Austin Capital Collision, LLC// Barbara Pampalone v. Barbara Pampalone// Cross-Appellee, Austin Capital Collision, LLC and Eric Hinojosa

Opinion

ACCEPTED 03-15-00447-CV 8312763 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/18/2015 5:34:50 PM JEFFREY D. KYLE CLERK NO. 03-15-00447-CV

In the Court of Appeals FILED IN 3rd COURT OF APPEALS For the Third Judicial District of Texas AUSTIN, TEXAS at Austin 12/18/2015 5:34:50 PM JEFFREY D. KYLE Clerk AUSTIN CAPITAL COLLISION, LLC, Appellant

v.

BARBARA PAMPALONE, Appellee and Cross-Appellant

On Appeal from the 419th Judicial District Court, Travis County, Texas Trial Court Cause No. D-1-GN-14-003207

PAMPALONE’S BRIEF OF APPELLEE

ORAL ARGUMENT REQUESTED

MCGINNIS, LOCHRIDGE & KILGORE, L.L.P. Nelia J. Robbi, State Bar No. 24052296 Joe Lea, State Bar No. 24013257 April E. Lucas, State Bar No. 24046323 Stephanie N. Duff-O’Bryan, State Bar No. 24087448 600 Congress Avenue, Suite 2100 Austin, Texas 78701 (512) 495-6000 (512) 495-6093 FAX nrobbi@mcginnislaw.com

ATTORNEYS FOR BARBARA PAMPALONE IDENTITY OF PARTIES AND COUNSEL

Plaintiff/Appellee/Cross-Appellant: Barbara Pampalone

Defendant/Appellant: Austin Capital Collision, LLC

Defendant/Cross-Appellee Eric Hinojosa

Names and Addresses of Trial and Appellate Counsel

Trial and Appellate Counsel for Nelia J. Robbi Plaintiff: nrobbi@mcginnislaw.com Joe Lea jlea@mcginnislaw.com April E. Lucas alucas@mcginnislaw.com Stephanie N. Duff-O’Bryan sduffobryan@mcginnislaw.com 600 Congress Avenue, Suite 2100 Austin, Texas 78701 (512) 495-6000 (512) 495-6093 FAX Appellate Counsel for Defendants: Michael Truesdale mike@truesdalelaw.com 801 West Avenue, Suite 201 Austin, Texas 78701 (512) 482-8671 (866)-847-8719 FAX

ii Trial Counsel for Defendants: Adam Pugh apugh@slaterpugh.com 8400 N. Mopac Expressway, Suite 100 Austin, Texas 78759 (512) 472-2431 (512) 472-0432 FAX

iii TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ......................................................................................... iv

INDEX OF AUTHORITIES.................................................................................... vi

STATEMENT OF THE CASE ................................................................................ vi

STATEMENT REGARDING ORAL ARGUMENT ........................................... viii ISSUE PRESENTED ............................................................................................... ix

CITATION KEY...................................................................................................... ix STATEMENT OF FACTS ........................................................................................1

A. The loan to Capital Collision. .......................................................................2 B. Dr. Pampalone’s complete performance. ......................................................2 C. Appellant’s Partial Performance: 94 monthly payments over 8 years. ........3

D. The litigation. ................................................................................................7 SUMMARY OF THE ARGUMENT ........................................................................8 ARGUMENT .............................................................................................................9 A. Standard of Review: Legal Sufficiency ........................................................9

B. The trial court did not err in enforcing the loan agreement pursuant to the partial performance exception to the statute of frauds. ........................................12 1. The parties’ stipulation and the trial court’s finding established payments constituting partial performance. ......................................................................12

2. Oral agreements are enforceable where partial performance is unequivocally referable to the agreement. ........................................................13

3. The partial performance exception applies equally to Appellant Austin Capital Collision, LLC and to Capital Collision GP. .......................................17

iv 4. The evidence shows that the partial performance was unequivocally referable to the loan from Dr. Pampalone. ........................................................19

5. There is no other credible reason for the payments. ................................22

6. Breezevale does not save Appellant Austin Capital Collision’s argument. 24

CONCLUSION ........................................................................................................27 PRAYER ..................................................................................................................27

CERTIFICATE OF SERVICE ................................................................................29 CERTIFICATE OF COMPLIANCE .......................................................................30 APPENDIX ..............................................................................................................31

v INDEX OF AUTHORITIES Cases 626 Joint Venture v. Spinks, 873 S.W.2d 73 (Tex.App.—Austin 1993, no writ) ........................................................................................................................... 18, 19

ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426 (Tex. 1997) .........................11 Adams v. H & H Meat Products, Inc., 41 S.W.3d 762 (Tex. App.—Corpus Christi 2001, no pet.) ..................................................................................... 10, 11 Chevalier v. Lane’s, Inc., 213 S.W.2d 530 (1948)) ................................................16 Estate of Kaiser v. Gifford, 692 S.W.2d 525 (Tex. App.—Houston [1st Dist.] 1985 writ ref'd n.r.e.) ................................................................. 9, 14, 15, 23 National Property Holdings, LP v. Westergren, 453 S.W.3d 419 (Tex. 2015) ........................................................................................................... 16, 17, 25, 26 Quick v. City of Austin, 7 S.W.3d 109 (Tex. 1998) .........................................11

Rodriguez v. Klein, 960 S.W.2d 179 (Tex. App.—Corpus Christi 1997, no pet.)........................................................................................................... 25, 26

Stovall & Assocs. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790 (Tex. App.— Dallas 2013, no pet.) ......................................................................... 10, 14, 16, 21

Vehle v. Brenner, 590 S.W.2d 147 (Tex. App.—San Antonio 1979, no writ) .....12

Waggoner v. Morrow, 932 S.W.2d 627 (Tex.App.—Houston [14th Dist.] 1996, no writ) ................................................................................................ 11, 12

Weirich v. Weirich, 833 S.W.2d 942 (Tex. 1992) ...........................................11

Rules TEX. R. APP. P. 38.1 ................................................................................................. ix

TEX. R. APP. P. 39.1.................................................................................................. ix

TEX. R. APP. P. 39.2 ................................................................................................. ix

vi STATEMENT OF THE CASE Nature of the Case: Appellee and Cross-Appellant, Barbara Pampalone (“Dr. Pampalone”), sued Appellant, Austin Capital Collision, LLC (“Appellant”), and Cross-Appellee, Eric Hinojosa (“Hinojosa”) (collectively, “Defendants”), for breach of contract.

Parties: Austin Capital Collision, LLC is Appellant/Defendant

Dr. Barbara Pampalone is Cross-Appellant/Appellee/ Plaintiff

Eric Hinojosa is Cross-Appellee/Defendant

Trial Court: The Honorable Todd Wong, 419th Judicial District Court, Travis County, Texas.

Trial Court’s Disposition: After a bench trial on June 8, 2015, the trial court granted judgment in favor of Dr. Barbara Pampalone and against Appellant Austin Capital Collision, LLC, awarding her the amount the parties stipulated as due and owing on the loan as of the date of trial, $56,758.68, plus her reasonable and necessary attorneys’ fees. Appellant Austin Capital Collision, LLC and Cross-Appellant Barbara Pampalone filed timely notices of appeal on July 29, 2015, and on July 7, 2015, the trial court issued its findings of fact and conclusions of law.

vii STATEMENT REGARDING ORAL ARGUMENT Pursuant to Texas Rules of Appellate Procedure 38.1, 39.1and 39.2, Dr.

Pampalone requests oral argument before this Court of Appeals. Dr. Pampalone

believes oral argument will assist the Court in determining whether the trial court

erred by recognizing the applicable exception to the statute of frauds for partial

performance in this matter.

viii ISSUE PRESENTED Whether, despite there being an acknowledged loan agreement, full

performance by Dr. Pampalone, and more than 94 monthly payments made in

accordance with the terms of the loan agreement over a period of eight years, the

trial court erred in entering judgment in favor of Dr. Pampalone for the stipulated

amount due pursuant to the partial performance exception to the statute of frauds.

CITATION KEY CR = Clerk’s Record, Volume 1 of 1

2RR = Reporter’s Record, Volume 2 of 3

Appx = Appendix attached hereto

Appx:2 = Findings of Fact and Conclusions of Law (attached hereto as second document in the Appendix, and also located at pp. 53-63 of the Clerk’s Record)

PX = Plaintiff’s Exhibit

ix TO THE HONORABLE THIRD COURT OF APPEALS:

Appellant Austin Capital Collision, LLC premises its entire appeal on one

argument: that the years of payments it made to Dr. Pampalone pursuant to the

loan agreement at issue in this appeal do not satisfy the partial-performance

exception to the statute of frauds because they are not “solely referable” to the loan

agreement. This argument is baseless because the payments are unequivocally

referable to the loan agreement, as the trial court found, and is supported by ample

evidence, including the fact that Appellant identified the payments as “Barbara

Pampalone Bill Payment.” Additionally, the primary case upon which Appellant

relies is distinguishable from the instant facts and does not support its argument.

Accordingly, this Court should affirm the judgment below, awarding Dr.

Pampalone $56,758.68 in damages and $43,241.00 in reasonable and necessary

attorneys’ fees. See CR 49-50.

STATEMENT OF FACTS Appellant’s statement of facts is inadequate and misleading. Among other

reasons, Appellant disregards or contradicts the facts found by the trial court,

although Appellant has not challenged those fact findings on appeal. Dr.

Pampalone incorporates by reference the statement of facts set forth in her Cross-

Appellant’s Brief and adds the following.

1 A. The loan to Capital Collision.

In 2005, Dr. Pampalone, a widow and semi-retired dentist, mortgaged her

home in order to loan the sum of $80,000 to the auto body repair business being

operated by her son, Erik Pampalone, and his childhood friend, Eric Hinojosa.

2RR:52-53; Appx:2, ¶¶6, 7, 9. That business was known as and did business as

Capital Collision. Appx:2, ¶7. At the time of the loan, Capital Collision was an

assumed name being used by Capital Collision, GP, a general partnership

comprised of two corporate partners; Hinojosa was the president and a 50%

shareholder of both corporate partners, and Erik Pampalone was the vice-president

and other 50% shareholder. 2RR:97-102, 171-72.

Pursuant to the terms of the agreement, Dr. Pampalone was to advance the

sum of $80,000 to Capital Collision, and Capital Collision was to repay the loan

over 20 years at 7% interest. Appx:2, ¶9; 2RR:59, 60, 106-07; Appx:2, ¶11.

B. Dr. Pampalone’s complete performance.

Dr. Pampalone fully performed under the terms of the agreement by paying

the funds to Capital Collision in two installments: $50,000 on or about March 24,

2005, and the remaining $30,000 on or about April 13, 2005. 2RR:58-9, 107-10,

158-59; PX-1; PX-2; PX-3A; Appx:2, ¶14. The loaned funds were deposited into a

Bank of America Account held in the names of “Capital Collision” and “Eric

Hinojosa.” 2RR:107-10; PX-1; PX-2; PX-3A; Appx:2, ¶15. Although there was

2 no signed promissory note for the loan, the terms of the loan were evidenced in

yearly amortization schedules generated by Erik Pampalone on Dr. Pampalone’s

behalf and sent to Hinojosa and the business. 2RR:59-60, 62; Appx:2, ¶16.

C. Appellant’s Partial Performance: 94 monthly payments over 8 years.

In accordance with the terms of the agreement between Dr. Pampalone and

Capital Collision, the company immediately began repaying the loan. Appx:2,

¶18. Beginning in May 2005, Capital Collision began performing under the

agreement by making monthly payments to Dr. Pampalone in accordance with the

agreed-upon terms. 2RR:64-65, 112; Appx:2, ¶18. Erik Pampalone in his capacity

as vice-president set up the loan payments and testified that the intent of the

payments was to perform under the loan agreement. 2RR:112-13.

Two years later, in 2007, Erik Pampalone exited Capital Collision

completely, and the company, now run exclusively by Eric Hinojosa, continued to

repay the loan as agreed for another 6 years. 2RR:113; Appx:2, ¶¶22, 23, 27, 31.

Dr. Pampalone had no reason to ever suspect anything was amiss until, in April

2013, the monthly payments ceased. Appx:2, ¶¶30, 37; Appx:8.

The parties stipulated that between May 2005 and April 2013, Dr.

Pampalone received 94 monthly payments from two different Bank of America

accounts as summarized in Plaintiff’s Exhibit 3. CR:41-47; Appx:2, ¶19; Appx:8;

PX-3, PX-3A. From May 2005 through approximately March 2010, these

3 payments were made from the Bank of America Account held in the names of

“Eric Hinojosa” and “Capital Collision” (hereinafter, the “Capital Collision

Account”). PX-3; PX-3A; Appx:2, ¶32; Appx:8. Thereafter—and without missing

a payment during the transition—payments were made from a Bank of America

account held in the names of “Eric Hinojosa” and “Capital Collision GP”

(hereinafter, the “Capital Collision GP Account”). PX-3; PX-3A; Appx:2, ¶32.

However, because the payments were being electronically deposited into Dr.

Pampalone’s account, she never noticed any change in the bank account making

the payments to her. 2RR:66, 79; Appx:2, ¶32.

Unbeknownst to Dr. Pampalone, one of the Capital Collision entities,

Capital Collision, GP, was terminated by Eric Hinojosa in 2010 in an effort to

“close old debt.” PX-20; PX-24; Appx:2, ¶¶30, 24, 26, 29; 2RR:175-76. Despite

this, Eric Hinojosa kept the old company’s bank accounts open to continue to

repay the loan to Dr. Pampalone until the statutory wind up period expired.

2RR:194-203, 248-49, 17; Appx:2, ¶¶29, 31, 33.

In June 2009, one year before termination Capital Collision, GP, Hinojosa

formed a new company, one of the named defendants in the trial court: Appellant

Austin Capital Collision, LLC. 2RR:173-74; PX-20; Appx:2, ¶24. The new

company, like the old company, was also “basically just [Eric Hinojosa].”

2RR:174; Appx:2, ¶27. Appellant Austin Capital Collision, LLC, became the

4 owner of the Capital Collision business and, like the first business had done, filed

an assumed name certificate for “Capital Collision.” Appx:2, ¶24, PX-21, PX-22.

The trial court found that “[f]ollowing its formation, Defendant Austin Capital

Collision, LLC, assumed the loan to Plaintiff,” and Appellant Austin Capital

Collision has not appealed the finding. Appx:2, ¶25.

There was no asset purchase agreement between Hinojosa’s old company

and his new company. 2RR:176. But his new company engaged in the same

business as his old company and continued to use the same exact assumed name

(2RR:174-75; PX-14), business email address (cptlcollision@aol.com) (2RR:217-

18, 222-23; PX-5; PX-14), and email signature block (with the same name and

physical address) (2RR:224; PX-14) as the old business. Appx:2, ¶29.

Additionally, Appellant Austin Capital Collision, LLC, retained some of the same

employees (2RR:219, 124-25, 223-24; Appx:2, ¶29), and took control of both the

Capital Collision Account and the Capital Collision GP Account (Appx:2, ¶29).

After Appellant Austin Capital Collision, LLC, was formed, the old company was

left with nothing. 2RR:176:7-13. Thereafter, in July 2010, Hinojosa terminated

the old company. 2RR:173; Appx:2, ¶26; PX-24.

Hinojosa did not tell Dr. Pampalone any of this, nor provide her with any

notice that “Capital Collision” was now being operated as a brand new entity.

2RR:79, 127, 247. Instead, Hinojosa simply continued to do business and repay

5 Dr. Pampalone as Capital Collision, the only name by which Dr. Pampalone ever

knew the business. 2RR:55; Appx:2,¶31.

Hinojosa, in his capacity as the managing member of Appellant Austin

Capital Collision, LLC, continued to direct that payments be made to Dr.

Pampalone on the loan. 2RR:240-41; Appx:2, ¶31. Employees and

representatives of Appellant Austin Capital Collision, LLC, communicated with

Dr. Pampalone and Erik Pampalone on Appellant Austin Capital Collision, LLC’s

behalf, acknowledging the existence of the loan and Appellant Austin Capital

Collision, LLC’s indebtedness thereunder. Appx:2, ¶¶34-36. Erik Pampalone,

acting on his mother’s behalf, sent correspondence concerning the loan to the

cptlcollision@aol.com email address and, in response, Appellant Austin Capital

Collision, LLC continued to make payments on the loan. 2RR:127; Appx:2, ¶34;

PX-12a, PX-13, PX-14. Indeed, in September 2012 (years after the old company

had been terminated), when Mr. Pampalone sent an email to the

cptlcollision@aol.com address requesting that Hinojosa change where he was

sending the monthly loan payments, Mirium Matta—Hinojosa’s sister-in-law and

an employee of Appellant Austin Capital Collision, LLC—responded from the

cptlcollision@aol.com email address with “received and updated.” 2RR:123-24;

PX-14; Appx:2, ¶35. Thereafter, three additional years of regular monthly

payments in accordance with the loan agreement occurred. PX-3; PX-3A.

6 In March 2010, just a few months before terminating Capital Collision, GP,

Hinojosa switched the monthly payments on the loan from the Capital Collision

account to the Capital Collision GP Account. 2RR:196-98; PX-3; PX-3A; Appx:9.

Around this same time, he began transferring funds from the Capital Collision

Account (of the new entity, Appellant) into the Capital Collision GP Account (the

account of the old entity) to cover the payments coming out of that account.

2RR:193-98; PX-3A; Appx:2, ¶32; Appx:9. Of significant note, the monthly

payments made from both accounts were almost exclusively described on the

company's own bank statements as “Barbara Pampalone Bill Payment.” PX-3A;

Appx:8.

D. The litigation.

When the payments ceased, Dr. Pampalone made demand for payment, but

Hinojosa failed and refused to cure the default. Appx:2, ¶39. The lawsuit in the

trial court ensued in which Dr. Pampalone sued both Appellant Austin Capital

Collision, LLC, and Hinojosa for breach of contract. CR:28-40. The case was

tried to the bench on June 8, 2015. The parties stipulated at the trial that the

amount due and owing on the loan as of the date of trial was $56,758.68. CR:41-

47; 2RR: 128-29; Appx:2, ¶41.

7 The trial court found in favor of Dr. Pampalone, rendered judgment against

Appellant Austin Capital Collision, LLC, for breach of the loan agreement, and

awarded Dr. Pampalone her attorneys’ fees. 2RR:252-53; Appx:1.

SUMMARY OF THE ARGUMENT Appellant’s only argument raised and briefed on appeal is that the 94

monthly payments made did not constitute partial performance because they were

not “solely referable” to the loan, and that therefore the judgment and attorneys’

fees should be reversed. Defendant relies on one case, Exxon Corp. v. Breezevale

Ltd., 82 S.W.3d 429, 439 (Tex. App.—Dallas 2002, pet. denied), to support this

argument. Breezevale, however, does not stand for the propositions Appellant

advances and is distinguishable from the instant case.

Dr. Pampalone is entitled to be repaid on the loan. The oral agreement is

enforceable despite the statute of frauds. Dr. Pampalone fully performed by

funding the loan; Capital Collision GP, d/b/a Capital Collision, and later Austin

Capital Collision, LLC, d/b/a Capital Collision, accepted and used her money and

partially performed by making eight years of monthly payments that were

unequivocally referable to the loan, as shown by ample evidence below, including

notations on the payments themselves explicitly reading, “Barbara Pampalone Bill

Payment.” PX-3A. Such full performance by the lender removes the oral

agreement from the statute of frauds. See, e.g., Estate of Kaiser v. Gifford, 692

8 S.W.2d 525, 525-26 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.)

(holding that oral agreement “was not barred by the Statute of Frauds, because the

deceased lender had made full performance under the agreement, thereby taking

the oral agreement out of the prohibition of the statute,” and “where one party fully

performs a contract, the Statute of Frauds is unavailable to the other who

knowingly accepts benefits and partly performs”). Thus, the trial court did not err

in awarding the stipulated amount of damages to Dr. Pampalone, plus her

reasonable and necessary attorneys’ fees.

ARGUMENT

A. Standard of Review: Legal Sufficiency

Appellant Austin Capital Collision’s assertion that de novo review is

appropriate is mistaken.

The one point Appellant Austin Capital Collision, LLC raised on appeal is

whether the partial performance exception to the statute of frauds applies. Whether

the circumstances of a particular case fall within an exception to the statute of

frauds is generally a question of fact, not a legal issue that would be reviewed de

novo. See, e.g., Stovall & Assocs. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790, 798

9 (Tex. App.—Dallas 2013, no pet.); Adams v. H & H Meat Products, Inc., 41

S.W.3d 762, 775 (Tex. App.—Corpus Christi 2001, no pet.).1

As Appellant Austin Capital Collision acknowledges on page 13 of its brief

discussing the standard of review, it is challenging the legal sufficiency of the

court’s factual finding that the partial performance exception applies.

Where, as here, a party claims an exception to the statute of frauds exists,

she must secure findings to that effect; Dr. Pampalone did so. Adams, 41 S.W.3d

at 775; see Appx:2, ¶¶17-20, 25, 31-32, 34-36. In response to Appellant Austin

Capital Collision’s challenge to those findings, the court will “review the court’s

findings of fact by the same standards used to review the sufficiency of the

evidence to support a jury’s findings.” Adams, 41 S.W.3d at 769. “The judgment

of the trial court will not be set aside if there is any evidence of a probative nature

to support it, and this Court may not substitute its findings of fact for those of the

trial court if there is any evidence in the record to sustain the trial court’s findings.

Id. at 769.

When courts “review a ‘no evidence’ or legal sufficiency of the evidence

issue, [they] must consider all of the record evidence in the light most favorable to

1 BACM 2001-San Felipe Road ltd. Partnership v. Trafalgar Holdings I, Ltd., 218 S.W.3d 137, 143-45 (Tex. App.—Houston [14th Dist.] 2007, pet. denied), is inapposite, because it concerns whether the statute of frauds applies at all—which is concededly a legal issue—not whether the circumstances of this case fall within an exception to the statute of frauds, which is generally a fact issue. See, e.g., Adams, 41 S.W.3d at 775.

10 the party in whose favor the verdict has been rendered, and indulge in that party’s

favor every reasonable inference deducible from the evidence.” Adams, 41 S.W.3d

at 769. They “consider only the evidence and inferences tending to support the

jury’s finding, disregarding all evidence to the contrary.” Breezevale Ltd., 82

S.W.3d at 439 (citing Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992)).

“The findings of fact must be upheld if there is more than a scintilla of

evidence in support thereof.” Adams, 41 S.W.3d at 770. “There is more than a

scintilla when the evidence creates more than a mere surmise or suspicion of its

existence.” Id. That is, “[i]f the record contains any evidence of probative force to

support the jury’s finding, the finding will be upheld.” Breezevale, 82 S.W.3d at

438 (citing ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997)).

Moreover, Appellant Austin Capital Collision, LLC’s discussion of the de

novo standard of review, even if it were applicable, is incomplete. When

performing a de novo review, the Court exercises its own judgment and

redetermines the legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex.

1998). The Court will uphold conclusions of law on appeal if the judgment can be

sustained on any legal theory the evidence supports. Waggoner v. Morrow, 932

S.W.2d 627, 631 (Tex. App.—Houston [14th Dist.] 1996, no writ). Even incorrect

11 conclusions of law do not require reversal where, as here, the controlling findings

of fact support the judgment under a correct legal theory. 2 Id.

Finally, in the unlikely event that Capital Collision should convince the

court that Dr. Pampalone failed to carry her burden to prove the applicability of the

exception, because there is ample evidence to raise a fact issue in her favor, the

appropriate remedy would be to reverse and remand, not, as Capital Collision

requests, to reverse and render judgment. See Vehle v. Brenner, 590 S.W.2d 147,

152 (Tex. App.—San Antonio 1979, no writ).

B. The trial court did not err in enforcing the loan agreement pursuant to the partial performance exception to the statute of frauds.

1. The parties’ stipulation and the trial court’s finding established payments constituting partial performance.

As discussed above, the parties stipulated that 94 monthly payments were

received on the loan. Appx:2, ¶19. The trial court therefore held that the statute of

frauds does not bar Dr. Pampalone’s recovery, because Dr. Pampalone fully

performed under the agreement, and Appellant Austin Capital Collision, LLC,

d/b/a Capital Collision partially performed. It held: “Capital Collision performed

on the agreement prior to the termination of the HAPB Entities by making monthly

2 Appellant Austin Capital Collision, LLC also cites Troxel v. Bishop, 201 S.W.3d 290, 300 (Tex. App.—Dallas 2006, no pet.) for the unremarkable proposition that if the statute of frauds applies, and no exception is available, then the loan is unenforceable. The language in question is inapposite and arguably dicta.

12 payments on the loan as agreed. . . . Austin Capital Collision, LLC, d/b/a Capital

Collision assumed the loan from the HABP Entities through its conduct and course

of performance, including by continuing to make payments on the loan in

accordance with the terms of the agreement.3 . . . Austin Capital Collision, LLC,

d/b/a Capital Collision partially performed on the agreement by continuing to make

payments on the loan to Plaintiff in accordance with the terms of the agreement.”

Appx:2, ¶ 53-55.

Appellant’s only argument on appeal is that the 94 monthly payments by

Capital Collision GP, d/b/a Capital Collision and later by Appellant Austin Capital

Collision, LLC d/b/a Capital Collision were not “solely referable” to the loan and

thus did not qualify as partial performance that would permit Dr. Pampalone to

obtain repayment despite the statute of frauds.

2. Oral agreements are enforceable where partial performance is unequivocally referable to the agreement.

It is well established that an oral agreement is enforceable despite the statute

of frauds if the agreement has been fully or partially performed, because in such a

3 Although Appellant Austin Capital Collision implies in its brief that Dr. Pampalone must make a separate and distinct showing of partial performance of Appellant Capital Collision, LLC, d/b/a Capital Collision, apparently on the theory that Appellant Austin Capital Collision, LLC, d/b/a Capital Collision did not assume the loan, it does not raise an appellate point nor provide briefing attacking the trial court’s finding that it did indeed assume the loan. Accordingly, that factual finding is not challenged.. Moreover, there is ample evidence to support the finding, and in any event the second entity, Appellant Capital Collision LLC d/b/a/ Capital Collision did indeed partially perform the agreement, by continuing to make years worth of payments unequivocally referable to the loan in question.

13 case, “denying enforcement would itself amount to a fraud.” See, e.g., Stovall &

Assocs. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790, 800 (Tex. App.—Dallas 2013, no

pet.); Breezevale, 82 S.W.3d at 439 (“[C]ontracts that have been partly performed,

but do not meet the requirements of the statute of frauds, may be enforced in equity

if denial of enforcement would result in a virtual fraud.”); Estate of Kaiser v.

Gifford, 692 S.W.2d 525, 525 (Tex.App.—Houston [1st Dist.] 1985, writ ref’d

n.r.e.).

For example, in a loan context, the statute of frauds does not prevent

enforcement of an oral loan agreement where the party loaning the money makes

full performance under the agreement. Estate of Kaiser v. Gifford, 692 S.W.2d

525, 525 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.). In Kaiser, as

here, there was an oral agreement creating a loan, with no executed written

agreement providing for repayment. Id. at 526. After the death of the lender, the

borrower quit making monthly payments, claiming that the money advance was a

gift, not a loan; he defended against the ensuing lawsuit by arguing the statute of

frauds. Id. The court held “that the oral installment agreement, although payable

in 300 monthly installments, was not barred by the Statute of Frauds, because the

deceased lender had made full performance under the agreement, thereby taking

the oral agreement out of the prohibition of the statute.” Id. at 525. Kaiser

followed other authorities holding that “where one party fully performs a contract,

14 the Statute of Frauds is unavailable to the other who knowingly accepts benefits

and partly performs” and “where one party to an oral contract has, in reliance

thereon, so far performed his part of the agreement that it would be permitting a

fraud on him to allow the other party to repudiate the contract and set up the statute

of frauds in justification thereof, equity will regard the case as being removed from

the operation of the statute, and will enforce the contract.” Id. at 526 (internal

quotation omitted). It noted that “a great majority of jurisdictions agree with the

rule that full performance by one party to an oral contract removes the contract

from the prohibitions of the Statute.”4 Id. at 527.

As in this case, where the creditor has provided full performance in funding

a loan in reliance on an oral agreement, with monthly payments of fixed amounts

as partial performance by the debtor, “allowing [the debtor] to invoke the Statute,

under these facts, would tend more to encourage fraud rather than discourage it as

is contemplated by the Statute.” Id. at 527. This is even more a concern in this

case, in which the debtor and its principal engaged in actual fraud to attempt to

escape its obligations. See Brief of Cross-Appellant Barbara Pampalone.

4 The language of Kaiser strongly suggests that in the context of a loan, Dr. Pampalone’s full performance, alone, is enough to exempt her from the statute of frauds. However, in Kaiser, as here, there was also partial performance by the debtor in the form of monthly payments in accordance with the oral agreement. Kaiser, 692 S.W.2d at 527. Because this case involves ample partial performance by Appellant Austin Capital Collision, LLP, with clear notations as well as other acts directly referencing the loan by Dr. Barbara Pampalone, this Court need not decide whether Dr. Pampalone’s performance, alone, would have been sufficient to allow performance despite the statute of frauds.

15 Partial performance sufficient to remove a contract from the statute of frauds

bar must be “unequivocally referable” to the oral agreement and corroborate the

existence of that agreement. Stovall, 409 S.W.3d. at 800 (citing Breezevale, 82

S.W.3d at 439). “In other words, the purpose of the alleged acts of performance

must be to fulfill a specific agreement.” National Property Holdings, LP v.

Westergren, 453 S.W.3d 419, 426 (Tex. 2015). They must be acts that could have

been done with no other design than to fulfill the particular agreement sought to be

enforced; otherwise, they do not tend to prove the existence of the parol agreement

relied upon by the plaintiff. Breezevale, 82 S.W.3d at 439-40.

“The kind of performance that justifies the exception to the statute of frauds

is ‘performance which alone and without the aid of words of promise is

unintelligible or at least extraordinary unless as an incident of ownership, assured,

if not existing.’” Westergren, 453 S.W.3d at 427 (citing Chevalier v. Lane’s, Inc.,

213 S.W.2d 530, 533 (1948)) (emphasis added). Westergren concerned the sale of

real estate, not a loan; however, its explanation of the rule is instructive here,

where monthly payments made over years beginning immediately after the loan

funded to the person who made the loan would, in the absence of a loan agreement,

be unintelligible, or at least extraordinary. Westergren also instructs that, “[i]f the

evidence establishes that the party who performed the act that is alleged to be

partial performance could have done so for some reason other than to fulfill

16 obligations under the oral contract, the exception is unavailable.” Id. at 426-27. It

gives an enlightening example of evidence establishing that the party performing

the act alleged to be partial performance did so for some other reason: a

contradictory written contract for which the alleged partial performance was

consideration. Id. at 427. In Westergren, the alleged partial performance was

payment of $500,000; however, the payment accompanied a written document,

signed by the recipient, that stated that the $500,000 was in consideration for the

full and final release of the very claim based on an oral agreement being asserted

despite the statute of frauds. Id. Accordingly, the payment was not partial

performance and was not unequivocally referable to the oral agreement, because it

was made to fulfill obligations under a different agreement. There is no such other

agreement obligating Capital Collision to make payments of $657.09 to Dr.

Barbara Pampalone here. The payments made were unequivocally referable to the

$80,000 loan.

3. The partial performance exception applies equally to Appellant Austin Capital Collision, LLC and to Capital Collision GP.

Appellant Austin Capital Collision, LLC’s hair-splitting about the identity or

name of the business or the contacts Dr. Pampalone had with one agent as opposed

to another are irrelevant to the application of the doctrine of partial performance.

Regardless of the name under which they operated or the date of their inception,

17 both Capital Collision GP and Appellant Austin Capital Collision, LLC accepted

benefits by using the account into which Dr. Pampalone’s money was deposited,

and both partially performed by making payments unequivocally referable to the

loan. See 626 Joint Venture v. Spinks, 873 S.W.2d 73, 76 (Tex.App.—Austin

1993, no writ) (“Where one party to a contract has fully performed his obligations

under it, the statute of frauds is unavailable to the other who knowingly accepts

benefits and partly performs.”). In Spinks, an owner transferred real property to a

person in his name as trustee, though there was no written indication for whom he

was acting. Id. at 76. He partially paid and executed a note and deed of trust. Id.

at 74. After the transaction, a new entity, which did not exist at the time of closing,

was formed, creating the “626 Joint Venture.” Id. at 75. Because the joint venture

actively managed the property, made improvements, and made payments, it

accepted the benefits and partially performed under the agreements, even though it

didn’t even exist at the time of closing. Nor did the fact that the negotiations and

agreement occurred through an agent excuse the principal from liability under the

statute of frauds. Instead, this Court affirmed a judgment based on a jury finding

that the joint venture was liable notwithstanding the statute of frauds, holding: “In

the present case, the Spinkses [the Plaintiffs] fully performed their part of the

transaction by deeding the land to Bizzell as trustee [the Defendants’ agent].

Bizzell paid the Spinkses $300,000 cash, and signed a note for $445,000. Over the

18 next three years, the joint venture managed the property, made improvements to

the property, and made payments to the Spinkses. Therefore, the defense of the

statute of frauds is unavailable to defendants.” Id. at 76.

4. The evidence shows that the partial performance was unequivocally referable to the loan from Dr. Pampalone.

The evidence, moreover, overwhelmingly establishes that the payments were

indeed unequivocally referable to the loan Dr. Pampalone generously made and

which Appellant seeks to cheat her out of. Each of the following facts shows that

the performance was unequivocally referable to the loan from Dr. Pampalone:

The loaned funds were deposited into Capital Collision’s bank account, a

Bank of America Account held in the names of “Capital Collision” and “Eric

Hinojosa.” 2RR:107-10; PX-1; PX-2; PX-3A; Appx:2, ¶15. Erik Pampalone, the

person who began the payments on the company’s behalf, testified that their

purpose was to perform under the agreement. 2RR:113-14. The terms of the loan

were evidenced in yearly amortization schedules generated by Erik Pampalone on

Dr. Pampalone’s behalf and sent to Hinojosa and the business, and the payments

reflected those amortization schedules. 2RR:59-60, 62; Appx:2, ¶16; 2RR:65

(payments made in amount of $657.09); PX-5, PX-7, PX-9, PX-12, PX-12A, PX-

13, PX-15, PX-16, and PX-17 (amortization schedules reflecting payments owed in

the amount of $657.09). The payments began immediately in May 2005. 2RR:64-

65, 112; Appx:2, ¶18. From May 2005 through approximately March 2010, these

19 payments were made from the Bank of America Account held in the names of

“Eric Hinojosa” and “Capital Collision” into which the funds had been deposited.

PX-3; PX-3A; Appx:2, ¶32; Appx:8. The payments were made in accordance with

telephone and electronic communications referencing the obligation, both with

Hinojosa, and other Capital Collision employees, concerning the loan. 2RR:115;

PX-3; PX-3A; PX-5; PX-6; PX-8; PX-9; PX-10; PX-14; PX-15; Appx:2, ¶22.

There was never any other explanation for or reason behind this long course of

performance other than the loan in question.

When Erik Pampalone resigned from Capital Collision and the entities

became essentially just Hinojosa, 2RR:173, they continued to repay the loan to Dr.

Pampalone as agreed and exactly as they had been doing. 2RR:67, 113; PX-3; PX-

3A; Appx:2, ¶23.

