NO. 07-04-0502-CR
07-04-0503-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
DECEMBER 7, 2004
______________________________
FRANCISCO PEREZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 45,533-A, 45,534-A; HONORABLE HAL MINER, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Appellant Francisco Perez appeals from two proceedings in the 47th District Court.
We dismiss for want of jurisdiction.
Appellant was indicted in Potter County for indecency with a child by sexual contact
(trial court cause number 45,533-A; appellate cause number 07-04-00502-CR) and
aggravated sexual assault of a child (trial court cause number 45,534-A; appellate cause
number 07-04-00503-CR). By orders dated March 25, 2004, both causes were dismissed
because of re-indictments. On October 8, 2004, notice of appeal was filed as to each trial
court proceeding. We have abated each appellate proceeding pending determination of
appellate jurisdiction.
In a criminal case, appeal is perfected by timely filing a notice of appeal. Tex. R.
App. P. 25.2(b). As is relevant to these proceedings, the notice of appeal must be filed
within 30 days after the day the trial court enters an appealable order. TRAP 26.2(a). An
untimely-filed notice of appeal will not invoke the jurisdiction of the court of appeals. See
State v. Riewe, 13 S.W.2d 408, 411 (Tex.Crim.App. 2000). Thus, if an appeal is not timely
perfected, a court of appeals can take no action other than to dismiss the appeal. Slaton
v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998); Olivo, 918 S.W.2d at 523-25.
Appellant's notices of appeal were not timely filed. This court does not have
jurisdiction over the appeals. Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 523.
The appeals are dismissed for want of jurisdiction. Tex. R. App. P. 39.8, 40.2, 43.2.
Phil Johnson
Chief Justice
Do not publish.
mortgage, encumber or otherwise deal with any real
property without the necessity of joinder of the other general partner.
Capital accounts for each partner were established in accordance with IRS Treasury
regulations related to partnerships. Their capital accounts were credited with the fair
market value of each partner's capital contribution and subsequently debited with the fair
market value of distributions to each partner. The initial capital contributions of stock and
cash were allocated identically to Tina Brogan and Dr. Brogan: one percent (1%) to each
as a general partner and forty-nine percent (49%) to each as a limited partner. Later that
year, Dr. Brogan made a gift to Tina of forty percent (40%) of his limited partnership
interest altering the ownership interests in their capital accounts. The end result was that
Dr. Brogan owned, as his separate property, 1% as a general partner and nine percent
(9%) as a limited partner, and Tina owned, as her separate property, 1% as a general
partner and 89% as a limited partner. The percentages of ownership remained the same
through the Brogans' divorce.
Under the Partnership Agreement, the percentage of the capital account owned by
each partner affected their relative ownership interests in the partnership assets.
Subsequent capital contributions or distributions also affected a partner's ownership
interest. For instance, if the percentages of ownership for each partner started at seventy
percent (70%) and thirty percent (30%), and there were no withdrawals or contributions,
then their percentage of ownership stayed the same throughout the life of the partnership.
However, if the partner with a thirty percent (30%) interest contributed additional capital,
then their thirty percent (30%) interest would increase and the other partner's seventy
percent (70%) interest would decrease proportionately. If the partner with seventy percent
(70%) interest took money out of the partnership, then their seventy percent (70%) interest
would decrease and the other partner's thirty percent (30%) interest would increase
proportionately. Partnership losses were applied to the capital accounts according to the
partners' ownership interests.
In 2000, the Brogans decided to purchase a building from which Dr. Brogan would
conduct his medical practice. The Brogans contacted Cindy Snell, a real estate agent, to
assist them in their search for property. They eventually settled on a building in Lubbock,
and acquired a loan from Clay Leaverton, a loan officer at American State Bank, to
purchase and remodel the building. In August 2000, the Brogans closed on a note and at
the suggestion of Neriman Guven, the partnership's accountant, the building was placed
in the name of Brogan Ltd.
