Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-25-00218-CV
Randy BAKER and Heart of The Heart Ranch, LLC, Appellants
v.
David POWELL and Double 09 Ranch, LLC, Appellees
From the 452nd District Court, Mason County, Texas Trial Court No. 215965
The Honorable Stephen B. Ables, Judge Presiding
Opinion by: Lori Massey Brissette, Justice
Sitting: Lori Massey Brissette, Justice Adrian A. Spears II, Justice Velia J. Meza, Justice
Delivered and Filed: August 12, 2026
AFFIRMED BACKGROUND FACTS
This is a business dispute between neighboring landowners who came together to form Heart of the Heart Whitetails (HHW), LLC, a company that breeds whitetail deer and provides guided hunt experiences in Mason County, Texas. HHW has two members: Double 09 Ranch, LLC (David Powell, manager) and Heart of the Heart Ranch (HHR), LLC (Randy Baker, manager).
Under the terms of the Agreement, any significant decision or action requires unanimous consent of both members, each member having equal voting power.
For years, Powell and Baker worked together to build breeding pens, fence the property, and buy and sell deer. In February of 2013, Powell (on behalf of Double 09) and Baker (on behalf of HHR) signed a Company Agreement which stated that each ranch owner would contribute the use of their property to HHW. The Company Agreement further recognized an additional capital contribution by Powell of $810,000 for high fencing, acquisition of deer, equipment and supplies. The Agreement provided that such amount would be repaid to Powell if, within eight years of the Company Agreement being signed, HHR either withdraws from HHW or makes the Baker/HHR property unavailable to HHW. 1 Late in 2019, disputes began to arise between Powell and Baker, as so often do when a company begins to lose money. Baker asserts Powell’s decisions began to impact HHW and were designed to push Baker to withdraw prior to the eight-year mark, to trigger Baker’s duty to compensate Powell under the Company Agreement. For example, Baker alleged Powell refused to reschedule a personal hunt to allow a client (Syngenta) to conduct a hunt that could have, according to Baker, brought in significant revenue. He also contends Powell began to make false allegations that deer were missing from the ranch. And, on another weekend in 2019, Powell brought a group of hunters to the ranch, allowed them to shoot $39,000 worth of deer, but only paid $17,100 directly to Baker (rather than the company), leaving the company to claim a loss for the year. Finally,
1 The Agreement states, in paragraph 12.16: “should HHR for any reason withdraw as a Member and/or a material portion of the Baker Property becomes unavailable for usage for the Company’s purposes within eight (8) calendar years of the execution date hereof, HHR and Randy Baker, jointly and severally” agree to: (a) immediately reimburse Powell/Double 09 the actual cost of the high fence along the outside perimeter of the Baker Property, (b) return all equipment and supplies purchased by Powell/Double 09 located on the Baker Property or pay the original cost of such items, (c) erect a fence along the boundary line between the properties, pay Powell/Double 09 for the value of the deer remaining on the Baker property.
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without consulting Baker, Powell wrote a check from HHW for $7,500 to a friend of his son who put HHW stickers on his professional bass fishing boat, which failed to provide any revenue to HHW.
In July 2020, six months before the eight-year mark, Powell filed suit in Gregg County, Texas against Baker/HHR alleging claims of fraudulent inducement, negligent misrepresentation, breach of contract and a claim for an accounting. Baker/HHR responded by filing a lawsuit in Mason County, where the ranches and HHW are located, specifically seeking to avoid liability to Powell for the actions alleged in the Gregg County lawsuit. 2 Powell/Double 09 sought to stay the Mason County litigation with a plea in abatement, asserting the matter should be abated until the Gregg County litigation concluded. Powell/Double 09’s Plea in Abatement was denied and this court denied mandamus relief. In re Heart of the Heart Whitetails, LLC, No. 04-21-00333-CV, 2021 WL 3639673 (Tex. App.—San Antonio Aug. 18, 2021, orig. proceeding). The Gregg County court then stayed its action pending the outcome in Mason County. Powell/Double 09 again filed a petition for mandamus, this time to the Texarkana Court of Appeals, seeking a review of the Gregg County abatement order. Their attempt to challenge the abatement of the Gregg County matter was unsuccessful at every stage, including at the Texas Supreme Court. In re Powell, 644 S.W.3d 753 (Tex. App.—Texarkana 2022, orig. proceeding); In re Powell, No. 22-0654 (Tex. Jan. 27, 2023) (order). Notably, the Texarkana Court of Appeals, in refusing to find an abuse of discretion by the Gregg County court in staying the litigation, specifically held that Powell/Double 09’s claims asserted in Gregg County are
2 Baker/HHR sought indemnification for attorneys’ fees incurred in the Gregg County lawsuit and alleging HHW breached the Company Agreement by not indemnifying Baker/HHR or procuring insurance coverage for such obligation. Baker/HHR also requested a declaratory judgment that they are not liable to HHW for assuming control of the company to the exclusion of other members, failing to account for missing money/deer, representing that a contract would result in more revenue than it did, paying monies to Baker and his son, failing to keep accurate records of HHW’s receipts and expenditures, and generally causing a loss to HHW.