After June, 2009, when Appellant Austin Capital Collision was formed, it

was also “basically just [Hinojosa],” and it continued to make payments with no

feasible explanation other than the loan at issue. Erik Pampalone, acting on his

mother’s behalf, sent correspondence concerning the loan to the

cptlcollision@aol.com email address and, in response, Appellant Austin Capital

Collision, LLC, made payments on the loan. 2RR:127; Appx:2, ¶34; PX-12a, PX-

13, PX-14.

20 Indeed, in September 2012 (years after the old company had been

terminated), when Erik Pampalone sent an email to the cptlcollision@aol.com

address requesting that Hinojosa change where he was sending the monthly

payments on the loan, Mirium Matta—Hinojosa’s sister-in-law and an employee of

Appellant Austin Capital Collision, LLC—responded from the

cptlcollision@aol.com email address with “received and updated.” 2RR:123-24;

PX-14; Appx:2, ¶35. And the payments continued. PX-3; PX-3A. Such behavior

has been found by courts to constitute “acts . . . sufficient to corroborate the

existence of an agreement . . . [and that] could not have been performed with any

purpose except to perform an agreement.” See, e.g., Stovall & Assocs. v. Hibbs

Fin. Ctr., Ltd., 409 S.W.3d 790, 801 (Tex. App.—Dallas 2013, no pet.) (looking to

acts of performance, in a statute of frauds dispute concerning a lease, such as dates

of possession, payments, knowing acceptance of services and performance, etc. to

determine whether performance was “unequivocally referable” to alleged

agreement).

Payments were made by Capital Collision and Appellant Austin Capital

Collision, LLC out of two accounts, although Dr. Pampalone, a direct deposit

recipient, did not realize it at the time. Notably, these payments, from either

account, were almost exclusively described on the bank statements as “Barbara

Pampalone Bill Payment.” PX-3A. It would be difficult to imagine a more

21 explicit indication that a payment was unequivocally referable to a loan made by

Dr. Barbara Pampalone, which required monthly payments of loan bills, than these

repeated bank account notations saying so in plain English.

5. There is no other credible reason for the payments.

Appellant’s suggestions that there could be other reasons for its 94 equal,

monthly payments over the course of eight years that referenced the loan and

complied with its terms are incredible. They consist of: (1) Hinojosa’s testimony

that monthly payments were made to Dr. Pampalone for basically no reason, but

merely “to help his childhood friend,” and (2) the fact that Erik Pampalone, Dr.

Pampalone’s son, who is not a party to this suit, brought and then nonsuited a

claim in another state seeking payment on his mother’s behalf.

As an initial matter, the trial court specifically found (and, again, Appellant

did not challenge the finding) that Hinojosa lacked credibility, especially in light of

the fact that he was wholly unprepared for his corporate representative deposition,

having not reviewed a single document or talked to any employees or

representatives regarding designated topics, and that he demonstrated a repeated

inability to provide substantive responses on his own behalf or on behalf of Austin

Capital Collision, LLC. 2RR:252; Appx:2, ¶48. Further, the trial court found that,

at trial, Hinojosa tried to change many of the answers he had provided at his

depositions just one month prior. Appx:2, ¶48. Indeed, Hinojosa was squarely

22 impeached at trial when he tried to testify that he knew why the monthly payments

were being made to Dr. Pampalone despite the fact that at his deposition he

testified he had “no idea.” 2RR: 184-86. The fact that Appellant now offers this

same testimony—which the trial court found to lack credibility—to this Court as a

so-called credible other reason for the payments to Dr. Pampalone is incredible in

and of itself. Quite simply, given his lack of credibility, Hinojosa can offer no

credible other reason.

Of Hinojosa’s two other explanations for the monthly payments, the first is

an argument that Hinojosa directed Capital Collision to make 94 payments over

eight years simply because he felt like it. Such an assertion is meaningless—in

every case the alleged partial performer could argue he took certain acts for no

reason at all. This is not sufficient to defeat the exception; an interested party’s

say-so does not defeat a showing that certain acts were made because of and in

partial performance of an oral contract. See, e.g., Kaiser, 692 S.W.2d at 526

(holding statute of frauds did not bar enforcement of oral loan agreement despite

debtor’s bald claim that money advanced pursuant to oral loan agreement was

instead a gift). Moreover, it flies in the face of all the evidence to the contrary

discussed above, including but not limited to the dates and schedules of the

payments, the testimony of the person who set up the payments for the company as

to why he did it, the many communications about the reasons for the payments,

23 where and how they should be directed, and the notations on the payments

themselves.

The second is a classic—but factually unsupportable—“gotcha” argument,

an attempt to use Dr. Pampalone’s son’s very efforts to recover for her, merely

because they were legally imperfect because not brought by the proper party in the

proper forum, to instead extinguish all Dr. Pampalone’s rights and entitle Capital

Collision to a windfall by keeping her money. Of course, it makes no logical sense

that an after-the-fact lawsuit could establish that years of payments

contemporaneously marked “Barbara Pampalone Bill Payment,” were instead

made for some other purpose. 5 Naturally, Appellant Austin Capital Collision can

cite to no authority supporting this position; it is not the law.

6. Breezevale does not save Appellant Austin Capital Collision’s argument.

Appellant Austin Capital Collision relies on one case, Exxon Corp. v.

Breezevale Ltd., 82 S.W.3d 429, 439 (Tex. App.—Dallas 2002, pet. denied), to

support its argument. Breezevale does not stand for the propositions Defendant

advances and is distinguishable, among other reasons because it was based on the

existence of an independent obligation under a separate contract that equally

obligated the party to undertake the same purported partial performance. But, as 5 Nor has Capital Collision ever taken the position that it owed the money to Dr. Pampalone’s son, Erik.

24 the court pointed out, a party taking acts it is otherwise obligated to do does not

evidence an oral agreement.

In Breezevale, the court found no evidence that the alleged partial

performance, a trip to Nigeria by a liaison, was unequivocally referable to a

working interest agreement that was being negotiated. Id. at 440. The trip was not

unequivocally referable to the working interest agreement because it did not show

strong evidence establishing the existence of that agreement and its terms. Id. On

the contrary, the trip was taken consistent with other liaison services being

performed in the same time period for the same client under a separate services

agreement. Id. The services were not more likely to have been taken under the

purported oral working interest agreement than under the separate services

agreement. Id. This is why the court noted that the mere possibility that such acts

could have been taken in furtherance of the contract sought to be enforced was not

enough; the performance must be solely referable to that contract. Id.

The Breezevale situation was thus similar to that in Westergren, where there

was a separate contract under which the party was already obligated to take the

acts alleged to be partial performance, and thus those acts were not “strong

evidence establishing the existence of the [oral] agreement and its terms.” Id. at

440 (also citing Rodriguez v. Klein, 960 S.W.2d 179, 186 (Tex. App.—Corpus

Christi 1997, no pet.) (holding that because party’s performance was required

25 under one or more of three agreements, including bill of sale, it could not be

unequivocally referable to the bill of sale)).

In this case, in sharp contrast to Breezevale, Westergren, and Rodriguez,

there simply is no other contract obligating Capital Collision to make monthly

payments to Dr. Pampalone. The regular payments, including those labeled

“Barbara Pampalone Bill Payment” are strong evidence establishing the existence

of the loan and its terms. They are unequivocally referable to the loan agreement,

and they remove it from the statute of frauds.

Additionally, the language in Breezevale requiring evidence that the

performance be solely referable to the contract is dicta, because the court also

based its holding on the fact that the claimant suffered no substantial detriment for

which there is no adequate remedy. It said, “even assuming there was evidence

that Breezevale’s actions were unequivocally referable to the working interest

agreement, the doctrine of partial performance also requires that the party acting in

reliance on the agreement suffer a substantial detriment for which there is no

adequate remedy. . . . Because there is no evidence that Breezevale’s partial

performance was unequivocally referable to the working interest agreement, and

because Breezevale did not suffer a substantial detriment for which it had no

adequate remedy, there is no evidence to support the jury’s finding on partial

performance.” Id. at 441.

26 CONCLUSION Appellant Austin Capital Collision, LLC hopes—by obfuscating details of

the loan itself, bickering over to whom payments were due, or attempting to evade

payment by sharp business practices aimed to confuse its own identity—to evade

its debt completely, a debt both it and its predecessor acknowledged and paid for

nearly a decade. It urges this position because Dr. Pampalone failed to demand a

clearer, detailed, signed and written loan agreement before providing her own

personal funds as a creditor to the fledgling business. Appellant Austin Capital

Collision, LLC appeals to this Court to keep Dr. Pampalone’s money as a windfall,

despite the obvious writings and performance evidencing its obligation to repay.

Its argument about partial performance is factually wrong. It is contrary to

the law of the State of Texas on the statute of frauds and the longstanding partial-

performance exception thereto. And it is no way to treat a so-called friend since

childhood’s mother.

PRAYER

For the above reasons, Appellee Dr. Barbara Pampalone respectfully

requests that this Court affirm the judgment awarding her actual damages in the

amount of $56,758.68 plus reasonable and necessary attorneys’ fees and such other

and further relief to which she may be entitled in law or in equity.

27 Respectfully submitted,

MCGINNIS, LOCHRIDGE & KILGORE, L.L.P. Nelia J. Robbi State Bar No. 24052296 Joe Lea State Bar No. 24013257 Stephanie N. Duff-O’Bryan State Bar No. 24087448 600 Congress Avenue, Suite 2100 Austin, Texas 78701 (512) 495-6000 (512) 495-6093 FAX nrobbi@mcginnislaw.com

/s/ Nelia J. Robbi Nelia J. Robbi State Bar No. 24052296

ATTORNEYS FOR BARBARA PAMPALONE

28 CERTIFICATE OF SERVICE

I hereby certify that on the 18th day of December, 2015, I electronically

filed the foregoing Pampalone’s Brief of Appellee with the Clerk of the Court

using the CM/ECF system which will send notification of such filing to the

following:

Michael Truesdale mike@truesdalelaw.com 801 West Avenue, Suite 201 Austin, Texas 78701 (512) 482-8671 (866)-847-8719 FAX

Adam Pugh apugh@slaterpugh.com 8400 N. Mopac Expressway, Suite 100 Austin, Texas 78759 (512) 472-2431 (512) 472-0432 FAX

Attorneys for Eric Hinojosa

/s/ Nelia J. Robbi Nelia J. Robbi Joe Lea Stephanie N. Duff-O’Bryan

Attorneys for Barbara Pampalone

29 CERTIFICATE OF COMPLIANCE

I certify that the foregoing Amended Cross-Appellant’s Brief was prepared with Microsoft Word 2007, and that, according to that program’s word-count function, the sections covered by TEX. R. APP. P. 9.4(i)(1) contains 6,391 words. I further certify that this brief complies with the typeface requirements of TEX. R. APP. P. 9.4(e).

/s/ Nelia J. Robbi Nelia J. Robbi Joe Lea Stephanie N. Duff O-Bryan

Attorneys for Barbara Pampalone

1. Final Judgment

2. Findings of Fact and Conclusions of Law

3. TEX. BUS ORG. CODE § 11.052

4. TEX. BUS. ORG. CODE § 11.356

5. TEX. BUS. ORG. CODE § 21.223

6. TEX. BUS. & COMM. CODE § 24.006

7. TEX. R. APP. P. 43.3

8. Plaintiff’s Exhibit 3 (summary of payments)

9. Excerpts of Plaintiff’s Exhibit 3A (transfers)

10. Excerpts of Plaintiff’s Exhibit 3A (end of payments)

11. Stipulation of the Parties

12. 626 Joint Venture v. Spinks, 873 S.W.2d 73 (Tex.App.—Austin 1993, no writ)

13. Estate of Kaiser v. Gifford, 692 S.W.2d 525 (Tex. App.—Houston [1st Dist.] 1985 writ ref’d n.r.e.)

14. Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (Tex. App.—Dallas 2002, pet. denied)

15. National Property Holdings, LP v. Westergren, 453 S.W.3d 419 (Tex. 2015)

16. Stovall & Assocs. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790 (Tex. App.— Dallas 2013, no pet.)

31 I DC BK15175 PG1024

Filed in The District Court of Travis County, Texas

JUN 1 8 2015 Cf). At 02/ 4-lJJ. ~M. Velva L. Prier., District C~rk NO. D-1-GN-14-003207

BARBARA PAMP ALONii, § 1N THE DISTRICT COURT § Plaintiff, § § v. § TRAVIS COUNTY, TEXAS § ERIC IIINOJOSA AND AUSTIN § CAPITAL COLLISION, LLC, § § Defendants. § 419rn JUDICIAL DISTRICT

FINAL JUDGMENT

On June 8, 2015, this case was called for trial. Plaintiff Barbara Pampalone appeared in

person and announced ready for trial. Defendant Eric Hinojosa appeared in person and

announced ready for trial. Defendant Austin Capital Collision, LLC, appeared through its

representative, Eric Hinojosa, and announced ready for trial.

All matters in controversy, legal and factual, were submitted to the Court for its

determination. The Court heard the evidence and arguments of counsel and announced its

decision for Plaintiff Barbara Pampalone.

The Court orally RENDERED judgment for Plaintiff Barbara Pampalone and against

Defendant Austin Capital Collision, LLC, on June 8, 2015, and this written judgment

memorializes that rendition.

IT JS THEREFORE ORDERED that Plaintiff recover the following from Defendant

Austin Capital Collision, LLC:

1. Actual damages in the amount of $56,758.68;

2. Plus reasonable and necessary attorneys' fees in the amount of$43,241.32; plus

3. Post-judgment interest at the rate of 5.0%, compounded annually from the date this

judgment is entered until all amounts are paid in full.

I004080302 111111111111111111111111111111111111111111111111111111

50 DC BK15175 PG1025

rt is further ORDERED that Defendants take nothing.

It is forther ORDERED that if Defendant Austin Capital Collision, LLC, unsuccessfully

appeals this judgment to an intermediate court of appeals, Plaintiff Barbara Pampalone will

additionally recover from Defendant Austin Capital Collision, LLC, the amount of $20,000.00,

representing the anticipated reasonable and necessary fees and expenses that would be incurred by

Plaintiff in defending the appeal.

It is further ORDERED that if Defendant Austin Capital Collision, LLC, unsuccessfully

appeals this judgment to the Texas Supreme Court, Plaintiff Barbara Pampalone will additionally

recover from Defondant Austin Capital Collision, LLC, the amount of $20,000.00, representing the

anticipated reasonable and necessary fees and expenses that would be incurred by Plaintiff in

defending the appeal.

It is further ORDERED that Plaintiff may have all writs, orders and executions necessary

for collection of this judgment, which may issue immediately.

It is further ORDERED that except as specifically provided herein, all relief not expressly

granted is hereby DENIED.

This judgment finally disposes of all parties and all claims and is appealable.

SIGNED this \<'$ dayofJune, 2015.

2 DC BK15175 PG1026

APPROVED AS TO FORM AND SUBSTANCE:

McGINNIS LOCHRIDGE 600 Congress A venue, Suite 2100 Austin, Texas 78701 (512) 495-6065

::~~~ L~ Joe Lea State Bar No. 12082000 jlea@mcginnislaw.com Nelia J. Robbi State Bar No. 24052296 nrobbi@mcginnislaw.com Jordan K. Mullins State Bar No. 24070308 jrnullins@mcginnislaw.com

ATTORNEYS FOR BARBARA PAMP ALONE

APPROVED AS TO FORM ONLY:

SLATER PUGH, Ltd. LLP 8400 N. Mopac Expressway Suite 100 Austin, Texas 78759 Telephone: (512)472-2431 Telecopier: (512) 472-0432 i~ t '\ I / ! II 1 !

Dy ', { ~,-/ Cu·.·\. __ {I _,.' AdamPughc State Bar No. 24044341 apugh@slaterpugh.com

3 2 Fil;~ in !he District Court o rav1s County, Texas

JUL - 7 2D15 r--1__ NO. D-1-GN-14-003207 A t _ ,3,'i./ U 0 Velva L p · 0 M. · nee, District cierk BARBARA PAMPALONE, § IN THE DISTRICT COURT § Plaint(ff, § § v. § TRAVIS COUNTY, TEXAS § ERIC HINOJOSA AND AUSTIN § CAPITAL COLLISION, LLC, § § Defendants. § 419TH JUDICIAL DISTRICT

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. Introduction

On June 8, 2015, this case was called for trial, and all matters in controversy, legal and

factual, were submitted to the Court for its determination. In addition to all other findings

necessary to support the Judgment rendered in favor of Plaintiff and against Defendant Austin

Capital Collision, LLC, in this cause, the Court hereby makes and files the following specific

findings of fact and conclusions of law. Any finding of fact that should be construed as

conclusion of law is hereby adopted as such. Any conclusion of law that should be construed as

a finding of fact is hereby adopted as such.

II. Findings of Fact

A. Procedural History.

1. Plaintiff Barbara Pampalone ("Plaintiff') filed her original petition on August 26, 2014,

alleging causes of action for breach of contract against Defendant Eric Hinojosa and Defendant

Austin Capital Collision, LLC.

2. This is an expedited action under Texas Rule of Civil Procedure 169.

3. This case was called for bench trial on June 8, 2015, and the parties appeared and

announced ready for trial. At the close of trial, judgment was rendered in favor of Plaintiff and

Illllll lllll lllll lllll 111111111111111111111111111111111 004108045 against Defendant Austin Capital Collision, LLC. Judgment was signed on June 18, 2015.

4. Defendants requested findings of fact and conclusions oflaw on June 18, 2015.

B. The Parties and Associated Persons/Entities.

5. Defendant Eric Hinojosa is a resident of Texas. Eric Hinojosa previously lived in

California where he and Plaintiff's son, Erik Pampalone, became friends.

6. Plaintiff is a semi-retired dentist who resides in Chatsworth, California.

7. In 2005, when the loan at issue in this lawsuit was made, Eric Hinojosa was the president

and a 50% shareholder of Hinojosa Auto Body & Paint, Inc. (Texas), and Hinojosa Auto Body &

Paint, Inc. (Nevada), (collectively, the "HABP Entities"). Plaintiff's son, Erik Pampalone, was

the vice president and other 50% shareholder of the HABP Entities. The HABP Entities were the

general partners of Capital Collision, G.P., and the business-auto body repair shop--operated

under the assumed name filed by Eric Hinojosa of Capital Collision [Exh. P-19]. The HABP

Entities were terminated in July of 2010 and, accordingly, the general partnership of Capital

Collision, G.P. was also terminated.

8. Prior to the termination of the HABP Entities in 2010, Eric Hinojosa formed Defendant

Austin Capital Collision, LLC, in June of 2009. Eric Hinojosa is the sole managing member and

99% owner of Austin Capital Collision, LLC, which is also engaged in auto body repair. On the

same day that Austin Capital Collision, LLC, was formed, Defendant Eric Hinojosa filed an

assumed name certificate on behalf of Austin Capital Collision, LLC, for the name "Capital

Collision." Austin Capital Collision, LLC, continues to conduct business today as Capital

Collision.

C. The Loan Agreement.

9. Around March of 2005, Plaintiff loaned the principal sum of $80,000.00 to the owners of

2 the Capital Collision business which, at the time, were the HABP Entities as general partners of

Capital Collision, G.P. The owners of the Capital Collision business are referred to herein as

"Capital Collision."

10. At the time, Capital Collision had an option to purchase the land it was renting but lacked

the necessary funds. Erik Pampalone and Eric Hinojosa, as corporate officers/directors,

discussed the issue, and Erik Pampalone suggested to Eric Hinojosa that he could ask his mother,

Plaintiff, to loan the funds to Capital Collision. Eric Hinojosa agreed that Erik Pampalone

should ask Plaintiff to loan funds to Capital Collision.

11. Erik Pampalone, in his capacity as Vice-President of Capital Collision, approached

Plaintiff and proposed that Plaintiff loan Capital Collision the sum of $80,000.00 and, in

exchange, Capital Collision would repay the $80,000.00 over a twenty year period, plus annual

interest at the rate of 7%.

12. Plaintiff understood, and Capital Collision agreed, that the loaned funds would be used

for business purposes, including the possible purchase of land.

13. Plaintiff had previously loaned funds to Capital Collision for business purposes in 2003

and, at the time of the loan at issue in this lawsuit, was being repaid by Capital Collision as

agreed.

14. Plaintiff agreed to loan $80,000.00 to Capital Collision. Plaintiff performed under the

terms of the agreement and paid the funds to Capital Collision in two installments: $50,000.00

on or about March 24, 2005, and the remaining $30,000.00 on or about April 13, 2005. [Exhs. P-

l, P-2].

15. The loaned funds were deposited into Capital Collision's bank account, a Bank of

America account held in the names of"Capital Collision" and "Eric Hinojosa."

3 16. The parties have stipulated that there is no signed promissory note for the loan. However,

the terms of the loan were evidenced in yearly loan amortization schedules generated by Erik

Pampalone and sent to Defendants and their representatives. [Exhs. P-5, P-7, P-9, P-12, P-12A,

P-13, P-15, P-16, P-17].

17. The statute of frauds does not bar the agreement, even though it is not in writing, because

Plaintiff fully performed under the agreement, and Defendant Austin Capital Collision, LLC,

partially performed.

D. Payments on the Loan.

18. Thereafter, beginning on or about May 20, 2005, Capital Collision began performing

under the agreement by making monthly payments on the loan pursuant to the agreed upon terms.

Payments were made by electronic bill payment from Capital Collision's Bank of America

account held in the names of "Eric Hinojosa" and "Capital Collision" into Plaintiff's bank

account.

19. The parties stipulated that from May 2005 through April 2013, Plaintiff received 94

monthly payments on the loan. [Exhs. P-3, P-3A].

20. The 94 monthly payments were made by Capital Collision to Plaintiff as repayment on

the loan.

21. During this time period, there was email correspondence among the parties and persons

acting on their behalf acknowledging the existence of the loan and Defendants' indebtedness to

Plaintiff thereunder. [Exhs. P-5, P-7, P-8, P-9, P-10, P-11, P-12, P-12A, P-13, P-15, P-16, P-17].

E. Defendant Austin Capital Collision's Assumption of the Loan.

22. Erik Pampalone began the process of leaving Capital Collision in 2006, and he formally

resigned in approximately April of 2007. After resigning, Erik Pampalone assisted Plaintiff in

4 56 oversight of repayment of the loan, corresponding by telephone and email with Defendant Eric

Hinojosa and other Capital Collision employees concerning the loan.

23. Following Erik Pampalone's resignation, Defendant Eric Hinojosa became and remained

the sole officer/director of Capital Collision. Capital Collision continued to repay the Loan to

Plaintiff pursuant to the agreed upon terms.

24. In June of 2009, Defendant Eric Hinojosa formed a new company, Defendant Austin

Capital Collision, LLC, [Exh. P-20] which became the owner of the Capital Collision business and

filed an assumed name of"Capital Collision." [Exhs. P-21, 22].

25. Following its formation, Defendant Austin Capital Collision, LLC, assumed the loan to

Plaintiff.

26. Approximately one year later, in July of 2010, Defendant Eric Hinojosa terminated the

HABP Entities (and, accordingly, the general partnership). [Exh. P-24].

27. At the time of termination of the HABP Entities and formation of Austin Capital Collision,

LLC, all entities were operated solely by Defendant Eric Hinojosa.

28. Defendant Eric Hinojosa did not provide notice-statutory or otherwise-to Plaintiff or

Erik Pampalone that he was terminating the HABP Entities or that Capital Collision was owned or

being operated by a new entity, Austin Capital Collision, LLC.

29. Although there was no formal purchase or transfer of assets between Austin Capital

Collision, LLC, and the HABP Entities, Austin Capital Collision, LLC, continued to use the same

assumed name, business email address (cptlcollision@aol.com) and email signature block (with the

same name and physical address) as the as the HABP Entities [Exh. P-14]. Austin Capital

Collision, LLC, also retained some of the same employees, took over control of the bank accounts

of the HABP Entities, and operated the same general business as the HABP Entities.

5 57 30. Prior to institution of this lawsuit, neither Plaintiff nor Erik Pampalone was aware or had

any reason to be aware that the HABP Entities had been terminated or that a new entity, Austin

Capital Collision, LLC, was operating the business and using the assumed name of Capital

Collision.

31. Following formation of Austin Capital Collision, LLC, and termination of the HABP

Entities, Austin Capital Collision, LLC, d/b/a Capital Collision continued to make payments to

Plaintiff pursuant to the agreed upon terms of the loan.

32. Austin Capital Collision, LLC, d/b/a Capital Collision made its payments from the Bank of

America account held in the names of "Eric Hinojosa" and "Capital Collision" until approximately

March of 2010 when the payments began being made from a Bank of America account held in the

names of "Eric Hinojosa" and "Capital Collision GP." Because the payments were electronically

deposited into Plaintiff's bank account, Plaintiff was not aware of any change in the bank account

making the payments to her.

33. Defendant Austin Capital Collision, LLC, d/b/a Capital Collision was operating the Bank of

America accounts making the payments to Plaintiff. Its sole managing member and majority

owner, Defendant Eric Hinojosa, intentionally put money into the Bank of America account held in

the names of "Eric Hinojosa" and "Capital Collision, GP" to cover the monthly bill payments to

Plaintiff on the loan.

34. After Austin Capital Collision, LLC, was formed, Erik Pampalone, acting on behalf of

Plaintiff, continued to send correspondence concerning Plaintiffs loan to the

cptlcollision@aol.com email address. [Exhs. P-12a, P-13, P-14]. In response, Austin Capital

Collision, LLC, d/b/a Capital Collision continued to make payments on the loan as agreed. [Exhs.

P-3, P-3A].

6 35. In September of 2012, Erik Pampalone, acting on behalf of Plaintiff, sent an email to

cptlcollision@aol.com requesting that Eric Hinojosa change where he was sending the monthly

deposits to Plaintiff on her loan to Capital Collision. [Exh. P-14]. In response, Mirium Matta, Eric

Hinojosa's sister-in-law and an employee of Austin Capital Collision, LLC, responded from the

cptlcollision@aol.com email with "received and updated." [Exh. P-14].

36. Austin Capital Collision, LLC, acknowledged the loan to Plaintiff and its indebtedness

thereunder through its conduct and course of performance.

F. Austin Capital Collision, LLC's, Default on the Loan.

37. Defendant Austin Capital Collision, LLC, d/b/a Capital Collision made its last regular

monthly payment on the loan in April of2013. [Exhs. P-3, P-3A].

38. In October of 2013, Austin Capital Collision, LLC, d/b/a Capital Collision made a payment

of $6,000.00 to Plaintiff. [Exhs. P-3, P-3A]. No further payments have been made to Plaintiff.

Austin Capital Collision, LLC, d/b/a Capital Collision has breached and defaulted on the loan to

Plaintiff.

39. Plaintiff made demand for payment upon Defendants, but Defendants failed and refused to

cure the default on the loan. [Exhs. P-16, P-25].

G. Plaintiff's Damages.

40. As a result of Defendant Austin Capital Collision, LLC's, default on the loan to Plaintiff,

Plaintiff has suffered damages.

41. The parties stipulated that the amount due and owing on the loan as of the date of trial is

$56,758.68.

H. Attorneys' Fees.

42. As a result of Defendants' default, Plaintiff was compelled to file the instant lawsuit and

7 59 incur attorneys' fees and costs associated with same.

43. Through April 2015, Plaintiff incurred attorneys' fees in the amount of $44,950.30. [Exh.

P-18]. Plaintiffs fees incurred through trial are in excess of $90,000.00. These fees are reasonable

and necessary in Travis County, Texas.

44. The parties stipulated to Ms. Robbi's qualifications to present attorneys' fees testimony and

the reasonableness of the hourly rates being charged.

45. Plaintiffs attorneys were required to expend significant time engaging m discovery,

drafting and filing a motion to dismiss claims asserted by Defendants, compelling discovery from

Defendants, attempting to subpoena documents from Defendants' accountant, preparing for and

attending depositions and mediation, attending hearings on Defendants' special exceptions and

motion for continuance, preparing for and attending trial, and drafting pre-trial motions, including a

motion to exclude the testimony of Defendant's corporate representative, Eric Hinojosa, who was

wholly unprepared for his deposition in which it was agreed he would provide answers in his

individual capacity and as the corporate representative for Defendant Austin Capital Collision,

LLC.

46. Plaintiffs reasonable and necessary fees for Travis County in the event of an unsuccessful

appeal by either Defendant to the Court of Appeals are $20,000.00.

47. Plaintiffs reasonable and necessary fees for Travis County in the event of an unsuccessful

appeal by either Defendant to the Texas Supreme Court are $20,000.00.

L Other Findings by the Court.

48. Defendant Eric Hinojosa lacks credibility, especially in light of the fact that Eric Hinojosa

was wholly unprepared for his corporate representative deposition, had not reviewed a single

document produced in the lawsuit or otherwise talked to any Austin Capital Collision, LLC,

8 60 employees or representatives regarding the designated deposition topics, and demonstrated a

repeated inability to provide substantive responses on his own behalf or on behalf of Austin Capital

Collision, LLC. Further, at trial of this cause, Eric Hinojosa tried to change many of the answers he

provided at his deposition which occurred approximately one month before trial.

III. Conclusions of Law

A. Breach of Contract.

49. Plaintiff and Capital Collision ("Capital Collision," as indicated, supra, referring to the

owners of the Capital Collision business which, at the time, were the HABP Entities as the general

partners of Capital Collision, G.P.) intended to and did enter into an agreement whereby Plaintiff

would loan the sum of $80,000.00 to Capital Collision and, in exchange, Capital Collision would

repay the loan over 20 years at 7% interest.

50. This agreement constitutes a valid, enforceable contract.

51. The statute of frauds does not bar the agreement, even though it is not in writing, because

Plaintiff fully performed under the agreement, and Defendant Austin Capital Collision, LLC, d/b/a

Capital Collision partially performed.

52. Plaintiff fully performed under the terms of the agreement, paying the sum of $80,000.00 to

Capital Collision.

53. Capital Collision performed on the agreement prior to the termination of the HABP Entities

by making monthly payments on the loan as agreed.

54. Austin Capital Collision, LLC, d/b/a Capital Collision assumed the loan from the HABP

Entities though its conduct and course of performance, including by continuing to make payments

on the loan in accordance with the terms of the agreement.

55. Austin Capital Collision, LLC, d/b/a Capital Collision partially performed on the agreement

9 (1 I by continuing to make payments on the loan to Plaintiff in accordance with the terms of the

agreement.

56. Austin Capital Collision, LLC, defaulted on the loan.

57. As a result of Austin Capital Collision, LLC's, default, Plaintiff suffered damages in the

amount of $56,758.68. Accordingly, Plaintiff is entitled to recover the sum of $56,758.68 from

Defendant Austin Capital Collision, LLC.

58. Plaintiff is entitled to post-judgment interest at the rate of 5%.

B. Attorneys' Fees.

59. Because this is an expedited action under Texas Rule of Civil Procedure 169 and Plaintiff

cannot recover more than $100,000.00 inclusive of attorneys' fees, Plaintiff is entitled to attorneys'

fees in the amount of $43,241.32 which fees are reasonable and necessary in Travis County, Texas.

60. Plaintiff is entitled to a conditional award of $20,000.00 in the case of an unsuccessful

appeal by either Defendant to the Court of Appeals. This sum is reasonable and necessary in Travis

County, Texas.

61. Plaintiff is entitled to an additional conditional award of $20,000.00 in the case of an

unsuccessful appeal by either Defendant to the Texas Supreme Court. This sum is reasonable and

necessary in Travis County, Texas.

C. Defendants' Affirmative and Other Defenses.

62. All of Defendants' affirmative or other defenses as alleged in its Fourth Amended Original

Answer, Verified Denial and Special Exceptions lack merit and any relief associated with same is

expressly denied.

63. Any conclusion of law deemed a finding of fact is hereby adopted as such.

10 62 SIGNED this 1 ~day of July, 2015.

DWONG

11 63 3 § 11.052. WindinfJ Up Procedures, TX BUS ORG § 11.052

Vernon's Texas Statutes and Codes Annotated Business Organizations Code (Refa & Annos) Title 1. General Provisions (Refs & A1mos) Chapter 11. vVinding up and Termination of Domestic Entity Subehaplcr B. Winding up of Domestic Entity

V.T.C.A, Business Organizations Code§ 1i.052

§ 1i.052. Winding Up Procedures

Effective: September 1, 2013 Currentness

(a) Except as provided by the title of this code governing the domestic entity, on the occurrence of an event requiring winding up of a domestic entity, unless the event requiring winding up is revoked under Section 11.151 or canceled under Section 11.152, the owners, members, managerial officials, or other persons specified in the title of this code governing the domestic entity shall, as soon as reasonably practicable, wind up the business and affairs of the domestic entity. The domestic entity shall:

(1) cease to carry on its business, except to the extent necessary to wind up its business;

(2) ifthe domestic entity is not a general partnership, send a written notice of the winding up to each known claimant against the domestic entity;

(3) collect and sell its property to the extent the property is not to be distributed in kind to the domestic entity's owners or members; and

(4) perform any other act required to wind up its business and affairs.

(b) During the winding up process, the domestic entity may prosecute or defend a civil, criminal, or administrative action.

Credits :\cts 2003, 78th Leg., ch. 182, § I, eff. .Jan. L 2006. Amended by Acts 2013, 83rd Leg., ch. 9 (S.B. 847), § 3, eff Sept. L 2013.

:'1ole<, of Decisions (5)

V. T. C. A., Business Organizations Code§ 11.052, TX BUS ORO§ 11.052 Current through the end of the 2015 Regular Session of the 84th Legislature

'!;;' 2015 Thomson Reuters. No daim to original t .S. Gowrnnwm \\orb

cl2ii(n to 4 § 11.356. Limited Survival After Tennination, TX BUS OHG § 11.356

Vernon's Texas Statutes and Codes Annotated Business Organizations Code (Refs & Atmos) Title 1. General Pnwisions (Refs & A1mos) Chapter lL v\Tincling up and Termination of Domestic Subcbapicr H. Claims Resolution nn Termination

V.T.C.A., Business Organizations Code § 1i.356

§ 1i.356. Limited Survival After Termination

Effective: January 1, 2006 Currentness

(a) Notwithstanding the termination of a domestic filing entity under this chapter, the terminated filing entity continues in existence until the third anniversary of the effective date of the entity's termination only for purposes of:

(1) prosecuting or defending in the terminated filing entity's name an action or proceeding brought by or against the terminated entity;

(2) permitting the survival of an existing claim by or against the terminated filing entity;

(3) holding title to and liquidating property that remained with the terminated filing entity at the time of termination or property that is collected by the terminated filing entity after termination;

(4) applying or distributing prope1iy, or its proceeds, as provided by Section 11.05.3; and

(5) settling affairs not completed before termination.

(b) A terminated filing entity may not continue its existence for the purpose of continuing the business or affairs for which the terminated filing entity was formed unless the terminated filing entity is reinstated under Subchapter E. 1

(c) If an action on an existing claim by or against a terminated filing entity has been brought before the expiration of the three- year period after the date of the entity's termination and the claim was not extinguished under Section 11.359, the terminated filing entity continues to survive for purposes of:

(1) the action until all judgments, orders, and decrees have been fully executed; and

(2) the application or distribution of any property of the terminated filing entity as provided by Section 11.053 until the property has been applied or distributed. § 11.35f:L Limited Survival /\fter Termination, TX BUS ORG § 11.356

Credits ,\els 2003. 78th Leg .. ch. 182, s I, cff. Jan. l. 2006.