Dr. Brogan subsequently moved his practice into the building where he continued
his practice until the Brogans were divorced. Shortly thereafter, Dr. Brogan moved out of
the building and ceased paying rent to Brogan Ltd. In August 2002, Tina signed a listing
agreement with Snell to sell the building. Snell entered into negotiations with an orthopedic
group. The group signed a contract contingent on a successful feasibility study. The
feasibility study failed, but the parties continued to negotiate. In order to make the deal
more attractive for the buyer, Dr. Brogan agreed to include the x-ray equipment and
telephone system used in his practice.
In December 2002, Dr. Brogan requested that his attorney send a letter to Tina's
attorney indicating the orthopedic group's contract was dependent on the successful
outcome of a second feasibility study based upon an assumption that Dr. Brogan would
contribute his x-ray equipment and telephone system to the building's sale. (2) The letter also
indicated that, if the sale was completed using his contribution, he would consider the
contribution to be a personal capital contribution to Brogan Ltd., thereby crediting his
capital account. He received no response to his letter.
On February 14, 2003, the sale of the building closed, and the x-ray equipment and
telephone system were contributed toward the sale and accepted by the buyers. Brogan
Ltd. suffered a loss on the sale of the building. After the closing, Dr. Brogan went to the
Bank and signed papers to purchase and transfer the leased equipment. Dr. Brogan
testified that he waited until the building sold because he was concerned the orthopedic
group might back out. BancLeasing calculated the value of the leased equipment and
agreed to transfer ownership to Brogan P.A. for $243,574.02. Brogan P.A. transferred the
equipment to Dr. Brogan and he transferred the equipment to Brogan Ltd. as a personal
capital contribution.
Guven subsequently conducted an accounting to determine the effect of the loss
incurred on the building's sale and Dr. Brogan's subsequent capital contribution on the
capital accounts of Tina Brogan and Dr. Brogan. In conformance with the sequence in
which the transactions occurred, she first deducted the losses from the sale of the building
from the partners' capital accounts, and then added Dr. Brogan's capital contribution to his
individual capital account. Accordingly, the $444,904.94 loss on the sale of the building was
charged to the capital accounts of the partners in accordance with the percentages as they
existed prior to the sale. Guven then valued the leased equipment at $243,574.02 and
credited the capital account of Dr. Brogan in accordance therewith. According to Guven,
BancLeasing's valuation supplied the fair market value of the leased equipment because
the sale was an arm's length transaction between unrelated parties, neither of which was
under an obligation to purchase or to sell.
II. Procedural
The case below involved two parts: Appellants' action seeking damages for breach
of contract, fraud, conversion, promissory estoppel, partial performance and breach of
partnership fiduciary duties and Appellees' counterclaim seeking an accounting of Brogan
Ltd.'s capital accounts, distribution of its partnership assets, and dissolution.
In 2003, Appellants filed motions for a final accounting to determine their respective
partnership interests in Brogan Ltd. and a final distribution of the partnership assets.
Appellants specifically requested that the trial court enter an order directing the disposition
of Brogan Ltd.'s remaining assets in accordance with the Brogans' ownership interests.
Appellees filed similar motions. Per the parties' agreement, the trial court ordered that an
accounting be conducted by Guven. (3)
Guven conducted an accounting of the Brogans' capital accounts from Brogan Ltd.'s
inception to April 30, 2003. She determined the status of the capital accounts and the
partners' ownership interests. In her opinion, the accounting complied with the terms of the
Partnership Agreement, IRS Treasury Regulations, and generally accepted accounting
practices. She also opined that the accounting fairly and accurately stated the position of
the capital accounts as of April 30, 2003.
In January 2004, Judge Sam Medina held a two-day hearing on the parties' motions.
The Brogans and Guven testified. Guven's accounting was accepted into evidence without
objection. In October 2004, Judge Medina sent a letter to the parties indicating that he
intended to dissolve the partnership and order a distribution of its assets based upon
Guven's testimony and accounting. In December 2004, Judge Medina issued an order
distributing the partnership assets. In apparent recognition of Dr. Brogan's capital
contribution of the leased equipment in 2003 of $243,574.02, the trial court distributed
$318,695.22 to Dr. Brogan, and Tina received the remaining assets. Judge Medina's order
indicated that it was not a final judgment on the merits insofar as the assets were
concerned, but a preliminary order pending a final resolution of Appellants' remaining
issues.
