Opinion
NO. 01-10-00230-CV
03-29-2012
RICHARD SEWING, Appellant v. STEVEN WAYNE BOWMAN, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF WILLIAM C. BOWMAN, Appellee
On Appeal from the 270th Judicial District Court
Harris County, Texas
Trial Court Case No. 2008-32360
OPINION
Appellant, Richard Sewing, challenges the trial court's judgment, entered after a jury trial, in favor of appellee, Steven Wayne Bowman, as Personal Representative of the Estate of William C. Bowman ("Bowman"), in Bowman's suit against Sewing for redemption of partnership interest, breach of contract, unjust enrichment, and breach of fiduciary duty. In thirteen issues, Sewing contends that the statute of frauds precludes Bowman's claim for recovering a redemption of partnership interest; the trial court erred in considering Sewing's previously-owned property as partnership assets; the evidence is legally and factually insufficient to support the jury's finding that the parties formed a partnership; the evidence is insufficient to establish the necessary elements of an enforceable contract or agreement; Bowman failed to present competent evidence of the market value of the partnership; the evidence is insufficient to support the jury's damage award; the jury's damage award is excessive and against the great weight of the competent evidence presented at trial; and the trial court erred in not providing set-offs to the jury's calculation of Bowman's partnership redemption interest, awarding Bowman attorney's fees, and not submitting Sewing's requested jury instructions.
See TEX. REV. CIV. STAT. ANN. art. 6132b-7.01 (Vernon 2010).
Bowman's claim for breach of fiduciary duty was not submitted to the jury.
See TEX. BUS. & COM. CODE ANN. § 26.01 (Vernon 2009).
We affirm.
Background
Bowman sued Sewing, seeking redemption of a partnership interest and damages for breach of contract, unjust enrichment, and breach of fiduciary duty. In his petition, Bowman alleged that he and Sewing "entered into [a]n agreement in or around 2003 wherein Bowman provided in excess of $260,000 to [Sewing] between 2003 and 2005 as capital for the purpose of acquiring and rehabilitating real property located at 1718 Wentworth . . . and 4810 Chenevert" in Houston, Texas. Bowman and Sewing were to each own 50 percent of the two properties, which were held in the name of Sewing and his wife, Patricia Sewing, and the money sent from Bowman was deposited into the Sewings' checking account. Bowman asserted that the goal "was to create a partnership and combine their resources and make a profit on the appreciation in the value of the properties and share in rental income until the properties were later sold." Although Bowman died on June 8, 2005, Sewing did not contact Bowman's estate regarding the property or "make an offer to redeem Bowman's interest."
In regard to Bowman's claim for "Redemption of [Partnership] Interest," Bowman asserted that the parties had formed a partnership "to carry on a business for profit," Sewing is the "only remaining partner of the Partnership," Bowman, "[u]pon his death[,] . . . became a withdrawn partner and is entitled to . . . buyout rights and remedies," and, because "Sewing has not offered to the Estate to purchase Bowman's interest nor tendered any payment to the Estate," the Estate is entitled to the "fair market value of the partnership as of the date of Bowman's death."
In regard to Bowman's separate breach-of-contract claim, Bowman asserted that the parties "had an agreement that they would each contribute to the purchase of [certain] properties and in turn, would each own 50% of the properties and share in the rents and profits generated," Bowman "provided over $260,000 to [Sewing] to be used for the purchase and rehabilitation of the properties," Sewing "kept that money" and "refused to share with Bowman the revenues from the rental and sale of the properties," and "[s]uch conduct is a breach of the agreement between the parties, causing damage to Bowman in an amount in excess of $500,000.00."
In regard to Bowman's unjust-enrichment claim, Bowman asserted that "the parties understood and agreed that they would each own 50% of the properties and would share equally in the rents and profits," Sewing's "receipt of over $260,000.00 from Bowman" and his "retention of all rents and revenues from the properties is unjust and immoral," Sewing has been unjustly enriched "by keeping the more than $260,000.00 provided by Bowman and in keeping the revenues from Bowman," and Bowman "is entitled the reasonable value of the benefit conferred . . . which is in excess of $500,000.00."
Sewing testified by deposition that he had met Bowman in the early 1950's and, in October 2003, he and Bowman each invested $50,000 in "Rescue Properties." On February 6, 2004, Sewing received on their investment from Rescue Properties a payment of $136,550, which included the $50,000 that each had invested and a profit of $18,275 each for Bowman and Sewing. Sewing explained that he and Bowman wanted to continue to invest in Rescue Properties, and Bowman sent Sewing another $50,000 to invest; however, Rescue Properties stated that it did not "need [their] money." Sewing and Bowman then decided to reinvest the money into a similar endeavor, so Sewing held Bowman's $118,275. Sewing later "proposed" that Bowman "might be interested in" developing two properties owned by Sewing. The purpose of the development, according to Sewing, was to build townhouses and sell them for a profit. Sewing and Bowman had a "conversation" about developing the two properties, and Sewing "put [a] document together per [their] conversation."