Footnotes \'.I.( .. '\ .. Business Ori!ani1alinns Code~ l 1.201 ct seq. V. T. C. A., Business Organizations Code§ 11.356, TX BUS ORG § 11.356 Current through the end of the 2015 Regular Session of the 84th Legislature

f3overnir1ent \/Vork~:;, 5 § 21.22;:;. Limitation of for TX BUS ORG § 21,223

'Vernon's Texas Statutes and Codes Annotated Business Organizations Code (Refs & Annos) Title 2. Corporntions (Refs & A1mos) Chapter 21. For-Profit Corporations (Refs & A1111os) S11bcbapter K Sh

V.T.C.A., Business Organizations Code § 2i.223

§ 2i.223. Limitation of Liability for Obligations

Effective: September 1, 2007 Currentness

(a) A holder of shares, an owner of any beneficial interest in shares, or a subscriber for shares whose subscription has been accepted, or any affiliate of such a holder, owner, or subscriber or of the corporation, may not be held liable to the corporation or its obligees with respect to:

( 1) the shares, other than the obligation to pay to the corporation the full amount of consideration, fixed in compliance with Sections 21. 157-21. 162, for which the shares were or are to be issued;

(2) any contractual obligation of the corporation or any matter relating to or arising from the obligation on the basis that the holder, beneficial owner, subscriber, or affiliate is or was the alter ego of the corporation or on the basis of actual or constructive fraud, a sham to perpetrate a fraud, or other similar theory; or

(3) any obligation of the corporation on the basis of the failure of the corporation to observe any corporate formality, including the failure to:

(A) comply with this code or the certificate of formation or bylaws of the corporation; or

(B) observe any requirement prescribed by this code or the certificate of formation or bylaws of the corporation for acts to be taken by the corporation or its directors or shareholders.

(b) Subsection (a)(2) does not prevent or limit the liability of a holder, beneficial owner, subscriber, or affiliate if the obligee demonstrates that the holder, beneficial owner, subscriber, or affiliate caused the corporation to be used for the purpose of perpetrating and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of the holder, beneficial owner, subscriber, or affiliate.

Credits Acts 2003. 78th Leg., ch. 182, § Leff Jan. 1, 2006. Amended by Acts 2007, 80th Leg., ch. 688, § 74, eff. Sept 1, 2007.

'.\Oles of Decisions (2 J3) § 21.223. Limitation of Liability for Obligations, TX BUS ORG § 21.223

V. T. C. A., Business Organizations Code§ 21.223, TX BUS ORG § 21.223 Current through the end of the 2015 Regular Session of the 84th Legislature

l ~:, { ; \ )\ \.' ~

1 i"ft~stlr;rvvf\.Je:-{r

KeyCite Yellow Flag- Negative Treatment Unconstitutional or Preempted Negative Treatment Vacated by Gulky v. Sunbelt Sa\., F.S.lL 5th Cir.(Tex.), June 01, 1990

Vernon's Texas Statutes and Codes Annotated Business and Commerce Code (Refs & A1111os) Title 3. Insolvency, Fraudulent Transfers, and Fraud Chapter 24. Uniform Fraudulent Transfer Act (Refs & Annos)

V.T.C.A., Bus. & C. § 24.006 Formerly cited as V.T.C.A., Bus. & C. Code § 24.03

§ 24.006. Transfers Fraudulent as to Present Creditors

Currentness

(a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.

(b) A transfer made by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if the transfer was made to an insider for an antecedent debt, the debtor was insolvent at that time, and the insider had reasonable cause to believe that the debtor was insolvent.

Credits Amended by Acts 1987, 70th Leg., ch. I004, § I, eff. Sept. 1, 1987.

Notes of Decisions (253)

V. T. C. A., Bus. & C. § 24.006, TX BUS & COM§ 24.006 Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document 7 43.3. Rendition Unless Remand Nece~ss

Vernon's Texas Rules Annotated Texas Rules of Appellate Proceclme Section '1\vo ..Appeals from Trial Court .Judgments and Orders (Refs & A1rnos) Rnle 43. ,Judgment oftlw Court oC Appeals (Refs & Annos)

TX Rules App.Proc., Rule 43.3

43.~-s. Rendition Appropriate Unless Remand Necessmy

Currentness

When reversing a trial court's judgment, the comi must render the judgment that the trial court should have rendered, except when:

(a) a remand is necessary for further proceedings; or

(b) the interests of justice require a remand for another trial.

Credits Eff. Sept. 1, 1997.

Notes of Decisions (52)

Rules App. Proc., Rule 43.3, TX RAPP Rule 43.3 Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure are current with amendments received through September 1, 2015. Bar Rules, Rules of Disciplinary Procedure, Code of Judicial Conduct, and Rules of Judicial Administration are current with amendments received through September 1, 2015. Other state court rules and selected county rules are current with rules verified through June 1, 2015.

,i .2! 1J:: Thom~,nn R1.?utl..'rs. No claim h) original U.S. (J1.)vernmcnt \Vorks. 8 CAUSE NO. D-1-GN-14-003207

BARBARA PAMPALONE, § IN THE DISTRICT COURT § Plaintiff, § § v. § TRAVIS COUNTY, TEXAS § ERIC HINOJOSA AND AUSTIN § CAPITAL COLLISION, LLC, § § Defendants. § 419TH JUDICIAL DISTRICT

Sum~ary of Payments Made by Defendants to Plaintiff

No. Date Amount Bank Account 1. 05/20/2005 $675.09 2. 06/20/2005 $675.09 3. 07/20/2005 $675.09 Bank of America Business Advantage 4. 08/19/2005 $675.09 Checking Account No. XXXX XXXX 5. 09/20/2005 $675.09 9118 6. 10/20/2005 $675.09 7. 11118/2005 $675.09 Capital Collision 8. 12/20/2005 $675.09 Eric A. Hinojosa 9. 01/20/2006 $675.09 10. 02/17/2006 $675.09 11. 03/20/2006 $675.09 12. 04/20/2006 $675.09 13. 05/19/2006 $675.09 14. 06/20/2006 $675.09 15. 07/20/2006 $675.09 16. 08/18/2006 $675.09 17. 09/20/2006 $675.09 18. . 10/20/2006 $675.09 19. 11120/2006 $675.09 20. 12/20/2006 $675.09 21. 01/19/2007 $675.09 22. 02/20/2007 $675.09 23 .. 03/20/2007 $675.09 24. 04/20/2007 $675.09 25. 05/18/2007 $675.09 26. 06/20/2007 $675.09 27. 07/20/2007 $675.09 28. 08/06/2007 $505.07 08/20/2007 $170.02 "' \ No. 29. 30. Date 09/20/2007 10/19/2007 Amount $675.09 $675.09 Bank Account

31. 11/20/2007 $675.09 32. 12/20/2007 $675.09 33. 01118/2008 $675.09 34. 02/20/2008 $675.09 35. 03/20/2008 $675.09 36. 04/18/2008 $675.09 37. 05/20/2008 $675.09 38. 06/20/2008 $675.09 39. 07/18/2008 $675.09 40. 08/20/2008 $675.09 41. 09/19/2008 $675.09 42. 10/20/2008 $675.09 43. 11/20/2008 $675.09 44. 12/19/2008 $675.09 45. 01/20/2009 $675.09 46. 02/20/2009 $675.09 47. 03/20/2009 $675.09 48. 04/20/2009 $675.09 49. 05/20/2009 $675.09 50. 06/19/2009 $675.09 51. 07/20/2009 $675.09 52. 08/20/2009 $675.09 53. 09/18/2009 $675.09 54. 10/20/2009 $675.09 55. 11120/2009 $675.09 56. 12/20/2009 $675.09 57. 01/20/2010 $675.09 58. 02/19/2010 $675.09 59. 03/19/2010 $675.09 60. 04/20/2010 $675.09 Bank of America Business Advantage 61. 05/20/2010 $675.09 Checking Account No. XXXX XXXX 62. 06/18/2010 $675.09 4193 63. 07/20/2010 $675.09 64. 08/20/2010 $675.09 Capital Collision GP 65. 09/20/2010 $675.09 Eric A. Hinojosa 66. 10/20/2010 $675.09 67. 11119/2010 $675.09 68. 12/20/2010 $675.09 69. 01/20/2011 $675.09 70. 02/18/2011 $675.09 03/--/2011 -- 04/--/2011 -- Page 2 of3 r No. Date 05/--/2011 Amount -- $675.00 Bank Account

71. 06/10/2011 72. 06/20/2011 $675.00 73. 07/20/2011 $675.00 74. 08/19/2011 $675.00 75. 09/20/2011 $675.00 76. 10/20/2011 $675.00 77. 11/18/2011 $675.00 78. 12/20/2011 $675.00 79. 01/20/2012 $675.00 80. 02/17/2012 $675.00 81. 03/20/2012 $675.00 82. 04/20/2012 $675.00 83. 05/18/2012 $675.00 84. 06/20/2012 $675.00 85. 07/20/2012 $675.00 86. 08/20/2012 $675.00 87. 09/20/2012 $675.00 88. 10/19/2012 $675.00 89. 11120/2012 $675.00 90. 12/20/2012 $675.00 91. 01118/2013 $675.00 92. 02/20/2013 $675.00 93. 03/20/2013 $675.00 94. 04/19/2013 $675.00 05/--/2013 06/--/2013 07/--/2013 08/--/2013 09/--/2013 95. 10/25/2013 $6,000.00

r Page 3of3 9 H :·.~.

ll>nk of 1\mcrica, N.A. "··)~t' Page l or 4 I' .o. no, 2~1 IU S1a1cmcn1 rcriod hmp3, fl. lJl12~·51llS O~.'Oi:H, th: ou:;l1 u:. ~:; ,\. C!O l' 1'11 OE 48 01422()') lindosu res 0 Accoun1 1'umbc1

fl :t1U "I 11!i':'"IIl1111 •• 11,. ,1,11, u J, I u1!1Ii:11!11111!1! 01059 001 SCM999 I ~ 4 o CJ\PITAT, COJ,!.ISIOW ERIC A HINOJOSA DEL VALLE Ti< 78617-32?3

Our free Online lla11ldug service allow• you to chcct balances, iracl: occouut •ctivity. pay bills and 111ore. Willi 0:-illnc Banking you can also viow up lo 13 months of Ibis stntemcnl unl!nc. f.nroll at www.bankofamcric•.con\/smollbusincss.

We recently made changes to our Overdraft Protection Transfer Fee to better serve you. Effective immediately, when we determine your account is overdrawn by a total amount less than $10 for a day and we transfer runds from your linked savings account or line of credit to cover it. we will not charge an Overdrart Protection Transfer Fee. Overdraft Protection lels you link your cl1ecki11g account to another account to help avoid overdrafts. If you haven't already signed up, call the number on your statement or visit your nearby banl~ing center and an associate can help you.

Stay ahead or your bills - such as rent. mortgage. credit card or utility payments - by setting up automatic reminders to be sent right to your e-mail or smart phone. With Payment Reminders from Bank of America®. it's easy to know when a payment is due.

Get starte<:l at banltofarnerica.com/solutions today. I ~ =_j H

Pazc 2 of 4 S1a1cmcn1 l'criod CAPITAL COl.LlSlOI' 02101/10 through 02/28110 E.RIC II 11 INOJ OSA EO P PE OE 48 Enclosures 0 - Account Number

Business Advantage Checking CAPlTAL COLl.ISION ERIC A lllNOJOSA

Yuur Account ut 11 Gln11cc Account Number Statement Reginning Balance S3,71 !.24 Statement Period 02/01/10 through 02/28/10 Amount of Deposits/Credits $7,002.90 Number of Deposits/Credits 8 Amount of Withdrawals/Debits SI0,501.42 Number of Withdrawals/Debits 21 Statement Ending Dal:mcc $212.72 Number of Deposited Items 6 Average Ledger Balance $2,174.17 Number of Days in Cyck 28 Service Charge so.oo Your account has overdraft protection provided by Linc of Credit number 6871 1022 401299.

Your Business Pricing Relationship Account Qualifying Type of Name Balance Balance Date Business Advantage Checking 2,549.01 Average 02-25 Totnl Qualifying Balance $2,549.01

Please note that the balances in your account(s) are below the minimum required to avoid the monthly maintenance fee. To give you time to make adjustments, we have waived the monthly maintenance ree for this statement cycle ending 02/28/10. If you have questions about your account or would like to discuss how you may avoid the monthly fee, please call us at the number listed above.

J>cposits nnd Credits nle Ull Po~ted Amount ($) Description Reference 02/04 2,022.19 Deposit 813204730657492 02/05 1,756.00 Deposit 813204730902628 02/09 1,628.46 Deposit 813204730269247 il2/I 32 I 16. Deposit 813204730526383 I 0 ~=0~2~/:6:,::::::::::::::::::::6~7~'i~Jl~9J~ n Ii n c Ban king trans fer fr om Chk 4193 Confirmation# 0136551719 957202167505928 02/19 300.00 Overdraft Protection From 68711022401299 080602190005922 02/22 100.00 Ovcrdnift Protection From 68711022401299 080602220011991 02125 200.00 BankCnrd Dcs:Merch Seti 10:430134840051477 902556010903684 lndn:Cnpilal Collision Co ID:1210001923 Ced

;"' \ H

Page 3 of.\ St~tcmcnt Period CAPITAi. COLLISION 02/0l/IO throu~b 02/:!SllO El\IC /\ HINOJOSA fJI I' PE ()~ 48 014'.!211 E.ndo:rnrcs 0 - Accou111 Number

Wlthtlrawuls 11nd Debit~

Other Debits

Dale Uauk Poste

02101 436.45 Milchcll International Bill Pavmcnt 943202010008790 02/01 71.15 13ankCard J)e$;J·,1 erch Fees JD:ll3013'18400S M77 90::!532006926873 Jndn:Cnpital Collision Co ID:J21U001923 Ced 02101 6.47 Milchel! lnlernnlional Bill Payment ~43202010003800 02/02 39.95 Discover N~twork Dcs:Se11\cmcni ID:601101323c>56387 902532010206729 lndn:Eric A. Hinojosa, Dh:i Co ID:1510020270 Ceil 02/04 !,000.()0 'Jn!inc Banking transfer to C'.hk 4191 957102047530162 Confirmntionfl 3932735010 02/04 700.00 Home DeJlol Dcs:Onlinc Pint ID:56002S980320388 902534010998444 lndn:Capitul Collision Gp Co ID:Citiccsweb Web 02105 500.00 Ge Money Des:Paymcnt l0:504662Ul4152661 902535005381136 lndn:Hinojosa,Eric Co ID:1061537262 Web 02/05 200.00 Mlrna Crcdil Cards Rill l'aymenl 943202050008802 02/03 516.35 Exxonmobil Comm Dcs:Onlinc ?mt 10:560030703322458 902536010818361 l.ndn:Capilnl Collision Co ID:Citioi!web Web 02/09 1,600.00 Online Banking transfer to Ch!: 4193 957202097591378 Confirmn tionll 0375764844 02116 3,211.69 Online Banking tran$fcr to Chk 4193 957302167513449 Confirmation# 622Sl274:i4 02/16 1,146.06 2 Pawnee Lensing Dcs:Lease Pmt ID:320955 902547007520285 Indn:Capit:il Collision G.P. Co 10:3840884553 Ppd

r ""'16 J

02122 Card Account II Dell Commercial Credit Bill Pavmcnl um 11 one 1 a mcnt 943202160008797 943202190008795 080602190005923 080602220011992 02!01 905701291164022 02/01 905701290007749 02104 905702020337081 02/04 905702020739800 02/22 905702200677744 SubtQtal

Dully Ll!dgcr Balaaccs Uate 13alance (S) Date tlalance ($) Date Balance ($) 02101 3,163.22 02108 3,862.07 02119 43.94 02/02 3,123.27 02/09 3,890.53 02/22 12.72 02/04 3,322.42 02111 4,211.69 02/25 212.72 02105 4,376.42 0211 (j 429.03

,... ( • ....,., .. O:rnk of America, N .II. P .0. Dox 1511& T~mpo, FL 33622·~1 IS Page I of 4 Stntcmcnl Period 02/01/10 lhrougb 02'28110 l!O p ra OB 44 H

0372574

llccount Number -

II 111ll 11 lu llu 111 II l111l11IIml1ll 111 l11 Il1 l1 lu I, l11 l11 I: I 01099 001 S0'.~99 \ 2 4 ~

CAPITAL COLLISION GP ERIC A HINOJOSA DEL VALLE TX 78617·3273

Our free Online Banking service ollow• you 10 check bobnccs, tr•ck •ccount •ctivity, poy bills :ind more. With Onlinr llonl:ing you cun al•o vlo\\· up lo Ill months of thb sl:ltcmcnl onlino, Enron r.1 www.bant..or.:amerlca.c('llm/1mla1lbusincss .

.ttr' ·\

We recently made changes to our Overdralt Protection Transfer Fee to better serve you. Effective immediately, when we determine your account is overdrawn by a total amount less than $10 for a day and we transfer funds rrorn your linked savings account or line of credit to cover it. we will not charge an Overdraft Protection Transfer Fee. Overdraft Protection lets you link your checking account to another account to help avoid overdrafts. If you haven't already signed up. call the number on your statement or visit your nearby banking center and an associate can help you.

Stay ahead or your bills · such as rent, mortgage. credit card or utility payments • by setting up automatic reminders to be sent right to your e·mail or smart phone. With Payment Reminders from Bank of America®, lt's easy to know when a payment is due.

Get started at bankofamerica.com/solutions today. H

!'age 2 of 4 St;. lcmen l I' er iod CAPITAL COLLISION GP 02101110 throuuh 02/2:VIO ERIC A HINOJOSA f:ll I' PU OU 44

Account Number -

,. ::· '·"· I :· .- ::·.

Business f.1.dvc.1n!age Cl•~cl~ing

CAPITAL COLLISION GP ER.IC A HINOJOSA

Your Account at n Gkn~c

Account Number - - Statement Beginning Balnncc S2,524.SO Statcmcn< Period 02101110 th~ /\mount of Dcposits/Crcclil~ 528,160.08 Numhcr of Deposits/Credits 7 /\mount of WithdrawalsfJ)cbils :523,675.12 Number of WithdrawalslOebits 38 Statement J::n

'"" t( ielp cover items t112t would overdraw your account. Call us for details.

Your Bu!dness Relationship Account Qualifying Type of Na ie Balance Bnl nee Date Business Advantage Checking 6,129.33 Average 02-25 $5,1:1.9.33

Bnscd on your combined b2lance of $6,129.33, your Business Advantage account has boon charged a monthly malntcnoncc foe. You c.:n avoid tllis fca In lhc ruwr:t by m.:intainlng 535.000 in combinad balsnces.

Deposits :ind Crccllts ale an Posted Amm1111 !S) Description Reference 02102 5,000.00 Online Banking advance from Loe 1299 957102027580889 Confirmation# 3915169063 02/0tl 1,000.00 Online 13anking tran::fcr from Chk 9111\ 957102047530163 Cunlirmationll 3932735010 02109 1,600.00 Online Banking iransfer from Chk 911~ 957202097591379 Confirmation# 0375764844 02116 3,211.69 Online Banking 1ran5fcr ironi Chk 91 IS 957302167513450 Confirmation# 6228127454 02/17 11,872.04 Dcpo~it 313204830622344 02117 1,164.60 Dcposil 813204830622343 02/23 4,3 I I. 75 Dcpo~it s13204730584475 "" \

~".!:; H ~~''' .._:• D~ Pngc 3 or 4 Stulcmcrtl P.:riod CAPITAL COLLISION GI' 02101110 1hruu:;h O:!il8110 cR!C A HIHOJ OSA 1\0 P l'B Oil 4·1 0312S76

A«Ount Number • • • • •

Wtthdrnwnls &nd D~b!ts Chee: ks Check Date Bank Check Date Bani: Nurrob.:r AiiHlt1n: (Sl Posted Reference £:!ur.ih-:r Amount {~) Po•lr,d R!;fr1·c11c~ 5095 557.40 02101 l: I JOll'J\1923%654 20148 2.20 02/04 813009692604239 5097° 550.CtO 02/12 8130098922&4554 20149 2352 02/08 813006892470800 5103° 184.~li 02/16 813009292032928 20150 92.31 02117 813009292693306 20061° 95.CO 02/03 81300939245262 7 20151 215.57 02117 813009292693305 20088° 340.(1() 02/03 313009392452626 20152 69.99 02111 813009692 786278 20091° 12.98 02108 8 l 300l\79267653 I 20153 830.00 02/IO 813006592162010 20123° 500.l!O 02/IS 813204730039963 20154 150.00 02116 813008992748692 20129$ 71.00 02101 81300Gll92690586 20156• 261.63 02124 813009592563760 20131" 9SJi0 02/0S 11130091192124599 20157 178.14 02/23 813009292733366 20139" 671.25 02/08 813008892194461 20159• 6,109.14 02122 Sl30089920270SO 20140 116.65 02/02 313005992002173 20161° 2,198.63 02122 313006092750085 20141 747.lil 02104 813009592350002 20162 406.48 02125 813004092553$13 20143° 600.C-O 02108 813008792668691 '.?0163 1.829.41 02122 813002992359349 20144 3.272.55 02/0S 813007692811653 20164 360.80 02122 813204730398781 20145 172.00 02/08 813008792910492 20170" 192.57 02126 813009992586446 20147° 64.88 02112 813009992791685

Other Debits Dale Bank Poslcd Amount (S) Dcscri1,11 ion Reference 02/04 303.00 Dat;i Check Des:RcJcpchcck ID:020085 902535001904590 lndn:Cnpital Collision Gp Co !0:1261961596 Rck 02/04 32.48 Data Check Des:NSF Fee 10:020085 902535001904592 lndn:Capital Collision Gp Co 10:1261961596 Ppd 02/09 400.00 Online ll~nking ~~~mcnt to J.oe 1299 957302095105249 0.,116 ti?~ ?2 B~f~;n'J:.~ k"/n ...; 0 J :U!f.,~o C!Jk 0113 I 957202167505927 Confirmation# 0136551719 02125 663.31 Trail Creek Inve Dcs:Note Pmt lD:Capital Collisi 902555005209896 lndn :Cupit al Collision Co ID:3262646872 Ced 02126 600.00 Mirna Line Of Credit Bill Payment 943202260005105 02/26 29.95 Momhly Maintenance Fee

Total Overd1·art Fees r.ud NSF: Returned Item Fees

IOllll IOI' Tot.at 'i'his Period Ycnt·lo-Dat• Total Overdrafi Fees S0.00 $35.00 Tot:il NSF: Rct11rnctl llcm rec~ so.oo $1(15.00

Udly Ledger Balances Date 13;i lu nee {S) D:llc 13:i lance (S) Date Balance (S) 02101 l,896.40 02/09 2,611.96 02fl8 15,528.07 02102 6,779.75 02/10 I, 781.96 02122 5,030.09 02/03 6,344. 75 02111 1,711.97 02/23 9,163.70 02/04 6.259.26 02112 1,097.09 02124 8,902.07 02105 6,164.26 02/16 3,299.31 02125 7,832.28 02108 1,411.96 02/17 16,028,07 02/26 7,009.76

~ H ~ Balfli~\ aif America ,.,. . _ \ Bank of Amcricn. N.A. ~ !'age I of4 l'.0. llox 2~118 ':ti!". SUlcmcnl l'criod Tamp>. ~-L 33622·5118 03101!10 through 03131/10 f.0 P PE OE 43 013Ui56 l!nclasurcs 0 - /\ccuunt Number

ll111Il11l11It11mIII111I11II111I1l l1ul11II1l 1lnl1lu l11 l1 I 01099 001 SCM999 11 0 CJ\.l?ITAI, COLLISION ERIC A HINOJOSA DF.L VALLE TX 78617-3273

Our free Online Bankini; service nllows you lo chc"k l>olanccs, tr:1ck occuunt activity, pay bills nnd mot'c, Wllh Online llnnldng you can olsP •·Jew up to 18 innntlu uf !Ills •lattincnl onllnc. Enroll Ot www.b:\nkofamcrica.com/smallbu$incu.

··"" \

Business Advantage Checking CAPITAL COLLISION ERIC A HINOJOSA

~unt nt 11 Glnncc Account Number - - - Slntement Beginning Bnlance $212.72 Statement Period 03/01/10 through 03/31/10 Amount of Deposits/Credits Sl4,318.31 Number of Deposits/Credits 5 Amount of Withdrawals/Debits $14,531.03 Number of Witl1drawals/Dcbits 8 Statement ~nding Balance S0.00 Number or Deposited Items 0 Average Ledger Balance 5961.76 Number of Dnys in Cycle 31 Service Charge $0.00

Your account has ovcrdral\ protc:ction provided by Linc of Credit number 6871 1022 401299.

~ \ H ~ \ Page 2 of 4 Statement Period CAl'ITAL COLl.lSION 03/01/10 through QJ/31/10 F.RIC A HINOJOSA EO P PE OE 4S Enclosures 0 - Account Nutnbcr

Your Business Advantugc Pricing Rclntionshlp Account Account Qualifying Type of Nnme Number Balance S Rnlance D te Business Advantage Checking 922.81 Average 03-30 Total Qualifying Balance $922.81

Please note that the balances in your account(!>) are below the minimum required to avoid the monthly malntemmce fee. We have waived the monthly maintenance fee for an additional cycle in case you need time to make balance adjustments. If your balances are below the minimums next month you'll still enjoy all the many benems that come with your Business Ad11antage account, but the monthly maintenance fee will apply. Please call us at the number listed above If you have questions about your account.

Deposits nncl Creillts ate an Posted Amount (S) Description Reference 03/04 2,658.42 Sf Mutual Des:A25Sf0001 ID:xxxxx6250Ka0301 902562006583464 lndn:Capitnl Collision Co ID:9A25Sf'OOOI Ced Pmt lnfo:Nte"zzz*xxxxx6250Ka030l !370533100 \ 03/17 2,797.16 Sf Mutunl Dcs:A25Sf0001 ID:xxxxx1236Ka0312 902575003591285 lndn:Cnpital Collision Co ID:9A25Sf0001 Ced Pmt lnfo:Nte'"zzz•xxxxx 1236Ka0312l370533100 \ 18 7,316.73 Sf Mutual Des:A25Sf0001 ID:xxxxxl784Ka0315 902576008234102 lndn:Capital Collision Co ID:9A25Sf0001 Ced Pmt lnfo:Nte=t29 H

"' " CAPITAi. COl.LlSION ERIC A HINOJOSA Page 3 of4 S101cmcn1 Period 03/01110 1hrough 03131/10 F.O I' PE OE 48 l!nclosurcs () Account Number

Withdrawals and Debits - Continued Oilier Debits Date Bank Posted Amount (S} Description Reference Suhtolul 590.85

Daily Ledger Balances Date Balance (S) Date Hnlnnce ($) Date Balance($) 03/01 144.87 03/08 1,819.39 03/29 741.00 03/02 54.97 03/17 4,02.5.70 03/31 0.00 03/04 1,919.39 03/18 0.00 r .

H

Bonk of Amedeo, N.A. rage I of4 l'.O. Box 2SI 18 Stocement Period 1·:1mpa, FL 33622·5l18 03/0l/lll through 03131110 L'O P PB Oil 44 03°18980

Acooun1 Numbor -

11 ... n. ,1 .. lluu ,111 ... 1•• u. 11! 1 llu .1 .. 11r1. I11I1I11 Inl 0105~ 001 t' SG!~39 11 0 CAPITAL COLLISION GP ERIC A HINOJOSA DEL VALLE TX 78617-3273

Our free: Online B:tnking s.crvicc aUnw$ yon to check balilnccs, tr3ck ;;a.ccounc ;1ctiv1ly, p:iy bills nr1d n1otc. With 011llpe Banking you cun ~ho vi~•v up to 18 monchs or this statcmcnc onllnc. Enroll at www.b;inl:ofamCTica.co1nlsma llbusiM•~.

"' ·vz

Business Advantage Checking CAPITAi- COLLISION GP ERIC A HINOJOSA

al a Gl:ince Account Numbei- Statement Beginning Balance S7,009.76 Stalcmcnt Period 03/01/10 through 03/31/10 Amount of Deposits/Credits $16.357.41 Number of Deposits/Credits 6 Amount of Withdrawals/Debits s21;s2s.19 Number of Withdrawals/Debits 26 Statement Ending Balance Sl,841.38 Number or Deposited Items 4 Average Ledger Balance S3,195.62 Number of Days in Cycle 31 Service Charge $29.95 Help avoid Overdraft & NSF: Rcwmcd hem fees. Use Alerts to gel messages by email or text to inform you when your balance is low. Uso Overdraft Protection to transfer avaih:ible funds from linked savings, credit card, or credit line to your checking account to help cover items that would overdraw your account. Call us for details. H

l'•i;c 2 of ·I .Slah:menl PctioJ CAPITAL COLLISIOr. Gr 0"01110 throush O~/Jl/10 J;RJC I\ lllNOJOSA 1:0 I' ro ou "-1

/\cc.oul\l Number -

Account Accvunl Q\1alifying Type of Nam.: •·· . .-·r Bu!uncc S 13'1h•nr.c Date nu~incs~ 1\dv:1n1ngc hcclung 3,532.49 Avcn:gc 03-30 1'otnl Qunllfying BcJanc~ :S3,5B2.t.!S

6as\!d on your combined b

201io 8 2H.06 ~11~9 g8noo96921S4126 .__..,;.lo!-lllR~i..;.,..._ _ _ _~l~w2~R~.;;.._..,\jR~~f.... l1;u1 ggg~3~~cm I~ 20173 20174 20175 434.51 15.00 500.00 03/0l 03/04 03123 813008992065404 813009892820470 s 13009792480484 20167° 219.96 03/01 813006192752812 20176 10, 113.89 03/19 &13008992770587 20169° 1,142.98 03/01 313006192220154 20177 623.77 03/:!5 Nl32047306731i3 20171" 380.00 03/01 813008792863716

Other Ocbits Date Bank Posted Amount !S) l>cscripl ion Reference 0)/01 100.00 3 Pawnee Leasing Des:l.easc Pmt ID:320955 902560009530707 lndn:Capital Collision G.P. Co ID:4R408845S3 Ppd 03/02 400.00 Bank of America ·I.inc of Credit Dill Payment 943203020005110 03/04 500.00 Ge Money Oes:Payment JD:S04662014152661 902562006293580 lndn:llinojosa,Eric Co ID:l061537262 Web 03111 91.37 3 Pawnee l,c:isin~ Dcs:Lcase Pmt ID:320955 ')02569012439754 lndn:Caphal Collision O.P. C~1 ID:4S408S4553 Ppd 03/15 1,146.06 2 Pawnee Leasin~ Dcs:Leasc Pm1 ID:320955 902574003359778 lndn:Capital Collision G.P. Co ID:3340884553 Ppd 03/16 100.00 Dell Commerci:il Credit Bill Payment 943203160005104 03125 663.31 Trail Creel{ lnve Dcs:Note Pmt ID:Capilal Collisi 902583009909906 lndn:Capital Collision Co 10:32626461:72 Ced H

rage 3 of 4 Su1einen1 Perfod CAPITAL COLUS!ON GP 03101/lO through Ol/311!0 ERIC A HINOJOSA EO P Pll l)U 44 0)48982

Accoun1 Number -

Withdrnwuls anti Debits - Continued Other D<:bits Date Bank Posted Ammrnl rs> Description Reference 0~/26 600.00 Mbna Linc Of Credit Bill Payment 943203260005108 03/29 741.00 Online Bankini,; transfer to Chk 9118 957303297562544 Con firmationtl 5288477014 03129 500.00 Ge Money J)es:Payment 10:504662014152661 902588010526693 lndn:llinojosa,Eric Co ID:1061537262 Web 03/29 400.UO Bank of Amcricn • Line of Credit Bill Payment 943203290005114 03/30 557.40 Marlin Lensing Bill Payment 943203300005107 03/31 2?.95 Monthly Maintenance Fee

Total Ovcrdr:ift Fees and NSF: Returned ltcm Fees

·rotat tor ·1 ol.al Tlii" Period Year-to-DaL Total Overdraft fees $0.00 S35.00 Total NSF: Returned Item fees $0.00 Sl05.00

Dally Ledger Dnlnnccs Date Balance (S) Date Balance (S) Date Balance ($) 03/0J 4,174.91 03112 2,631.9~ 03/23 4,351.73 03/02 3,561.81 03/15 1,485.88 03125 3,064.65 03/04 3,<146.81 03/16 l,3S5.88 03/26 3,269.GS 03/08 3,544.31 03/18 12,053.22 03/29 2,428.73 03/09 3,273.31 03/19 1,939.33 03/30 1,871.33 0311 l 3,181.94 03/22 4,532.53 03/31 l,841.38 H

[bnl: of An1cric•, ~.A. l'of,C I of ·I r.o. no: 2s11:1 St~tcmcn1 Period T~mpa, fl. 33~22·51 I<; t;.;.·?!. i 0 Ai..·co11nt r\umbc1 -

U: I I Hnl 111luu:111: :1l11l l111 ltlh1: t,, u.1,1 •• I1! i: In l1I Cil.!'ITl\T. COLLISION ERIC 1\ m:;oJOSA 4304 BURC:J DR DRL VALLP. TX 78617-3273

Gm free Online Honking service allows you In chccl bolancc•, track o

Susiness Advantage Checking CAPITAL COLLISION ERIC A HINOJOSA

Your Account ot i:: Glnn1:e Account Numbc:r Stutcment Beginning Balance $0.00 St;itemcnt Period 04/01/10 through 04/30/10 A111ount of Dcposils/Crcdils SS,686.37 Number or DcpositsiCredits 3 Amount of Withdrawals/Debits SS,716.32 Number of Withdrawals/Debits 6 Statement Ending Balanc-.: S29.95- Number of Deposited hem~ 0 Avcr;igc Ledger Bnlancc S9.74- Number or 1.>ay5 in Cycle JO Service Charge $29.95

Your account has overdrafi protection provided by l.ine of Credit number 6il71 1022 401299.

,,._ \ l'ai;c 2 of 4 Stolcmcnl l'~riod CAPITAL COLLISION 04101110 lhrou~h 04/30!10 ERIC A HINOJOSA EO I' PE Ot: 48 t!nclosurcs 0 Account Number

Your Uusincss Advantngc Pricing Rclulionsl1ip Account Account Qualifying Type: of Name Number Jhlance . Bnlancc Date Business Advantage Checking -9.74 Average 04-29 Totnl Qunllfylng Balance S9.74

Based on your combined balance of S9.7h your Business Advantage account has been charged a monthly maintemmce rec. You cnn avoid this fee in the future by maintaining $35,000 In combined balances.