In March 2005, Appellants filed their Third Amended Petition. The Amended Petition
asserted various contract and tort actions. Among the damages sought by Appellants was
a claim for damages based upon Dr. Brogan allegedly requesting or requiring Guven to
credit him with valueless capital contributions in order to significantly reduce Tina's
ownership in Brogan Ltd. while substantially increasing his ownership interest.
Following trial, the court granted a directed verdict on Appellants' claim of promissory
estoppel and then charged the jury on Appellants' remaining claims for partial performance
and breach of partnership duties. The jury returned a verdict in Appellees' favor.
Appellants filed motions for judgment notwithstanding the verdict, reconsideration and a
new trial. All post-verdict motions were denied. On May 27, 2005, the trial court entered
judgment that Appellants take nothing from Appellees and this appeal followed.
DISCUSSION
Appellants contend the trial court erred in its distribution of the partnership assets
following the bench trial, and again when the trial court overruled Appellants' Motion for
Judgment Notwithstanding the Verdict upon conclusion of the jury trial. Appellants assert
they were entitled to a finding, in both proceedings, that Dr. Brogan was not entitled to a
capital contribution to his partnership account for the leased equipment, and consequently
judgment as a matter of law. Appellants next contend that the trial court's rejection of a
tendered jury instruction entitles them to judgment as a matter of law or reversal/remand.
And finally, Appellants ask this Court to reverse the trial court's directed verdict on their
affirmative action for promissory estoppel and remand for a new trial on the merits.
I. Legal Standards
The factual findings of a trial court are reviewed under the same legal and factual
sufficiency standards applicable to jury findings. RAJ Partners, LTD. v. Darco Construction
Corp., 217 S.W.3d 638, 648 (Tex.App.--Amarillo 2006, no pet.). Here, where the trial court
issued no specific findings of fact or conclusions of law following the bench trial, the
judgment implies all findings of fact necessary to support it. Sotelo v. Gonzales, 170
S.W.3d 783, 787 (Tex.App.--El Paso 2005, no pet.). And, where judgment is premised on
a jury verdict, the court considers the evidence in a light most favorable to the verdict, and
indulges every reasonable inference that would support it. City of Keller v. Wilson, 168
S.W.3d 802, 822 (Tex. 2005).
Legal sufficiency points of error are designated "no evidence points" or "matter of law
points" depending upon whether the complaining party had the burden of proof. Raw Hide
Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275-76 (Tex.App.--Amarillo
1988, writ denied). The appropriate legal sufficiency challenge to a fact finding upon which
the complaining party does not have the burden of proof is a "no evidence" point. Id.
Conversely, the appropriate legal sufficiency challenge to a fact finding upon which the
complaining party had the burden of proof is a "matter of law" point. Id.
In reviewing a "no evidence" point, we consider only the evidence and inferences
tending to support the trial court's finding, disregarding all contrary evidence and inferences.
Id. If there is more than a scintilla of evidence to support the finding, the "no evidence"
challenge must fail. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).
More than a scintilla of evidence exists when the evidence rises to a level that would enable
reasonable and fair minded people to differ in their conclusions. Id. Less than a scintilla
of evidence exists when the evidence is so weak as to do no more than create a mere
surmise or suspicion of fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.
2003), cert. denied, 541 U.S.1030, 124 S.Ct. 2097, 158 L.Ed.2d 711 (2004).
In reviewing "matter of law points," the party who bore the burden of proof below on
the challenged issue must show on appeal that a contrary finding was established as a
matter of law. RAJ Partners, 217 S.W.3d at 648. First, we examine the record for evidence
supporting the court's finding, ignoring all evidence to the contrary. Id. If no evidence
appears to support the finding, we must then examine the entire record to determine
whether the contrary position is established as a matter of law. Id. The standard on appeal
is whether the findings were against the great weight and preponderance of the evidence
or should be reversed as a matter of law. Double Ace, Inc. v. Pope, 190 S.W.3d 18, 28
(Tex.App.--Amarillo 2005, no pet.).