Sewing explained that the agreement required Bowman to first pay Sewing $300,000 to receive "50 percent" of the two properties. Sewing, in explaining his valuation of the properties, stated, "[Bowman was] buying into something that's worth $600,000. And so if you've got half interest in it — it's worth $600,000 from what I'm seeing here — then we entered equally." Sewing further explained, "I'm selling him half of something I already own. That $300,000 goes in my pocket. . . . Now we're equal partners. . . . If I sell him half interest . . . in something I own, that belongs to me." Sewing was then asked, "So you were going to take this $300,000, put it in your pocket; is that right?" To which he responded, "If he had accepted it."
Sewing stated that he and Bowman were to develop townhomes on the two pieces of property, which were to be investment properties. He noted that although the Chenevert property was to be strictly an investment property, Bowman, in February 2004, told Sewing that he might want to live on the property. Sewing explained that at that time, he still held $118,275 of Bowman's money for investment purposes.
Sewing kept the $68,275 owing to Bowman from the Rescue Properties investment in his checking account. Two weeks before Sewing purchased the Chenevert property, he had received the additional $50,000 from Bowman, but he explained that none of this money was used toward the down payment on the Chenevert property. Bowman continued to contribute additional funds, and, at the time of his death, he had paid Sewing $223,275, leaving a remaining balance of $76,725 to reach his $300,000 total contribution. Sewing prepared two documents, which Bowman introduced into evidence at trial, recording the payments. The first document, entitled, "BOWMAN-SEWING TRANSACTIONS," and the second document, entitled, "BOWMAN-SEWING PROPERTY TRANSACTIONS As of 12/2/2004," tracked the various payments that Bowman had made to Sewing in connection with their investment in Rescue Properties and the subsequent investment plan.
Approximately one year after Bowman's death, Sewing put the Chenevert property, which was appraised for $700,000, on the market. Sewing originally had purchased the Chenevert property for $170,000. Although the Wentworth property at one time had had an abandoned building on it, Sewing tore it down and left the property vacant. Sewing eventually sold both of the properties, and townhomes are now built on the properties.
At trial, Sewing testified that after he and Bowman had received the money back from their investment with Rescue Properties, Bowman came to visit him in Houston in February 2004. Although Bowman had sent more money to Sewing to reinvest in Rescue Properties, Bowman did not want Sewing to return the money once they found out that Rescue Properties did not want their investment. While Bowman was in Houston, he visited the properties and saw "the potential" for developing townhouses on them. Sewing drafted a proposal for Bowman "to buy half of [his] land . . . but he never took the proposal." Sewing then drafted a letter to Bowman, stating that Bowman, pursuant to their discussion, would buy 50 percent of the properties and own half of the land, and Sewing was having the legal documents prepared. Sewing noted that he informed Bowman of the legal documents because in "real estate dealings, any time you're selling land you go to a title company."
Sewing explained that after they were unable to reinvest in Rescue Properties, Bowman wanted to make a similar investment. Then, Sewing offered to let Bowman buy one-half of his properties. Sewing "needed [Bowman's] financial statement" because they would need to borrow "probably $3 million for interim financing." According to their plan, the men were to build nine condominiums on the two pieces of property. However, they did not "go forward with that plan" because Bowman "just sat on the letter" as he was "looking for something fast, where you double your money."
After Bowman left Houston and returned to Minnesota, he began "talking about" moving to Houston, and he recommended that the two repair the "old tear-down house" located on the Chenevert property. Bowman wanted to "fix it up" and live in it, and he offered to "put the money in it." Sewing then began to remodel the house with the money from Bowman and the $200,000 he had contributed. He explained that the changes made to the property were not to increase its value, but for Bowman to live in it. Sewing stated that the men considered the development to be "on hold," but Sewing was "comfortable" doing that because he wanted Bowman to move to Houston. Sewing noted that the total amount of money he had received from Bowman was used to renovate the Chenevert property.
Sewing explained that he knew that Bowman's health was "bad," but he was not aware of how bad it was until Bowman's cousin alerted him that Bowman was very ill. Sewing then went to Minnesota, where he found Bowman in very bad condition, and Sewing had to call for emergency assistance to take Bowman to the hospital. Sewing then returned to Houston to discuss plans to "airlift" Bowman to Houston, but Bowman died before he could be transported.
At the time of Bowman's death in June 2005, the renovations on the Chenevert house were approximately 90 percent complete, and Sewing then had them completed. In July 2005, Sewing had the property appraised for a value of $390,000. However, Sewing engaged some realtors, who estimated its value at $600,000 to $700,000. Sewing ultimately sold it for $450,000. He owed approximately $130,000 on a mortgage on the property, and he explained that he "lost a large amount of money" on it. Sewing noted that he did not go to Steven Bowman, Bowman's son, for the losses that he had incurred on the property because "this wasn't business. This was for [his] friend."