Deposits and Credits ale an· l'osted Amount ($) De~cript ion Reference 04/01 70.05 Online Banking 1ransfer from Chk 4193 957104017596899 Confirmation# 3813438100 04113 82.31 Online Banking trnnsfcr from Chk 4193 957304137545894 Confirmation# 6217?02175 04119 l!,534.01 Online Ranking transfer from Chk 4193 957204197556974 Confirma1ion# 156S911673 Withdraw:tls und Debits Other Debits

.te B:ink l'osted Amount ($) Dcssrirtion Reference

04/01 70.05 BankCard Dcs:Mercll Fees lD:4301348400Sl477 90259!009342190 lndn:Capital Collision Co 10:3210001923 Ced 04113 35.00 Overdrnft Item Fee For Activity Of' 04-12 934804120008265 Electronic Transaction 04119 35.00 Extended Overdrawn Buhmcc Charge 971404190000102 04/19 8,464.01 IRS Des:UsataJ>pymt 10:270050900391617 9025090 I 0633189 lndn:Capilal Collision Gp Co ID:3387702000 Ced 04130 29.95 Monlhly Mninten:incc Fee Curd Account # • • • • • • • • • • 04112 11.t: •.)J CheckCurd 0410 Waterfront Restaurant 905704101027032 Su btotul 82.31

Totnl Overdraft Fees nnd NSF: Returned Item Fees

·101:11 tor "lotal This Period Ycar-10-Dntc Tolal Overdraft Fees S70.00 S70.00 Total NSF: Returned Item Fee• $0.00 $0.00 H

P:igo 3 of 4 Slatcmcnt Period CAl'lTAI.. COl.J.JSION O-l/01110 through 04/30/10 ERIC A HIN010SA EO P PE 0£ 48 0128303 Enclosures 0 Account Number

Daily Ledger Bahrnccs Date Balance($) Dnte Balance (S) 04/12 82.31- 04/19 0.00 04/13 35.00- 04/30 29.95 -

.;~~k ;,< : ! '' I

!~ (· I "· \ '.: ..... i • •• ·• .......·#'··-: .. \. •' .... ;">_ ~ ·:·--= ~:~: ,. ;·/~ - ~· -· . " .. . \:

H

Bonlc or Amedeo, N.A. l'•gc I of 4 r.o.llox 2ms Sta ICtnttl l p Cl iod T•ml'n, FL 33<•22·~118 iJ~.01, l(J thro~i:h ~''· .lO• Ill F.O I' re OB 44 034051~

Account NumbCT -

IJ,.,11, 1l 111!,,,.,lll:a!1:ll1ul1li: "l11ll1l1l:1lel:1l11 l:! 2 .t f\ CAPJ:TJl..L COI.• LISTON GP ERIC A HINOJOSA DEL VALLE TX 78617-3273

Our &cc Online B:inkinit scr,·ice ~llows »ou lo ch«'k h:a.bnccs~ 1([tck <1Ccuuni c:.ctivi1y, pay bills and moi-c. Wltlt Online llonhlng you con oho,.;~,. up to m months or lhl~ statement onllne. Enr<>ll nl W\V\Y.b•nkofam•-ric~.com/sm:tllbusincu.

Bus!ness Adv;;.ntage Checldng CAPITAL COLJ.ISJON GP ERIC A HINOJOSA

at n Gian ce Account Number Statcmcn1 13cginning Balance Sl,841.3~ Statement Period 04101/10 through 04/30/IO Amount of Deposits/Credits $15,241.47 Number of Dcposits/Crcdiis 5 Amount of Withdrawn ls/Debit:; Sl7,458.75 Number of Withdrawals/Debits 18 S1atcmcn1 ~nding. B.alancc 537:5.90. Number of Deposited hems 4 Avcr:igc Ledger Balance S2,736.'J3 Number of Dnys in Cyc:lc 30 Service Charge S29.95 1-lalp avoid Overdraft 8: NSF: Returned Item fees. Use Alens lo get messages by cmnil or tei:l lo Inform you when your balance is 10111. U'.le Overdraft Protection to transtcr available funds from lin!(cd savings, credit card, or credit line to your chccl1ing account to t:elp cover lte:ns that would overdraw your account. Cllll us for details. H

Page 2 of 4 S1a1cmen1 Period CAP 1'11\1. COLLISION ur 04/01110 throuL:h ()4/30/10 F.l\IC A HINOJOS/\ EO P l'!l Oil 44

Account Number

Account Name Date Business Advantap.e Checking 04·29

Bcsed on your combined b11l;mce of $2,809.84, your Business Advanlng~ occount h

Depo!>its nntl CretlHs l.>atc Bank l'ostecl Amount ($) Deserio! ion Reference 04/06 5,506.64 Deposit 813204730146319 04/16 7,645.00 Counter Credit 813204730364109 04116 183.00 Deposit 8132047303641l1 ·~ '('. 04/26 (M/26 I. 763.31 143.52 Deposit Deposit 813204730379002 813204730379004 Wlthdrawnls 11ntl Debits Chcclcs Check Date Bank Check Date 13ank Numhcr /\mount (S) Posted Reference Number /\mount (S) Po!'.ted Reference 20178 2.032.&J 04/07 81300!1892579215 20180 635.47 04114 813009292043338 20179 32.5~ 04/19 813009992337563 20181 500.00 04/16 813204730341334 Other Debits Date Bank Posteq Amount (Sl De!'criNinn Reference 04/01 70.05 Online Banking transfer to Chk 91 rn 957104017596898 Conlirmntion# 3813438100 04/02 550.00 Lear Bill Payment 943204020005109 04/0$ 200.00 Business Card Bill Payment 943204080005117 04/13 82.31 Online Banking transfer to Chic 9118 95730413754Sll93 Confirmation# 6217702175 04/15 1,146.06 2 Pawm:e Leasin~ Dcs:Lcase Pnn lD:320955 90250501015392<\ Indn:Capital Collision G.P. Co JD:3S'I08S4553 P1ld 04/15 500.00 Home Dcpol Dcs:Online l'mt ID:5600S9433223077 · 902.504008383098 ln

r, 04/30 29.95 Monthly Maintenance Fee "" \

H

l'agc 3 or 4 S1a1cmcn1 l'e

Accuun1 Number -

Total Ov<.'nlraft F<.'es and NSF: Returned Item Fees

Total Ovcrurn ft Fee~ Totnl NSF: Returned II l'ees

Daily Ledger Bal:mccs Date Balance (S) Date Balance ($) Date Balan::e (S) 04/01 1,771.33 04/13 4.413.06 04/20 67.93 04102 1,221.33 04114 3,777.59 04/26 711.45 04/06 6,727.97 04/15 2,131.53 04129 211.45 04/07 4,695.37 04/16 9,359.53 04/30 375.90- 04/08 4,495.37 04/19 743.02 10 H

Bank or America, N.A. Pa;;o I of 3 l'.O. Dox :2.SllS St.nlcrncnl Period Trunpa, l'L 3JG2:!·511S 01!01!13 tin ouch O·l/S0/13 Ell E I'll EB 44 C0151~6

Ac<:<•Unl Kumber -

11 ... 11.. 1•• 11 ..... II!,, ,I,,. 111

CAPITAL COLLISION GP ERIC A HINOJOSA 4304 BURCH DR STE A4 DEL VALI,E, TX 78617-3275

Our Ontint!' u~nking S~)'Vite nUm.\'8 you tn check hnl.inr.~~. lrud:: a<:<:oun!. M:ti\•ily nual 1nor1!. With OuUn" B"nl

We're improving the system that supports automatic transfers ror deposit accounts which will change the timing of certain automatic transfers. Effective April 23, when an <>utomatic transfer between two of your Bank of America accounts falls on a weekend or federal holiday, it will now occur the prior business day. Please keep this change in mind when you schedule bill payments. Any other scheduled transfer thal falls on a weekend or federal holiday will continue to occur the rollowing business day. Additionally. you'll now be able to manage your transfers through Online Banking by going to the Tr<1nsfers tab, as well as by calling the number on this statement or visiting your nearby bunking ce11te1.

Good News! In-response to customer feedback we've made sorne changes to your statements to make them easier lo read. Soon you will notice color and graphics to highlight account details and draw nUention to notifications and special offers. Over the next rew months, a guide will be included with your nev-1 statement that will detail tile enhancements. Stay tuned!

." (' " \

H

l'.,ge 2 o( 3 St.alcmcnt Period c11rrrAL COLLlSIO:-J GI' 01/01/13 tl1rouch 01/30.113 f.RIC A HINO,IOS/I DJ E PD 1::1\ 44

Account Number -

Business Economy Checking CAP11'AI, COLLISION GP ERJC A HI~QJOSA

Your Account nt n Glance Account Number St..lt.cmcnt Beginning Bnlnncc $15.46 Statement Period 04/01/13 through 04/30/13 Amoullt of Deposil.s/Ctcdits $1,505.00 Number of Deposits!Crcdits 3 Amount. of Withdrnwals/Dcbilfl $1,498.18 Numbot· of Withdt·nwo.ls/Dobits 4 Statement Ending Bnlancc $22.28 Numbc1• of Deposited Items 2 Average Ledger Balance $574.45 Number of Days in Cycle 30

Deposits and C1•cdits ate on· Posted /\mouat ($) Description Reference 01/01 1,300.00 Dopo!lit 813008930688463 04/10 15.00 Online Busim..'S!l Suite A11d Wiro 'l'ransfci· l~cfund 945004105761959 Fdcs Nmo 0006576 Nliksloz 04/19 190.00 Deposit 813006930066384 Withdrawnls nncl Debits Othc1• Dcbit11 Dntc Bank Posted Amount 1$) Dcscrietion Reference 04/05 15.00 Online Business Suite Acct Mgmt Services 943204050129517 04/11 789.11 Bank Of America . Linc Of Ct•cdit Bill Payment 943204110005312 04/19 • •6•.7.5•.0IO••••B(m·lmi·n P:unpnlonc Bill Pnynwnt 943204190005310 C1u·tl Account II 04/02 1:;1.w ~hcckCnrd 0.101 Ei;:pcriau ~crcditrcpo 90570-1011364961 Subtotnl l!l.07

Duily Ledger Balnnccs Dntc ·s11lnnce ($) Date Bnlancc ($) Date Bnl:1ncc ($) 04/0J 1,315.46 04i05 1,281.39 04fll 507.28 04/02 1,296.39 0'1/10 1,296.39 04/19 22.28 "" \

H

0015198

How To Balance Your Bank of America Account FIRST. starl wiU1 yo"r Acco11r11 ReuiMer/Checkbook: i l•rA you1 Aeco.:nt Acoi~tet/CheckbOok D.cl:in.:;c here . ·····-·····--· $ _ _ _ __ $ _ _ _ __ 2'. Sucuocl an}' sarvtco charges°' other dC':tuc:i:os OOl prnvu')u~ty rcccrdcd tOM .:1rc 11!.~t.'

3. J\d:t ~ny crcrMs oot ptC'llDusty •ccordcd Ut&t :ire h:.~cd on Ui1~ :.t~1.crr.cn~ (~or cx~n1ptr. 1tiic.-,c5.~) . ·······-·---·· $ _ _ _ _ __ ~ Tto,~ r.. )""" HEW ACCOUNT REG1S1LR !!AlllNC~ ····--·- ... s _____ NOW.....irh your Account Statomcnt: s _____ 1. l•~I >"'"' S1a1cm~ Fowlirg B.,lancc ''"'ft ... ··-··· ....... $ _ _ _ __

SUBTOTAL 3. Ust nnd 1010.1 all cutt.t:ul

Chocks, ATM, Chock C:ird, Checks, ATM. Check Card, Checks, ATM, Check Card, [lectronic Withdrawals (lnctronlc Wlthdr.11\'/alS Eloctrcn!c Withdrawals OarcJChcck (I Amoun: Oatc/Chcck d Amount Date/Check t Amount

~. TOTAL OF OUT ST llNDING CHECKS. 11TM, Check Crud or.a ottiar electronic w1th~rawois .•.•....•.. --····· ·-· ..---------.. $ - - - - - - - 5. Subrre call u~ .0t ltif! tr:f~hcric nurnticr llsrcd M 1he fren1 of lhi~ !.l\\ICr:1r.n• !o lt:U us :about rt change or nddteS.!,.

Ucposa1 Agreement. \\'tlcn yctJ ope:11td you'" 3cccur.t. you tE:oivet! o CeP0"'11 t1grcernem an:: fee s.ehed'ukJ ord Cg."ced 1h.at ~'Cur accci.-nt \','Ould be g:wrtnP'd by the 1t!fm~ cf ~e 1.1.:cumcnt~. a~ v..e may nnu:nd t.~ h:;i.m ti11e 10 l11i,eo. 1h~l· dccurncms are J1"'ft cf Ute amtroc~ for )'Ollt deposit .;,ccc;lrnl a"td 90'1Cfn ~II :t';)rtS~ttiOt1' rel~ing to your :!rctx.J~~ irc.!uding :\ti ~O!i•!S :::nd \.".flthdrilW:llS. Co.pies :~ b-01h the ~s aoe nut11t:J~r listed on tho rronc of this stattniont D::t soon ~s ;yo.J con. Wa musl lle1.:r ftcm yoa f'O •~tct th3:'l 6.'l day.5 alter we ~eru ~rA.. lhe flRS. T ~10:crner.t <'.:"1 wfliC.tl thd cncr or J)!'cbk-n" CJ';21'.!irtd. • Ttt• us yrur no:iw o!ltl acc01:n1 numb<». • Cc:;cri~ tne erto:" or the u~fc: you a.re ~me ~b::>I..'".. ~rd c,.plo::in us ct(~r1y l!~ yw CM \•,h'/ )'CU bcl~t thC!C '" ~n ~rrCT c: \'thy yoo ne:d rn.cfe info11n~tion. • Ten us the dollar a-noum ol the SU$f.l'Cted e:ror. for ccr.~vrnet ai:cour.\S t/$CU;j primorily for r.cr!.Cnlll. tamtly er 11~\.l!t-ehold p.urposcs. VJi!. w1tl 1nvesti9ate yc-iJr i:err.p!nin~ ~!'\d will c.orreel eny crrtlr PTC>mpUy. II we :a~o metR thnn 10 bus1no~~ d~ys (10 cnlondor d~~ of you ~ro o Moss~e11uso11s customer) 120 \lusinc:os dnys if .¥0\I uro D r.ow customer. tor crcctrOf'lic transfers cc.curring du1ir.g '""' l1rst 3.0 C:ay-5i a'1cr lhe fir:;t d~osi~ is ma'te I:') )'0•1r ur.our.:} to I'!:> 1•11!-. we VJ!ll rec.redit your l'\C.Cnunt fM tho arncuN y-6\.. lhtt\k l! '" Ctret. so thal ycu wall ticwc u5C ef tt!C mor.ey d1..;ring ma! m~ tt tno(,c~ us to CCr.'lptcto cur 1fl·le'!.hg.lt•cn ror lltt~r .«CO".J1"J.s. \\1!' inve5tig:ate. an:::I al \VC fir.cf i.w: h.iv.: m;.r'oP. an erro... '/IC. (rtd11 'fOJt CY.c0t;o: ot u~e ccrclu~.011 of oar ir.-c~·f9:it on Rcpattir.g Other ProhJotns. You musl eao.mif\U yoU"' ~~1t'N'r.? c.urefuuy 8.r\d f'O!'Tlptl)'. You ore 1~ •he Dt!.t ~·:>~tie. to d:!.covcr e:·cis !nd unauth0r1zed u.,11sacu011s on )'O';t t,ccou:·I(. !I )W ru.il ~o r.cmfy us m wrnmg of suspcc;ted prn~lcms er unnutllor1zcd tran.sncuc.r:z wa,....:n t~ umo pcr;Cds specif•Od In ;rio de1=0~11 ~greemcmt (\•lhich pGriod"S "'" no mo;c r·.l\n r.~ dll)~ l'.if:er W"l make the ~utemor.~ .ovn1lt1blc to yo"J nn:11n s.orr.~ r..i!e5 :.itc- ~ di'lys er ins~}. wo arc not liottc to ycu 101, o.nd you tl;irtc n:it to t~ko o clnim cgn1nst us fer ~h¢ prcblem$ eir unouthori;e:c.d trons:ietlcn~.

Dlroct Deposits. U \'OU ~vo orrange~cite-nt.nt 10 !trt:: Cu! 1r :rie ~po~it w~s mtidc .a.~ !CM:1u~td. " \

H

Bmik or Amcric:i., N.A. Pago I of 3 P .0. Box 25118 Stat<•muut l'c1fod 'fum1111, Fl, 33622·5118 05/01/13 throueh 05/31/13 l:.'O t: I'll ES 44

Account Nwnber -

II 111II11I11IIu111111111 It II Ill 01099 Eo1 sc~:999 o CAPITAL COLLISION GP ERIC A HINOJOSA 4304 BURCH DR STE A4 DEL VALLE, TX 786l7-3275

Our Online Hanking $ice allows you to ch<)Ck bolnnces, track nccounl activity ond more. With Onlh1e B:wlting you cnn :i.lso view up to 18 months of tltis 5'Catcment ouline. Enroll nl. www.bankofomeric3.com/smn1Jbu•inoss.

Good News! In response to customer feedback we've made some changes to your statements to make them easier to read. Soon you will notice color and graphics to highlighl account dctnils and draw attention to notifications and special offers. Over the next rew months. a guide will be included with your new statement that will detail the enhancements. Stay tuned! P.O. R1t\ 15!?~i \Vi11nint:hi:;.. 1'£ lfl~!in Customer service informati

® Customer service: 1.888.BUSINESS

if) banl

~ Bank of Amerir.o, N.A. CAPITAL COLLISION GP P.O. Box 25118 ERIC A HINOJOSA Tarnpil, FL 3362::>·5:!.18 1950 nuTLAND DR AUSTIN, TX 78758-5420

Your Business Fundamentals Chk for October 1. 2013 to October 31, 2013 Account number:

Account sumrnary Beginning balance on October 1, 2013 $21. 79 Ii of

---------·------- Scivicc fees ·0.00 I! or days in cycle: 31

------- ----- ·----------------- Ending bal

IMPORTANT INFORMATION: BANK DEPOSIT ACCOUNTS Change of address - Pleiise call us at lhe telephone number listed on the front of this statement to tell us about a clmnge of address.

Deposit agreement - \i\11en ycu opened your occou11t, you received a deposit agreement and fee sclieclule and agreed that your account would be governed by the terms of these documents, as we may amend them from time to lime. These documents are part of the contract for your deposit account and govern all transactions relating to your account. including all deposits and withdrawals. Copies of both the deposit agreement and fee schedule which contain the current version of the tenns and conditions of your account relationship ma~· be obtained at our ban!ling centers.

Elect1onic transfers: In c;;;se of errors or questions al.lout your electronic transfers - If you think your statement or receipt is wrong or you need more lnformntion about an electronic transfer (e.g., ATM transactions, clirect deposits or wltl1drawals. point-of-sale transactions) on the statement or receipt, telephone or write us at the address nnd numbef listed on the front of this statement as soon as you can. We must hear from you no later tllan 60 days after we sent you the FIRST statement on which the error or problem appeared.

Tell us your name and account number.

Describe the error or transfer you are unsure about, ancl explflin as clearly as ~·ou can why you believe there is an error or why you need more inrormation.

Tell us the dollar amount of the suspected error.

For consumer accounts used primarily for personal, family or household purposes, we will investigate your complaint and will correct any error promptly. If we take mo.-e than 10 business days (10 calendar days If you are a Massachusetts customer) (20 business da~·s if you are a new customer. for electronic transfers occurring during the first 30 days after the first deposit is mndc lo your account) to do this, we will credit your account for the amount you think is in error. so that you will have use of the money during the time it will tal

For other accounts, we Investigate, and if we find we have made an error, we credit your account ;it the conclusion of our lnvesligalion.

Reporting other problems - You must examil1e your statement carefully and promptly. You are in the best posilion to discover errors and unauthorized transactions on }'our account. If you fail to notify us in writing of suspected problems or an unauthorized transaction within the time period specified in the deposit agreement {which periods are no more than 60 clays after we make the statement available to you and in some cases are 30 days or less), we are not liable to you for. and you agree to not malle a claim against us for the problems or unauthorized transactions.

Direct depo5its - lf you have arranged to have c!irect deposits made to your account at least once every 60 days from the same person or company, you may call us al the telephone number listed on the front of this statement to find out if the deposit was made tis scheduled.

© 2013 B11nk of America Corporation

Bank of America, N.A. Member FDIC and @ Equnl Housing Lender

Page 2 of 4 ,_., ~··.

Your checking account ~ITAL COLLISION G? I Account II I October 01, 2013 to Octcbcr 3:!., 2_0_13_ _ _ _ _ _ _ _ _ _ _ _ _~

Deposits and other credits Dnte DosCTi;rtlcn Amount

10/22/13 Ceposlt 6,050.00 Total dep0slts and other credits $6,050.00

Withdrawals ancl other debits _ _ _ _ _ _ _ _ _ _ _ _ ___......JtL Qato 0c?Ctjmf

:!. 25 13 Barbara Pam alone Bill Pa :ment .s 000.00 Cllrd oceount #

10/02/13 CHECKCARO 1001 EXPERIAN ~CREDITREPO 877·2847942 CA .21.20 24351783274003500053334 RECURRING CKCD 5968 46357200071461132 4635 7200 07146432 ~su~b~to~ra~181~oruc~awmta~cc~o\illmit]#f.Jlllllllllllllllllll:=::=.=:::==::::==:=:::::::===:::=:::=::::::::~:.::::::=::~~S2:2120 ~ --~-·~-----·-----=~-'-'- ..... Total withdrawals and other debits -$6,021.20

Dally ledger balances

r Doto

10l01 10l02 earance ($) 21.79 0.59 Date

10L22 ·~----~ ea1ancc($)

61050.59 D8te

10/25 &lance{$)

50.59

"" \ Page3of 4 CAPITAL COLLISION GP I AcC1>unt # I October 01, 2013 to October 31, 2013

This page lntentlonally left blank

Pagc4 of 4 11 NOTICE THIS DOCUMENT CONTAINS SENSITIVE DATA 6/8/2015 8:29:09 AM Velva L. Price District Clerk Travis County D-1-GN-14-003207 NO. D-1-GN-14-003207

BARBARA PAMP ALONE, § IN THE DISTRICT COURT § Plaintiff; § § V. § TRAVIS COUNTY, TEXAS § ERIC HINOJOSA AND AUSTIN § CAPITAL COLLISION, LLC, § § Defendants. § 419rn .JUDICIAL DISTRICT

STIPULATION OF THE PARTIES

Plaintiff Barbara Pampalone and Defendants Eric Hinojosa and Austin Capital Collision,

LLC, hereby agree and stipulate as follows:

1. If Plaintiff is entitled to damages arising from default on the loan she has alleged, then the

amount of damages is $56,758.68 as of June 8, 2015. This amount is calculated pursuant to the

amortization schedule attached as Exhibit A to Plaintiff's Second Amended Petition, and is

exclusive of attorneys' fees and other pleaded for relief.

2. The attorneys' fees and costs incurred by Plaintiff through April 2015 total $44,950.30.

This amount is established by the documents Bates-labeled BP_000403-BP_ 00431. These

documents are preadmitted for the purposes of attorneys' fees testimony and the hourly rates

reflected therein are reasonable. Further, Nelia J. Robbi may testify as to attorneys' fees in lieu of

Plaintiff's designated testifying expeti, Joe Lea. Ms. Robbi is qualified in all respects to present

testimony as to attorneys' fees and costs on behalf of Plaintiff and may present direct testimony in

the narrative form. This agreement shall not preclude Plaintiff from offering testimony and

evidence as to attorneys' fees incurred and/or anticipated after April 2015.

3. Any document produced by any Patiy in this lawsuit and used at trial as an exhibit by any

Party shall be preadmitted; the Parties reserve relevancy objections. This agreement shall apply to

41 those documents which have been produced by the Parties as of the date of this stipulation.

4. The Summary of Payments to Plaintiffs, attached hereto as Exhibit A, is a true and accurate

reflection of the infmmation it purports to sununarize.

S. There is no signed promissory note for the loan at issue in this lawsuit.

Respectfully submitted,

McGINNIS LOCHRIDGE 600 Congress Avenue, Suite 2100 Austin, Texas 78701 (512) 495-6065 (512) 495-6093 (Fax)

. By~'~ ~~J\,L) Joe Lea '-~~ State Bar No. 12082000 1le.&(f..~®9£irmisla,.w.,QQID. Nelia J. Robbi State Bar No. 24052296 mobbiia)mcginnislaw.com Jordan K. Mullins State Bar No. 24070308 imullins@'!mQginnislaw.com

ATTORNEYSFORBARBARAPAMPALONE

SLATER PUGH, Ltd. LLP 8400 N. Mopac Expressway Suite 100 Austh:i, Texas 78759 Teleph~ne (5 2) 47~2:£~i~ Telecopi · (5 2) 472~ }'

By:._, __..::__------- -fT··- .... A <1mPugh State Bar No. 24044341 i'llfilJ?.h@)sJaterpu1m.com

2 CJW.TlFICATE OF SERVICE

I hereby ce1iify that a true and correct copy of the foregoing document was served via facsimile and/or electronic mail on this the fih- June 201 S on the following:

Adam Pugh 8400 N. Mopac Expressway Suite 100 Austin, Texas 78759 (5l2) 472-2431 (512) 472-0432 fax

3 Exhibit A CAUSE NO. D-l-GN-14-003207

BARBARA P AlvflJ ALONE, § JN TI-IB DISTlUCT COURT § P la inti.ff, § § v. § TRAVIS COUNTY, TEXAS § ElUC HINOJOSA AND AUSTIN § CAPITAL COLLISION, LLC, § § Defendants. § 419TH JUDICIAL DISTRICT

Summary of Payments to Plaintiff

.$fo?;i/'}, \~~:· .·:; :. ·n.ai~',·:'\:;':1ti':'.: ':':,ii_:;y~;.:;~61'.b'U)if'.;'h,: :'._i.:~t~~~j.:;. I. 05/20/2005 $675.09 2. 06/20/2005 $675.09 3. 07/20/2005 $675.09 Baiik of America Business Advantage 4. 08/19/2005·-·· $675.09 Che eking Account No. XXXX XXXX 5. 09/20/2005 ------$675.09 911 8 6. 10/20/2005 $675.09 7. 11/18/2005 $675.09 Cap ital Collision 8. 12/20/2005 $675.09 Eric A. Hinojosa ·----·····---~··

9. 01/20/2006 $675.09 10. 02/17/2006 $675.09 11. . 03/20/2006 $675.09 12. 04/20/2006 $675.09 - 13. 05/19/2006 $675.09 -- -~·-

14. 06/20/2006 $675.09 15. 07/20/2006 $675.09 16. 08/18/2006 $675.09 17. 09/20/2006 $675.09 18. 10/20/2006 $675.09 19 . ....---···~--··~·-~-- 11/20/2006 $675.09 20. 12/20/2006 $675.09 21. 01/19/2007 $675.09 22. 02/20/2007 $675.09 23. 03/20/2007 $675.09 24. ---·--·-··----....-..-.-..... 04/20/2007 $675.09 25. 05/18/2007 $675.09 26. 06/20/2007 $675.09 27. 07/20/2007 $675.09 28. 08/06/2007 $505.07 08/20/2007 $170.02 ·- --· -- %i-t¢>\' .. <::~;:"'·' L~~31;ci.ri{lf •. •.:·L'2~~=~~13.±-iril~f\:~c\n1:Uf_:>~;···_c,··~···"'. -_';.~ .. ·. .·· ~i: 29. 09/20/2007 ·---~?_5.09 ---- - 30. 10/19/2007 - - - ·--·----- $675.09 31. 1-------1----·--l 11/20/2007 $675.09 32. ·----+------- 12/20/2007 $675.09 --·--·--- 33. 01/18/2008 $675.09 34. _,, ____ ______ _ $675.09 02/20/2008,

35. 03/20/2008 $675.09 36. 04/18/2008 $675.09 37. 05/20/2008 $675.09 38. -------- - 06/20/2008 ---·----------- $675.09 39. 07/18/2008 $675.09 40. 08/20/2008 $675.09 4L 09/19/2008 $675.09 __ 42_.- - · 10/20/209~- ___ _±~~~.:.92__ 43. _Jl{~Q/2008 _____ $67~_ 44. 12/19/2008 $67 5. 09 45. 01/20/2009 $675.09 46. 02/20/2009 $675.09 47. 03/20/2009 $675.09 48. 04/20/2009 $675.09 49. 05/20/2009 $675.09 ,____ 50. 06/19/2009 $675.09 51. 07/20/2009 $675.09 52. 08/20/2009 $675.09 53. 09/18/2009 $675.09' 54. 10/20/2009 $675.09 SS. 11120/2009 $675.09 56. 12/20/2009 $675.09 57. 01/20/2010 --~-$675.09 58. 02/19/2010 t - - -$675.09 ----+--------- - --~ - ·- -- 03/19/2010 $675.09. 60. 04/20/2010 $675.09 Bank of America Business Advantage 61. 05/20/2010 $675.09 Checking Account No. X:XXX XXXX 62. 06/18/2010 $675.09 4193 63. 07/20/2010 $675.09 64. 08/20/2010 $675.09 Capital Collision GP 65. 09/20/2010 $675.09 Eric A Hinojosa 66. ----···------ ··------- 10/20/2010 - . ----~-----·--···- $675.09 ---~---·-·~·----------

67. 11/19/2010 $675.09 68. 12/20/2010 $675.09 69. 01/20/2011 ----------- $675.09 70. 02/18/2011 $675.09 03/--/2011 04/--/2011

Page 2 of3

46 I.No'..'.'.''',·:·: P~:tJ . {:.:: .,_;~ ·. ·: :·.. ;·: .':~': _,.,_ :<::.• x:Ami:iifo.f. )·\>~:,;:, 'JJa~iiLA:C.c\>WAt;~' ----- 05/--/2011 -- 71. 06/10/2011 $675.00 -------·-· ·~-----·-· ------··---- 72. 06/20/2011 $675.00 ~-~-- 73. 07/20/2011 $675.00 --------- 74. 08/19/2011 $675.00 --- 75. 09/20/2011 $675.00 76. 10/20/2011 $675.00 77. 11/18/2011 $675.00 78. ---····-·-·---------- 12/20/2011 $675.00 ···~···-

79. 01/20/2012 $675.00 80. 02/17/2012 $675.00 81. 03/20/2012 $675.00 82. 04/20/2012 $675.00 83. - 05/18/2012 $675.00 84. 06/20/2012 $675.00 85. 07/20/2012 $675.00 86. -- 08/20/2012 $675.00 87. ·- 09/20/2012 $675.00 88. 10/19/2012 $675.00 89, 11/20/2012 $675.00 90. 12/20/2012 - $675.00 ~- 91. 01/18/2013 $675.00 92. 02/20/2013 $675.00 93. 03/20/2013 $675.00 94. 04/19/2013 $675.00 ----- 05/--/2013 06/--/2013 ----~-----·---- 07/--/2013 --------·-·--- ---- 08/--/2013 09/--/2013 95. --- 10/25/2013 $6,000.00 -

Page 3 of3

47 12 626 Joint Venture v. Spinks, 873 S.W.2d 73 (1993) 24 UCC Rep.Serv.2d 151

873 S.W.2d 73 Court of Appeals of Texas, [2] Appeal and Error Austin. Extent of Review Appeal and Error 626 JOINT VENTURE d/b/a Cedar Canyon Clear or Palpable Weight or Preponderance Ranch, Charles Steger, John Gantt, and Jim Caskey, Appellants, When reviewing jury verdict to determine v. factual sufficiency of evidence, Court of James H. SPINKS and Claudette L. Spinks, Appeals must consider and weigh all evidence Appellees. and should set aside judgment only if it is so contrary to overwhelming weight of evidence as No. 3–92–638–CV. | Dec. 29, 1993. to be clearly wrong and unjust.

Vendors brought suit against joint venture and its Cases that cite this headnote individual venturers to recover deficiency following foreclosure of deed of trust. The 368th Judicial District Court, Williamson County, Burt Carnes, J., rendered judgment for vendors, and defendants appealed. The Court of Appeals, Jones, J., held that: (1) references in [3] Evidence note and other sale document to individual as “Trustee” Evidence for Purpose Other Than Varying were ambiguous, and thus, parol evidence rule did not bar Rights or Liabilities Dependent Upon Terms of introduction of evidence showing that individual was Writing acting as representative of joint venture; (2) statute of frauds defense was unavailable to defendants; (3) even if Parol evidence rule is inapplicable when suit is absence of individual joint ventures’ signatures would brought on underlying transaction rather than prevent them from being liable on note, it would not note itself. preclude their liability for underlying indebtedness assumed when they agreed to purchase land; and (4) jury’s finding that joint venture agreed to pay Cases that cite this headnote indebtedness established not only joint venture’s liability, but also that of individual venturers.

Affirmed. [4] Evidence Grounds for Exclusion of Extrinsic Evidence

Parol evidence rule only excludes evidence that West Headnotes (12) varies terms of unambiguous contract.

[1] Appeal and Error Cases that cite this headnote Interrogatories and Special Verdicts

In deciding no-evidence point, Court of Appeals must consider only the evidence and inferences [5] tending to support trier of fact and disregard all Evidence evidence and inferences to the contrary. Grounds for Admission of Extrinsic Evidence

Parol evidence rule does not exclude evidence Cases that cite this headnote offered to clarify or explain ambiguous writing.

Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 626 Joint Venture v. Spinks, 873 S.W.2d 73 (1993) 24 UCC Rep.Serv.2d 151

[6] [9] Evidence Joint Adventures Contracts of Sale Actions by or Against Third Persons

References in note and other sale documents to Legally and factually sufficient evidence individual as “Trustee” were ambiguous, and, allowed jury to find that joint venture agreed to thus, parol evidence rule did not bar introduction pay indebtedness underlying note signed in of evidence showing that individual was acting connection with purchase of real property, even as representative of joint venture with respect to though note was signed only by one individual purchase of real property; references to “trustee” joint venturer as “Trustee,” where, over the next showed that note was signed by individual in three years, joint venture managed property, representative capacity, but did not show for made improvements to property, and made whom he was acting. payments to vendors.

Cases that cite this headnote 1 Cases that cite this headnote

[7] [10] Frauds, Statute Of Joint Adventures Contracts Completely Performed Rights and Liabilities of Parties as to Third Persons When one party to contract has fully performed his obligations under it, statute of frauds is Even if absence of signatures of individual joint unavailable to the other who knowingly accepts venturers would prevent them from being liable benefits and partly performs. V.T.C.A., Bus. & on note signed in connection with purchase of C. § 26.01. real property, it would not preclude their liability for underlying indebtedness assumed when they agreed to buy property. V.T.C.A., 6 Cases that cite this headnote Bus. & C. § 3.401.

2 Cases that cite this headnote [8] Frauds, Statute Of Agreements to Convey Land [11] Defense of statute of frauds was unavailable to Joint Adventures preclude finding that joint venture was liable for Joint Adventures underlying indebtedness for purchase of real property, where vendors fully performed their Joint venture is generally governed by same part of transaction by deeding land to individual legal rules as partnership. joint venturer as trustee, trustee paid vendors $300,000 in cash and signed note for $445,000, and joint venture, over the next three years, 2 Cases that cite this headnote managed property, made improvements to it, and made payments to vendors. V.T.C.A., Bus. & C. § 26.01. [12] Joint Adventures 6 Cases that cite this headnote Actions by or Against Third Persons

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 626 Joint Venture v. Spinks, 873 S.W.2d 73 (1993) 24 UCC Rep.Serv.2d 151

Jury’s finding that joint venture agreed to pay was no evidence to support the jury instruction on indebtedness for purchase of real property ratification. We will affirm the trial court’s judgment. established not only joint venture’s liability, but also that of individual venturers. Vernon’s Ann.Texas Civ.St. art. 6132b, § 15(1).