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compulsory counterclaims to Baker/HHR’s claims asserted in Mason County and that the matter, as a whole, is governed by a mandatory venue provision requiring the “inherently interrelated” claims to be decided in Mason County. 644 S.W.3d at 759–760 (citing TEX. CIV. PRAC. & REM. CODE § 15.011).
Once it was clear that the Mason County litigation would take precedence, Baker/HHR and Powell/Double 09 amended their pleadings to bring competing breach of contract claims. Baker/HHR also maintained their claims for declaratory judgment and sought reformation of the Company Agreement to dissolve HHR with no adverse consequences, specifically seeking to avoid repayment to Powell. Powell/Double 09 amended their pleadings to assert that they could not be liable to Baker/HHR because (a) there was a lack of/failure of consideration; (b) the Agreement violates the statute of frauds; (c) there was no “meeting of the minds” with regard to material terms in the Agreement; (d) Baker/HHR committed a prior material breach; and (e) Baker/HHR’s claims are barred by the affirmative defense of fraud. Powell/Double 09 also pleaded counterclaims for breach of contract and breach of fiduciary duty by the receiver.
After a bench trial, the Mason County trial court entered a final judgment in which it found the Agreement was still in effect, that there had been no breach of contract or withdrawal by either party and therefore no party was entitled to indemnification. The trial court also found that no easement had been created by the Company Agreement and determined that no declaratory relief was warranted other than a declaration that any rights of first refusal relating to the properties “do not persist after the dissolution of HHW.” The trial court, however, responded to Powell’s assertion that his fraud claims should be tried separately in Gregg County by declining to rule on any issues of contract formation or fraud. The trial court also declined to reform the agreement as requested. Finally, the court ordered the receivership to continue “until such time as the lawsuit in Gregg
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County is fully resolved and the Court may order termination of the Company Agreement and liquidation of the Entity.”
BREACH OF CONTRACT
First, Baker/HHR complain that the trial court erred in finding no breach of contract occurred. The trial court, in finding no breach of contract or withdrawal by either party, cited the Agreement stating, “[D]eadlock does not constitute a breach of contract under this partnership agreement the way I read it.” In doing so, the trial court pointed to the fact that under the Agreement, no member can act without the other. 3 They have the same power, limited by the required agreement of the other. The Agreement even bars the withdrawal of either member except under specific circumstances. Thus, the trial court held there was no breach, neither party had withdrawn, and the partnership is still in effect.
Baker/HHR assert the trial court erred by failing to find Powell breached the contract when he took the position (via a May 2021 letter from his attorney) that Baker/HHR had withdrawn from the company and that Powell, as the sole remaining member could pay his attorney’s fees out of the HHW accounts. In response to Powell’s letter, Baker emptied HHW’s banking account and filed a motion for receiver, alleging the dispute precluded HHW’s effective operation. Powell argues the evidence at trial is sufficient to support the trial court’s findings.
To succeed in showing the trial court erred in finding no breach of contract, Baker/HHR must show that no evidence supports the trial court’s failure to find a breach and that, conversely, the evidence at trial conclusively proved Powell’s breach as a matter of law. Shields, Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017); Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241–42
3 Under Article 3.9, entitled Lack of Authority: “No Member (other than a Manager or an officer) has the authority or power to act for or on behalf of the Company, to do any act that would be binding on the Company, or to incur any expenditures on behalf of the Company.” Article 6.1, entitled Management by Managers, states that any action requires “unanimous approval and consent of all Managers.”
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(Tex. 2001); Waring v. Wommack, 945 S.W.2d 889, 893 (Tex. App.—Austin 1997, no pet.). In reviewing the record, we will consider all evidence in the light most favorable to the prevailing party—in this case Powell/Double 09. City of Keller v. Wilson, 168 S.W.3d 802, 809–810 (Tex. 2005).
Further, we keep in mind that the trial judge, in a bench trial, is the sole judge of the credibility of and the weight to be given the evidence. Rodriguez v. Rangel, 679 S.W.3d 890, 911 (Tex. App.—San Antonio 2023, pet. denied) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005)).