In making this review, we are not a fact finder and we do not substitute our judgment
for that of the trial court or jury, even if a different answer could have been reached on the
evidence. Columbia Medical Center Subsidiary, L.P. v. Meier, 198 S.W.3d 408, 414
(Tex.App.--Dallas 2006, pet. denied). It is well established that the jury weighs the
evidence, assesses the credibility of witnesses and resolves conflicts and inconsistencies;
id., and, in a bench trial, the judge as the trier of fact performs these same functions. Intec
Systems, Inc. v. Lowrey, 230 S.W.3d 913, 920 (Tex.App.--Dallas 2007, no pet. h.).
II. Issue One
Appellants contend they are entitled to judgment as a matter of law on the issues
related to the distribution of partnership assets ordered by the trial court after the bench
trial. In support, they argue that Dr. Brogan failed to establish the fair market value of his
capital contribution of the leased equipment and its subsequent transfer to Brogan Ltd. in
conformance with the Partnership Agreement. Because Dr. Brogan had the burden of proof
on these issues at the bench trial, we examine this challenge under a "no evidence"
standard of review.
As a subsidiary issue, Appellants also claim the trial court erred in overruling their
Motion for Judgment Notwithstanding the Verdict and rendering judgment for Appellees on
Appellants' claim for breach of partnership duties. Because Appellants had the burden of
proof on the remaining causes of action tried by jury, we examine this challenge under a
"matter of law" standard of review.
A. Bench Trial
1. Fair Market Value of the Leased Equipment
Appellees satisfied their burden of proof on this issue. Both Guven and Dr. Brogan
testified to the fair market value of the leased equipment. Guven was the only expert to
testify, and her accounting of the partnership assets and ownership interests in the capital
accounts was admitted without objection. She testified that the leased equipment
purchased by Dr. Brogan and contributed to the sale of the building owned by Brogan Ltd.
had a value of $243,574.02. According to Guven, the fair market value of the leased
equipment was determined by BancLeasing, a disinterested party.
Guven testified the equipment was leased under an operating agreement. And,
under an operating agreement, the value of the leased equipment includes the value of the
equipment at the end of the leasing term plus the lease payments which represent the
payment of principle and interest. She explained that, because the sale occurred prior to
the end of the leasing term, the remaining lease payments discounted by the interest
remaining to be paid, and the fair market value of the equipment at the end of the lease
period were added together to obtain its present value. Based in part on documentary
evidence, she testified that the total sales price of the equipment contributed to the sale of
the building was $243,574.02. Both Guven and Dr. Brogan testified that $243,574.02
represented the price agreed to between a willing seller, BancLeasing, and a willing buyer,
Brogan P.A., in an arms-length transaction between unrelated parties.
This valuation comports with the terms of the Partnership Agreement, Texas law, and
the IRS Treasury Regulations. Section 10.6 of the Partnership Agreement provides that the
Agreement "shall be governed and construed" in accordance with Texas law. Texas courts
have consistently defined fair market value broadly to mean the price a piece of property
would bring on the open market if the seller and buyer were not compelled to enter into the
transaction. City of Harlington v. Estate of Sharboneau, 48 S.W.3d 177, 187 (Tex. 2001).
Moreover, the value of a lease is considered under Texas law in a determination of fair
market value when the property leased is sold from lessor to lessee. Petula Associates,
Ltd. v. Dolco Packaging Corp., 240 F.3d 499, 502-03 (5th Cir. 2001) ("If Texas's definition
of 'fair market value' is applied, the value of the lease should be considered."). (4) See
generally Treas. Reg. § 1.170A-1(c)(2) (as amended in 1996).
Accordingly, we find there was probative evidence of fair market value sufficient to
satisfy the terms of the Partnership Agreement, and the trial court's findings were not clearly
wrong or manifestly unjust.