FACTUAL AND PROCEDURAL BACKGROUND Cases that cite this headnote The Spinkses owned 626 acres of land in Lampasas County known as Cedar Canyon Ranch. In 1985 they listed the land for sale with a real estate agent. The realtor told them a group of businessmen were interested in purchasing the property. In touring the property, Gantt Attorneys and Law Firms and Caskey introduced themselves to the Spinkses as two of the people who were going to buy the land. A short *74 Dennis L. Roossien, Jr., Strasburger & Price, L.L.P., time later, the Spinkses entered into a contract for the sale Dallas, for appellants. of the land with “Don Bizzell, Trustee.” The Spinkses believed Bizzell signed the contract on behalf of the Donna Gregg, Law Offices of Jim Dear, P.C., Austin, for group, and was not signing the contract as an individual. appellees. Bizzell testified that he entered into the contract for the group. Before POWERS, JONES and KIDD, JJ.

Opinion On the date of closing, the group had not yet executed any formal written joint venture agreement, and apparently the JONES, Justice. venture did not yet have a name. The Spinkses deeded the property to “Don Bizzell, Trustee” in exchange for $300,000 cash, a note for $445,000, and a deed of trust James H. Spinks and Claudette L. Spinks, appellees, covering 446 of the 626 acres. The note and deed of trust brought suit against 626 Joint Venture d/b/a Cedar were executed by “Don Bizzell, Trustee.” None of the Canyon Ranch, Charles Steger, John Gantt, and Jim documents reflected for whom Bizzell was acting as Caskey (collectively, “defendants”), appellants, for a debt trustee. allegedly owed to the Spinkses. Trial was to a jury, which found that (1) Steger, Gantt, Caskey, and Don Bizzell *75 Some months after closing, Bizzell, Steger, Gantt, were partners;1 (2) the partnership’s agent, Bizzell, signed and Caskey executed a written joint venture agreement to a note and deed of trust on behalf of the partnership; and form the “626 Joint Venture.” The agreement was made (3) the partnership agreed, through its agent, to pay the effective as of the date of the sale of the property. Over indebtedness to the Spinkses. Based on these findings, the the next three years, the joint venture actively managed trial court rendered judgment for the Spinkses. the property, including paying taxes, making permanent improvements, imposing restrictive covenants, listing it as 1 Bizzell was initially named as a defendant, but a partnership asset on tax returns, and making payments apparently was dropped from the lawsuit after he filed to the Spinkses. bankruptcy. In 1989 Bizzell informed the Spinkses by letter that the next payment due under the note would not be made. Bizzell signed the letter as Trustee for “626 Joint Venture Defendants bring four points of error. They assert that (1) d/b/a Cedar Canyon Ranch.” After the note went into as a matter of law, defendants are not liable for the default, the Spinkses foreclosed on the property and later indebtedness evidenced by the note because the note does brought this suit to recover the deficiency balance. not bear any of their names; (2) there is no evidence, or alternatively insufficient evidence, to sustain the jury’s finding that the agent signed the note and deed of trust on behalf of the partnership; (3) there is no evidence, or alternatively insufficient evidence, to sustain the jury’s DISCUSSION finding that the partnership agreed, through its agent, to pay the indebtedness evidenced by the note; and (4) there The Spinkses asserted several causes of action in their

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 626 Joint Venture v. Spinks, 873 S.W.2d 73 (1993) 24 UCC Rep.Serv.2d 151

suit. They alleged that the joint venture and its individual Inc. v. Forrest, 687 S.W.2d 457, 459 venturers were liable for the deficiency balance both on (Tex.App.—Houston [14th Dist.] 1985, no writ). the note and on the underlying transaction for the sale of Moreover, even when the parol evidence rule applies, it land. In their first and third points of error, defendants only excludes evidence that varies the terms of an assert that they are not liable because neither the joint unambiguous contract. Denman v. Hall, 144 Tex. 633, venture’s name nor the individual venturers’ names are on 193 S.W.2d 515 (1946); Lassiter v. Rotogravure Comm., the note. See Tex.Bus. & Com.Code Ann. § 3.401(a) Inc., 727 S.W.2d 8 (Tex.App.—Dallas 1986, writ ref’d (West 1968). Defendants argue that if they are not liable n.r.e.). The rule does not exclude evidence offered to on the note, they likewise cannot be liable on the clarify or explain an ambiguous writing. Lassiter, 727 underlying transaction. They also contend that any S.W.2d at 9; Byrd v. Southwest Multi–Copy, Inc., 693 evidence that the joint venture agreed to pay the debt was S.W.2d 704 (Tex.App.—Houston [14th Dist.] 1985, no barred (1) by the parol evidence rule because it writ). In the present case, the references in the note and contradicts the note of which only “Bizzell, Trustee” was other sale documents to “Don Bizzell, *76 Trustee” are maker and (2) by the statute of frauds because it was not ambiguous.2 They show that the note was signed by in writing. Bizzell in a representative capacity, but do not show for whom he was acting. Accordingly, evidence showing that [1] In deciding a no-evidence point, we must consider only Bizzell was acting as a representative of the joint venture the evidence and inferences tending to support the finding was admissible. of the trier of fact and disregard all evidence and inferences to the contrary. Alm v. Aluminum Co. of Am., 2 This case is distinguishable from Vector Corp. v. First 717 S.W.2d 588, 593 (Tex.1986), cert. denied, 498 U.S. State Bank & Trust Co., 430 S.W.2d 536 847, 111 S.Ct. 135, 112 L.Ed.2d 102 (1990); Garza v. (Tex.Civ.App.—Waco 1968, writ ref’d n.r.e.), on Alviar, 395 S.W.2d 821, 823 (Tex.1965); see generally which defendants rely. The Vector court held that there William Powers, Jr. & Jack Ratliff, Another Look at “No was no ambiguity in a note signed by an agent Evidence” and “Insufficient Evidence,” 69 Tex.L.Rev. “individually and as Trustee.” Id. at 538. The evidence 515 (1991). in Vector was undisputed, however, that the Bank relied on the agent personally to pay the note. Id. The court [2] held that because the principal was disclosed and the When reviewing a jury verdict to determine the factual agent was bound, the Bank elected to look to the agent, sufficiency of the evidence, we must consider and weigh and the principal was not liable. Id. However, Vector all the evidence and should set aside the judgment only if involved a suit on a note, not on the underlying it is so contrary to the overwhelming weight of the transaction. Id. at 537. In addition, the evidence in the evidence as to be clearly wrong and unjust. Cain v. Bain, present case showed that both the Spinkses and 709 S.W.2d 175, 176 (Tex.1986); In re King’s Estate, 150 defendants believed the debt was an obligation of the Tex. 662, 244 S.W.2d 660, 661 (1951); see also Pool v. joint venture and not solely of Bizzell. Finally, while in Ford Motor Co., 715 S.W.2d 629 (Tex.1986); see Vector the agent was individually liable on the note, the generally Powers & Ratliff, supra. agent in the present case, Bizzell, who signed the note only as trustee, may not be liable on the note. See Bradford v. McElroy, 746 S.W.2d 294 Steger, Gantt, and Caskey testified that they authorized (Tex.App.—Austin 1988, no writ). Bizzell to purchase the land in Bizzell’s name as trustee for the group. Bizzell was authorized to pay $300,000 to the Spinkses and execute, as trustee, a note for $445,000. [7] [8] [9] Steger, Gantt, and Caskey testified that they intended for We also disagree with defendants’ contention that the obligation to be “non-recourse.” They meant for the any liability based on the underlying indebtedness is note to be an obligation of the group, but not the barred by the statute of frauds. The statute of frauds individual members of the group. They apparently provides that certain types of promises and agreements, believed that as long as Bizzell executed the note as including contracts for the sale of real estate, are “trustee,” they would not incur personal liability on the unenforceable unless in writing and signed by the person debt. to be charged or by someone lawfully authorized to sign for him. See Tex.Bus. & Com.Code Ann. § 26.01 (West [3] [4] [5] [6] Defendants contend first that any evidence that 1987). However, where one party to a contract has fully the joint venture agreed to pay the debt was barred by the performed his obligations under it, the statute of frauds is parol evidence rule. We disagree. Where suit is brought unavailable to the other who knowingly accepts benefits on the underlying transaction rather than the note itself, and partly performs. Estate of Kaiser v. Gifford, 692 the parol evidence rule is inapplicable. National Mar–Kit, S.W.2d 525, 526 (Tex.App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.); LeSage v. Dunaway, 195 S.W.2d 729,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 626 Joint Venture v. Spinks, 873 S.W.2d 73 (1993) 24 UCC Rep.Serv.2d 151

[11] [12] 731 (Tex.Civ.App.—Waco 1946, no writ). In the present A joint venture is generally governed by the same case, the Spinkses fully performed their part of the legal rules as a partnership. Pardco v. Spinks, 836 S.W.2d transaction by deeding the land to Bizzell as trustee. 649, 651 (Tex.App.—El Paso 1992, writ denied); Bizzell paid the Spinkses $300,000 cash, and signed a Woodrum v. Cowan, 468 S.W.2d 592, 598–99 note for $445,000. Over the next three years, the joint (Tex.Civ.App.—Austin 1971), modified on other venture managed the property, made improvements to the grounds, 472 S.W.2d 749 (Tex.1971). It is, of course, property, and made payments to the Spinkses. Therefore, settled law that “[a]ll partners are liable jointly and the defense of the statute of frauds is unavailable to severally for all debts and obligations of the partnership.” defendants. We conclude there was legally and factually Tex.Rev.Civ.Stat.Ann. art. 6132b, § 15(1) (West 1970 & sufficient evidence for the jury to find that the joint Supp.1994). Therefore, the jury’s finding that the joint venture agreed to pay the indebtedness underlying the venture agreed to pay the indebtedness establishes not note. only the joint venture’s liability, but also that of the individual venturers. [10] Defendants also argue that the absence of their names from the note relieves them of liability, notwithstanding We overrule points of error one and three. Because the any agreement to pay for the land. See Tex.Bus. & jury’s finding challenged by these points of error will Com.Code Ann. § 3.401(a) (West 1968) (“No person is support the judgment, we need not address the remaining liable on an instrument unless his signature appears points of error. thereon.”). We disagree. Even if the absence of their signatures would prevent defendants from being liable “on the note,” it would not preclude their liability for the underlying indebtedness assumed when they agreed to buy the land: “Nothing in this section is intended to *77 CONCLUSION prevent any liability arising apart from the instrument itself. The party who does not sign may still be liable on We affirm the trial court’s judgment. the original obligation for which the instrument was given....” Tex.Bus. & Com.Code Ann. art. 3.401 cmt. 1 (West 1968). The Spinkses’ pleadings clearly reflect that All Citations they brought suit both on the note and on the original indebtedness. Under these circumstances, section 3.401 873 S.W.2d 73, 24 UCC Rep.Serv.2d 151 does not relieve defendants of liability.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 13 Estate of Kaiser v. Gifford, 692 S.W.2d 525 (1985)

Lender who was entitled to judgment on its debt KeyCite Yellow Flag - Negative Treatment was also entitled to reasonable attorney’s fees Distinguished by Dynegy, Inc. v. Yates, Tex.App.-San Antonio, for preparation and trial as well as those fees August 25, 2010 allowed for appeal. Vernon’s Ann.Texas Civ.St. 692 S.W.2d 525 art. 2226. Court of Appeals of Texas, Houston 1st Dist. 2 Cases that cite this headnote The ESTATE OF Herbert KAISER, Appellant, v. Myrvin H. GIFFORD, Appellee.

No. 01–84–0438–CV. | April 11, 1985. | Rehearing [3] Contracts Denied June 27, 1985. Acts Constituting Renunciation and Liabilities Therefor Administratrix of decedent lender’s estate brought suit to After borrower repudiated entire loan recover balance due under loan given to decedent’s agreement, lender was entitled to consider the nephew. The 149th District Court, Brazoria County, Paul repudiation as an anticipatory breach and sue for Ferguson, J., held that action to enforce payment of loan the entire amount due under the agreement. was barred by statute of frauds, and administratrix appealed. The Court of Appeals, Warren, J., held that oral installment loan agreement, although payable in 300 4 Cases that cite this headnote monthly installments, was not barred by statute of frauds.

Reversed and judgment rendered. [4] Gifts Gift of Money or Bank Deposits in General

West Headnotes (4) Trial court’s finding that transfer of funds from uncle to nephew was loan, rather than gift, was not against great weight and preponderance of [1] Frauds, Statute Of evidence, as nephew had issued monthly checks Contracts Completely Performed to uncle after the transaction, several of which contained the notation “for house.” Oral installment loan agreement, although payable in 300 monthly installments, was not barred by statute of frauds [V.T.C.A., Bus. & C. Cases that cite this headnote § 26.01(b)(6)], because lender had made full performance under the agreement, thereby taking the oral agreement out of the prohibition of the statute. Attorneys and Law Firms 25 Cases that cite this headnote *525 Floyd H. Christian, Jr., Angleton, for appellant.

Leland B. Kee, Kee & Patterson, Angleton, for appellee.

[2] Costs Before WARREN, DUGGAN and HOYT, JJ. Particular Actions or Proceedings Costs Attorney Fees on Appeal or Error

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Estate of Kaiser v. Gifford, 692 S.W.2d 525 (1985)

OPINION Kaiser, and appellee was estopped to claim the Statute of Frauds. In his second point of error, appellant claims that the trial court erred in not awarding appellant attorney’s WARREN, Justice. fees. This is an appeal from a take nothing judgment on In two cross points of error, appellee claims: (1) that the appellant’s suit for debt. trial court erred in finding that appellant’s pre-trial demand for payment of the amount due under the loan The court found that Herbert Kaiser, deceased, and agreement was not excessive, and (2) that the trial court’s appellee had entered into an oral installment loan finding that the money furnished by Kaiser was a loan agreement, but also found that the appellant estate’s was against the great weight and preponderance of the action to enforce payment of the loan was barred by the evidence. Statute of Frauds, prohibiting oral contracts not to be performed within one year. Article 26.01 provides in part: [1] We hold that the oral installment agreement, although (a) A promise or agreement described in Subsection (b) payable in 300 monthly installments, was not barred by of this section is not enforceable unless the promise or the Statute of Frauds, because the deceased lender had agreement, or a memorandum of it, is made full performance under the agreement, thereby taking the oral agreement out of the prohibition of the (1) in writing; and statute. (2) signed by the person to be charged with the promise In May 1975, appellee purchased a home in Brazoria or agreement or by someone lawfully authorized to sign County. Appellee’s uncle, Herbert Kaiser, issued one for him. check for $14,692.16 to Southwest Land Title Company as payment for the home, and one check *526 for $2,308 (b) Subsection (a) of this section applies to: to appellee for the purchase of the household furnishings. Appellee and Kaiser never executed a written agreement .... providing for the repayment of the loan. However, between October 1975 and July 1979, when Kaiser died, appellee made 44 monthly payments to Kaiser totalling $6,685.14.

Following Kaiser’s death in 1979, appellee quit making (6) an agreement which is not to be performed within monthly installments, claiming that the money advanced one year from the date of making the agreement by Kaiser was a gift rather than a loan. In Ware v. Poindexter Furniture & Carpet Co., 88 After several written demands for payment of the S.W.2d 718 (Tex.Civ.App.—Fort Worth 1935), rev’d on installments were refused by appellee, Dorothy M. Kaiser, other grounds, 131 Tex. 568, 117 S.W.2d 420 (1938), the administratrix of Kaiser’s estate, filed suit to recover the court held that the oral contracts to sell $7744.96 worth of balance due under the loan. furniture for $500 down with the balance to be paid in monthly installments of not less than $100, was not barred After a non-jury trial, the court entered a take nothing by the Statute of Frauds, because the seller had fully judgment for appellee and found: (1) that Kaiser loaned performed and the buyer had knowingly accepted the appellee $17,000.16; (2) that appellee agreed to repay the benefits. Thus, the court followed the rule that where one $17,000.06 in 300 monthly installments of $151.49 each; party fully performs a contract, the Statute of Frauds is (3) that appellee had paid interest and principal of unavailable to the other who knowingly accepts benefits $6,685.41; (4) that a principal balance of $16,276.37 was and partly performs. Callahan v. Walsh, 49 S.W.2d 945 owed under the loan; (5) that the debt was barred by (Tex.Civ.App.—San Antonio 1932, writ ref’d). The court Tex.Bus. & Comm.Code Ann. art. 26.01(b)(6) further cited Texas Co. v. Burkett, 117 Tex. 16, 296 S.W. (Tex.U.C.C.) (Vernon Supp.1985), the Statute of Frauds. 273 (1927), for the general rule that:

In two points of error, appellant claims that the trial court where one party to an oral contract erred in holding the debt was barred by the Statute of has, in reliance thereon, so far Frauds, because there was complete performance by performed his part of the agreement © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Estate of Kaiser v. Gifford, 692 S.W.2d 525 (1985)

that it would be permitting a fraud as required by Tex.Rev.Civ.Stat.Ann. art. 2226 (Vernon on him to allow the other party to Supp.1985); (2) that the demand made was not excessive; repudiate the contract and set up and (3) that a reasonable attorney’s fee would be the statute of frauds in justification $5564.23 for the trial and its preparation, and an thereof, equity will regard the case additional $2500 would be reasonable if the case was as being removed from the appealed to the Court of Appeals. Based on its holding operation of the statute, and will that the claim was unenforceable, the trial court correctly enforce the contract. refused to award appellant the attorney’s fees. Magids v. Dorman, 430 S.W.2d 910 (Tex.Civ.App.—Houston [14th The Restatement (Second) of Contracts, sec. 130(d) Dist.] 1968, writ ref’d n.r.e.). However, since we have (1982) sets forth the general rules regarding the found that appellant is entitled to judgment on its debt, it inapplicability of the Statute of Frauds to our situation as follows that it is also entitled to reasonable attorney’s fees follows: for preparation and trial as well as those fees allowed for the appeal. If either party promises a [3] performance that cannot be Appellee’s first cross point urges that the trial court completed within a year, *527 the erred in finding that appellant’s pre-trial demand for Statute applies to all promises in payment was excessive, because it demanded payment of the contract, including those which the entire, accelerated amount due prior to maturity, can or even must be performed without proving that it was entitled to accelerate the within a year. But unlike other amount due. We disagree with this contention. After provisions of the Statute, the appellee repudiated the entire loan agreement, appellant one-year provision does not apply was entitled to consider the repudiation as an anticipatory to a contract which is performed on breach and sue for the entire amount due under the one side at the time it is made, such agreement. Universal Life & Accident Insurance Co. v. as a loan of money, nor to any Sanders, 129 Tex. 344, 102 S.W.2d 405 (1937). contract which has been fully [4] performed on one side, whether the Appellee’s remaining cross-point contends that the trial performance is completed within a court’s finding that the transfer of funds from Kaiser to year or not. Gifford constituted a loan was against the great weight and preponderance of the evidence. In reviewing this A great majority of jurisdictions agree with the rule that contention, we must review all of the evidence in the full performance by one party to an oral contract removes record to determine if the finding that a loan existed was the contract from the prohibitions of the Statute. See 3 S. so against the great weight and preponderance of the Williston, A Treatise on the Law of Contracts, sec. 504 evidence as to be manifestly unjust. In re King’s Estate, (3d ed. 1970 and Supp.1983); 2 A. Corbin, Contracts sec. 150 Tex. 662, 244 S.W.2d 660 (1951). The evidence 457 (1962 and Supp.1984). showed that Kaiser’s check to the title company included a notation in the corner that matched the description of the In our case there was not only full performance by Kaiser, land Gifford purchased with the money received from his but there were 42 separate written instruments evidencing uncle. Dorothy Kaiser, the decedent’s widow, testified an agreement that a monthly installment of a fixed that she found an envelope in a box in Kaiser’s closet on amount was payable to Kaiser in satisfaction of the debt. which he had written two notations: “May 5, 1975, loan to Allowing appellee to invoke the Statute, under these facts, Myrvin Gifford” and “loan papers.” She also testified that would tend more to encourage fraud rather than inside the box was an amortization schedule calculating discourage it as is contemplated by the Statute. monthly payments of $151.49. Also in evidence are copies of 42 checks written essentially on a monthly basis Appellant’s first point of error is sustained. by Gifford to Kaiser in the amount of $151.49 or $152.00. Several of the checks contained the notation, “for house.” We also sustain appellant’s second point of error which contends that the court should have awarded attorney’s *528 The evidence tending to show that the funds were a fees to the appellant. gift, rather than a loan, is the testimony by Gifford that the parties considered the funds a gift, copies of Gifford’s [2] The court found: (1) that appellant made timely written income tax returns indicating that he did not claim an demand on appellee to pay the amount owing on the debt, interest deduction for the payments to his uncle, and

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Estate of Kaiser v. Gifford, 692 S.W.2d 525 (1985)

testimony of Kaiser’s sister, who is Gifford’s mother, that as provided by statute. Kaiser had never indicated to her that the funds were a loan. We hold that the trial court’s finding that the transaction was a loan is not against the great weight and preponderance of the evidence. Appellee’s cross points All Citations are overruled. 692 S.W.2d 525 The judgment of the trial court is reversed, and judgment is rendered for appellant for $16,276.37, plus attorney’s fees of $8,064.23, together with interest at the legal rate End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 14 Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002) 157 Oil & Gas Rep. 785

[2] Frauds, Statute Of KeyCite Yellow Flag - Negative Treatment Agreements as to mining claims Called into Doubt by Westergren v. National Property Holdings, L.P., Conveyance of working interest in oil and gas Tex.App.-Hous. (14 Dist.), June 28, 2013 is real property interest, subjecting agreement 82 S.W.3d 429 conveying the interest to the statute of frauds. Court of Appeals of Texas, V.T.C.A., Bus. & C. § 26.01. Dallas. 3 Cases that cite this headnote EXXON CORPORATION, Appellant, v. [3] Property BREEZEVALE LIMITED, Appellee. Ownership and incidents thereof Property No. 05–98–02050–CV. | April 4, 2002. Right of alienation Local liaison hired by oil company to assist the company Right to land essentially implies right to profits in procuring Nigerian oil development rights brought action accruing from it; without the latter, the former against the company for breach of contract. The 101st can be of no value, and thus devise of the profits Judicial District Court, Dallas County, Jay Patterson, J., of land, or even the grant of them, will pass right entered judgment on jury verdict awarding the liaison $34.3 to the land itself. million for breach of oral contract, $1 million for breach of implied-in-law contract, and $3.495 million in attorney fees. Cases that cite this headnote Appeal was taken. The Court of Appeals, David F. Farris, J., (Retired), held that: (1) the oral agreement involved an [4] Mines and Minerals interest derived from rights to oil in the ground, and was thus Nature of estate granted or reserved subject to the statute of frauds; (2) the oil company could Conveyance of interest in minerals that are not be bound by the oral agreement under the doctrine of produced from land, such as working interest or promissory estoppel; (3) enforcement of the oral agreement royalty interest, passes right to the land itself. under the partial performance exception to the statute of frauds was precluded; (4) evidence was sufficient to show 2 Cases that cite this headnote that liaison had presented claim for compensation for services rendered; and (5) evidence did not show that oil company [5] Frauds, Statute Of and liaison had been involved in either formal fiduciary Agreements as to mining claims relationship or informal confidential relationship. Agreement between oil company and its local Affirmed in part; reversed in part. liaison to share in the risks, losses, production, and profits from oil development in deepwater block which had been obtained from the Nigerian government involved an interest derived from West Headnotes (33) rights to oil in the ground, and was thus subject to the Texas statute of frauds, notwithstanding [1] Frauds, Statute Of whether the oil company had merely obtained, Questions for jury through its “production sharing contract” with the Nigerian government, an interest in the Whether contract falls within statute of frauds production of oil rather than an interest in the is question of law to be decided by the court. oil itself; conveyance of an interest in the oil V.T.C.A., Bus. & C. § 26.01. produced from the land effectively passed right Cases that cite this headnote to the land itself. V.T.C.A., Bus. & C. § 26.01.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002) 157 Oil & Gas Rep. 785

When considering the factual sufficiency of the 2 Cases that cite this headnote evidence, an appellate court assesses all the evidence and reverse for new trial only if the [6] Frauds, Statute Of challenged finding is so against the great weight What law governs and preponderance of the evidence as to be manifestly unjust. Company which provided local assistance to oil developer seeking to procure territory off the Cases that cite this headnote Nigerian coast, and which expected to obtain percentage interest in the profits of the venture by way of compensation, was precluded from [10] Appeal and Error arguing that Nigerian law rather than the Texas Power of appellate court in general statute of frauds should determine whether the When both legal and factual sufficiency of the compensation agreement, which had not been evidence points are raised on appeal, an appellate executed in writing, was enforceable; the local court first reviews legal sufficiency to determine company neither gave the requisite notice that its if there is any evidence of probative value to intent was to raise an issue of foreign law, nor support the jury's findings. proved the foreign law which it was seeking to apply. V.T.C.A., Bus. & C. § 26.01; Rules of 4 Cases that cite this headnote Evid., Rule 203. [11] Estoppel Cases that cite this headnote Future events; promissory estoppel Frauds, Statute Of [7] Action Waiver of bar of statute; estoppel What law governs Promissory estoppel applies to bar the If one fails to give notice and prove the foreign application of the statute of frauds and allow law that he seeks to apply at trial, the foreign law the enforcement of an otherwise unenforceable may not be applied. Rules of Evid., Rule 203. oral agreement when: (1) the promisor makes a promise that he should have expected would lead Cases that cite this headnote the promisee to some definite and substantial injury; (2) such an injury occurred; and (3) the [8] Appeal and Error court must enforce the promise to avoid the Verdict injury. V.T.C.A., Bus. & C. § 26.01. Appeal and Error 11 Cases that cite this headnote Sufficiency of Evidence in Support When considering the legal sufficiency of the evidence, an appellate court considers only the [12] Estoppel evidence and inferences tending to support the Future events; promissory estoppel jury's finding, disregarding all evidence to the Frauds, Statute Of contrary; if the record contains any evidence of Waiver of bar of statute; estoppel probative force to support the jury's finding, the To invoke the application of promissory estoppel finding will be upheld. where there is an oral promise to sign an agreement, the agreement that is the subject of Cases that cite this headnote the promise must comply with the statute of frauds, meaning that the agreement must be in [9] Appeal and Error writing at the time of the oral promise to sign it. Manifest weight of evidence V.T.C.A., Bus. & C. § 26.01.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002) 157 Oil & Gas Rep. 785

requirements of the statute of frauds, may be 11 Cases that cite this headnote enforced in equity if denial of enforcement would amount to virtual fraud; the fraud arises [13] Estoppel when there is strong evidence establishing the Future events; promissory estoppel existence of an agreement and its terms, the party acting in reliance on the agreement has Frauds, Statute Of suffered substantial detriment for which he Waiver of bar of statute; estoppel has no adequate remedy, and the other party, There was no probative evidence that agreement if permitted to plead the statute, would reap under which oil company seeking to develope unearned benefit. V.T.C.A., Bus. & C. § 26.01. Nigerian reserves had allegedly bound itself to convey “working interest” in production 52 Cases that cite this headnote and profits to local company assisting in the procurement of development rights had been [16] Frauds, Statute Of reduced to writing, as required by the Texas Necessity that part performance relied on be statute of frauds, by the date on which the parties referable to contract had allegedly promised to sign it, and thus the oil company could not have been bound thereby For purposes of the partial performance under the doctrine of promissory estoppel; the exception to the statute of frauds, “partial oil company had merely indicated on the date in performance” must be unequivocally referable to question that the terms of the “working interest” the agreement and corroborative of the fact that would be memorialized in the future. V.T.C.A., an agreement actually was made. V.T.C.A., Bus. Bus. & C. § 26.01. & C. § 26.01.

1 Cases that cite this headnote 44 Cases that cite this headnote

[14] Appeal and Error [17] Frauds, Statute Of Ratification, estoppel, waiver, and res Necessity that part performance relied on be judicata referable to contract Local liaison which had assisted oil developer Acts of performance relied upon to take parol in the procurement of development rights for contract out of the statute of frauds under the Nigerian oil reserves, and which claimed to partial performance exception must be such as have entered into oral agreement with the oil could have been done with no other design company for compensation in the form of than to fulfill the particular agreement sought to “working interest” in production and profits, be enforced; otherwise, such acts do not tend failed to preserve for appeal its claim that the to prove the existence of the parol agreement. oil company was bound under the agreement by V.T.C.A., Bus. & C. § 26.01. the doctrine of equitable estoppel; the issue of 51 Cases that cite this headnote equitable estoppel was never submitted to the jury. Vernon's Ann.Texas Rules Civ.Proc., Rule 279. [18] Frauds, Statute Of Necessity that part performance relied on be Cases that cite this headnote referable to contract There was no evidence that local liaison assisting [15] Frauds, Statute Of oil company in the procurement of Nigerian Part Performance in General oil development rights had taken any action Under the partial performance exception to that was unequivocally referable to an alleged the statute of frauds, contracts that have oral agreement between the parties conveying been partly performed, but do not meet the “working interest” in production and profits to

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002) 157 Oil & Gas Rep. 785

the local company, and thus enforcement of precluding the oil company from arguing on the agreement under the partial performance appeal that the issue had neither been raised nor exception to the statute of frauds was precluded; litigated. the liaison claimed that in reliance upon the oral agreement, it had sent one of its representatives 1 Cases that cite this headnote to meet with Nigerian government officials, but this action was also consistent with an ordinary [21] Implied and Constructive Contracts services agreement then under negotiation. Services Rendered, Weight and Sufficiency V.T.C.A., Bus. & C. § 26.01. Evidence was sufficient to show that local liaison 15 Cases that cite this headnote which had been hired by oil company to assist in the procurement of foreign oil development rights had presented claim for compensation [19] Frauds, Statute Of for services rendered, notwithstanding that the Part Performance in General liaison had stated during pretrial proceedings Even if local liaison assisting oil company in that it would not seek to recover for services the procurement of Nigerian oil development rendered; after the oil company had informed the rights had taken certain actions which could have liaison of its intent to sever their relationship, the been characterized as unequivocally referable to liaison communicated its belief in the existence an alleged oral agreement between the parties of an enforceable contract between the parties, conveying “working interest” in production and that the oil company should fulfill the contract, profits to the local company, the local company and that it had performed valuable services for had adequate remedy at law for any detriment the company. suffered by it in reliance upon the agreement, and thus the agreement was not enforceable under Cases that cite this headnote the partial performance exception to the Texas statute of frauds; the local company received [22] Trial $1 million on an implied-in-law contract claim, Sufficiency to present issue of fact and thus had adequate remedy at law for its Court may direct verdict if no evidence of reliance damages, which consisted merely of probative force raises any fact question on the costs associated with one trip to meet with material issue. Nigerian government officials. V.T.C.A., Bus. & C. § 26.01. 1 Cases that cite this headnote

15 Cases that cite this headnote [23] Appeal and Error Effect of evidence and inferences therefrom [20] Appeal and Error on direction of verdict Fees On appeal from directed verdict, appellate court Oil company which had hired local liaison examines the evidence in the light most favorable to assist in the procurement of foreign oil to the party against whom the verdict was development rights failed to preserve for appeal rendered, disregarding all contrary evidence and its claim that the liaison, by virtue of having inferences. stated in pretrial proceedings that it would not seek to recover for services rendered, 1 Cases that cite this headnote was precluded from recovering attorney fees on that basis; without complaint from the oil [24] Trial company, the trial court submitted the issue Speculation or conjecture; choice of of compensation for services rendered to the probabilities or theories jury and the jury awarded compensation, thus Trial

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002) 157 Oil & Gas Rep. 785

Sufficiency to present issue of fact certain fashion such that one party is justified in When no evidence of probative force on an expecting the other to act in its best interest, or ultimate fact element exists, or when the where influence has been acquired and abused, probative force of the evidence is so weak that in which confidence has been reposed and only mere surmise or suspicion is raised as to the betrayed; however, to give full force to contracts, existence of essential facts, the trial court has the courts do not recognize such relationships duty to instruct the verdict. lightly.

1 Cases that cite this headnote 4 Cases that cite this headnote

[25] Appeal and Error [28] Fraud Direction of verdict, dismissal, or nonsuit Fiduciary or confidential relations Reviewing court may affirm directed verdict To impose confidential relationship in business even if the trial court's rationale for granting transaction and thus impose fiduciary obligations the directed verdict is erroneous, provided the upon the parties, the relationship must exist prior directed verdict can be supported on another to, and apart from, the agreement concerning basis. which the parties have become involved in court action. 5 Cases that cite this headnote 1 Cases that cite this headnote

[26] Attorney and Client The relation in general [29] Fraud Fiduciary or confidential relations Fraud Fiduciary or confidential relations The fact that businessmen trust each another and that each relies upon the other to perform the Joint Adventures contract between them does not necessarily mean Nature of relation in general that their relationship is confidential, giving rise Partnership to fiduciary obligations; something apart from Fiduciary Duty the transaction between the parties is required. Principal and Agent Nature of agent's obligation 5 Cases that cite this headnote The two types of fiduciary relationships are formal and informal; formal fiduciary [30] Fraud relationships arise in law, and include Questions for Jury relationships between attorney and client, Although the existence of a confidential principal and agent, partners, and joint venturers, relationship is ordinarily a question of fact, whereas informal fiduciary relationships arise where there is no evidence to establish the from moral, social, domestic, or purely personal relationship, it is a question of law. relationships of trust and confidence, generally referred to as confidential relationships. 1 Cases that cite this headnote

Cases that cite this headnote [31] Fraud Fiduciary or confidential relations [27] Fraud Frauds, Statute Of Fiduciary or confidential relations Agreements as to mining claims “Confidential relationships” creating fiduciary Partnership obligations between the parties may arise when As between partners one party has dealt with another at length in

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002) 157 Oil & Gas Rep. 785

Evidence did not show that oil company and local liaison assisting the company in the Stephen D. Susman, Susman Godfrey, L.L.P., Houston, for procurement of foreign oil development rights Appellee. were partners, and thus there was no evidence of any formal fiduciary relationship existing Before Justices BRIDGES, FITZGERALD, and FARRIS. 1 between the parties; oral agreement under which the oil company had allegedly pledged to convey “working interest” in production and profits to OPINION the local company violated the Texas statute of Opinion By Justice David F. FARRIS (Retired). frauds, and without such an agreement, the local liaison was merely engaged in the provision of Exxon Corporation (Exxon) appeals the trial court's judgment services for the oil company. following a jury verdict awarding Breezevale Limited (Breezevale) $34.3 million as damages for breach of an 2 Cases that cite this headnote oral contract, $1 million for breach of a contract implied in law, and $3.495 million in attorneys' fees. In its first three [32] Fraud issues, Exxon asserts (1) the evidence is legally and factually Fiduciary or confidential relations insufficient to support a finding that the parties reached an Evidence that local liaison hired by oil company enforceable oral agreement, (2) the claimed agreement is to assist the company in procuring foreign oil not enforceable under the statute of frauds, and (3) the trial development rights had been involved in alleged court incorrectly instructed the jury regarding the doctrine of confidential relationship with the oil company, promissory estoppel. In its *434 final five issues, Exxon and that the liaison had relied upon promises complains about the lost profits award, the attorneys' fees made by the oil company to convey “working award, some of the trial court's evidentiary rulings, and the interest” in oil production and profits to it, judgment being contrary to public policy. was insufficient to show that the oil company and liaison had been involved in an informal Breezevale brings three issues in a cross appeal. Breezevale confidential relationship such as would have first contends the trial court erred in its calculation of interest given rise to fiduciary obligations between the on the breach of contract award. In two conditional cross- parties; the liaison had merely engaged in arms- points, Breezevale complains of the trial court's dismissal of length relations with an affiliate of the oil its breach of fiduciary duty claim by directed verdict and the company and the oil company itself. trial court's exclusion of evidence.

