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
Simmons v. White Knight Dev., LLC Page 2
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.
Simmons v. White Knight Dev., LLC Page 3
• $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.
Simmons v. White Knight Dev., LLC Page 4 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:
Simmons v. White Knight Dev., LLC Page 5
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
Simmons v. White Knight Dev., LLC Page 6 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.
Simmons v. White Knight Dev., LLC Page 7
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.”
Simmons v. White Knight Dev., LLC Page 8
• “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 quasiestoppel 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
Simmons v. White Knight Dev., LLC Page 9 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
Simmons v. White Knight Dev., LLC Page 10 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
Simmons v. White Knight Dev., LLC Page 11 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
Simmons v. White Knight Dev., LLC Page 12 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
Simmons v. White Knight Dev., LLC Page 13 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.
Simmons v. White Knight Dev., LLC Page 14
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
Simmons v. White Knight Dev., LLC Page 15 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
Simmons v. White Knight Dev., LLC Page 16 $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.
Simmons v. White Knight Dev., LLC Page 17