Jane Bland Justice

On Appeal from the 328th District Court Fort Bend County, Texas
Trial Court Case Number 08-DCV-162390

MEMORANDUM OPINION

This is an appeal from a divorce proceeding in which the married spouses also jointly owned a partnership that operated two assisted-living centers. A jury found that the wife breached their partnership agreement by depleting partnership assets and setting up a competing business. The trial court then heard the divorce claim. Based on the jury's findings, the trial court ruled that the wife had committed fraud on the community estate. It awarded the husband a disproportionate share of the estate based on the amount found by the jury.

On appeal, the wife contends that the trial court erred in (1) not permitting challenges for cause; (2) improperly charging the jury on the partnership issue; and (3) dividing the community property. We conclude that the wife has not properly presented these challenges for appellate review and therefore affirm.

BACKGROUND

Chichi and Edith Ugwu married in 1992. In 2004, they founded a business to operate assisted-living centers for elderly and disabled residents. At trial, Chichi testified that he and Edith orally agreed that the business would be a general partnership: each would own half of the business and share equally in its profits and losses.

Chichi and Edith purchased two single-family homes in a residential area in southwest Houston. Chichi, who was familiar with the Texas Department of Aging and Disability Services' compliance requirements, served as the facility coordinator and Edith oversaw the day-to-day operations. Chichi prepared the applications required to begin operating the centers, known as Joyful Homes and Joyful Homes II, respectively. The applications filed for the two centers identify the operator to be a general partnership, with Edith and Chichi each owning 50% of the business.

Sometime later, Edith revised the operating applications. In the altered copies, she identified the operator of the homes to be a "sole proprietor" and named herself as the sole owner. Without telling Chichi, she filed these altered documents with the Department of Aging and Disability Services.

In 2007, Chichi discovered that Edith had made the alterations. He sued her for breach of their partnership agreement and sought injunctive relief in Harris County State District Court. Chichi obtained a temporary injunction, which limited Edith's control over Joyful Homes' assets. A few days later, Edith petitioned for divorce in Fort Bend County.

Edith told Chichi that she was winding down the business and planned to discharge the clients and close the two Joyful Homes locations. Instead, Edith violated the injunction by transferring the clients to facilities operated by acquaintances who helped Edith continue working with the transferred clients without Chichi's knowledge. Edith then filed applications to operate the Joyful Homes and II locations under sole proprietorships named Joyful Homes III and IV, so that she could conceal the operations from Chichi. Edith closed the Joyful Homes bank account and moved the funds into another account that Chichi could not access.

By 2016, the breach of partnership suit had been consolidated with the divorce proceeding, with all of the claims pending in the Fort Bend County State District Court. The parties tried the breach of partnership claim to a jury. Edith claimed that she and Chichi did not have a general partnership and that Chichi's ownership interest existed only through community assets that had been invested in the business. The jury rejected that claim, finding that Edith and Chichi entered into a general partnership "for the assisted living centers called Joyful Homes," that Edith had failed to comply with the partnership agreement, and that Chichi had sustained net lost profits of $142,253.

The trial court signed a final divorce decree in March 2017. Among other things, the trial court found that Edith had committed fraud on the community, which had depleted the marital estate. It further ruled that "to achieve a just and right division of the property" Chichi was entitled to recover from Edith "a money judgment for $82,000."

DISCUSSION

A. Edith waived her jury selection complaint.

Edith first argues that the trial court violated her equal protection and due process rights by preventing her from challenging prospective jurors for cause in the partnership trial. Edith did not, however, preserve this argument for appellate review.

The trial court informed the parties that they could move to strike panel members for cause at the end of voir dire "and then we'll call these folks up individually and explore their opinions in a little bit more detail . . . ." At the end of voir dire, trial court instructed, "I want [Chichi's counsel] . . . to go down and say, number 1 for instance, and [Edith's counsel] either say agree or disagree. And if you don't agree then you need to tell me if you want to call them up and challenge them for cause or you want to talk to them about it."

Chichi's counsel identified panel members who had expressed potential bias and Edith's counsel either agreed or disagreed with Chichi as to whether those venire members should be struck. If the parties agreed, the trial court struck the venire member. When they had gone through the list, the trial court told counsel, "let's talk to these challenge for cause people first," before speaking with other venire members who had asked to be excused from jury service for other reasons.

The trial court then brought in the panel members whom Chichi's counsel had identified as subject to challenge for cause and both sides had not agreed to excuse. Both parties questioned those panel members and moved to strike certain of them following questioning. The trial court and the parties then considered the requests of panel members seeking to be excused from service for other reasons. The trial court excused some of those panel members. Edith's counsel asked to strike additional unidentified panel members for cause. Noting that counsel were supposed to have presented their agreed list of possible cause strikes, the trial court refused the request.