1 Cases that cite this headnote For the reasons that follow, we reverse the trial court's award of $34.3 million on Breezevale's breach of contract claim, [33] Fraud affirm the award of $3.495 million in attorneys' fees, and Fiduciary or confidential relations affirm the trial court's directed verdict on Breezevale's breach

Mere subjective trust does not transform arms- of fiduciary duty claim. 2 length dealing into fiduciary relationship.

Cases that cite this headnote FACTUAL BACKGROUND

In the early 1990s, the Nigerian government opened its deepwater offshore to oil and gas exploration, inviting bids Attorneys and Law Firms from international oil companies for deepwater blocks. Exxon submitted a bid requesting blocks 209 and 210. In June 1993, *433 David J. Beck, Beck Redden & Secrest, L.L.P., the Nigerian government formally awarded block 209 to Houston, Nina Cortell, Haynes & Boone, L.L.P., Dallas, for Exxon. Exxon subsequently leveraged some of its interest in Appellant.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002) 157 Oil & Gas Rep. 785

block 209, through trades and farm-ins, to acquire interests in visit. On April 9, 1992, Habib contacted Gerald Mudd, other blocks that had been awarded to other companies. an Exxon representative, telling him to “[g]o open the champagne,” because Exxon had been awarded a block. This case arises from a dispute between Exxon and Block 209 was formally awarded to Exxon by the Nigerian Breezevale, a company hired by Exxon to provide local government in June 1993. assistance in its effort to procure exploration rights in Nigeria. Breezevale, a London-based corporation, operated On April 13, 1992, Exxon sent Breezevale a letter terminating in various countries in Europe, the Middle East, and Africa, its relationship with Breezevale and enclosing a $30,000 including Nigeria. Exxon contacted Breezevale in 1990, check to cover Breezevale's services. According to Mudd, requesting its assistance with services such as arranging Exxon had begun to have concerns about Habib's actions appointments, conducting briefings, obtaining information in Nigeria; consequently, Exxon decided to terminate the and technical data on available blocks of interest to business relationship. Habib returned the check. Exxon, and speaking with government officials on Exxon's behalf. Breezevale provided these types of services to Breezevale sued Exxon, claiming, among other things, that Exxon over a period of approximately eighteen months, Exxon breached its oral contract with Breezevale and its with no formal agreement in place as to Breezevale's fiduciary duty to Breezevale. The case was tried to a jury. compensation for its services. As the business relationship After Breezevale rested its case, Exxon moved for a directed progressed, the parties began negotiating the terms of a verdict on all counts. The trial court granted Exxon's motion contract to formalize their relationship. Although Exxon for a directed verdict with regard to Breezevale's breach initially pursued only a short-term services agreement with of fiduciary duty claim, but denied the remainder of the Breezevale, Breezevale expressed an interest in a more motion. The jury found the parties had entered into an oral involved, long-term relationship in which Breezevale would agreement that Breezevale would acquire a 2 ½ percent share the risk and rewards of Exxon's Nigerian exploration. working interest in “any deepwater blocks awarded to Exxon Representatives of Exxon and Breezevale met several times by the government of Nigeria” and “any deepwater blocks to discuss their business relationship. in which Exxon obtains a farm-in from a private company by trading any interest awarded to Exxon by the government The last of these meetings occurred on April 3, 1992. In of Nigeria.” The jury valued the working interest at $34.3 this and previous meetings, the parties discussed both a million and additionally awarded Breezevale $1 million for services contract and a participation agreement. The parties services on an implied contract in law, and $3.495 million for discussed different options that would provide Breezevale attorneys' fees. The trial court entered judgment on the jury with a participation interest in Exxon's Nigerian exploration verdict. Exxon appealed. and production, including a 2 ½ percent paid working interest, whereby Breezevale would pay 2 ½ percent of the costs of production and receive 2 ½ percent of the production profits. EXXON'S APPEAL The parties' dispute as to whether an oral working interest agreement was reached at the April 3rd meeting became In its first three issues, Exxon attacks the jury's findings the basis for Breezevale's lawsuit against Exxon. Breezevale that an enforceable contract existed between the parties. claimed Exxon offered, and it accepted, a 2 ½ percent working Specifically, Exxon claims there is no or insufficient evidence interest in all of Exxon's Nigerian oil operations. Exxon to support the jury's finding that the parties reached an *435 claimed an agreement on essential terms was never agreement on all the material terms necessary to the formation reached and it terminated negotiations with Breezevale before of an enforceable agreement. Additionally, Exxon contends a contract was formed. Neither party disputes an agreement that, as a matter of law, the claimed oral agreement is on the services contract was never reached. unenforceable under the statute of frauds. Finally, Exxon argues the trial court erred in its submission of the jury The day after the April 3, 1992 meeting, Exxon's main question on promissory estoppel. Because we agree with contact at Breezevale, Habib Bou–Habib, traveled to Nigeria Exxon that the statute of frauds applies, we assume without to speak with the Ministry of Petroleum on Exxon's behalf. deciding the parties reached an oral agreement, and address Breezevale contends the trip was made at the request of Exxon's second issue regarding the applicability of the statute Exxon; Exxon asserts it never requested nor authorized the of frauds.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002) 157 Oil & Gas Rep. 785

[2] It is undisputed that no written and signed working interest agreement existed between the parties. We, therefore, first turn to the issue of whether the alleged agreement Statute of Frauds conveyed an interest in real estate. Under Texas law, a [1] The statute of frauds, in section 26.01 of the Texas conveyance of a working interest in oil and gas is a real Business and Commerce Code, provides in pertinent part: property interest that subjects the agreement conveying the interest to the statute of frauds. Hill v. Heritage Res., Inc., (a) A promise or agreement described in subsection (b) 964 S.W.2d 89, 134 (Tex.App.-El Paso 1997, pet. denied); of this section is not enforceable unless the promise or EP Operating Co. v. MJC Energy Co., 883 S.W.2d 263, agreement, or a memorandum of it, is 267 (Tex.App.-Corpus Christi 1994, writ denied); see also Procom Energy, L.L.A. v. Roach, 16 S.W.3d 377, 381 (1) in writing; and (Tex.App.-Tyler 2000, pet. denied) (working interest and overriding royalty interest in oil and gas lease come within (2) signed by the person to be charged with the promise ambit of statute of frauds). or agreement or by someone lawfully authorized to sign for him. Conceding that the transfer of severable mineral interests in oil and gas leases are regarded as a sale of real estate under the Texas statute of frauds, Breezevale contends on appeal that *436 ... its agreement with Exxon conveyed an interest in Nigerian Production Sharing Contracts (PSC), not a working interest in (b) Subsection (a) of this section applies to: mineral production. According to Breezevale, a PSC differs (4) a contract for the sale of real estate; from a Texas oil and gas lease in that the foreign state retains title to the minerals in the ground, giving the holder of the PSC only a contractual right to a share of the production. ... Consequently, an interest in a PSC is not an interest in real estate and is not subject to the statute of frauds. (6) an agreement which is not to be performed within one year from the date of making of the agreement. [3] [4] Even if the conveyed interest were an interest in a TEX. BUS. & COM.CODE ANN. § 26.01 (Vernon PSC, the relevant issue in determining whether the contract 1987). Whether a contract falls within the statute of involves real estate is not whether title to the minerals passes, frauds is a question of law to be decided by the but whether the interest is derived from rights to oil and gas court. Gerstacker v. Blum Consulting Eng'rs, Inc., in the ground, making the interest a realty interest subject 884 S.W.2d 845, 849 (Tex.App.-Dallas 1994, writ to the statute of frauds. As the Texas Supreme Court has denied). stated, “a right to land essentially implies a right to profits In its second issue, Exxon contends the claimed agreement accruing from it, since, without the latter, the former can be is not enforceable under the statute of frauds because it was of no value ... [t]hus a devise of the profits of land, or even not in writing, and (1) the agreement involved the transfer of a grant of them, will pass a right to land itself.” Sheffield v. working interests in oil and gas properties, which are interests Hogg, 124 Tex. 290, 77 S.W.2d 1021, 1028 (1934) (quoting in real estate, and (2) the agreement could not possibly Green v. Biddle, 21 U.S. 1, 76, 5 L.Ed. 547 (8 Wheat. 1823)); have been performed within one year. Breezevale responds see also *437 United States Pipeline Corp. v. Kinder, 609 that the agreement does not involve real estate and could S.W.2d 837, 839 (Tex.Civ.App.-Fort Worth 1980, writ ref'd possibly have been performed within one year. Breezevale n.r.e.). Thus, a conveyance of an interest in the minerals alternatively contends that, if this Court determines the statute that are produced from land, such as a working interest or a of frauds applies, Breezevale avoids the application of the royalty interest, passes a right to the land itself. Pecos Dev. statute of frauds on the ground of either promissory estoppel Corp. v. Hydrocarbon Horizons, Inc., 803 S.W.2d 266, 267 or partial performance. (Tex.1991) (overriding royalty interest in future production from unleased land is subject to statute of frauds; specifically disapproving court of appeals's holding to contrary). Interest in Real Estate

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002) 157 Oil & Gas Rep. 785

[5] Here, Breezevale argues Exxon offered it a 2 ½ claim the conveyed interest was not an interest in real estate. percent working interest in its Nigerian production. One of See Garcia–Chapa, 33 S.W.3d at 863; Pellow, 990 S.W.2d Breezevale's experts, Patrick Rooney, testified the parties' use at 313. of the term “working interest” connoted agreement in part to share in the risks, losses, production, and profit of Exxon's Because the interest is an interest in real estate, we conclude mineral development. The PSC gave Exxon unrestricted right the oral agreement is subject to the statute of frauds. of ingress to and egress from “the Contract area,”and the right to lift and export oil from the allocated block. We conclude the interest in this case is derived from rights to oil in the Exceptions to the Statute of Frauds ground and is a property interest subject to the statute of frauds. At trial, Breezevale sought to avoid the statute of frauds based upon two exceptions to the statute: promissory estoppel and [6] Breezevale nonetheless contends the characterization a partial performance. The jury answered “yes” to questions working interest carries under Texas law is irrelevant because on both of these exceptions. Exxon contends the evidence the Texas statute of frauds does not apply to an agreement *438 is legally and factually insufficient to support the jury's involving property located in a foreign country. According to answers to both questions. Breezevale, the nature of a transferred interest is determined by the law of the place where the property is located; thus, the law of Nigeria should apply to the characterization of the agreement. Even if Breezevale is correct in claiming that Standard of Review Nigerian law should apply to determine the nature of the [8] [9] [10] When considering the legal sufficiency of interest conveyed, Breezevale failed to give notice and prove the evidence, we consider only the evidence and inferences Nigerian law in the trial court. tending to support the jury's finding, disregarding all evidence to the contrary. Weirich v. Weirich, 833 S.W.2d 942, 945 [7] A party who intends to raise an issue about foreign law (Tex.1992). If the record contains any evidence of probative shall give notice and, at least thirty days before trial, furnish force to support the jury's finding, the finding will be upheld. all parties copies of any written materials or sources the party ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 intends to use as proof of foreign law. TEX.R. EVID. 203; (Tex.1997). When considering the factual sufficiency of the Long Distance Int'l, Inc. v. Telefonos de Mexico, S.A. de C.V., evidence, we assess all the evidence and reverse for a new trial 49 S.W.3d 347, 350 (Tex.2001). If a party fails to give notice only if the challenged finding is so against the great weight and prove foreign law as provided by the rule, the foreign law and preponderance of the evidence as to be manifestly unjust. may not be applied. In re Garcia–Chapa, 33 S.W.3d 859, 863 Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). (Tex.App.-Corpus Christi 2000, no pet.); see also Pellow v. When both legal and factual sufficiency points are raised, Cade, 990 S.W.2d 307, 313 (Tex.App.-Texarkana 1999, no we first review legal sufficiency to determine if there is any pet.) (absent proper invocation of foreign law by pleading and evidence of probative value to support the jury's findings. proof, Texas courts must presume foreign law to be same as Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 that of Texas). (Tex.1981); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Because Breezevale did not give notice and prove up Nigerian law in the trial court, it cannot rely on Hunt v. Coastal States Gas Producing Co., 583 S.W.2d 322, 325–26 (Tex.1979), to support its assertion that the language of the PSC should Promissory Estoppel control the nature of the interest. In Hunt, the parties properly In its third issue, Exxon complains the trial court erred in proved up Libyan law in a pretrial hearing that included its submission of the jury question on promissory estoppel testimony of international and foreign law experts. Id. at 327 because it was an incorrect statement of the law. Exxon (Steakley, J., dissenting). Conversely, in this case, Breezevale also attacks the sufficiency of the evidence to support the told the court there was “no need to invoke Nigerian law” and, jury's answer. Jury question No. 3 asked, “Did Breezevale consistent with that statement, did not submit any evidence of reasonably rely upon the oral promise of Exxon, if any, to Nigerian law. Breezevale cannot now rely on Nigerian law to reduce its oral agreement to writing?”

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002) 157 Oil & Gas Rep. 785

support one or more of the elements of the doctrine, it [11] [12] Promissory estoppel applies to bar the is irrelevant whether Exxon submitted a proper question. application of the statute of frauds and allow the enforcement See TEX.R. CIV. P. 279 (“A claim that the evidence was of an otherwise unenforceable oral agreement when (1) the legally or factually insufficient to warrant the submission promisor makes a promise that he should have expected of any question may be made for the first time after the would lead the promisee to some definite and substantial verdict, regardless of whether the submission of such question injury; (2) such an injury occurred; and (3) the court must was requested by the complainant.”) Rather, the issue is enforce the promise to avoid the injury. Nagle v. Nagle, whether the evidence supports the finding, including any 633 S.W.2d 796, 800 (Tex.1982); “Moore” Burger, Inc. v. deemed findings on elements not included in the question. Phillips Petroleum Co., 492 S.W.2d 934, 936 (Tex.1972). To See Crosbyton Seed Co. v. Mechura Farms, 875 S.W.2d 353, invoke the application of promissory estoppel where there 363–64 (Tex.App.-Corpus Christi 1994, no writ); see also is an oral promise to sign an agreement, as in this case, the Auto. Ins. Co. v. Davila, 805 S.W.2d 897, 902 (Tex.App.- agreement that is the subject of the promise must comply with Corpus Christi 1991, writ denied) (element may not be the statute of frauds. “Moore” Burger, 492 S.W.2d at 940 deemed found by court if no evidence supports it). (op. on reh'g). That is, the agreement must be in writing at the time of the oral promise to sign it. Sonnichsen v. Baylor Univ., [14] We conclude that, because there is no evidence there 47 S.W.3d 122, 126 (Tex.App.-Waco 2001, no pet.); Mann was a written working interest agreement in existence on v. NCNB Tex. Nat'l Bank, 854 S.W.2d 664, 668 (Tex.App.- April 3, 1992, there is no evidence to support the jury finding Dallas 1992, no writ); Beta Drilling, Inc. v. Durkee, 821 of promissory estoppel. We therefore overturn the jury's S.W.2d 739, 741 (Tex.App.-Houston [14th Dist.] 1992, writ finding on Question No. 3. 3 denied).

[13] Breezevale first contends the law is unclear as to whether the doctrine of promissory estoppel may be applied Partial Performance in the absence of a written contract in existence at the time of Breezevale also relies on the jury's affirmative answer to the the promise. However, we agree with the court in Sonnichsen question, “Did Breezevale partially perform the agreement, that “the holding from “Moore” Burger is clear” that the if any?” in arguing the doctrine of partial performance bars agreement must be in writing at the time the promise is made. application of the statute of frauds in this case. Exxon Sonnichsen, 47 S.W.3d at 126; see also Mann, 854 S.W.2d contends there is no or insufficient evidence to support a at 668 (where this Court held an agreement in writing at finding of partial performance. time of promise is required element of promissory estoppel). According to Breezevale, because Mudd told Habib at the [15] [16] [17] Under the partial performance exception April 3rd meeting that Exxon was going to memorialize the to the statute of frauds, contracts that have been partly working interest agreement into an attachment to the draft performed, but do not meet the requirements of the statute of service agreement, “there was every reason for Mr. Habib to frauds, may be enforced in equity if denial of enforcement believe this either had been done or could be done and [would would amount to a virtual fraud. Carmack v. Beltway Dev. be] ready to sign during their next meeting.” Irrespective of Co., 701 S.W.2d 37, 40 (Tex.App.-Dallas 1985, no writ). The what Habib believed, there is no evidence *439 either that fraud arises when there is strong evidence establishing the (1) the attachment was ever prepared or (2) Mudd or any existence of an agreement and its terms, the party acting in other Exxon representative told Habib the working interest reliance on the contract has suffered a substantial detriment agreement had already been prepared. Thus, there is no for which he has no adequate remedy, and the other party, probative evidence in the record that the working interest if permitted to plead the statute, would reap an unearned agreement was in writing on April 3, 1992. benefit. Id.; see also Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (1921). The partial performance must be Pointing out that the promissory estoppel question submitted “unequivocally referable to the agreement and corroborative to the jury did not include the requirement that a writing of the fact that a contract actually was made.” Wiley v. exist when the promise was made, Breezevale argues Exxon Bertelsen, 770 S.W.2d 878, 882 (Tex.App.-Texarkana 1989, waived any charge error by not submitting a substantially no writ) (citing Chevalier v. Lane's, Inc., 147 Tex. 106, 213 correct jury question. However, if there is no evidence to S.W.2d 530, 533–34 (1948)). The acts of performance relied

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002) 157 Oil & Gas Rep. 785

upon to take a parol contract out of the statute of frauds to enforce; rather, it is whether there is evidence that the must be such as could have been done with no other design performance is solely referable to the contract. See Teague, than *440 to fulfill the particular agreement sought to be 526 S.W.2d at 293; Rodriguez, 960 S.W.2d at 186. enforced; otherwise, they do not tend to prove the existence of the parol agreement relied upon by the plaintiff. Teague v. Habib's actions in traveling to Nigeria and speaking with Roper, 526 S.W.2d 291, 293 (Tex.Civ.App.-Amarillo, 1975 the government officials on Exxon's behalf were consistent writ ref'd n.r.e.) (citing Francis v. Thomas, 129 Tex. 579, 106 with the services Breezevale had performed in the previous S.W.2d 257, 260 (1937)). eighteen months and could be referable to the services agreement. Further, nothing in Habib's trip to Nigeria, even [18] Exxon contends Breezevale's claim of partial if made at the request of Exxon, showed “strong evidence performance is not “unequivocally referable” to the working establishing the existence of the [working interest] agreement interest contract because Breezevale's actions could be and its terms.” See Carmack, 701 S.W.2d at 40. We conclude referable to the services contract. Breezevale does not dispute there is no evidence that Breezevale's performance was that it never paid Exxon any of the costs associated with unequivocally referable to the working interest agreement. a working interest in Exxon's blocks. The action on which Breezevale relies as evidence of its partial performance *441 [19] Moreover, even assuming there was evidence 4 that Breezevale's actions were unequivocally referable to is Habib's trip to Nigeria on April 4, 1992. Breezevale contends Habib's trip to Nigeria during this time period the working interest agreement, the doctrine of partial constituted sufficient partial performance to take the contract performance also requires that the party acting in reliance out of the statute of frauds because Habib went to Nigeria in on the agreement suffer a substantial detriment for which reliance on Exxon's promise of a working interest in any block there is no adequate remedy. See Hooks, 229 S.W. at 1116; awarded. Exxon argues that such performance does not “show Carmack, 701 S.W.2d at 40. If Breezevale were successful strong evidence establishing the existence of the [working in removing the oral agreement from the statute of frauds interest] agreement and its terms,” see Carmack, 701 S.W.2d because of partial performance, Breezevale would be entitled at 40, and is more referable to the services agreement the to only reliance damages. See Magcobar N. Am. v. Grasso parties were negotiating than the working interest agreement. Oilfield Servs., Inc., 736 S.W.2d 787 (Tex.App.-Corpus Christi 1987) (court's holding that party may recover reliance Applying the no-evidence standard of review, and viewing damages and not breach of contract damages in case where the evidence in the light most favorable to Breezevale, we promissory estoppel takes case out of statute of frauds is find there is no evidence that Habib's actions in going to consistent with equity, the principle underlying all exceptions Nigeria were unequivocally referable to the working interest to statute of frauds), writ dism'd by agr., 754 S.W.2d 646 contract, because even Breezevale admits there was a services (Tex.1988); see also Adams v. Petrade Int'l, Inc., 754 S.W.2d contract being negotiated between the parties and that it 696, 708 (Tex.App.-Houston [1st Dist.] 1988, writ denied) had been providing Exxon with liaison services similar to (relying on “settled law” that party's damages based on those provided during the trip throughout the eighteen-month promissory estoppel as exception to statute of frauds are period. See Teague, 526 S.W.2d at 293 (performance must be not measured by profits that reliance led him to expect, such as could have been done with no other design than to but limited to amount necessary to compensate party for fulfill particular agreement sought to be enforced); see also loss already suffered). Breezevale's reliance damages would Rodriguez v. Klein, 960 S.W.2d 179, 186 (Tex.App.-Corpus encompass only the services Habib performed during his Christi 1997, no pet.) (because party's performance was April trip to Nigeria. See Fretz Constr. Co. v. Southern Nat'l required under one or more of three agreements, including bill Bank, 626 S.W.2d 478, 483 (Tex.1981) (reliance damages of sale, it could not be unequivocally referable to bill of sale); are amount necessary to restore plaintiff to position he would Beta Drilling, 821 S.W.2d at 741 (overturning jury finding on have been in had he not acted in reliance on promise). We partial performance because appellee's employment services conclude that because Breezevale received $1 million on its were not unequivocally referable to oral agreement for contract implied in law claim, it had an adequate remedy as a sale of securities). In a no-evidence review of whether matter of law. Cf. Carmack, 701 S.W.2d at 40 (in analyzing the performance was “unequivocally referable,” the relevant partial performance of Beltway, court noted Beltway had issue is not whether there is evidence that the performance no other adequate remedy because broker could not recover could be referable to the contract which the party is trying for same services on implied contract, quasi contract, or

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002) 157 Oil & Gas Rep. 785

quantum meruit theory); Wiley, 770 S.W.2d 878, 882 (if The record shows that, after receiving the letter from Exxon person receives payment for services, those services will terminating the relationship, Breezevale communicated with not constitute partial performance as exception to statute of Exxon regarding its belief that it had a valid contract with frauds). Exxon, that Exxon should fulfill the contract, and that it had performed valuable services for Exxon. We conclude Because there is no evidence that Breezevale's partial this is sufficient evidence of presentment. See Jones v. performance was unequivocally referable to the working Kelley, 614 S.W.2d 95, 100 (Tex.1981) (no particular form interest agreement, and because Breezevale did not suffer a of presentment required); see also Criton Corp. v. Highlands substantial detriment for which it had no adequate remedy, Ins. Co., 809 S.W.2d 355, 358 (Tex.App.-Houston [14th there is no evidence to support the jury's finding on partial Dist.] 1991, writ denied) (holding oral request to tender full performance. We overturn the jury's finding to Jury Question performance under contract, which was refused, sufficient to No. 4. establish presentment).

Exxon does not dispute that attorneys' fees may be awarded for claims arising out of quantum meruit, or that the quantum Attorneys' Fees meruit claim is not so interrelated with the contract claim as [20] Exxon contends if the award for breach of contract to be more or less inseparable. See Weitzul Constr., Inc. v. is reversed, this Court must likewise reverse the trial court's Outdoor Environs, 849 S.W.2d 359, 366 (Tex.App.-Dallas award of $3.495 million in attorneys' fees. Breezevale 1993, writ denied). Therefore, because attorneys' fees are responds that even if this Court reverses the breach of contract authorized on the quantum meruit cause of action, Breezevale claim, it is still entitled to attorneys' fees on its $1 million may recover the total amount of attorneys' fees the trial court award for the contract implied in law, or quantum meruit, awarded. See id. claim. We agree with Breezevale.

Exxon does not appeal the jury's finding that Breezevale Conclusion performed compensable services in the amount of $1 million, nor does it argue attorneys' fees are not recoverable for the Because we conclude the statute of frauds applies to render cause of action underlying the $1 million award. Rather, the oral agreement unenforceable, we need not reach Exxon's Exxon asserts Breezevale cannot recover attorneys' fees based other issues. We reverse the jury's finding to Question No. on the award because Breezevale claimed, in a pretrial 1 and its award of $34.3 million. We render judgment that hearing, that it was not seeking compensation for services Breezevale take nothing on its claim for breach of an oral rendered. According to Exxon, because Breezevale could not contract. We affirm the $3.495 million award of attorneys' have expended attorney time and expenses on a claim it fees. disavowed, there would be no evidence to support an award of attorneys' fees on that basis. Exxon further claims there could have been no presentment of a claim that Breezevale denied BREEZEVALE'S CROSS APPEAL it was seeking. Breezevale brings three issues in a cross appeal. Because of *442 [21] The fact that Breezevale stated in a pretrial our disposition of Exxon's appeal, we address only one of hearing it was not seeking compensation for services rendered Breezevale's issues. is irrelevant in light of the fact that the trial court submitted a jury question on the issue, which Exxon does not In its second issue, Breezevale contends the trial court erred in appeal. Because Exxon did not complain of the trial court's granting a directed verdict on Breezevale's breach of fiduciary submission of the question and the jury's affirmative answer duty claim based on a two-year statute of limitations. In a to it, it cannot now complain the issue was not raised and “reply point and conditional cross point,” 5 Exxon contends litigated at trial. Further, because the issues involved in that even if the trial court erred in granting the directed verdict the quantum meruit claim are necessarily interrelated with based on the statute of limitations, the breach of fiduciary Breezevale's breach of contract claim, we also decline to duty claim was still properly dismissed because there was no find there was no presentment of the attorneys' fees claim.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002) 157 Oil & Gas Rep. 785

evidence of a fiduciary relationship. We agree with Exxon's relies on another to perform a contract does not give rise to conditional cross point. a confidential relationship, because something apart from the transaction between the parties is required. Crim, 823 S.W.2d [22] [23] [24] [25] A court may direct a verdict if noat 594. Although the existence of a confidential relationship evidence of probative force raises a fact issue on the material is ordinarily a question of fact, where there is no evidence to issue. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, establish the relationship, it is a question of law. Seymour v. 649 (Tex.1994). On review, we examine the evidence in the Am. Engine & Grinding Co., 956 S.W.2d 49, 60 (Tex.App.- light most favorable to the party against whom the verdict Houston [14th Dis.] 1996, writ denied); Kline v. O'Quinn, 874 was rendered, *443 disregarding all contrary evidence and S.W.2d 776, 786 (Tex.App.-Houston [14th Dist.] 1994, writ inferences. Id.; Rodriguez v. United Van Lines, Inc., 21 denied). S.W.3d 382, 383 (Tex.App.-San Antonio 2000, pet. denied). When no evidence of probative force on an ultimate fact [31] Breezevale first asserts that a formal fiduciary element exists, or when the probative force of the evidence relationship existed because it was partners with Exxon. is so weak that only mere surmise or suspicion is raised as However, we have held there was no working interest to the existence of essential facts, the trial court has the dutyagreement between the parties because any oral agreement to instruct the verdict. Villarreal v. Art Inst. of Houston, Inc.violated the statute of frauds. Therefore, there is no evidence 20 S.W.3d 792, 796 (Tex.App.-Corpus Christi 2000, no pet.). the parties were working interest partners. See Schlumberger, The reviewing court may affirm a directed verdict even if 959 S.W.2d at 176 (partnership consists of express or implied the trial court's rationale for granting the directed verdict is agreement containing four required elements: (1) community erroneous, provided the directed verdict can be supported on of interest in venture, (2) agreement to share profits, (3) another basis. Id. agreement to share losses, and mutual right of control or management of enterprise). Without an agreement, there is no [26] [27] [28] [29] [30] There are two types of evidence the parties were partners and no evidence to support fiduciary relationships-formal and informal. Crim Truck & Breezevale's argument that a formal fiduciary relationship Tractor Co. v. Navistar Int'l Transp. Corp., 823 S.W.2d existed arising from the partnership. 591, 593–94 (Tex.1992). Formal fiduciary relationships arise as a matter of law, and include the relationships between [32] Breezevale also argues it submitted evidence that attorney and client, principal and agent, partners, and joint Breezevale and Exxon *444 had developed a relationship venturers. Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 of trust and confidence and there was some evidence of (Tex.1998). Informal fiduciary relationships arise from “a an informal fiduciary relationship between the parties. It moral, social, domestic or purely personal relationship of trust relies on evidence that before Exxon and Breezevale began and confidence, generally called a confidential relationship.” the dealings at issue in this suit, Breezevale had a ten-year Associated Indem. Corp. v. CAT Contracting, Inc., 964 distributorship relationship with Exxon Chemical in Nigeria. S.W.2d 276, 287 (Tex.1998). Confidential relationships may However, the evidence shows Exxon Chemical is a separate arise when one party has dealt with another in a certain Exxon affiliate, and nothing in the record indicates this manner for a long period of time such that one party is relationship was anything more than an arms-length business justified in expecting the other to act in its best interest, relationship. See Gillum v. Republic Health Corp., 778 Morris, 981 S.W.2d at 674, and in cases where “influence S.W.2d 558, 568 (Tex.App.-Dallas 1989, no writ) (plaintiff has been acquired and abused, in which confidence has could not bootstrap prior relationship with two separate been reposed and betrayed.” Associated Indem. Corp., 964 entities to claim twenty-six year confidential relationship with S.W.2d at 287. However, to give full force to contracts, defendant hospital). we do not recognize such a relationship lightly. Burleson State Bank v. Plunkett, 27 S.W.3d 605, 611 (Tex.App.-Waco [33] Breezevale also relies on evidence it “trusted 2000, pet. denied) (citing Thigpen v. Locke, 363 S.W.2d Exxon's numerous promises that an agreement ... would 247, 253 (Tex.1962)). To impose such a relationship in a be forthcoming;” it clearly informed Exxon it wanted a business transaction, the relationship must exist prior to, long-term relationship; it shared with Exxon confidential and apart from, the agreement made the basis of the suit. information it learned from the Nigerian officials regarding Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 177 the bidding process; and Exxon requested that Breezevale (Tex.1997). The fact that one businessman trusts another and work exclusively for Exxon. Even if true, these facts are not

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002) 157 Oil & Gas Rep. 785

relationship between the parties, the trial court did not erred in evidence of an informal fiduciary relationship. Breezevale's granting Exxon's motion for directed verdict on Breezevale's claim that it subjectively trusted Exxon to provide it a breach of fiduciary duty claim. Furthermore, the trial court working interest agreement is insufficient to impose fiduciary erred in denying Exxon's motion for directed verdict on obligations on Exxon as a matter of law. Mere subjective Breezevale's claim that it had a “special relationship of trust trust does not transform arms-length dealing into a fiduciary and confidence” with Exxon. Consequently, we find no merit relationship. Schlumberger, 959 S.W.2d at 177; Crim, 823 in Breezevale's second issue in its cross appeal. S.W.2d at 595; see also Tyra v. Woodson, 495 S.W.2d 211, 213 (Tex.1973) (“[T]he fact that one businessman trusts We reverse the trial court's award of $34.3 million against another, and relies upon his promise to carry out a contract, Exxon for breach of contract and affirm the remaining does not create a constructive trust ... [t]o hold otherwise portions of the trial court's judgment that are the subject of would render the Statute of Frauds meaningless.”) The record this appeal. shows the parties had an arms-length relationship, with each party separately represented by its own counsel. There is no evidence of a long-term relationship apart from the parties' All Citations negotiations for the services contract and working interest agreement. See Crim, 823 S.W.2d at 594. We conclude 82 S.W.3d 429, 157 Oil & Gas Rep. 785 that, because the record contains no evidence of a fiduciary

Footnotes 1 The Honorable David F. Farris, Retired Justice, Second District Court of Appeals, Fort Worth, Texas, sitting by assignment. 2 Exxon does not appeal the portion of the trial court's judgment awarding Breezevale $1 million for breach of contract implied in law, acknowledging that Breezevale provided services for which it should be compensated. Therefore, we express no opinion as to the validity of that portion of the judgment, and the $1 million award stands. 3 In its appellate brief, Breezevale also argues Exxon should be equitably estopped from relying on the statute of frauds because of its claims that Exxon misled Breezevale. The doctrine of equitable estoppel, being distinct from the doctrine of promissory estoppel, was never submitted to the jury. Breezevale thus waived any equitable estoppel claim. See TEX.R. CIV. P. 279; Brown v. Bank of Galveston, N.A., 963 S.W.2d 511, 515 (Tex.1998). 4 Any performance by Breezevale in reliance on the contract necessarily had to occur between April 3, 1992, the date of the agreement, and mid-April, when Exxon terminated the relationship by letter, because only during this time could Breezevale have reasonably relied on the existence of an agreement. 5 Because the trial court denied Exxon's motion for directed verdict on Breezevale's claim that it had enjoyed a “special relationship of trust and confidence” with Exxon, Exxon conditionally appeals this ruling in the event we reach the issue of whether there was a special relationship.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 15 National Property Holdings, L.P. v. Westergren, 453 S.W.3d 419 (2015) 58 Tex. Sup. Ct. J. 204

KeyCite Yellow Flag - Negative Treatment [1] Distinguished by Orca Assets, G.P., L.L.C. v. JPMorgan Chase Release Bank, N.A., Tex.App.-Dallas, August 11, 2015 Fraud and Misrepresentation 453 S.W.3d 419 Supreme Court of Texas. Plaintiff did not justifiably rely, as element of fraudulent inducement, on defendant’s National Property Holdings, L.P., Michael Plank representations as to contents of release, in and Russell Plank, Petitioners, signing release of rights to real property and v. rights under oral contract; defendant’s Gordon Westergren, Respondent representations that release was just a “receipt” for $500,000 check and that plaintiff did not NO. 13–0801 | Opinion Delivered: January 9, 2015 need to worry about the release, directly contradicted the contents of the release, and plaintiff had ample opportunity to read the Synopsis release but chose not to read it before signing Background: Seller of option to purchase 190 acres because he was “in a hurry” and did not have his brought action against buyer and consultant, alleging reading glasses with him. Restatement (Second) breach of contract, breach of partnership duties, of Torts, § 541. common-law fraud, and statutory fraud. Buyer and consultant counterclaimed for breach of settlement agreement and release. The 269th District Court, Harris 1 Cases that cite this headnote County, No. 2008-36847, Dan T. Hinde, J., granted judgment notwithstanding the verdict (JNOV) to buyer and consultant on seller’s claims, but entered judgment on special jury verdict for seller on buyer’s and consultant’s [2] Fraud claims. Seller, buyer, and consultant appealed. The Acts induced by fraud Houston Court of Appeals, 14th District, affirmed in part and reversed in part. Buyer and consultant petitioned for Fraudulent inducement is a particular species of review. fraud that arises only in the context of a contract.

Holdings: The Supreme Court held that: 1 Cases that cite this headnote [1] seller did not justifiably rely on consultant’s representations as to contents of release; [2] partial performance exception to statute of frauds did [3] Fraud not apply to allow enforcement of oral contract; Elements of Actual Fraud [3] seller did not breach mediated agreement settling prior To prove a claim of fraudulent inducement, a lawsuit by bringing action; and plaintiff must establish that: (1) defendant made [4] a material representation; (2) defendant’s seller did not breach release agreement by bringing representation was false and was either known action. to be false when made or made without knowledge of its truth; (3) defendant’s representation was intended to be and was relied Affirmed in part and reversed in part. upon by the injured party; and (4) plaintiff’s injury complained of was caused by the reliance.