2. Transfer to Brogan Ltd.
Appellees met their burden of proof on this issue as well. Guven and Dr. Brogan
established the fact of his capital contribution of the leased equipment to Brogan Ltd.
through the sale of the building. Guven testified that Dr. Brogan transferred the leased
equipment to Brogan Ltd. on February 14, 2003. She further testified that, in performing
the accounting, she had seen documents indicating that the leased equipment passed from
Brogan P.A. to Dr. Brogan. Both Tina Brogan and Dr. Brogan testified that, under the
Partnership Agreement, a limited partner could make a capital contribution and accept it into
the partnership without consultation or joinder of the other partner. In fact, they both
testified that they had transacted business utilizing partnership assets in this fashion without
supplying any underlying transactional documentation to the other partner. Further,
Guven's accounting recognized Dr. Brogan's capital contribution as a valid capital
contribution, and she testified that her accounting was performed in accordance with the
Partnership Agreement, generally accepted accounting procedures, and federal tax and
Treasury regulations.
Appellants insist that, in order for there to be a valid transfer or capital contribution
to Brogan Ltd., there must be an express document evidencing the conveyance of the
leased equipment from Dr. Brogan to Brogan Ltd. Nevertheless, Appellants cite to no case
or provision of the Partnership Agreement in support of this contention. In fact, the
Brogans' testimony indicates that transacting partnership business in this fashion would be
the exception, not the rule. Accordingly, we find that there was probative evidence sufficient
to satisfy the terms of the Partnership Agreement that Dr. Brogan transfer the leased
equipment to Brogan Ltd. in conjunction with the sale of the building.
B. Jury Trial
Appellants' challenge to the legal sufficiency of the jury's verdict is similar, if not
identical, to their challenge to the trial court's distribution of Brogan Ltd.'s assets.
Appellants contend they are entitled to judgment as a matter of law because Appellees
failed to meet their burden of proof and re-establish the validity of Dr. Brogan's capital
contributions at the jury trial. Appellants also contend that Appellees' failure to seek a jury
instruction on the issue of the validity of Dr. Brogan's capital contributions entitles them to
judgment as a matter of law or a new trial because there was no jury determination in
Appellees' favor. We disagree.
1. Burden of Proof
Because the jury trial was on Appellants' remaining causes of action, Appellants had
the burden of proof on all issues tried before the jury. Appellees' counterclaim calling for
a final accounting and distribution of the partnership assets had been tried by the trial court
with the consent of the parties. Following the bench trial, the issues that remained related
to Appellants' causes of action as pled in their Third Amended Petition, i.e., their contract
and tort claims.
The record clearly illustrates that Appellants and Appellees consented to a bench trial
of Appellants' counterclaim to dissolve the partnership, make an accounting and distribute
Brogan Ltd.'s assets. Prior to the bench trial, both parties had filed motions for a final
accounting and distribution of the partnership's assets. In August 2003, Appellants filed a
Motion for Final Accounting, and requested "a final hearing . . . on the final accounting for
the purpose of determining the partnership interest as between the general and limited
partners, Tina Brogan and Walter Charles Brogan, III, individually." (Emphasis added).
Appellants further requested that, at the final hearing, the court enter an order "direct[ing]
the distribution of the property remaining in the hands of Brogan Ltd., in a fair and equitable
manner to the partners of Brogan, LTD, per their ownership shares." (Emphasis added).
In addition, prior to the hearing, both parties agreed that Guven would perform an
accounting of the partnership, its assets, and partnership capital accounts.
The parties' motions were heard before Judge Medina in a two day hearing. Both
parties were represented by counsel, made oral arguments, called witnesses, admitted the
accounting without objection, and adduced testimonial and documentary evidence on issues
related to the accounting, partnership capital accounts, and Dr. Brogan's capital
contribution. After the hearing, Judge Medina indicated to the parties that he intended to
dissolve the partnership and order a distribution of its assets based upon Guven's testimony
and accounting. Two months later, Judge Medina granted Appellees the relief sought by
their counterclaim and issued an order distributing the partnership assets in conformance
with Guven's accounting. The order was not a final judgment on all the issues in the suit
but a preliminary order pending a final resolution of Appellants' remaining issues related to
its contract and tort actions.