Edith's counsel did not inform the trial court that his request for additional cause strikes was based on due process and equal protection, nor did he object to the trial court's refusal to hear additional challenges. See id. Rather, the parties proceeded to exercise their peremptory strikes and a jury was empaneled. Because the trial court did not deny a challenge for cause as to any particular juror, we hold that Edith's complaint has not been properly presented for our review.

To preserve error when a trial court denies a challenge for cause, the objecting party must use a peremptory challenge against the challenged venire member, exhaust any remaining challenges, and notify the trial court that a specific objectionable venire member remains on the jury list. See TEX. R. APP. P. 33.1 (requiring timely request, objection, or motion in trial court complaining of grounds as prerequisite to their appellate review); Cortez ex rel. Estate of Puentes v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 90-91 (Tex. 2005) (explaining that to preserve error in denial of challenge for cause, objecting party must use peremptory challenge against challenged venire member, exhaust remaining challenges, and notify trial court that specific objectionable venire member will remain on jury list). Because Edith did not object to the trial court's refusal to entertain additional challenges for cause; did not complain that she had exercised peremptory challenges against specific objectionable jurors, exhausting her remaining challenges; and did not identify an objectionable panel member who remained on the jury panel, we hold that Edith waived her claim of error in jury selection.

B. Edith waived her challenge to the jury charge.

The charge asked the jury whether Edith and Chichi had entered "into a general partnership agreement for the assisted living center entities called Joyful Homes," and defined a "partnership agreement" as "any agreement, written or oral, of the partners concerning a partnership." Edith contends that this question improperly treated all of the Joyful Homes entities as a single business belonging to the partnership. Edith, however, did not object to the submission of the partnership question or to its accompanying instructions during the trial court's charge conference. The only requested instruction involved a clarification to the court's definition of lost profits.

Edith waived her complaint by failing to timely object to the question and instruction in the trial court on the grounds she raises here. See KMG Kanal-Muller-Gruppe Deutschland GmbH & Co. v. Davis, 175 S.W.3d 379, 392 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 786 (Tex. App.—Houston [1st Dist.] 2004, no pet.)); see also TEX. R. CIV. P. 274 ("Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.").

To the extent Edith challenges the legal sufficiency of the evidence establishing the existence of a partnership, this challenge also fails. Texas Rule of Appellate Procedure 38.1(i) requires that an appellant's brief "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." See Tesoro Petrol. Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) ("Rule 38 requires [a party] to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue."). This requires more than conclusory statements, unsupported by legal citations. Tesoro Petrol., 106 S.W.3d at 128. Similarly, an appellant waives issues when the brief fails to contain a clear argument for the contentions made. Izen v. Comm'n for Lawyer Discipline, 322 S.W.3d 308, 322 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). Edith's argument on this issue consists of statements reiterating her position at trial on the partnership issues, without citation to the record or pertinent authority. The jury rejected the evidence supporting Edith's position in favor of the conflicting evidence that Chichi presented. Accordingly, we hold that Edith waived this issue for appellate review.

C. Edith has not shown error in the trial court's property division.

Finally, Edith challenges the trial court's division of the marital property. Edith, however, has not provided this court with the reporter's record of the bench trial in which the trial court considered evidence about the division of the community estate. The final divorce decree recites that, for the divorce proceedings, "a jury was waived and all matters in controversy, legal and factual, were submitted to the Court for its determination." It further recites that "a record was made by the official court reporter." The court's docket sheet reflects that both sides announced ready in the divorce proceedings on March 20, 2017, and that the court heard testimony, concluding with closing argument on March 30. The reporter's record provided on appeal, however, is confined to the November 2016 jury trial about the partnership dispute.

An appellant bears the burden of bringing forward a sufficient record to show the trial court's error. See Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Texas Rule of Appellate Procedure 34.6(c) allows an appellant to request a partial reporter's record. In that case, the appellant must include with that request "a statement of the points or issues to be presented on appeal and [the appellant] will then be limited to those points or issues." TEX. R. APP. P. 34.6(c)(1). If the appellant provides a partial reporter's record and does not include the required list of issues, we presume that the omitted portions of the reporter's record support the trial court's findings. See Richards v. Schion, 969 S.W.2d 131, 133 (Tex. App.—Houston [1st Dist.] 1998, no pet.); see also Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (per curiam) ("An appellant must either comply with [the predecessor to Rule 34.6] or file a complete statement of facts; otherwise, it will be presumed that the omitted portions are relevant to the disposition of the appeal.").

Because Edith did not comply with the requirements of Rule 34.6(c), we presume that the omitted portion of the reporter's record—the bench trial addressing the divorce and division of the marital estate and accompanying exhibits—supports the trial court's findings with respect to the division of the marital estate. Without the complete reporter's record, we cannot conclude that the trial court abused its discretion in dividing the marital property.

CONCLUSION

We affirm the judgment of the trial court.

Jane Bland

Justice Panel consists of Justices Bland, Lloyd, and Caughey.