In its findings of fact and conclusions of law, the trial court found that Baker/HHR had not withdrawn from HHW and that Powell’s letter was not a material breach. Baker/HHR admit as much in their brief when they characterize Powell’s letter as “a baseless attempt to subject Baker and HHR to the onerous repayment provisions” that would be triggered if they were to withdraw. Baker/HHR even points to the trial court’s declaratory judgment that HHR had not withdrawn from HHW, saying that relief “settled the issue.” And we agree. Baker/HHR did not withdraw.4 So, there was a basis for the trial court to find that Powell’s letter was ineffective at best, and not a breach of the contract.
Baker/HHR, alternatively, contend the letter constituted a repudiation of the contract.
Powell/Double 09 argue Baker/HHR did not plead, prove or preserve that claim. Texas recognizes distinct elements of repudiation, those being: (1) the repudiating party has unequivocally refused to perform its obligations under the contract, (2) without just excuse for the nonperformance, and
4 As Baker/HHR point out in their brief, “Paragraph 3.8 of the Company Agreement plainly states that a member does not have the right or power to withdraw, except as provided in Article 10, dealing with the sale of a member’s land (which did not happen) or by HHR making the repayments for early withdrawal under 12.16. Nevertheless, Powell doggedly insisted Baker verbally withdrew in each of the two telephone conversations he recorded. The fact that such a verbal withdrawal would have been completely ineffective renders the claim baseless. The absence of a withdrawal in the recordings highlight Powell’s mendacity.”
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(3) damaged the repudiating party. Scientific Mach. & Welding, Inc. v. FlashParking, 641 S.W.3d 454, 462 n.7 (Tex. App.—Austin 2021, pet. denied). The repudiation must be “a distinct and unequivocal absolute refusal to perform.” Am. Midstream (Alabama Intrastate), LLC v. Rainbow Energy Mktg. Corp., 714 S.W.3d 572, 582 (Tex. 2025) (quoting Kilgore v. Nw. Tex. Baptist Educ. Soc’y, 90 Tex. 139, 37 S.W. 598, 600 (1896). To be clear, it must be a “fixed intention to abandon, renounce, and refuse to perform the contract.” Hunter v. PriceKubecka, P.L.L.C., 339 S.W.3d 795, 802 (Tex. App.—Dallas 2011, no pet.) (citing SAVA gumarska in kemijska industria d.d. v. Advanced Polymer Sciences, Inc., 128 S.W.3d 304, 315 (Tex. App.—Dallas 2004, no pet.). “[A] mere assertion that the party will be unable or will refuse to perform his contract is not sufficient.” Davis v. Canyon Creek Ests. Homeowners Ass’n, 350 S.W.3d 301, 313 (Tex. App.—San Antonio 2011, pet. denied) (quoting Kilgore, 37 S.W. 598, 600). These elements are distinct and require additional findings beyond whether Powell/Double 09’s May 2021 letter constituted a “material breach.” Scientific Machine & Welding, Inc. v. FlashParking, Inc, 641 S.W.3D 454.
Baker/HHR did not plead repudiation in any of their pleadings. They did not propose findings or conclusions that would go to a repudiation claim. And, when the trial court entered its findings of fact and conclusions of law, Baker/HHR failed to ask for additional or amended findings that would address the necessary elements of a repudiation claim. “[I]t is incumbent upon appellants to request additional findings on a contested issue if they desire such findings.” O’Farrill Avila v. Gonzalez, 974 S.W.2d 237, 248 (Tex. App.—San Antonio 1998, pet. denied); see also Levine v. Maverick Cty. Water Control & Imp. Dist. No. 1, 884 S.W.2d 790, 796 (Tex. App.—San Antonio 1994, writ denied) (party waives ground for relief by failing to ask for additional findings of fact supporting same). By failing to plead the claim and by failing to seek
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findings and conclusions that support the claim, Baker/HHR waived any argument that Powell/Double 09 repudiated the contract.
But, even if it were preserved, the evidence does not conclusively prove that Powell/Double 09’s letter constituted a repudiation of the Agreement. First, because Baker/HHR did not request additional findings, any omitted findings necessary to support the trial court’s express findings on the breach-of-contract claim are presumed in support of the judgment. TEX. R. CIV. P. 299; RBS Mortg., LLC v. Gonzalez, No. 04-11-00681-CV, 2013 WL 749730, at *6 (Tex. App.—San Antonio Feb. 27, 2013, no pet.); Nguyen v. Nguyen, 355 S.W.3d 82, 92 (Tex. App–Houston [1st Dist.] 2011, pet. denied); Levine v. Maverick County Water Control & Improvement Dist. No. 1, 884 S.W.2d 790, 796 (Tex. App.—San Antonio 1994, writ denied); Mbank Abilene, N.A. v. Westwood Energy, Inc., 723 S.W.2d 246, 253 (Tex. App.—Eastland 1986, no writ).