Appellants entered into a hearing before the court at their request and without
objection, and proceeded to fully participate in the hearing for the determination of fact
issues presented by both parties. The parties had consented to try before the court all fact
issues related to the accounting, the partnership's assets, and the partner's capital accounts
with the exception of Appellants' remaining causes of action. And, after a full and fair
hearing on the parties' motions, the trial court ruled adversely to Appellants' position
regarding the capital contributions and accounts related to the leased equipment. Because
Appellants consented to try all the fact issues before the court, they are not now entitled to
have a jury decide these fact questions. Hernandez v. Light Pub. Co., 245 S.W.2d 553, 554
(Tex.Civ.App.--San Antonio 1952, writ ref'd). See generally Faulk v. Faulk, 23 Tex. 653,
665-66 (1859) (Where parties consent to the withdrawal of an issue from the jury, the
parties are deemed to have waived their right to have a jury decide the issue.); Walker v.
Walker, 619 S.W.2d 196, 198 (Tex.Civ.App.--Tyler 1981, writ ref'd n.r.e.).
Following the bench trial, Appellants filed their Third Amended Petition asserting,
among other actions, various breaches of partnership duties and damages based upon
allegations that Dr. Brogan improperly requested that Guven credit him with valueless
capital contributions in order to reduce Tina's ownership interest in Brogan Ltd. Appellants
had the burden of proof at the jury trial on these affirmative claims for relief related to Dr.
Brogan's capital contributions. See Vance v. My Apartment Steak House of San Antonio,
Inc., 677 S.W.2d 480, 482 (Tex. 1984) ("It is a well accepted postulate of the common law
that a civil litigant who asserts an affirmative claim for relief has the burden to persuade the
finder of fact of the existence of each element of his cause of action."); Russell v. City of
Bryan, 919 S.W.2d 698, 704 (Tex.App.--Houston [14th Dist.] 1996, writ denied).
Accordingly, Appellees did not bear the burden at trial of re-establishing the fact of
Dr. Brogan's capital contribution of the leased equipment to Brogan Ltd. because those
issues were tried by consent before the trial court. Rather, Appellants had the burden of
proving their affirmative claims for relief at trial, i.e., Dr. Brogan breached a duty owed to
Brogan Ltd.
2. Waiver and Trial by Consent
Appellant contends that a jury instruction on the propriety of the accounting for Dr.
Brogan's capital contributions was required because the parties tried an action for improper
accounting and credit of Dr. Brogan's capital contributions by consent. Again, we disagree.
Appellants' Third Amended Petition did not plead any cause of action for improper
accounting and/or improper credit of Dr. Brogan's capital contributions. Neither did
Appellants seek any jury instruction on such a cause of action. As a result, they waived any
ground of recovery for the unpleaded action at the jury trial. See Gulf States Utilities Co.
v. Low, 79 S.W.3d 561, 570 (Tex. 2002) (When an entire ground of recovery is omitted from
the jury charge, that ground is waived.); In the Interest of T.J.S., 71 S.W.3d 452, 457
(Tex.App.--Waco 2002, pet. denied) (Failure to present requested questions or instructions
to the jury constitutes waiver of the right to do so.); Rao v. Rodriguez, 923 S.W.2d 176, 180
(Tex.App.--Beaumont 1996, no writ) (If all essential elements of a cause of action are not
submitted to the jury, the ground for recovery is waived.). (5)
Appellants' contention that the unpleaded action for improper accounting and capital
contribution was tried by consent is also untenable. Trial by consent should only be applied
in exceptional cases; Austin Area Teachers Federal Credit Union v. First City Bank-Northwest Hills, N.A., 825 S.W.2d 795, 800 (Tex.App.--Austin 1992, writ denied), where
the evidence on the issue is developed under circumstances indicating that both parties
understood the issue in the case, and the other party failed to make an appropriate
complaint. Emerson Electric Co. v. American Permanent Ware Co., 201 S.W.3d 301, 309
(Tex.App.--Dallas 2006, no pet.). Trial by consent does not apply when the evidence of
the unpleaded matter is also relevant to the pleaded issues because it would not be
calculated to elicit an objection. In the Interest of J.M. and L.M., 156 S.W.3d 696, 706
(Tex.App.--Dallas 2005, no pet.) (collected cases cited therein). Here, evidence of the
partnership accounting and capital contribution was relevant not only to prove Appellants'
action for breach of partnership duties, but it was relevant to Appellees' defense against
Appellants' tort action. Accordingly, trial by consent is inapplicable. See Boyles v. Kerr, 855
S.W.2d 593, 601 (Tex. 1993).
