Full Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-25-00358-CV MONTELONGO PROPERTY MANAGEMENT, LLC and RETI Properties, LLC, Appellants v. AMAYA CUSTOM CABINETS, LLC, Appellee From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2022CI00925 Honorable Christine Vasquez Hortick, Judge Presiding Opinion by: Rebeca C. Martinez, Chief Justice Sitting: Rebeca C. Martinez, Chief Justice Lori Massey Brissette, Justice (concurring in judgment only) Velia J. Meza, Justice Delivered and Filed: August 26, 2026 AFFIRMED Montelongo Property Management, LLC (“Montelongo”) appeals from the trial court’s final judgment in favor of Amaya Custom Cabinets (“Amaya”) on its breach of contract claim. In two issues, Montelongo argues that the trial court erred: (1) in denying its motion for directed verdict, and (2) because Amaya’s claims are barred by the statute of limitations. We affirm. 04-25-00358-CV I. BACKGROUND In the underlying lawsuit, Amaya sued Montelongo for breach of contract to recover damages. In its answer, Montelongo asserted, among other defenses, that Amaya’s claim was barred by the four-year statute of limitations. The record shows that in December 2016, Montelongo and Amaya entered into an agreement for the creation and installation of custom cabinetry. The contract required a fifty- percent deposit of $51,362.97, which Montelongo paid. The remaining balance of $54,432.81 was due upon delivery and installation. The cabinets were delivered and installed on September 25, 2017, at which time full payment became due. Montelongo failed to pay the remaining balance. Daniel Amaya, the owner of Amaya, testified that within one week of installation, several cabinet doors warped because the property lacked air conditioning. He further testified that David Montelongo, a Montelongo employee, asked Amaya to pick up the cabinet doors and store them at Amaya’s facility until Montelongo was ready for the cabinets to be reinstalled, and that the parties agreed to a monthly storage fee of $100. Armando Montelongo, a managing member at Montelongo, testified that Montelongo did not ask Amaya to remove and store the cabinets. Nathan Corbett, in-House Counsel at Montelongo, was authorized by Armando Montelongo to speak to Amaya about retrieving the cabinet doors. 1 Corbett and Linda Amaya, a partner at Amaya who produced invoices, communicated by email. The first email, with subject line “Past Due Invoice w[ith] Interest,” was sent by Linda to Corbett on March 3, 2018. Linda’s email states: “Still no payment . . . Please see the attached invoice showing the interest that continues to accumulate. We will be filing an intent to collect . . . Please advise Armando.” The 1 Armando Montelongo testified that Corbett was “one of [his] attorneys” who “was authorized to try to get my cabinets back” and “was allowed to talk to the Amayas.” Montelongo does not dispute on appeal that Corbett, its retained attorney, had authority to communicate and negotiate on its behalf regarding the dispute. -2- 04-25-00358-CV invoice shows that Montelongo owed Amaya $59,078.45, which included the remaining balance for the original contract, plus $300.00 in storage fees, and $4,345.64 in interest. Corbett responded on March 5, 2018, saying: We are still waiting for power to be hooked up to the house so HVAC can be installed. Armando appreciates you[r] patience on this matter . . . There is going to be no point to file an intent to collect, while you still hold onto the cabinet doors. As we previously discussed, you are going to get paid once everything is ready for install. Just keep charging the carrying costs if that is what is needed to warehouse the doors. On March 7, 2018, Corbett emailed Linda in a separate email, with subject line “41K Progress Payment.” Corbett’s email states: As stated before, nothing can happen until CPS installs the outside power connection — which Armando has been waiting on for over a month. As soon as CPS completes the work, the HVAC will be installed and then the doors can be put on the cabinets. Armando (and everyone involved) wants this project completed. Yet, the deal remains the same, payment and completion will occur on the same day — a check for the full amount will be waiting at the job site, for when the crew goes out to install the doors and does the final walkthrough. Armando Montelongo, in response to the question “Why would Mr. Corbett be offering to pay carrying costs, storage charges to the Amayas for doors that they had supposedly stolen?” stated, “I think he’s trying to negotiate with people who are — have proven untrustworthy, and he’s trying to do whatever he can to get his client’s doors back.” Amaya filed suit on January 18, 2022. Montelongo moved for summary judgment based on the statute of limitations, which the trial court denied. A bench trial commenced in February 2025. At the close of Amaya’s evidence, Montelongo moved for directed verdict, arguing Amaya produced no evidence proving that the statute of limitations accrued after September 25, 2017. The motion was denied, and Montelongo presented evidence and one witness. At the close of trial, the trial court entered judgment for Amaya in the amount of $54,432.81, storage fees of $6,300.00, and prejudgment interest from March 1, 2018 to the date of judgment at the rate of 1.5% per month -3- 04-25-00358-CV to the date of judgment. The trial court also awarded Amaya attorney’s fees of $10,000.00. Montelongo timely appealed. II. MOTION FOR DIRECTED VERDICT In its first issue, Montelongo asserts that the trial court erred in denying its motion for directed verdict 2 because Amaya’s case-in-chief conclusively established that the statute of limitations accrued on September 25, 2017. “Texas law is well settled that a defendant who moves for a directed verdict after the plaintiff rests but thereafter elects not to stand on his motion for directed verdict, and offers evidence in his own case, waives his motion for directed verdict unless the motion is reurged at the close of the evidence.” See Liberty Mut. Ins. Co. v. Heitkamp Swift Architects, Inc., No. 14- 12-00873-CV, 2014 WL 261010, at *1 (Tex. App.