2 Cases that cite this headnote West Headnotes (12) © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 National Property Holdings, L.P. v. Westergren, 453 S.W.3d 419 (2015) 58 Tex. Sup. Ct. J. 204

$500,000 was not unequivocally referable to the oral agreement, but instead was made to avoid performance of the oral contract. Tex. Bus. & C. Code § 26.01. [4] Fraud Reliance on Representations and Inducement to Act 1 Cases that cite this headnote

A party to a written contract cannot justifiably rely, as element of fraudulent inducement, on oral misrepresentations regarding the contract’s [8] unambiguous terms. Appeal and Error Cases Triable in Appellate Court

2 Cases that cite this headnote Whether a contract comes within the statute of frauds is a question of law, which an appellate court reviews de novo.

[5] 2 Cases that cite this headnote Contracts Presumptions and burden of proof

Instead of excusing a party’s failure to read a contract when the party has an opportunity to do [9] so, the law presumes that the party knows and Frauds, Statute of accepts the contract terms. Necessity that part performance relied on be referable to contract

4 Cases that cite this headnote One of the requirements of the partial performance exception to the statute of frauds is that the performance on which the party relies must be unequivocally referable to the agreement, in other words, the purpose of the [6] Contracts alleged acts of performance must be to fulfill a Effect in general; enforcement in general specific agreement; if the evidence establishes that the party who performed the act that is It is not the courts’ role to protect parties from alleged to be partial performance could have their own agreements. done so for some reason other than to fulfill obligations under the oral contract, the exception is unavailable. Tex. Bus. & C. Code § 26.01. 1 Cases that cite this headnote

1 Cases that cite this headnote

[7] Frauds, Statute of Necessity that part performance relied on be referable to contract [10] Frauds, Statute of Necessity that part performance relied on be Partial performance exception to statute of referable to contract frauds did not apply to allow enforcement of oral contract requiring defendant to pay plaintiff A party cannot rely upon oral representations to $1 million from development and future sale of satisfy the partial performance exception to the real property, where defendant paid plaintiff statute of frauds; rather, the kind of performance $500,000 and had plaintiff sign release of his that justifies the exception to the statute of claims to the property; defendant’s payment of frauds is performance which alone and without © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 National Property Holdings, L.P. v. Westergren, 453 S.W.3d 419 (2015) 58 Tex. Sup. Ct. J. 204

the aid of words of promise is unintelligible or at DISTRICT OF TEXAS least extraordinary unless as an incident of ownership, assured, if not existing. Tex. Bus. & Attorneys and Law Firms C. Code § 26.01. Mark Ryan Trachtenberg, Michael J. Mazzone, Polly Benton Graham, Haynes and Boone LLP, Houston, for 1 Cases that cite this headnote Petitioner

Mark C. Sparks, John Andrew Cowan, Provost Umphrey Law Firm L.L.P., Beaumont, for Respondent. [11] Opinion Compromise and Settlement Persons concluded Compromise and Settlement PER CURIAM Performance or Breach of Agreement

Plaintiff did not breach mediated agreement This dispute involves a mediated settlement agreement, an settling prior lawsuit by bringing action against oral side agreement, and a subsequent written release. A defendant for fraudulent inducement and breach pivotal issue is whether Gordon Westergren released his of oral contract; although defendant had been claims for breach of the oral side agreement or whether, involved in negotiating settlement and although as he insists and the jury found, he was fraudulently oral contract involved same real property as the induced into signing the release. On that issue, we prior lawsuit, defendant had not been a party to conclude that Westergren’s fraudulent inducement prior lawsuit, and settlement agreement did not defense must fail as a matter of law because the record contain any language in which plaintiff agreed conclusively establishes that he had a reasonable not to sue defendant. opportunity to read the release before he signed it and elected not to do so. We also conclude that the oral side agreement did not satisfy the statute of frauds and that Cases that cite this headnote Westergren did not breach the mediated settlement agreement or the release by filing this suit. For these reasons, we reverse in part and affirm in part the court of appeals’ judgment and reinstate in part the trial court’s take-nothing judgment and award of costs. [12] Release Covenant not to sue or execute The facts giving rise to the parties’ claims relate to a 190–acre tract of land in La Porte, Texas. The parties Plaintiff did not breach release agreement by hotly dispute the facts, but because we are reviewing the bringing action against defendant for fraudulent reversal of a judgment notwithstanding a jury verdict in inducement and breach of oral contract; favor of Westergren, we “credit evidence favoring the although release required plaintiff to relinquish jury verdict if reasonable jurors could, and disregard his rights under oral contract and provided an contrary evidence unless reasonable jurors could not.” affirmative defense to future lawsuits, release Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d could not be construed as a covenant not to sue, 828, 830 (Tex. 2009) (quoting Cent. Ready Mix Concrete since it contained no language barring plaintiff Co., Inc. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007)). The from bringing suit or stating that he would evidence favoring the jury verdict establishes that breach the release by doing so. Westergren was the first to enter into an option contract to purchase the highly desired property. When he discovered that the owner had later entered into similar option 1 Cases that cite this headnote contracts with two other interested buyers, he sued all three and filed a lis pendens against the *422 property, preventing any further development or sale (the Haynsworth litigation). The three defendants appeared and filed counterclaims. Meanwhile, several developers, including National Property Holdings, L.P. (NPH), were *421 ON PETITION FOR REVIEW FROM THE also interested in acquiring the property but could not COURT OF APPEALS FOR THE FOURTEENTH © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 National Property Holdings, L.P. v. Westergren, 453 S.W.3d 419 (2015) 58 Tex. Sup. Ct. J. 204

pursue it while the Haynsworth litigation remained against them, asserting claims for breach of the oral pending. In an apparent attempt to overcome that contract, breach of partnership duties, common law and obstacle, Russell Plank, who was NPH’s consultant, statutory fraud, and attorney’s fees. The Plank parties contacted Westergren’s attorney and offered to help pay asserted that Westergren had released all claims by Westergren’s attorney’s fees in the Haynsworth litigation. signing the release and that the oral contract was When asked why NPH would do that, Plank replied: unenforceable under the statute of frauds. They also filed “[because] we’re going to be partners.” Consistent with counterclaims for breach of contract, asserting that Plank’s call, NPH and Plank each sent Westergren’s Westergren breached the MSA and the release by filing attorney a $5,000 check. this suit against them.

When the lawsuit later went to mediation, Plank attended The jury found in Westergren’s favor on all claims, on behalf of NPH, although NPH was not a party to the although it also found that the Plank parties’ statutory and suit. The mediation was successful: NPH agreed to common law fraud caused Westergren “$0.00” damages. purchase the property, and all defendants agreed to On the Plank parties’ motion, however, the *423 trial release their rights to the property and their counterclaims court granted a judgment notwithstanding the verdict and against Westergren. All of the parties later memorialized entered a take-nothing judgment as to all parties, the settlement in a written Mediated Settlement assessing costs against Westergren. Westergren appealed Agreement (MSA), in which Westergren and the and the Plank parties filed cross-appeals. With one justice defendants agreed to release any lis pendens and all dissenting, the court of appeals concluded, inter alia, that claims asserted by and between the parties, including any there was more than a scintilla of evidence to support the cross-claims and counterclaims, and NPH agreed to jury’s findings that (1) an oral contract existed between purchase the property. Separately, in exchange for Westergren and Plank, (2) Plank breached the oral Westergren’s agreement to settle the lawsuit, release the contract, (3) NPH paid the $500,000 pursuant to the oral lis pendens, and allow NPH to purchase the property, contract (not as consideration for the release), (4) this Plank orally promised Westergren that he would become partial performance excepted the oral contract from the a partner with Plank and his brother Michael, who was statute of frauds, (5) Plank fraudulently induced president of NPH’s corporate general partner, and would Westergren to sign the release, and (6) Westergren did not receive $1 million plus an interest in the profits from breach the MSA or the release by suing the Plank parties. NPH’s development and future sale of the property (the Having found in Westergren’s favor on his breach of oral contract). The MSA did not memorialize the oral contract claim, the court concluded that it did not need to promises that Plank made to Westergren. After address his claims for common law and statutory fraud Westergren released the lis pendens and the parties and for breach of partnership duties. The court awarded dismissed the suit, NPH and an affiliated company costs to Westergren and remanded the case for a new trial purchased the property. A few months later NPH sold 20 on Westergren’s claim for attorney’s fees. of the 190 acres. When Westergren asked for the [1] promised $1 million and a share of the profits, Plank Before this Court, the Plank parties contend that the replied that they could only pay Westergren $500,000 evidence was legally insufficient to support the jury’s “right now.” finding that Plank fraudulently induced Westergren to sign the release, the release was therefore valid and When Plank and Westergren later met, Plank presented a extinguished all claims under the oral contract, and the $500,000 check from NPH, and in return, Westergren jury’s related findings are thus irrelevant and cannot signed a release. The title of the document, stated in bold support the judgment. To overcome the jury’s verdict, the and underlined capital letters, read “AGREEMENT AND Plank parties must show that there was no evidence to RELEASE.” The release stated that Westergren agreed to support the jury’s finding of fraudulent inducement, no relinquish any and all interest in the property and all reasonable jury could conclude otherwise, and thus the claims against NPH, Michael Plank, and other listed release was valid as a matter of law. Tanner, 289 S.W.3d parties in exchange for the total payment of $500,000. at 830. Without reading the release, Westergren signed it in front [2] [3] of a notary and accepted the check. Several months later, Fraudulent inducement “is a particular species of after Westergren had not received any additional fraud that arises only in the context of a contract.” Haase payments, he reviewed the release and discovered what he v. Glazner, 62 S.W.3d 795, 798 (Tex. 2001). To prove had signed. When NPH, Plank, and Plank’s brother that Plank fraudulently induced him to sign the release, Michael (collectively, the Plank parties) refused to make Westergren had to establish that (1) Plank “made a any additional payments, Westergren filed this suit material representation”; (2) Plank’s “representation was

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 National Property Holdings, L.P. v. Westergren, 453 S.W.3d 419 (2015) 58 Tex. Sup. Ct. J. 204

false and was either known to be false when made or its face, the release’s intent and effect is obvious and made without knowledge of its truth”; (3) Plank’s unambiguous. Consistent with its large, bolded, “representation was intended to be and was relied upon by capitalized, and underlined title (“ AGREEMENT AND the injured party”; and (4) Westergren’s “injury RELEASE ”), and utilizing bolded and capitalized key complained of was caused by the reliance.” In re Int’l words within its text, the release provided that Profit Assocs., Inc., 274 S.W.3d 672, 678 (Tex. 2009) (citing Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 436 WESTERGREN ... in consideration of the sum of (Tex. 1997)); Schlumberger Tech. Corp. v. Swanson, 959 FIVE HUNDRED THOUSAND AND NO/100ths S.W.2d 171, 181 (Tex. 1997). The Plank parties argue DOLLARS ($500,000.00), and other good and that there is no evidence to establish the fourth element in valuable consideration, the receipt of which of this case. Specifically, they contend that no evidence considerations being hereby acknowledged and the supports a finding that Westergren’s reliance on Plank’s adequacy of which considerations being hereby representations was “justifiable,” because the release’s confessed, ... does hereby fully and unconditionally plain language conflicted with Plank’s representations, RELEASE AND FOREVER RELINQUISH any and and Westergren had ample opportunity to read the release all right, title, and/or interest ... in or to (i) ... the and chose not to do so. “Subject Property;” ... (ii) [NPH and certain affiliated companies] (collectively, the “Owning Entities”); and At trial, Westergren admitted that he did not read the (iii) any income, rent, profits, or other proceeds related release before he signed it and accepted the $500,000 to [the property or the Owning Entities] ... (collectively, check. Specifically, he explained that: the “Income and Proceeds”) ....

— In a telephone conversation before the meeting at In addition, and for the same consideration, the receipt which Plank delivered the $500,000 check, Plank of which considerations being hereby acknowledged told Westergren that the check would be payment of and the adequacy of which consideration being hereby the first half of the $1 million that Plank had confessed, Westergren ... does hereby fully and promised in the oral contract; unconditionally REMISE, RELEASE AND FOREVER DISCHARGE ... MICHAEL J. PLANK, — At the meeting, Plank never mentioned that the THE PLANK COMPANIES, INC., the Owning document was a release, and instead told Westergren Entities, and [others] ... of and from any and all manner that the release “was a receipt. It’s nothing. You of action and actions, cause and causes of action, and don’t have to worry about it”; all claims and demands whatsoever, ... which [Westergren] ... can, shall or may have for, upon or by — Plank also told Westergren he would get “the reason of any matter, cause [or] occurrence ... other half” of the $1 *424 million when “we get proximately or remotely, from the beginning of the another building coming out of the ground”; world to and through the day of the date of this release arising out of, relating to, or pertaining in any way, — Westergren did not read the release because he directly or indirectly, to: (i) the Subject Property; (ii) was “in a hurry” and did not have his reading glasses the Owning Entities; and (iii) the Income and with him; Proceeds. This release is intended to release all liability described above of any character for damages of any — Although he wore a watch that had a magnifying type or nature ... with respect to the matters released glass, which he could have used to read the release, above. he did not use it; Westergren chose not to read this release before he signed — He did not ask Plank or the notary to read the it in the presence of a notary and instead relied on Plank’s release to him; and representations regarding its contents. We hold that, as a matter of law, that reliance was not justifiable. — Instead, he relied on Plank’s statements and representations and signed the release without [4] It is well-established that “[t]he recipient of a fraudulent reading it first. misrepresentation is not justified in relying upon its truth if he knows that it is false or its falsity is obvious to him.” Under the facts of this case, we agree with the Plank RESTATEMENT (SECOND) OF TORTS § 541 (1977). parties that Westergren could not justifiably rely on Thus, as Texas courts have repeatedly held, a party to a Plank’s statements about the content of the release, which written contract cannot justifiably rely on oral directly conflict with the content of the release itself. On misrepresentations regarding the contract’s unambiguous © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 National Property Holdings, L.P. v. Westergren, 453 S.W.3d 419 (2015) 58 Tex. Sup. Ct. J. 204

terms. See, e.g., *425 Thigpen v. Locke, 363 S.W.2d 247, Plank related to the property, and there is no basis to 251 (Tex. 1962) (“In an arm’s-length transaction the conclude that he was incapable of understanding that. defrauded party must exercise ordinary care for the In fact, Westergren’s ability to understand the Release protection of his own interests.... [A] failure to exercise is not disputed, and his own testimony establishes that reasonable diligence is not excused by mere confidence in he was a sophisticated businessman who had personally the honesty and integrity of the other party.”) (citation participated in many contractual transactions. Any issue omitted). This is particularly true when the party had a over whether he needed help to understand it would be reasonable opportunity to review the written agreement irrelevant when, by his own admission, he made no effort to read it. but failed to exercise ordinary care to do so. See Tex. & Pac. Ry. Co. v. Poe, 131 Tex. 337, 115 S.W.2d 591, 592 (1938) (holding that evidence was legally insufficient to [6] support a finding of fraud where party who relied on oral As we have recently observed, it is not the courts’ role statement that release was receipt had an opportunity to “to protect parties from their own agreements.” El Paso read the document which plainly identified itself as a Field Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d release); see also Thigpen, 363 S.W.2d at 251. 802, 810–11 (Tex. 2012). Thus, as the United States Supreme Court explained long ago: [5] The court of appeals concluded that Westergren did not have an adequate opportunity to review the release. Under It will not do for a man to enter into these facts, we disagree. Westergren’s testimony a contract, and, when called upon conclusively established that he had ample opportunity to to respond to its obligations, to say read the release but instead chose to rely solely on Plank’s that he did not read it when he representations because he was “in a hurry” and did not signed it, or did not know what it have his reading glasses with him.1 Yet he acknowledged contained. If this were permitted, that he could have used the magnifier on his watch or had contracts would not be worth the someone read the document to him, and no evidence paper on which they are written. indicates that anyone prevented him from doing so. See *426 But such is not the law. A 409 S.W.3d 110, 151 (Frost, J., dissenting) (finding “no contractor must stand by the words legal basis for the majority’s conclusion” that Plank used of his contract; and, if he will not “trickery or artifice” to prevent Westergren from reading read what he signs, he alone is the release). Instead of excusing a party’s failure to read a responsible for his omission. contract when the party has an opportunity to do so, the law presumes that the party knows and accepts the Upton v. Tribilcock, 91 U.S. 45, 50, 23 L.Ed. 203 (1875); contract terms. See, e.g., Poe, 115 S.W.2d at 592; Indem. see also Indem. Ins., 101 S.W.2d at 556 (“One is Ins. Co. of N. Am. v. W.L. Macatee & Sons, 129 Tex. 166, presumed to intend what he does or undertakes to do by 101 S.W.2d 553, 556 (1937); cf. In re Lyon Fin. Servs., the terms of a written instrument voluntarily signed by Inc., 257 S.W.3d 228, 232 (Tex. 2008); In re Prudential him.”). We conclude that Westergren’s evidence was Ins. Co. of Am., 148 S.W.3d 124, 133–34 (Tex. 2004); legally insufficient to support the jury’s finding that he Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d justifiably relied on Plank’s representations, and thus 505 (Tex. 1993). Here, Westergren’s decision not to read constitutes no evidence of fraudulent inducement to the release and instead to rely on Plank’s representations negate the release’s validity. because he did not have his glasses and was “in a hurry” [7] [8] was not justifiable. However, the parties also dispute the scope of the release. In particular, the jury found that the oral contract 1 The court of appeals thought it relevant that Plank was an agreement only between Westergren and Plank, in knew that Westergren had an attorney and had Plank’s individual capacity, and Westergren argues that communicated with him but did not involve him in the the release did not release any claims against Plank. We drafting of the Release or send him a copy. 409 S.W.3d need not resolve this issue, however, because we agree at 126–28. While these facts might be relevant to the with Plank’s alternative argument that the oral contract is issue of whether Westergren could understand the unenforceable under the statute of frauds. Under the Release had he read it, we disagree that they could statute of frauds, “a contract for the sale of real estate” is support a conclusion that he had no reasonable unenforceable unless it is in writing and signed by the opportunity to read it. At a minimum, the language of person to be charged. TEX. BUS. & COM. CODE § the Release unambiguously made it clear that it was a “RELEASE,” and that Westergren was releasing all 26.01. Whether a contract comes within the statute of claims to the property and against NPH and Michael frauds is a question of law, which we review de novo. Dynegy, Inc. v. Yates, 422 S.W.3d 638, 642 (Tex. 2013). © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 National Property Holdings, L.P. v. Westergren, 453 S.W.3d 419 (2015) 58 Tex. Sup. Ct. J. 204

Westergren concedes that the contract at issue was for the constitutes partial performance of the oral contract in sale of real estate and was not in writing or signed, but he which Plank agreed to pay $1 million, and that the relies on the “partial performance exception” to the statute payment is “unequivocally referable” only to that of frauds. Under this exception, he contends, an otherwise contract.3 This is so, he contends, “because the release unenforceable oral contract becomes enforceable in equity itself makes sense only in the context of an attempt to if one party partially performs its obligations and “denial settle Westergren’s claims based on the [oral contract],” of enforcement would amount to a virtual fraud.” and “the jury was free to conclude that the only thing the Westergren contends that Plank partially performed his release might plausibly have sought to compromise was obligations under the oral contract by paying half of the the [oral contract] itself.” We disagree. The fact that the promised $1 million payment, and thus the oral contract is payment was made to “settle” and “compromise” enforceable in equity despite the statute of frauds. Westergren’s “claims based on the [oral contract]” does not mean it was made in performance of obligations under [9] Without adopting Westergren’s description of the that contract. To the contrary, it establishes that the “partial performance exception,”2 we conclude that, even payment was made to avoid performance of the oral under his theory, the exception does not apply here. As contract. On its face, the release states that Westergren’s argued by Westergren, one of the exception’s agreement to release all claims against the property, the requirements is that the performance on which the party “Owning Entities,” and all “Income and Proceeds” was relies must be “unequivocally referable to the agreement.” made “in consideration of the sum of FIVE HUNDRED Chevalier, 213 S.W.2d at 533 (emphasis added). In other THOUSAND AND NO/100ths DOLLARS words, the purpose of the alleged acts of performance ($500,000.00), and other good and valuable consideration, must be to fulfill a specific agreement. If *427 the the receipt of which of considerations being hereby evidence establishes that the party who performed the act acknowledged and the adequacy of which considerations that is alleged to be partial performance could have done being hereby confessed.” Contrary to Westergren’s so for some reason other than to fulfill obligations under arguments, the payment cannot be unequivocally the oral contract, the exception is unavailable. referable to the oral contract, because the release that Westergren signed expressly states that it was made in 2 On the few occasions that this Court has discussed this exchange for Westergren’s agreement to the release. equitable exception to the statute of frauds, we have Furthermore, the payment could not be performance of made it clear that it requires more than just one party’s the oral contract because it was made by NPH, which was performance of some obligation under the alleged oral not a party to the oral contract–but was a party to the contract. See, e.g., Chevalier v. Lane’s, Inc., 147 Tex. release. 106, 213 S.W.2d 530, 533 (1948) (noting that even “ ‘full performance,’ in the sense of full payment of the 3 consideration by the purchaser, is held not to make the Westergren also contends that he fully performed the contract enforceable unless accompanied by other agreement by releasing the lis pendens and giving up circumstances, such as change of possession and his contractual right to the property. Like the $500,000 erection of valuable improvements”). For example, we payment, these actions are not unequivocally referable explained that “to relieve a parol sale of land from the to the oral contract where the MSA explicitly requires operation of the statute of frauds, three things were these acts by Westergren. necessary: 1. Payment of the consideration, whether it be in money or services. 2. Possession by the vendee. And 3. The making by the vendee of valuable and [10] To find partial performance of the oral contract, the permanent improvements upon the land with the court of appeals relied upon Plank’s oral representation consent of the vendor; or, without such improvements, that the payment was the first half of the $1 million owed the presence of such facts as would make the transaction a fraud upon the purchaser if it were not under the oral contract. A party cannot rely upon oral enforced. Payment of the consideration, though it be a representations to satisfy the partial performance payment in full, is not sufficient.” Hooks v. exception, however. Rather, the kind of performance that Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 justifies the exception to the statute of frauds is (1921). In light of Westergren’s failure to establish that “performance which alone and without the aid of words of Plank’s $500,000 payment was “unequivocally promise is unintelligible or at least extraordinary unless as referable” to the oral contract, we need not and do not an incident of ownership, assured, if not existing.” provide a complete explanation of all of the partial Chevalier, 213 S.W.2d at 533 (emphasis added). The performance exception’s requirements here. statute of frauds “unmistakably declares a policy that parol testimony is too unreliable for proof of certain types of agreement, and courts must give heed to that policy as Westergren contends that Plank’s payment of $500,000 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 National Property Holdings, L.P. v. Westergren, 453 S.W.3d 419 (2015) 58 Tex. Sup. Ct. J. 204

well as to considerations of an equitable character.” Id. who are not before the Court in this case. We find no Therefore, Westergren cannot rely on Plank’s oral language in the MSA in which Westergren agreed not to representations to support a finding that the payment was sue the Plank parties. In fact, the agreement contemplates unequivocally referable to the oral contract. We hold that that the parties may bring suit by providing that the there is nothing in the nature of these acts that supports a parties “may not recover attorney’s fees or costs in any jury finding of partial performance to except the oral litigation brought to construe or enforce this agreement. contract from the statute of frauds. Otherwise, if unsuccessful, the prevailing party or parties shall be entitled to recover reasonable attorney’s fees and In summary, we conclude that there is no evidence to expenses.” This provision indicates that a suit may be support the jury’s findings that Plank fraudulently brought, even though the agreement is in effect, and in no induced Westergren to sign the release, or that the oral way suggests that filing a suit concerning the MSA’s contract is excepted from the statute of frauds. released claims results in a breach. Therefore, Westergren’s claims did not breach the MSA. *428 We now turn to Westergren’s tort claims for [12] common law fraud, statutory fraud, and breach of We also find that the release is unambiguous as to this partnership duties. Although the jury found in favor of point. The parties intended the release “to release all Westergren on the liability questions for his common law liability described” within the agreement. Like the MSA, and statutory fraud claims, the jury awarded him no it includes no language barring Westergren from bringing damages for either claim. Westergren did not appeal those suit or stating that he would breach the release by doing findings. He therefore cannot recover damages on his so. To the contrary, this agreement has a provision stating fraud claims. With respect to his partnership claim, we essentially that should a future suit be brought, the release have held that the oral contract in which Plank promised may be pleaded as an absolute bar to the suit–in other to make Westergren a partner with him and his brother is words, it provides the parties with an affirmative defense.4 unenforceable under the statute of frauds. Westergren’s See TEX. R. CIV. P. 94 (listing affirmative defenses, claim for breach of partnership duties therefore must fail including release). Although the release provides an as well. affirmative defense to future suits, we cannot construe it as including a *429 covenant not to sue where, in fact, the [11] Finally, we turn to the Plank parties’ argument that the plain language does not bar future suits. Just as court of appeals erred in affirming the trial court’s Westergren is bound to the actual language of the release, take-nothing judgment on their counterclaims against so are the Plank parties. The court of appeals, therefore, Westergren for breach of the release and the MSA. The did not err in affirming the trial court’s judgment based on Plank parties contend that a party who releases a claim the jury verdict in favor of Westergren on the Plank and later files suit on that claim necessarily breaches the parties’ claims for breach of the MSA and release. release agreement. We disagree. Although the Plank parties rely on a number of cases to support their 4 The release states that it “may be pleaded as an absolute argument, none of those cases reads a covenant not to sue and final bar to any or all suit or suits pending or which into a release that does not include such a promise. They may hereafter be filed or prosecuted.” also rely on one case in which a court stated that a covenant not to sue can be construed as a release, arguing that the reverse must also be true. See Dicker v. Lomas & We grant the Plank parties’ petition for review, and Nettleton Fin. Corp., 576 S.W.2d 672, 675 without hearing oral argument, we (1) reverse the court of (Tex.Civ.App.–Texarkana 1978, writ ref’d n.r.e.) (noting appeals’ judgment as to Westergren’s claim for breach of that “an agreement not to sue can be construed as a the oral contract, Westergren’s claim for attorney’s fees, release”). Westergren, in turn, argues that the release and the trial court’s allocation of court costs, (2) reinstate provides only an affirmative defense because it provides the trial court’s judgment that Westergren take nothing on only that it “may be pleaded as an absolute and final bar his claims for breach of the oral contract and for to any or all suit” and does not include an express or attorney’s fees and the trial court’s taxing of court costs implied covenant not to sue or to indemnify the released against Westergren, and (3) affirm the court of appeals’ parties. We must review the MSA and release language to take-nothing judgment on Westergren’s partnership and determine whether either agreement includes a contractual fraud claims and on the Plank parties’ counterclaims for obligation not to sue. breach of contract and attorney’s fees against Westergren. TEX. R. APP. P. 59.1. The intent of the MSA was to settle the suit between Westergren and the other parties to the initial litigation,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 National Property Holdings, L.P. v. Westergren, 453 S.W.3d 419 (2015) 58 Tex. Sup. Ct. J. 204

All Citations

453 S.W.3d 419, 58 Tex. Sup. Ct. J. 204 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 16 Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)

Defects and objections 409 S.W.3d 790 Judgment Court of Appeals of Texas, Defects and objections Dallas. Inadmissible hearsay summary judgment STOVALL & ASSOCIATES, P.C., Appellant evidence admitted without objection shall not be v. denied probative value merely because it is HIBBS FINANCIAL CENTER, LTD., Appellee. hearsay. Vernon’s Ann.Texas Rules Civ.Proc., Rule 166a(f). No. 05–12–00303–CV. | Aug. 13, 2013.

Cases that cite this headnote Synopsis Background: Landlord brought action against former tenant of office suites, seeking to recover unpaid rent and attorney fees. The 101st Judicial District Court, Dallas [3] Judgment County, Martin Lowy, J., entered summary judgment in Defects and objections favor of landlord, and tenant appealed. An objection that a summary judgment affidavit contains hearsay is an objection to a defect in Holdings: The Court of Appeals, Lewis, J., held that: the form of the affidavit. Vernon’s Ann.Texas Rules Civ.Proc., Rule 166a(f). [1] statute of frauds did not bar enforcement of unsigned lease agreements, and Cases that cite this headnote [2] landlord could be awarded $35,000 in attorney fees.

Affirmed. [4] Appeal and Error Nature of evidence in general Judgment Defects and objections Judgment West Headnotes (22) Defects and objections

[1] If any part of a piece of summary judgment Judgment evidence is admissible, a blanket hearsay Personal knowledge or belief of affiant objection that does not identify which parts Judgment contain hearsay is not enough; rather, the Defects and objections objecting party must make specific objections to each component part of a particular piece of An affidavit containing hearsay is objectionable evidence to preserve error on appeal. Vernon’s and does not support a summary judgment Ann.Texas Rules Civ.Proc., Rule 166a(f). motion if proper objection is made. Vernon’s Ann.Texas Rules Civ.Proc., Rule 166a(f). 1 Cases that cite this headnote 1 Cases that cite this headnote

[5] Appeal and Error [2] Objections to evidence in general Judgment

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)

signed by the parties. V.T.C.A., Bus. & C. § Absent a specific objection to admissibility of a 26.01. piece of summary judgment evidence, the complaining party waives any argument on appeal to challenge the improper admission or Cases that cite this headnote consideration of the evidence. Vernon’s Ann.Texas Rules Civ.Proc., Rule 166a(f).

[9] 2 Cases that cite this headnote Frauds, Statute Of Validity and Enforcement of Contracts in General Frauds, Statute Of Necessity [6] Appeal and Error Nature of evidence in general The statute of frauds is an affirmative defense in a breach of contract suit and renders a contract Tenant waived argument on appeal that that falls within its purview unenforceable. landlord’s summary judgment affidavits V.T.C.A., Bus. & C. § 26.01. contained inadmissible hearsay, in landlord’s action to recover unpaid rent for suites of office building, although tenant generally objected to Cases that cite this headnote the affidavits as containing hearsay, tenant failed to direct trial court’s attention to any specific statements or explain why any of the statements were hearsay. Vernon’s Ann.Texas Rules [10] Civ.Proc., Rule 166a(f). Frauds, Statute Of Questions for jury

Cases that cite this headnote The question of whether an agreement falls within the statute of frauds is one of law. V.T.C.A., Bus. & C. § 26.01.

[7] Contracts Cases that cite this headnote Grounds of action

To prevail on a claim for breach of contract, a plaintiff must prove (1) the existence of a valid [11] contract; (2) its performance or tendered Frauds, Statute Of performance; (3) defendant’s breach of the Questions for jury contract; and (4) damages as a result of the breach. The question of whether an exception to the statute of frauds applies is generally a question of fact. V.T.C.A., Bus. & C. § 26.01. 1 Cases that cite this headnote Cases that cite this headnote

[8] Frauds, Statute Of Purpose [12] Frauds, Statute Of The statute of frauds exists to prevent fraud and Possibility of Performance perjury in certain kinds of transactions by Frauds, Statute Of requiring agreements to be set out in writing and Extensions and renewals

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)

referable to contract Statute of frauds did not bar enforcement of unsigned agreements to lease suites in office In order for partial performance to apply as an building, since agreements either did not involve exception to the statute of frauds, the actions the lease of real estate for more than one year or asserted to constitute partial performance must could be performed within one year of being be unequivocally referable to the alleged oral made; unsigned agreements, entered into after agreement and corroborate the existence of that tenant executed lease for single suite, covered agreement; they must be such as could have tenant’s expansion into additional suites and been done with no other design than to fulfill the contained start and finish dates covering less particular agreement sought to be enforced. than one year. V.T.C.A., Bus. & C. § V.T.C.A., Bus. & C. § 26.01. 26.01(b)(5), (6).

Cases that cite this headnote Cases that cite this headnote

[16] Frauds, Statute Of [13] Frauds, Statute Of Possession and payment Statutory provisions Statute of frauds did not bar enforcement of To measure a contract’s duration for statute of unsigned agreement to lease suite in office frauds purposes, a court simply compares the building, since tenant had rendered partial date of the agreement to the date when the performance of the agreement; tenant occupied performance under the agreement is to be suite for over a year and a half and paid full rent completed; if there is a year or more between on the suite on a monthly basis, landlord those two reference points, then a writing is accepted tenant’s possession of the suite and required to render the agreement enforceable. accepted the rent payments, and landlord’s V.T.C.A., Bus. & C. § 26.01. officer testified that a written lease agreement was prepared at one point to cover the suite but that execution of the lease was delayed. Cases that cite this headnote V.T.C.A., Bus. & C. § 26.01.

Cases that cite this headnote [14] Frauds, Statute Of Part Performance in General [17] Under partial performance, as an equity-based Appeal and Error exception to the statute of frauds, an oral Reply briefs agreement that does not satisfy the traditional statute of frauds but that has been partially An issue raised for the first time in a reply brief performed may be enforced if denying is ordinarily waived and may not be considered enforcement would itself amount to a fraud. by an appellate court. V.T.C.A., Bus. & C. § 26.01.

4 Cases that cite this headnote Cases that cite this headnote

[18] Appeal and Error [15] Frauds, Statute Of Attorney fees Necessity that part performance relied on be © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)

An appellate court generally reviews a trial court’s decision to award attorney fees for an Landlord could be awarded $35,000 in attorney abuse of discretion. fees after entry of summary judgment awarding $25,000 in unpaid rent, in action against tenant of suites in office building; landlord’s attorney 1 Cases that cite this headnote submitted records and testimony showing time and labor involved, skill required, and customary fee charged, and trial court found that fee award exceeding the amount of landlord’s [19] damages was warranted due to matter being Costs seriously contested and tenant’s dilatory and Contracts obstructive behavior. V.T.C.A., Civil Practice & Remedies Code § 38.001. To recover attorney fees in a suit based on a contract, a party must prevail on the cause of action and recover damages. V.T.C.A., Civil Cases that cite this headnote Practice & Remedies Code § 38.001.

Cases that cite this headnote

Attorneys and Law Firms

*792 David R. Weiner, Weiner Law Firm, Dallas, for [20] Costs Appellant. Discretion of court Roger Anderson, Gillen & Anderson, Tyler, for Appellee. While the trial court has the discretion to set the Before Justices FITZGERALD and LEWIS.1 amount of an award of attorney fees, it has no 1 The Honorable Mary L. Murphy was on the panel and discretion to deny the award if it is proper under participated at the submission of this case. Due to her the statute governing recovery of attorney fees. resignation from this Court on June 7, 2013, she did not V.T.C.A., Civil Practice & Remedies Code § participate in the issuance of this Opinion. See 38.001. TEX.R.APP. P. 41.1(a), (b).

1 Cases that cite this headnote

[21] *793 OPINION Costs Evidence as to items Opinion by Justice LEWIS. It is presumed that usual and customary attorney’s fees are reasonable, but this This is a dispute between landlord, Hibbs Financial presumption may be rebutted. V.T.C.A., Civil Center, Ltd. (HFC), and its tenant, Stovall and Associates, Practice & Remedies Code § 38.001. P.C. In two issues, we must determine whether HFC is entitled to (1) summary judgment on its claim for breach of a lease agreement as a result of Stovall’s alleged failure Cases that cite this headnote to pay rent and (2) reasonable attorney’s fees. Stovall challenges HFC’s summary-judgment evidence and the trial court’s rejection of its statute-of-frauds defense and claimed issues of fact. Stovall also contends the trial court [22] erred in awarding attorney’s fees to HFC. We affirm the Landlord and Tenant trial court’s judgment. Costs and attorney fees

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)

not respond to a September 14, 2010 letter HFC sent to Kimberly Stovall demanding payment for the unpaid rent.