As to the evidence supporting such implied findings, the letter refers to Baker/HHR’s performance and alleged withdrawal, and takes the position that, as a result of Baker/HHR’s conduct, Powell was entitled to pay his attorney fees under the terms of the Agreement. The trial court could have reasonably inferred that this position was an intent to follow the contract, not renounce it, even if Powell/Double 09’s underlying premise (that Baker/HHR had withdrawn) was incorrect. Further, it was Baker/HHR that then took action to empty the business accounts. Thus, the trial court could also have concluded that Baker/HHR failed to establish that any alleged repudiation caused recoverable damages.
For these reasons, we believe the evidence is sufficient to support the trial court’s conclusion that Powell/Double 09’s letter did not constitute a breach of contract and overrule Baker/HHR’s first point of error.
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DECLARATORY JUDGMENT
Baker/HHR contend the trial court should have decided whether the Company Agreement was vitiated by fraud. The trial court found Powell/Double 09’s claims were “wholly unrelated to the matters presented at trial in this matter.” Baker/HHR complain that the trial court’s finding leaves them subject to a second trial which may result in conflicting findings relating to the existence of the very contract this trial court construed and found to still be in existence absent any breach.
This matter originated by Powell/Double 09’s filing of a lawsuit against Baker/HHR in Gregg County. Then, Baker/HHR filed a competing action against Powell/Double 09 in Mason County. Baker also filed a plea in abatement in the Gregg County matter, which was granted, leading Powell/Double 09 to file a petition for a writ of mandamus in the Texarkana Court of Appeals asserting the Gregg County court had dominant jurisdiction, not Mason County. But the Texarkana Court of Appeals refused to grant relief to Powell/Double 09. First, it held that Gregg County was not the dominant jurisdiction for Baker/HHR’s claims because Mason County was a county of mandatory venue. 644 S.W.3d at 759 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 15.011; KW Constr. v. Stephens & Sons Concrete Contractors, Inc., 165 S.W.3d 874, 879 (Tex. App.—Texarkana 2005, pet. denied). Further, the Texarkana Court of Appeals held that, in response to Powell/Double 09’s arguments that venue should still stand in Gregg County because their claims were not “inherently interrelated” to those pending in Mason County, that Powell/Double 09’s Gregg County claims were compulsory counterclaims to the claims asserted by Baker/HHR in Mason County. 644 S.W.3d at 760–761. Specifically, our sister court held “that the elements of the compulsory counterclaim rule are satisfied and that, as stated above, the two suits are logically related to each other because many of the same facts and issues of law will be
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dispositive in both suits.” 644 S.W.3d at 761 (citing Cmty. State Bank, 38 S.W.3d 256, 258–59 (Tex. App.—Texarkana 2001, pet. dism’d w.o.j.); White Stores, Inc. v. Nowaski, 760 S.W.2d 53, 55 (Tex. App.—Fort Worth 1988, no writ)). Yet, Powell/Double 09 took the position at trial in Gregg County that their claims remain pending in Mason County and should still be separately litigated.
We will leave it to the Texarkana Court of Appeals as to whether they wish to stand by their holding that Powell/Double 09’s claims were to be tried in the Mason County cause, meaning Powell/Double 09’s calculated risk of choosing to not try their claims below may well constitute a waiver of same. 5 But, here, we need not reach the issue of whether the trial court erred in not trying and resolving Powell/Double 09’s claims. First and foremost, Powell/Double 09 still maintains that the trial court should not have tried the claims in the underlying trial and is not asking us to remand the matter to allow the trial of their claims. Second, the issue of whether fraud vitiates the contract would only be relevant and would only require a remand if we were to remand the trial court’s finding on breach of contract, which we have declined to do.
For these reasons, we reject Baker/HHR’s point of error.