—Houston [14th Dist.] Jan. 23, 2014, pet. denied) (mem. op.); see also Wenk v. City Nat’l Bank, 613 S.W.2d 345, 348 (Tex. Civ. App.— Tyler 1981, no writ) (applying this line of argument to nonjury trials). Here, the record shows that at the close of Amaya’s case-in-chief, Montelongo moved for a directed verdict based on the affirmative defense of statute of limitations. The trial court denied the motion. Montelongo proceeded to present evidence in its own case-in-chief and did not re- urge its motion at the close of the evidence. Therefore, Montelongo waived this motion for directed verdict, and any error in its denial is not preserved for appellate review. See Baizer v. Shaw, 727 S.W.3d 554, 572–73 (Tex. App.—Houston [14th Dist.] 2025, no pet.). We overrule Montelongo’s first issue. 2 The proper motion to make after the plaintiff rests in a nonjury trial is a motion for judgment. See Estate of Ripley, No. 04-18-00968-CV, 2019 WL 4179128, at *1 (Tex. App.—San Antonio Sept. 4, 2019, pet. denied) (mem. op.). -4- 04-25-00358-CV III. STATUTE OF LIMITATIONS A. Standard of review When a party appeals a judgment rendered after a bench trial, the trial court’s findings of fact have the same weight as a jury’s verdict, and are reviewable for legal and factual sufficiency. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Smith v. Reid, No. 04–13– 00550–CV, 2015 WL 3895465, at *4 (Tex. App.—San Antonio Jun. 24, 2015, pet. denied) (mem. op.). “In a legal sufficiency challenge, we consider whether the evidence at trial would enable a reasonable and fair-minded fact finder to reach the verdict under review.” Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018) (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). Evidence is legally insufficient when: (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact.” Id. (citation omitted). More than a mere scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id. (citing King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)). Conversely, less than a scintilla of evidence exists when the evidence offered to prove a vital fact’s existence is “so weak as to do no more than create a mere surmise or suspicion.” Id. (citing King Ranch, 118 S.W.3d at 751). All the record evidence must be considered in the light most favorable to the party in whose favor the verdict has been rendered — “every reasonable inference deducible from the evidence is to be indulged in that party’s favor.” Id. (quoting Bustamante v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017)). -5- 04-25-00358-CV When an appellant challenges the factual sufficiency of an adverse finding on which they had the burden of proof at trial, the appellant “must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). We “must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.” Id. Whether reviewing the legal or factual sufficiency of the evidence, the factfinder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. City of Keller, 168 S.W.3d at 819. When, as here, a trial court did not issue findings of fact and conclusions of law, we must assume that the trial court made all findings necessary to support the judgment, and we must affirm the trial court’s judgment on any legal theory that finds support in the evidence. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). When a cause of action accrues is a question of law, not fact. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001). B. Applicable Law Limitations begin to run at the time a cause of action accrues. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003). A breach of contract claim generally accrues when the contract is breached and has a four-year statute of limitations. TEX. CIV. PRAC. & REM. CODE ANN. § 16.004(a)(3); Mays v. Pierce, 203 S.W.3d 564, 575 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). A party asserting limitations as a defense has the burden on appeal to demonstrate that the evidence conclusively established their limitations defense as a matter of law. In re Estate of Denman, 362 S.W.3d 134, 144–45 (Tex. App.—San Antonio 2011, no pet.) -6- 04-25-00358-CV C. Analysis As the party asserting statute of limitations as an affirmative defense, Montelongo shouldered the burden to conclusively establish that Amaya’s claims were time-barred. See id. Montelongo asserts that (1) the evidence conclusively established that Amaya’s claim accrued on September 25, 2017, “the date on which the cabinetry work was completed, delivered, and payment became due under the contract’s ‘cash on delivery’ terms” and (2) Amaya’s lawsuit, “filed January 18, 2022, was brought more than four years after accrual and is therefore barred by the four-year statute of limitations.” Montelongo further argues that “[n]o witness testified to any subsequent performance or event that deferred the payment obligation or created a new agreement.” Amaya responds that the parties entered into a new agreement — thereby extending the statute of limitations — when they agreed that Amaya would remove and store the cabinet doors until electricity resumed at the property, and that Montelongo would pay the contract price in addition to the storage charge and interest. The record shows that Montelongo breached the contract by failing to pay on September 25, 2017, when the cabinets were installed. 