BACKGROUND *794 Two months later, HFC filed this lawsuit to recover unpaid rent in the amount of $37,943.77 and reasonable Stovall is a law firm that leased office space from HFC in attorney’s fees. HFC alleged Stovall breached the a building located at 6750 Hillcrest Plaza Drive in Dallas. agreements to pay rent for all the suites Stovall occupied. Pursuant to the lease agreement signed by the parties, Stovall generally denied the allegations and asserted Stovall leased suite 201, which measured approximately various affirmative defenses, including the statute of 1,680 square feet, and agreed to pay HFC $2,135 per frauds. Stovall also filed a counterclaim against HFC, month (or $15.25 per square foot) to lease the suite. The alleging violations of the Deceptive Trade Practices and lease agreement was for a period of twenty-four months, Consumer Protection Act (DTPA). beginning October 1, 2008 and ending on September 30, 2010. Stovall moved for summary judgment on HFC’s claim for unpaid rent, arguing it was entitled to summary judgment During the term of the lease, Stovall also expanded into because it paid all rents owed under the only signed and occupied seven additional suites within the premises. written lease agreement. Stovall also argued that the Stovall first expanded into suite 217 beginning December unsigned lease agreement for the additional suites was 15, 2008 and then suites 307 and 309 beginning unenforceable under the statute of frauds. It further November 15, 2009. Although a written lease agreement claimed that the amounts paid in May, June, and July of that covered suites 201, 217, 307, and 309 was prepared, 2010, did not represent payment of rent for the additional it was not signed by the parties. Stovall also moved into suites; rather, the payments were monies owed for a suites 311 and 312 beginning February 1, 2010 and suites security deposit. Stovall supported its summary-judgment 305 and 300 beginning March 1, 2010. It is undisputed motion with the signed lease agreement for suite 201 and that the parties did not sign any other lease agreement the unsigned lease agreement. Stovall also attached the pertaining to the additional suites Stovall occupied. affidavit of its business manager, Lesa Jewell, in which she testified that only one executed lease agreement The base rental amounts listed for each suite in the existed between the parties (for suite 201) and no signed unsigned lease agreement reflected that rent for suites lease agreement existed for any of the additional suites. 217, 307, and 309 was to be calculated by using the same She further stated that Stovall had paid “all rents due and price of $15.25 per square foot as in the original signed owing for its occupancy of [the] suites.” lease agreement. In addition, according to letters of intent signed by firm owner Kimberly Stovall (or on her behalf HFC responded and also filed a motion for partial by her representative), the firm sought to lease suites 311, summary judgment and amended motion on its claim for 312, 305, and 300 for that same price. unpaid rent. HFC argued (1) the undisputed facts established that an agreement existed between the parties After Stovall began using suite 217 in December 2008, showing Stovall agreed to lease all suites at issue through Stovall paid HFC monthly rent of $3,442.69 from September 30, 2010 for $15.25 per square foot and (2) December 2008 through April 2010, which was the total Stovall breached the agreement by failing to pay the rent monthly rent for suites 201 and 217. The memo line on due. HFC also maintained the statute of frauds did not the checks submitted by Stovall for payment during that operate to preclude HFC’s recovery of the unpaid rent. time indicated the payment was for “Sts 201 & 217.” And HFC supported its motion with the signed lease in May, June, and July of 2010, Stovall made three agreement, the letters of intent to lease suites 311, 312, payments of $9,224.57, which was the approximate 305, and 300 signed by Kimberly Stovall, and excerpts monthly amount for leasing all of the suites. According to from the depositions of Kimberly Stovall, Jewell, and Kay HFC, however, additional rent was due from December Wilbanks, who was Kimberly’s assistant. HFC also relied 2009 through April 2010 based on the timing of Stovall’s on three affidavits it attached as summary-judgment use of suites 307, 309, 311, 312, 305, and 300. evidence—the affidavits of Kenny Barnes, the facilities manager for the property, Glenda Liegman, a Vice Stovall vacated the premises without notice to HFC in President and Senior Accountant for HFC, and Bill early August 2010, nearly two months before the Lamkin, the commercial property manager for the expiration of the lease agreement. Stovall did not pay any property. The affidavits included various attachments, amount to cover the rent for August and September 2010 including e-mail communications with Stovall or the additional amounts HFC requested for unpaid rent representatives and copies of checks paid by Stovall. from December 2009 through April 2010. Stovall also did © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)

Attached to Lamkin’s affidavit was a June 11, 2010 letter real property and HFC did not establish its entitlement to from Lamkin to Kimberly Stovall, notifying her of summary judgment on its claim as a matter of law. delinquent rent for June in the amount of $9,224.57, and copy of a Stovall check dated June 18, 2010 for that amount, referencing a June 1, 2010 “Bill.” He testified that the requested amount was for rental of all the suites the firm occupied. Standard of Review

Stovall objected to the affidavits of Barnes, Liegman, and We review de novo the trial court’s summary judgment. Lamkin in its response to HFC’s motion and amended Marsh USA Inc. v. Cook, 354 S.W.3d 764, 768 motion. Two of the grounds were that “[t]he Affidavits (Tex.2011); Mid–Century Ins. Co. of Tex. v. Ademaj, 243 contain inadmissible hearsay” and the “Affidavits are S.W.3d 618, 621 (Tex.2007). When we review a from interested fact witnesses.” Stovall also objected to summary judgment granted in favor of a plaintiff, we the “exhibits attached to each of the said Affidavits and to determine whether the plaintiff established every element [HFC’s] Motions” because the exhibits are “irrelevant, of its claim as a matter of law. Ohio Cas. Ins. Co. v. Time contain hearsay, are unauthenticated documents and are Warner Entm’t Co., L.P., 244 S.W.3d 885, 888 not competent summary judgment proof.” Stovall (Tex.App.-Dallas 2008, pet. denied). To defeat a responded to HFC’s motion by arguing that other than plaintiff’s cause of action on a traditional motion for “mere conclusions, speculation, and hearsay, [HFC] has summary judgment, the defendant must either offered no proper, admissible summary judgment “conclusively negate an element of the plaintiff’s claim or evidence to support its alleged claim.” conclusively establish every element of an affirmative defense.” Id. A matter is conclusively established if *795 The trial court denied Stovall’s motion for summary ordinary minds cannot differ as to the conclusion to be judgment and granted HFC’s motion and amended motion drawn from the evidence. Holloway v. Dekkers, 380 with an award of $25,136.83 for unpaid rent. The trial S.W.3d 315, 320 (Tex.App.-Dallas 2012, no pet.). The court also overruled Stovall’s objections to HFC’s defendant, however, is not required to respond with summary-judgment evidence. The trial court signed an evidence if deficiencies in the plaintiff’s own proof or order on October 28, 2011, which stated that the case legal theories will defeat the movant’s right to judgment would proceed on Stovall’s DTPA counterclaim and as a matter of law. See City of Houston v. Clear Creek HFC’s claim for attorney’s fees. The trial court later Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). granted summary judgment in favor of HFC on Stovall’s counterclaim. After a bench trial on the issue of attorney’s The movant has the burden of showing that no genuine fees, the trial court awarded HFC $35,000 in attorney’s issue of material fact exists and that it is entitled to fees for representation in the trial court plus additional judgment as a matter of law. TEX.R. CIV. P. 166a(c); fees for successful representation on appeal. The trial Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 court incorporated its rulings in a final judgment signed (Tex.1994). In deciding whether a disputed material fact February 16, 2012. issue exists precluding summary judgment, we must take evidence favorable to the nonmovant as true, and we must Stovall appeals that judgment, challenging the trial court’s indulge every reasonable inference and resolve any summary judgment rendered on HFC’s claim for unpaid doubts in favor of the nonmovant. Sysco Food Servs., 890 rent (Issue One) and award of attorney’s fees (Issue Two). S.W.2d at 800. When, as here, the trial court’s order Stovall does not challenge the trial court’s denial of its granting summary judgment does not specify the basis for summary-judgment motion or the decisions related to its the ruling, we will affirm the summary judgment if any of DTPA counterclaim. the theories presented to the trial court are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003).

DISCUSSION

In its first issue, Stovall contends the trial court erred in *796 Admissibility of HFC’s Summary–Judgment granting HFC’s motion for summary judgment, which Affidavits resulted in HFC’s recovery of unpaid rent. Stovall claims the trial court relied upon inadmissible affidavits as We begin with Stovall’s contentions related to HFC’s evidence of an unenforceable oral contract for the lease of summary-judgment evidence. Stovall argues the affidavits

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)

HFC attached as summary-judgment evidence should not knowledge and set forth facts as would be admissible in have been considered as a basis for granting summary evidence. TEX.R. CIV. P. 166a(f). Thus, an affidavit judgment in favor of HFC because the affidavits are containing hearsay is objectionable and does not support a inadmissible as hearsay for which there is no exception. summary-judgment motion if proper objection is made. Although Stovall lodged objections to three affidavits and See Querner Truck Lines, Inc. v. Alta Verde Indus., Inc., various attachments submitted by HFC in the trial court, 747 S.W.2d 464, 468 (Tex.App.-San Antonio 1988, no the hearsay contention Stovall raises on appeal relates writ); see also TEX.R. EVID. 801(d) (defining hearsay). only to the affidavits of Barnes and Liegman and does not Inadmissible hearsay evidence admitted without appear to extend to any of the documents attached to the objection, however, shall not be denied probative value affidavits. merely because it is hearsay. See Pickens v. Pickens, 62 S.W.3d 212, 216 n. 2 (Tex.App.-Dallas 2001, pet. denied) Both Barnes and Liegman testified to their personal (citing TEX.R. EVID. 802); Dolenz v. A.B., 742 S.W.2d dealings with Stovall, which included communications 82, 83–84 n. 2 (Tex.App.-Dallas 1987, writ denied); see related to the firm’s desire to occupy additional suites in also Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d the building because the firm needed extra space and the 230, 234 (Tex.1962) (unchallenged *797 deficiencies can timing of the firm’s possession of the additional suites support affirmance of summary judgment). within the building. They testified to the dates Stovall [3] [4] [5] took possession of each suite and the square footage of An objection that an affidavit contains hearsay is the suite. Both also made statements that as Stovall an objection to a defect in the form of the affidavit. S & I expanded into the other suites, the firm agreed to pay rent Mgmt., Inc. v. Choi, 331 S.W.3d 849, 855 for that suite at a certain price, which was based on a (Tex.App.-Dallas 2011, no pet.). Defects in the form of price of $15.25 per square foot, and that Stovall agreed to affidavits are not grounds for reversal unless specifically lease each additional suite through September 30, 2010. objected to by the opposing party with the opportunity but Liegman testified that at the time she left her employment refusal to amend. TEX.R. CIV. P. 166a(f). An objection is with HFC in February 2010, there was an agreement sufficiently specific if it makes the trial court aware of the between HFC and Stovall that “upon renewal of their precise nature of the complaint such that it can make an lease at the end of September, 2010, a new lease would be informed ruling. TEX.R.APP. P. 33.1(a)(1)(A); TEX.R. prepared to incorporate all the Suites which they intended EVID. 103(a)(1). If any part of a piece of evidence is to occupy.” She further stated that Stovall “agreed to pay admissible, a blanket hearsay objection that does not rent for the Suites which it had occupied.” identify which parts contain hearsay is not enough; rather, the objecting party must make specific objections to each Stovall complains that “the declarants mention several component part of a particular piece of evidence to times that ‘Stovall and Associates agreed to pay rent ...’ preserve error on appeal. See Flores v. City of Liberty, for a specific suite or amount of time.” Stovall also 318 S.W.3d 551, 560 (Tex.App.-Beaumont 2010, no pet.); complains about this statement in Barnes’s affidavit: “Bill see also Speier v. Webster College, 616 S.W.2d 617, 619 Lamkin ... notified Stovall & Associates, P.C. that (Tex.1981) (“ ‘A general objection to a unit of evidence effective May, 2010, HFC would accept $9,224.57 per as a whole, ... which does not point out specifically the month as their monthly rent for Suites 201, 217, 300, 305, portion objected to, is properly overruled if any part of it 307, 309, 311 and 312.” Stovall claims these statements is admissible.’ ”) (quoting Brown & Root, Inc. v. Haddad, constitute hearsay because they are being offered to prove 142 Tex. 624, 180 S.W.2d 339, 341 (1944)). Absent a that it “did indeed orally agree to pay rent on suites that specific objection, the complaining party waives any were not included in the original lease.” It further argument to the improper admission or consideration of maintains that statements regarding Stovall’s agreement the evidence. Speier, 616 S.W.2d at 619. to pay rent do not constitute admissions by a party [6] opponent. As part of its response to HFC’s motion and amended motion, Stovall generally objected to the three affidavits HFC argues that Stovall waived these complaints to the (“as well as the exhibits attached thereto”) as a whole Barnes and Liegman affidavits by failing to present the because: “[t]he Affidavits contain inadmissible hearsay” trial court with specific objections identifying the and “[t]hese Affidavit[s] contain nothing but hearsay on particular statements, which were the subject of its top of hearsay ....” Stovall did not direct the trial court’s hearsay objection. We agree with HFC. attention to any specific statements contained in the affidavits that it considered problematic, such as the [1] [2] To constitute competent summary-judgment statements it complains about on appeal, or explain why evidence, an affidavit must be based on personal any of the statements were hearsay. Without greater

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)

specificity, the trial court was not given sufficient contract; (2) its performance or tendered performance; (3) information to make an informed ruling nor did HFC have Stovall’s breach of the contract; and (4) damages as a an opportunity to correct the defect. result of the breach. Paragon Gen. Contractors, Inc. v. Larco Constr., Inc., 227 S.W.3d 876, 882 Our examination of the affidavits also shows that some (Tex.App.-Dallas 2007, no pet.); see also Esty v. Beal portions of the affidavits certainly were admissible. For Bank S.S.B., 298 S.W.3d 280, 299 (Tex.App.-Dallas example, both Barnes and Liegman testified to the dates 2009, no pet.) (“A breach of contract occurs when a party Stovall took possession of each additional suite, which fails to perform an act that it has expressly or impliedly were facts stipulated to by the parties. Thus, even promised to perform.”). assuming Stovall is correct that the complained-of statements are inadmissible as hearsay and no exception Stovall argues the trial court erred in granting summary applies, because portions of the affidavits were judgment on HFC’s claim for unpaid rent. It attacks the admissible, Stovall was required to specifically object to first element of HFC’s claim—the existence of a valid the statements that were allegedly inadmissible. See id. contract—and argues any oral contract(s) to lease and pay Because Stovall failed to do so, we conclude Stovall’s rent on the additional suites as alleged by HFC are hearsay complaints are waived and the trial court properly unenforceable under the statute of frauds. Stovall also considered these affidavits. maintains there are issues of fact related to the interpretation of any agreements on the rental of additional suites not listed in the signed lease agreement.

HFC’s Entitlement to Summary Judgment As A Matter of Law Statute of Frauds [8] [9] The statute of frauds concerns problems of proof and Before we address whether HFC is entitled to summary exists to prevent fraud and perjury in certain kinds of judgment, we note that the complaints Stovall raises on transactions by requiring agreements to be set out in appeal relate solely to the unpaid rent awarded to HFC for writing and signed by the parties. Haase v. Glazner, 62 the additional suites Stovall occupied that were beyond S.W.3d 795, 799 (Tex.2001); RESTATEMENT what was in the original lease agreement. It is undisputed (SECOND) OF CONTRACTS § 131 cmt. c (1981). The that the parties signed one lease agreement, in which statute of frauds is an affirmative defense in a breach of Stovall agreed to lease suite 201 for $2,135 per month contract suit and renders a contract that falls within its through September 30, 2010. Stovall vacated the property purview unenforceable. See TEX.R. CIV. P. 94; TEX. in early August 2010 and did not pay the rent owed for BUS. & COM.CODE ANN. § 26.01(a) (West 2009); see that suite for the remaining two months. The record shows also S & I Mgmt., 331 S.W.3d at 854. that the trial court awarded HFC the “[r]ent due for Suite 201” for August and *798 September 2010, which was [10] [11] The statute of frauds encompasses leases of real $4,270 ($2,135 + $2,135). Stovall does not appear to estate for a term longer than one year and agreements that challenge this portion of HFC’s award. are not to be performed within one year from the date of making the agreement. TEX. BUS. & COM.CODE ANN. It also is undisputed that Stovall expanded into and § 26.01(b)(5), (6). The statute of frauds renders these occupied seven additional suites at various times types of agreements unenforceable unless the agreement beginning in December 2008. Those suites were suites is in writing and signed by the person to be charged. See 217, 307, 309, 311, 312, 305, and 300 (in order of when id. § 26.01(a). The question of whether an agreement falls Stovall took possession). HFC alleged a series of oral within the statute of frauds is one of law. See Bratcher v. agreements that form the basis of its request for unpaid Dozier, 162 Tex. 319, 346 S.W.2d 795, 796 (1961); Biko rent on those additional suites. The trial court granted v. Siemens Corp., 246 S.W.3d 148, 159 (Tex.App.-Dallas summary judgment for HFC on its unpaid rent claim for 2007, pet. denied). Yet the question of whether an those seven suites and awarded HFC $19,494.63, the exception to the statute of frauds applies is generally a “Total rent due” for the seven suites from December 2009 question of fact. See Adams v. Petrade Int’l, Inc., 754 through April 2010. The trial court also awarded HFC a S.W.2d 696, 705 (Tex.App.-Houston [1st Dist.] 1988, prorated amount of $1,372.20 for rental of those suites for writ denied). six days in August 2010. [7] HFC argues that the agreements to lease the additional To prevail on its claim for unpaid rent for the additional suites do not fall within the statute of frauds because they suites, HFC must prove (1) the existence of a valid are for lease terms of less than one year and could be © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)

performed within one year of the dates the agreements and 309) was from a period of November 15, 2009 were made. HFC also argues the series of documents, through September 30, 2010, which is plainly less than including *799 the e-mails between representatives of the one year. parties, HFC submitted as summary-judgment evidence were sufficient to constitute an agreement in writing to Stovall, as the party pleading the statute of frauds, bore satisfy the statute of frauds and support enforcement of the burden of establishing its applicability; that is, the the agreements to pay rent on the additional suites. HFC agreements to lease the additional suites were for more further maintains that even if the statute of frauds applies, than one year or could not be performed within a year of Stovall’s partial performance rendered the defense the date of making the agreements. See Kalmus v. Oliver, unavailable to Stovall. 390 S.W.3d 586, 590 (Tex.App.-Dallas 2012, no pet.). Stovall moved for traditional summary judgment on its [12] We agree with HFC that the agreements to lease and statute-of-frauds defense. It argued that the unsigned lease pay rent on six of the suites, specifically, suites 307, 309, agreement was unenforceable under the statute of frauds 311, 312, 305, and 300, do not fall within the statute of because performance was for more than one year after the frauds because they do not involve the lease of real estate commencement of the lease. It supported its motion with for more than one year or could be performed within one the unsigned lease agreement, which had been prepared year from the date the agreements were made. HFC by HFC, and the affidavit of Jewell in which she testified alleged agreements with Stovall to pay rent on the there was no signed lease agreement for any suite other additional suites. The agreements were effective on than suite 201. The unsigned lease agreement also was various dates based on the timing of when Stovall took attached to Liegman’s affidavit and submitted as part of possession of the suites. The record shows the parties HFC’s summary-judgment evidence. stipulated to the dates that Stovall expanded into the additional suites: The stipulated facts show that Stovall *800 The unsigned lease agreement pertained to suites began using suites 307 and 309 on November 15, 2009, 201, 217, 307, and 309. The agreement provided that the suites 311 and 312 on February 1, 2010, and suites 305 lease term was for a period of twenty-four months and and 300 on March 1, 2010. HFC’s claim for unpaid rent listed three “Commencement Date(s)” corresponding to on those suites corresponded to the dates Stovall began when Stovall moved into suites 201, 217, 307, and 309. using the suites. For example, HFC alleged as of The lease term did not specify that the 24–month lease December 2009, Stovall was occupying suites 201, 217, term began from each commencement date; rather, it was 307, and 309 but that Stovall paid rent only for suites 201 for “a period” of twenty-four months that could only and 217. The trial court awarded unpaid rent for suites logically begin when Stovall first took possession of its 307 and 309 for five months, beginning in December first suite, which was suite 201, effective October 1, 2008. 2009 and ending April 2010, plus six days in August Further, the trial court did not treat each expansion as 2010. beginning a new 24–month term. It treated each expansion as a month-to-month lease and awarded Barnes and Liegman testified that the agreement to lease damages accordingly. Liegman testified that for each suite each suite was effective on the date Stovall took Stovall took possession of and occupied beyond suite 201, possession of the suite and Stovall agreed to lease the the agreement was to lease the space through the end of suites under the same terms and price per square foot September 30, 2010. through September 30, 2010. Liegman also testified that “upon renewal of [Stovall’s] lease at the end of Other than the documents described above, Stovall September 2010,” a new lease would be prepared that presented no additional summary-judgment evidence in incorporated all the suites Stovall intended to occupy. response to HFC’s motion and amended motion; Stovall simply argued that because HFC did not produce “any [13] To measure a contract’s duration for statute-of-frauds proper, admissible summary judgment evidence to prove purposes, the “court simply compares the date of the the claimed proposition,” HFC is not entitled to summary agreement to the date when the performance under the judgment as a matter of law. We conclude Stovall did not agreement is to be completed.” Young v. Ward, 917 meet its burden to show the agreements to lease additional S.W.2d 506, 508 (Tex.App.-Waco 1996, no writ). And if suites as alleged by HFC were unenforceable because there is a year or more between those two reference they were for more than one year or could not be points, then a writing is required to render the agreement performed within one year from the date of making the enforceable. Id. Here, there is less than a year between the agreement. Thus, the oral agreements to lease suites 307, beginning dates for each expansion to the end of 309, 311, 312, 305, and 300 are not barred by the statute September 2010. The longest agreement (for suites 307 of frauds.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)

Carmack v. Beltway Dev. Co., 701 S.W.2d 37, 40 The oral agreement to lease suite 217, however, requires a (Tex.App.-Dallas 1985, no writ). But the case before us different analysis because the stipulated facts show that involves a lessor’s attempt to enforce an oral agreement any agreement to lease suite 217 was for more than one for lease of real estate. In such circumstances, the partial year and therefore is within the statute of frauds. TEX. performance exception to the statute of frauds has been BUS. & COM.CODE ANN. § 26.01(a), (b)(5), (6). There applied to prevent application of the statute when the is no dispute that Stovall occupied suite 217 and paid rent lessor fully performs and the lessee knowingly accepts the for the suite from December 2008 through July 2010. benefits of the oral agreement to lease and partly HFC’s summary-judgment evidence includes check stubs performs. See, e.g., Carmack, 701 S.W.2d at 40 showing Stovall’s payment for rent on “Sts 201 & 217.” (seller/lessor may be entitled to enforce oral agreement if And Stovall admitted in its opening brief that it “had paid it shows “performance of the contract by delivery of rent for the additional Suite 217.” But HFC also alleged possession to the purchaser and a detrimental change of that Stovall owed rent for all suites, including suite 217, position for which the [vendor/lessor] has no adequate in August and September 2010, and the trial court remedy.”); see also Newsom v. Newsom, 378 S.W.2d 842, awarded recovery of unpaid rent for the suites other than 844–45 (Tex.1964) (lessor permitted to recover rent suite 201 through August 6, 2010. We therefore must stipulated in oral lease for more than one year); Tinsley v. determine whether the statute of frauds precludes Metzler, 44 S.W.2d 820, 822 (Tex.Civ.App.-El Paso recovery of unpaid rent for suite 217 for the six days in 1931, writ dism’d w.o.j.) (“[W]here the tenant has gone August 2010. into possession and paid rent, this is such part performance as takes the transaction out of the operation [14] [15] HFC argues that Stovall’s partial performance of the statute [of frauds] and renders it unavailable as a renders the statute-of-frauds defense unavailable to defense” in an action for unpaid rent.). Stovall. Partial performance has been recognized as an [16] equity-based exception to the statute of frauds. Bank of Here, HFC permitted Stovall to occupy its property, Tex., N.A. v. Gaubert, 286 S.W.3d 546, 553 and Stovall paid rent for the majority of that time. (Tex.App.-Dallas 2009, pet. dism’d w.o.j.). Under this Specifically, the summary-judgment evidence shows exception, “an oral agreement that does not satisfy the Stovall occupied suite 217 for over a year and a half and traditional statute of frauds but that has been partially paid full rent on the suite on a monthly basis until August performed may be enforced if denying enforcement 2010. HFC accepted Stovall’s possession of the suite (as would itself amount to a fraud.” Id. at 554; Exxon Corp. v. evidenced by e-mail communications attached to Barnes’s Breezevale Ltd., 82 S.W.3d 429, 439 (Tex.App.-Dallas affidavit showing HFC performed maintenance services, 2002, pet. denied). The actions asserted to constitute such as temperature and pest control, related to suite 217) partial performance must be “unequivocally referable” to and accepted the rent payments. Liegman testified that a the alleged oral agreement and corroborate the existence written lease agreement was prepared at one point to of that agreement; they “must be such as could have been cover suite 217 (as well as suites 201, 307, and 309), but done with no other design than to fulfill the particular that “as a result of Stovall’s uncertainty as to when they agreement sought to be enforced.” Breezevale, 82 S.W.3d wished to take possession of Suites 307 and 309, at 439–40. execution of this lease was delayed.” She also stated that when the original lease agreement expired in September Citing Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 2010, a new lease would be prepared to incorporate all 1114, 1116 (1921), Stovall *801 argues that to establish suites occupied by Stovall. These acts are sufficient to partial performance, HFC must show: (1) payment of corroborate the existence of an agreement to lease 217 consideration by the purchaser/lessee; (2) possession of and could not have been performed with any purpose the property by the purchaser/lessee; and (3) permanent except to perform an agreement to lease and pay rent for and valuable improvements by the purchaser/lessee with suite 217. See Wukasch v. Hoover, 247 S.W.2d 593, 595 the consent of the landlord, or without such (Tex.Civ.App.-Austin 1952, no writ). We therefore improvements, the presence of other facts as would make conclude Stovall’s partial performance with respect to an the transaction a fraud upon the purchaser/lessee if it were agreement to lease and pay rent for suite 217 is supported not enforced. We agree this test applies in the context of a by the summary-judgment record, which removes the purchaser or lessee attempting to enforce an oral agreement from the statute of frauds.2 agreement pertaining to the sale or lease of real property. See id.; Swinehart v. Stubbeman, McRae, Sealy, Laughlin 2 We note that the party successful in removing an oral & Browder, Inc., 48 S.W.3d 865, 882–83 agreement from the statute of frauds because of partial (Tex.App.-Houston [14th Dist.] 2001, pet. denied); performance would be entitled to only reliance

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)

damages. See Breezevale, 82 S.W.3d at 441. Stovall did To defeat HFC’s claim for unpaid rent on a traditional not attack the measure of damages, and we therefore motion for summary judgment, Stovall had the burden to decline to address whether HFC suffered reliance come forward with evidence to negate an element of the damages. HFC’s claim. See Ohio Cas. Ins. Co., 244 S.W.3d at 888. In its response to HFC’s motion and amended motion, however, Stovall did not file any controverting evidence. Instead, it responded by filing objections to HFC’s summary-judgment evidence, which were overruled. And *802 Claimed Issues of Fact in this Court, Stovall does not direct our attention to any Because the statute of frauds does not bar the oral summary-judgment evidence to support its contention that agreements to lease suites 307, 309, 311, 312, 305, and any oral agreements to pay additional rent did not take 300 and the statute is unavailable due to partial place or the purpose and origin of the increased payments performance related to the agreement to lease suite 217, in May, June, and July 2010. On the latter contention, it we next consider whether fact issues remain precluding merely cites “CR xx.” summary judgment for HFC. Stovall argues HFC failed to establish its entitlement to judgment as a matter of law on In its reply brief, Stovall argues there are “fact issues as to its claim for unpaid rent because “genuine issues of whether Stovall agreed to lease or to pay rent for the material fact still existed on several issues.” Stovall first office suites for which there were no written leases” contends that the affidavit testimony of Barnes and because the affidavits of Barnes, Liegman, and Lamkin do Liegman that alleged oral agreements entered into by a not meet the requirements for affidavits from interested Stovall employee raises a fact issue because Stovall witnesses. Stovall clarifies that the point of its argument disputes that any oral agreement to pay additional rent “is not that these affidavits were not admissible, but only took place. Stovall further maintains there is a fact issue that they failed to establish conclusively that Stovall on “the purpose and origin of the increased payments” by agreed to lease or to pay rent for the additional suites.” Stovall to HFC in May, June, and July of 2010. It claims that although Barnes stated the increased payment was to *803 [17] The rules of appellate procedure provide that an pay rent on the additional suites, Stovall argues that its appellant “may file a reply brief addressing any matter in “pleadings [alleged] that these increased payments were the appellee’s brief.” TEX.R.APP. P. 38.3. But an issue intended to satisfy a security deposit.” raised for the first time in a reply brief is ordinarily waived and may not be considered by this Court. See The affidavits and other evidence HFC submitted as Collin Cnty. v. Hixon Family P’ship, Ltd., 365 S.W.3d summary-judgment evidence provided relevant factual 860, 877–78 (Tex.App.-Dallas 2012, pet. denied); Dallas details underlying each element of its claim. Barnes and Cnty. v. Gonzales, 183 S.W.3d 94, 104 (Tex.App.-Dallas Liegman testified to the executed lease agreement and 2006, pet. denied). identified each suite added to Stovall’s leased premises, including the dates when Stovall took possession of each Stovall nevertheless contends this argument is a additional suite, the rent due for each suite based on the subsidiary issue covered under its general assertion that price per square footage, and the duration of the “genuine issues of material fact still existed on several agreements. Liegman testified to Stovall’s agreement to issues.” (citing TEX.R.APP. P. 38.1(f)). It asserts that this lease and pay rent as it took possession of the suites, argument “raises this Court’s authority and obligation to Stovall’s failure to pay the rent due, and the amount of scrutinize the summary judgment evidence to determine money owed in unpaid rent. Similarly, Lamkin testified to whether [HFC] conclusively established its entitlement to a period of unpaid rent and the amount. The e-mail judgment as a matter of law.” Counsel for Stovall also communications identified Kay Wilbanks as the Stovall stated at oral argument that this issue was embraced in the representative who requested the additional suites, and the contention raised in Stovall’s opening brief that the trial letters of intent signed by Kimberly Stovall (or her court erred when it relied on inadmissible affidavits. representative) show the terms Stovall sought to lease certain suites. Thus, HFC established a series of oral Although related to Stovall’s challenge of the trial court’s agreements to lease the seven additional suites, Stovall grant of summary judgment, the argument Stovall raises took possession of the suites and occupied the suites until in the reply brief is wholly different from arguments August 2010, Stovall breached the agreements by failing raised in its opening brief, in which Stovall only to pay rent on the additional suites, and HFC suffered challenged the summary-judgment evidence on hearsay damages as a result of the nonpayment. grounds and asserted issues of fact remained “even if” the affidavits are admissible. Stovall’s opening brief does not

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)

even mention the interested-witness ground—an objection Constr. Co., 162 S.W.3d at 668. it raised in the trial court—much less make any arguments [22] that the affidavits raise fact issues because they are from By rendering summary judgment in favor of HFC, the interested witnesses. That Stovall could have but did not trial court rejected Stovall’s statute-of-frauds defense and make such an argument in its opening brief does not allow determined that in addition to the signed lease, there were it to do so for the first time in its reply brief. See López v. oral agreements to lease the additional suites. HFC was Montemayor, 131 S.W.3d 54, 61 (Tex.App.-San Antonio awarded unpaid rent in the amount of $25,136.83 for 2003, pet. denied) (“A reply brief is not intended to allow Stovall’s breach of those agreements. Because HFC an appellant to raise new issues.”). This argument is not prevailed on its claim for unpaid rent, the trial court did properly before us. not err in awarding attorney’s fees for breach of contract. See Ochoa, 262 S.W.3d at 33. After reviewing the summary-judgment record, we conclude HFC met its summary-judgment burden The issue of the amount of attorney’s fees was tried to the showing it was entitled to summary judgment as a matter bench. HFC’s attorney submitted his resume, the of law on its claim for unpaid rent and that no genuine September 14, 2010 presentment letter to Stovall, and the issues of material fact exist as to the elements of HFC’s billing records for the representation. He sought $38,250 breach of contract claim. TEX.R. CIV. P. 166a(c). We in fees through trial and testified the fees sought were overrule Stovall’s first issue. reasonable based on the time and labor involved, the skill required, the customary fee charged, the amount involved and the results, and his experience, reputation, and ability. Stovall did not cross-examine HFC’s attorney; rather, it objected that there was no basis for attorney’s fees Trial Court’s Award of Attorney’s Fees to HFC because “there ha[d] been no contract proven.” The trial [18] court reduced HFC’s request “slightly” and awarded In its second issue, Stovall contends the trial court $35,000 in attorney’s fees through trial plus amounts if erred in awarding “unreasonable” attorney’s fees to HFC HFC prevailed on appeal. The trial court acknowledged because no enforceable contract existed upon which HFC that it was “awfully loath” to award attorney’s fees in could sue for breach. We generally review a trial court’s excess of the actual damages, but it stated, “the record in decision to award attorney’s fees for an abuse of this matter overall will reflect that it was seriously discretion. Bocquet v. Herring, 972 S.W.2d 19, 21 contested, [and] that there was a certain amount of (Tex.1998). dilatory and obstructive behavior on the part of [Stovall].” [19] [20] [21] Section 38.001 of the Texas Civil Practice and Without citation to any authority, Stovall argues the Remedies Code permits the recovery of reasonable award of attorney’s fees, which was “in excess of the attorney’s fees in a suit on an oral or written contract. actual judgment is not customary or reasonable for a TEX. CIV. PRAC. & REM.CODE ANN. § 38.001(8) breach of contract case.” We disagree, and after reviewing (West 2008). To recover attorney’s fees in a suit based on the record, we conclude the trial court did not abuse its a contract, a party must prevail on the cause of action and discretion in awarding $35,000 in attorney’s fees to HFC. recover damages. Ochoa v. Craig, 262 S.W.3d 29, 33 We overrule Stovall’s second issue. (Tex.App.-Dallas 2008, pet. denied). While the trial court has the discretion to set the amount of an attorney’s fees, Based on our resolution of Stovall’s issues, we affirm the it has no discretion to deny the fees if they are proper trial court’s judgment. under section 38.001. Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547 (Tex.2009); RM Crowe Prop. Servs. Co., L.P. v. Strategic Energy, L.L.C., 348 S.W.3d 444, 452 (Tex.App.-Dallas 2011, no pet.); *804 Hassell All Citations Constr. Co. v. Stature Commercial Co., 162 S.W.3d 664, 668 (Tex.App.-Houston [14th Dist.] 2005, no pet.). It is 409 S.W.3d 790 presumed that usual and customary attorney’s fees are reasonable, but this presumption may be rebutted. Hassell End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13