rule of Evidence 1006 and that the summary is hearsay. See TEX. R. EVID. 802, 1006.
First, to preserve a complaint about the admissibility of evidence, a party must make a timely, specific objection. See TEX. R. APP. P. 33.1(a). At trial, the Simmonses did not object that the summary of White Knight’s damages
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was hearsay. Accordingly, such complaint is not preserved for appellate review. See id.
Second, even though the Simmonses made an objection at trial that “there’s no supporting documents” for the summary of White Knight’s damages, which the trial court overruled, the Simmonses did not raise an issue about the admissibility of the summary in their original briefing in this Court. Instead, the Simmonses are raising this issue regarding the admissibility of the summary for the first time on remand. Nevertheless, as mentioned by White Knight at trial, the portion of the summary supporting the amount of $103.667.73 in expenses was derived from Plaintiff ’s Exhibit No. 17.
The Simmonses argue that even considering the summary of White Knight’s damages, however, there was no showing that the damages listed in the summary were directly related to the Simmonses’ failure to buy back the property or were foreseeable. We disagree. The summary, combined with the other evidence admitted at trial, established, for the reasons stated above, that the amount of $103.667.73 was for expenses that were directly related to the Simmonses’ failure to buy back the property and were foreseeable. See White Knight Dev., LLC, 718 S.W.3d at 211–13.
Conclusion
In light of the foregoing, we sustain the Simmonses’ third issue on remand in part. The trial court’s judgment is modified to reduce the award of $308,136.14 to $109,405.16. As modified, the trial court’s judgment is affirmed.
MATT JOHNSON
Chief Justice
OPINION DELIVERED and FILED: August 20, 2026 Before Chief Justice Johnson, Judge Wallace, 3 and Judge Bennett 4 Affirmed as modified CV06
3 William D. Wallace, Judge of the 378th District Court of Ellis County, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 74.003(h).
4 Alan Bennett, Judge of the 474th District Court of McLennan County, sitting by assignment of the Chief Justice of the Texas Supreme Court. See id.
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