EASEMENT
Finally, Baker/HHR assert the trial court erred when it found the Company Agreement did not create an easement on the Double 09 ranch. 6 The Final Judgment states: “[T]he Company
5 We cannot apply the law of the case doctrine here, in support of the effect of the Texarkana Court of Appeals’ ruling as that doctrine only applies within the same case, not to separate suits. NRG Expl. Inc. v. Rauch, 905 S.W.2d 405, 409 (Tex. App.—Austin 1995, writ denied). 6 Baker/HHR assert the trial court erred by failing to find an easement on both the HHR and Double 09 ranches. But the trial court clearly only addressed the issue of whether an easement was created on the Powell/Double 09 ranch. Further, Baker/HHR contend that, by finding a valid contractual right of HHW to use the HHR ranch, the trial court impliedly rejected Powell/Double 09’s arguments regarding contract formation—an issue the trial court expressly declined to rule upon given that those claims were first filed in the Gregg County action. But we note Powell/Double 09—the parties Baker/HHR contend may be negatively impacted—do not seem to share the same concern. See
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Agreement DOES NOT GRANT [HHW] with an easement or any equivalent property rights in any property owned by Double 09 Ranch, LLC or David Powell. Instead the Company Agreement provides [HHW] with a CONTRACTUAL RIGHT to use and enjoy the property for company purposes.” Powell/Double 09 respond that Baker/HHR have no standing to appeal this issue. Specifically, they contend the issue involves the rights of HHW to use the Double 09 ranch, not Baker/HHR.
In their brief, Baker/HHR admit that “[a]s a practical matter, the severance of the actions by and against the receiver into a separate case, make this issue of little importance in this case,” but assert that the trial court’s judgment should be corrected because the precedential effect of the ruling could impact the Receiver’s claims on behalf of HHW in the severed cause. Thus, Baker/HHR clearly seek to address issues that should be raised by the Receiver on behalf of HHW. 7 Baker/HHR, on their own motion, sought an order that gave the Receiver the right to sue on behalf of HHW. The trial court granted that motion, appointing the Receiver to, among other things, “file suit against Double 09 to determine what interest HHW has in the land owned by Double 09 that was granted to HHW in the Company Agreement. . .” The trial court stated in the Final Judgment that the Receiver did not participate in trial and severed claims brought by or
Torrington v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000) (an appealing party may not complain of errors that merely affect the rights of others). 7 The Company Agreement further demonstrates that the issue of whether an easement was created in the Powell/Double 09 ranch relates to the rights of HHW, not Baker/HHR. For example, paragraph 4.1 of the Company Agreement states: “Double 09 shall contribute or cause to be contributed, and grants to the Company the right to use and enjoy the Powell property, as an Initial Capital Contribution, in the Company business and for its stated purposes.” (emphasis added). The Company Agreement defines “Company” as “Heart of the Heart Whitetails, LLC, a Texas limited liability company,” or HHW. Further, the Agreement states: “In no event and notwithstanding any other term, provision, or inference to the contrary in this Agreement, the Company acquires no title to the Baker Property or the Powell Property . . . and shall have only the right to use and enjoy the Baker Property and the Powell Property in accordance with the terms hereof. In the event of a winding up, the Company shall, through its Members, personal representatives or as a liquidator, execute and deliver such documents as reasonably requested to confirm the Company at no time claimed ownership of title to those real properties last referenced, and shall further acknowledge the release of any further right to use all or any portion of the Baker Property and the Powell Property.” (emphasis added)
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against the Receiver (other than the easement issue that had been determined prior to trial) into a separate cause. Because the easement determination was a pretrial ruling, it was carried into the Final Judgment. The Receiver remained a party and signed the Final Judgment by his attorney. But notably, the Receiver did not choose to appeal the easement determination on behalf of HHW.
Powell/Double 09 are correct that Baker/HHR lack standing to address the issue of HHW’s property rights in this appeal. See Spates v. Office of Att’y Gen., 485 S.W.3d 546, 550–51 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (citing TEX. BUS. ORGS. CODE § 101.106(b) which states a member of a limited liability company does not have an interest in any property of the company). A limited liability company is considered a separate entity from its members and, as such, a member of a limited liability company “lacks standing to assert claims individually where the cause of action belongs to the company.” Barrera v. Cherer, 04-13-00612-CV, 2014 WL 1713522, at *2 (Tex. App.—San Antonio Apr. 30, 2014, no pet.) (mem. op.) (citing Wingate v. Hajdik, 795 S.W.2d 717, 719 (Tex. 1990)). Thus, because HHW is the party purportedly injured by the trial court’s determination that no easement was created, and because Baker/HHR have no interest in that property right as a member of the company, HHW is the party that should have appealed. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000) (A party may only appeal if its own interests are prejudiced); see also McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 234 (Tex. 2001) (recognizing “standing requires that the controversy adversely affect the party seeking review”).
Accordingly, we hold Baker/HHR do not have standing to address this issue on appeal and reject Baker/HHR’s point of error.
Lori Massey Brissette, Justice