3 As asserted in Montelongo’s brief, “[w]hen payment was not received, Appellee began collection communications immediately. In January 2018, Appellee removed the cabinet doors from the cabinets and stored them in their facility. On March 1, 2018, Appellee issued a revised invoice reflecting the outstanding balance due, along with ‘storage’ charges.” This invoice further included a finance charge on the overdue balance. The record also shows that on March 5, 2018, Corbett emailed Linda, authorizing Amaya to charge 3 Montelongo appeals only the trial court’s denial of his limitations defense. In support, Montelongo generally contends that after September 25, 2017, “that no new contract or change order was executed, and that no additional work was performed” and that “the subsequent 2018 invoice merely repeated the unpaid balance and added unliteral ‘storage’ or ‘late’ fees; it did not create a new agreement or extend limitations.” The record contains a proposed change order for additional cabinets dated September 25, 2017; it is uncontested that this was not executed to effectuate an agreement by the parties. -7- 04-25-00358-CV carrying costs. Two days later, on March 7, 2018, Corbett again emailed Linda, stating that the power was still not connected and promising payment of the full amount owed, including accumulated storage charges. Read together, these two emails — sent within days of each other, by the same person on Montelongo’s behalf — support an implied finding that Montelongo agreed to pay the original contract price plus storage fees and interest in exchange for Amaya’s continued storage of the doors pending the completion of electrical work. Montelongo’s agreement to pay for the original contract price, in addition to storage charges and interest, constitutes a new contract. See Ringer v. Bobby D. Associates Ohio Gen. P’ship, No. 05-01-00004-CV, 2002 WL 15898, at *2 (Tex. App.—Dallas Jan. 8, 2002, pet. denied) (not designated for publication) (citing Priest v. First Mortgage Co. of Tex., Inc., 659 S.W.2d 869, 871 (Tex. App.—San Antonio 1983, writ ref’d n.r.e.) (“An agreement to extend the time of payment of a negotiable instrument constitutes a new contract between the parties.”). Montelongo argues that any post-installation charges were merely a “unilateral charge unsupported by mutual assent.” It relies on Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 80 (Tex. 1989), arguing: In Rogers, the Texas Supreme Court held that a party’s unilateral conduct cannot create, modify, or revive a contract. Id. The Court emphasized that contract obligations can only be altered through mutual assent and that actions taken by one party alone—such as issuing revised invoices or adding new charges—have no legal effect on the existing agreement. Id. Accordingly, unilateral acts like Appellee’s “storage fee”/ “late fee” invoice cannot extend limitations or create a new contractual obligation. Montelongo misreads Rogers. Rogers makes no mention of “unilateral conduct” or “mutual assessment.” Even if Rogers said what Montelongo says it said, here, by contrast, the record reflects a bilateral exchange: Linda’s March 3, 2018 email stating “interest [ ] continues to accumulate,” followed by Corbett’s March 5, 2018 reply — expressly authorizing Amaya to “keep -8- 04-25-00358-CV charging the carrying costs.” This back-and-forth is not a one-sided invoice revision of the kind Rogers addressed; it is a request and responsive acceptance, sufficient to support an implied finding of mutual assent. See Ringer, 2002 WL 15898 at *3 (providing that agreement between parties, not a unilateral act by one party alone, gives rise to a new contract). Based on the record, the trial court could reasonably conclude that the parties entered into a new agreement, that the statute of limitations accrued on March 5, 2018, and that Amaya filed suit on January 18, 2022 — within the four-year limitations period. 4 Montelongo points to Armando Montelongo’s testimony that he did not authorize Amaya to remove the cabinet doors and was surprised to discover them missing. This testimony, however, goes to whether Amaya was authorized to remove the doors in the first instance — not to whether Montelongo, through Corbett, later agreed to pay the accumulating storage and interest charges once the doors were in fact removed and stored. The trial court, as factfinder, was entitled to credit Daniel and Linda Amaya’s testimony regarding the parties’ subsequent agreement over Armando Montelongo’s testimony regarding the initial removal, and to resolve any conflict between that testimony and the Corbett emails in Amaya’s favor. See City of Keller, 168 S.W.3d at 810 (the factfinder is the sole judge of witness credibility and the weight to be given to testimony). Because the Corbett emails are contemporaneous written communications corroborating Daniel and Linda Amaya’s version of events, we cannot say the trial court’s implied finding of a new agreement is so weak or so contrary against the great weight and preponderance of the evidence that it is clearly wrong and unjust. See Dow Chem, Co., 46 S.W.3d at 242. 4 We need not address Montelongo’s remaining arguments. -9- 04-25-00358-CV IV. CONCLUSION We affirm the trial court’s judgment. Rebeca C. Martinez, Chief Justice - 10 -