3. Sufficiency of Jury Finding In Favor of Appellees
Appellants had the burden of proof on all their remaining causes of actions tried to
the jury. Thus, their legal sufficiency challenge to the jury's findings will be reviewed under
the "matter of law" standard.
The jury found in favor of Appellees when asked in Question No. 4 of the Charge
whether Dr. Brogan failed to comply with his partnership duties to Appellants by authorizing
credits to his capital account made in 2003. Applying the "matter of law" standard, the Court
must examine the record to determine if any evidence exists supporting the jury's finding
that Dr. Brogan did not authorize any wrongful entry of credits to his capital account, while
ignoring any evidence to the contrary. See Raw Hide Oil & Gas v. Maxus Exploration, 766
S.W.2d at 276. If such evidence exists, Appellants' challenge fails. Id.
Guven's accounting was also admitted into evidence at the jury trial without objection.
She was qualified as an expert witness and testified that she performed the accounting to
determine the status of the partnership capital accounts and the ownership interests of the
partners. She also testified that the accounting complied with generally accepted
accounting practices, the rules of the Partnership Agreement, and IRS Treasury
Regulations. She acknowledged that she requested information from both parties to
prepare the accounting. She testified that partner capital accounts were calculated based
on their beginning balance plus any contributions made by any particular partner less any
distributions to the partner. Guven stated that BancLeasing calculated the fair market value
of the x-ray equipment and telephone system at $243,574.02. She testified that
BancLeasing's sale of the leased equipment to Dr. Brogan supplied an adequate basis for
determining the fair market value of the leased equipment, i.e., an arm's-length transaction.
In her opinion, the purchase price paid by Dr. Brogan for the leased equipment was the
equipment's fair market value.
She testified that Brogan P.A. transferred the leased equipment to Dr. Brogan, on
the date of the sale of the building, in exchange for a promissory note for the value of the
equipment. She further testified that Dr. Brogan then contributed the leased equipment to
the sale of the property owned by Brogan Ltd. as a capital contribution. At the time of the
transactions, she checked with Leaverton to determine the sequence of the events, and he
indicated the sale of the building occurred prior to the sale of the leased equipment.
Accordingly, she applied the loss from the sale of the building to Brogan Ltd.'s capital
accounts first, and then applied Dr. Brogan's subsequent capital contribution to his capital
account. After the hearing by the trial court, Guven paid out approximately $315,000 to Dr.
Brogan for his limited and general partnership interests, from which Dr. Brogan then paid
off his note to Brogan P.A.
Accordingly, we find that Guven's accounting, her testimony, the corroborating
testimony of other witnesses, and underlying documentary evidence supplies ample
evidence upon which the jury could have relied to determine the accounting related to the
sale of the leased equipment was proper and that, Dr. Brogan did not breach any
partnership duties. Issue one is overruled.
IV. Issue Two
Appellants assert that because the trial court rejected a jury instruction tendered by
Appellees requesting the jury determine the percentage of ownership interest of the
Brogans in Brogan Ltd., Appellants are somehow entitled to judgment as a matter of law or
reversal/remand. Appellants cite no legal authority in support of this assertion. Accordingly,
their contention is insufficiently briefed and, therefore, waived. See White v. Baptist St.
Anthony's Hosp., 188 S.W.3d 373, 374 (Tex.App.--Amarillo 2006, pet. denied) citing Tex.
R. App. P. 38.1(h); Jordan v. Jefferson County, 153 S.W.3d 670, 676 (Tex.App.--Amarillo
2004, pet. denied). Appellant's second issue is overruled.
V. Issue Three - Promissory Estoppel
Appellants challenge the directed verdict granted on their action for promissory
estoppel. At the conclusion of Appellants' case-in-chief, the trial court granted Appellees'
motion for a directed verdict on the grounds that no signed lease, or draft lease for the
building that Dr. Brogan had promised to sign, existed at the time Appellants sought to
enforce an alleged oral promise by Dr. Brogan to enter into a lease for a period of ten years.
Promissory estoppel is an equitable exception used to avoid a statute of frauds
defense. "Moore" Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936 (Tex. 1973).
It is a defensive plea that does not create a contract where none existed before, but rather
prevents a party from insisting upon its strict legal rights under the statute of frauds, when
enforcing a non-compliant agreement would be necessary to avoid an injustice. Id.
Appellants seek to use the doctrine of promissory estoppel as an affirmative basis
for relief. While recognizing there is authority to the contrary, 34 Tex.Jur. 3D Estoppel § 12
(2002), this Court has held, and holds in this case, that promissory estoppel is defensive
only, and cannot constitute a basis for affirmative relief. Robbins v. Payne, 55 S.W.3d 740,
747 (Tex.App.--Amarillo 2001, pet. denied). See also Hruska v. First State Bank, 747
S.W.2d 783, 785 (Tex. 1988); Stanley v. CitiFinancial Mortgage Co., Inc., 121 S.W.3d 811,
820 (Tex.App.--Beaumont 2003, pet. denied). Issue three is overruled.
CONCLUSION
Having overruled Appellants' issues, we affirm the trial court's judgment.
Patrick A. Pirtle
Justice
Reavis, S.J., concurring in result.
1. John T. Boyd, Chief Justice (Ret.), and Don H. Reavis, Justice (Ret.), Seventh
Court of Appeals, sitting by assignment.
2. Dr. Brogan did not personally own the x-ray equipment and telephone system.
Brogan P.A. leased the equipment from BancLeasing, Inc. Although BancLeasing later
changed its name to CashFlow Lease, we will use BancLeasing throughout this opinion.
3. Guven had served as accountant for the Brogans, Brogan Ltd., and Brogan P.A.
She had been a certified public accountant for twenty years, and worked for two big six
accounting firms: Coopers & Lybrant and KPMG Peat Marwick. She also worked as a vice
president and trust officer in the Trust Department of American State Bank. She had
earned a Masters Degree in Taxation from Texas Tech University and taught graduate
courses at Tech for seven years. She was a certified personal financial specialist, financial
planner and an employee benefit specialist.
4. Appellants' cases are inapposite. They stand for the proposition that book value,
an arbitrary valuation assigned by a partner, is an improper method of valuation for the
purposes of a final distribution. Cheek v. Humphreys, 800 S.W.2d 596, 598 (Tex.App.--
Houston [14th Dist.] 1990, writ denied) (Book value was determined by cost less
depreciation.); Cauble v. Handler, 503 S.W.2d 362, 364 (Tex.App.--Fort Worth 1974, writ
ref'd n.r.e.) (Book values are arbitrary values assigned by partners.); Johnson v. Braden,
286 S.W.2d 671, 672 (Tex.Civ.App.--San Antonio 1956, no writ) (Distribution of
partnership assets on dissolution should be according to market value, not book value).
Here, the value of the capital contributions was determined by market value, i.e. an arm's-length sale between a willing buyer and a willing seller, not book value.
5. The issue Appellants claim was omitted but should have been submitted in the
charge was actually a damage issue upon which Appellants had the burden of proof. This
is evidenced by the instruction given for breach of partnership duty, Question No. 5 of the
Charge, which calculated Appellants' damages by the difference between the distribution
Tina received according to Guven's accounting and the distribution she should have
received "but for the wrongful capital contributions, if any, caused by Walter Charles
Brogan, III" to his capital account. The jury did not reach this question because they made
a prior determination in their answer to Question No. 4 that Dr. Brogan complied with his
partnership duties with regard to the capital credits. However, in order to make a
determination under Question No. 5, the jury would have had to determine each parties'
percentage of ownership through a recalculation of the capital accounts. As such, this is
the same determination Appellants are now seeking by way of their appeal. Because a
similar issue was submitted to the jury, an error, if any, in not submitting a specific issue
on ownership percentages to the jury would be harmless, particularly where the jury found
no liability on the part of Appellees.