Sewing explained that his deposition testimony about the sharing of profits and losses was in regard to what "would have been if we had developed the property and made the townhouses but we never did." He knew that "there was no way [he] could make any money out of" the renovated property, but he renovated the property because that is what Bowman wanted.
On cross-examination, Sewing stated that he did not document any of the costs of remodeling the Chenevert property "because that was friendship." Sewing also explained his deposition testimony about Bowman's contribution of $300,000 and their being "equal partners," stating, "I didn't say if he gave me $300,000 we would be equal partners. If he . . . bought the land of these two properties for $300,000 then that would consummate. He never agreed to that." Sewing asserted that Bowman had paid him only $211,000 and explained that the two men would have been partners if Bowman had agreed to his proposal to buy one-half of the properties, but the partnership never formed because Bowman became ill and all of his money "went into developing that house for him to live in."
Craig LeVesseur, a certified financial planner, testified by deposition that he had provided financial planning services to Bowman since 2000. He explained that he would meet with Bowman approximately once every six months to discuss Bowman's goals, priorities, and current financial situation. LeVesseur also noted that during his meetings and telephone conversations with all of his clients, including Bowman, he would take notes that he would later use to create an annual written report. He explained that Bowman would keep him "abreast of his investments on a regular basis." In their first meeting, LeVesseur made the following notes of his conversation with Bowman: "Invest in Houston land/homes," "$145k invested so far," "will be adding another one $155k to this project," "Expected to mature in two to three years," and "[Bowman] is expecting 2 to 3 million out of it."
At a later meeting with Bowman on June 3, 2004, LeVesseur took notes that he used to compile a follow-up letter on June 7, 2004. In the follow-up letter, LeVesseur noted that Bowman "intend[ed] to add to [his] real estate investment opportunity with [Sewing] in Houston." LeVesseur did not recall if Bowman mentioned Sewing's name in this specific meeting, but he noted that "every other conversation" concerned "Richard."
LeVesseur again met with Bowman on December 30, 2004, and, pursuant to his ordinary practice, he took notes regarding the meeting. LeVesseur noted that, at this time, Bowman had to return to a hospital due to over-radiation from his cancer treatment, but Bowman "mentioned once he got his health back he wanted to go down to Houston and visit his friend." LeVesseur also noted, "In 2005/06, [Bowman] will need $76,000 for his obligation in the Texas land investment project." LeVesseur explained that Bowman considered the project an "investment opportunity" and never informed LeVesseur of any plans to move to Houston. He explained that his note of "2005-Alone Thirty to $40k needed for Texas project" was in reference to Bowman needing $30,000 to $40,000 in 2005 to invest in the project. Subsequently, on February 15, 2005, LeVesseur had a telephone conversation with Bowman, and he made a note that Bowman "told me he will need 38,526 on April 15; 38,526 August 15" for the project in Texas.
On cross-examination, LeVesseur admitted that he did not have any personal knowledge that Bowman had filed any tax forms related to a partnership with Sewing. He had never seen any written agreements between Sewing and Bowman about their project, and he did not know exactly what the project entailed or involved. LeVesseur also did not know if Bowman had ever shared in any profits or had had a right to receive profits; he knew only that Bowman "expected to get 2 to 3 million back in a relatively short period of time." LeVesseur did not know if the endeavor "was going to be a partnership," but he knew that Bowman intended "to invest $300,000." He could not remember whether Bowman had "ever specifically said" that Bowman and Sewing were partners, but he knew that Bowman had "never showed [him] anything legally that suggested a partnership. In regard to Bowman's claim for "Redemption of [Partnership] Interest," the trial court instructed the jury as follows:
A partnership is an association of two or more people to carry on a business, as owners, for profit. You may consider the following factors in finding a partnership between the parties (not all factors are necessary to form a partnership):The jury found that Sewing and Bowman had "form[ed] a partnership regarding the properties located at 1718 Wentworth and 4810 Chenevert in Houston, Texas" and the value of Bowman's interest in the partnership at the time of his death was $231,743.61. (Emphasis added.)
1) the right to receive a share of the profits;
2) expression of intent to be partners in the business;
3) participation or the right to participate in the control of the business;
4) sharing or agreeing to share in the losses of the business;
5) contribution or agreeing to contribute money or property to the business.
In regard to Bowman's separate breach-of-contract claim, the trial court submitted the following question to the jury:
Did William C. Bowman and Richard Sewing bind themselves to a contract that included the following terms:The jury found that the parties had bound themselves to such a contract. However, the jury further found that neither Bowman nor Sewing had failed to comply with the contract, and it found that Sewing was not unjustly enriched. Thus, the jury did not award Bowman damages on his breach-of-contract or unjust-enrichment claims.
1) William C. Bowman's purchase of an one half interest or 50% ownership in the properties located at 4810 Chenevert and 1718 Wentworth for $300,000; and
2) The development of townhomes on both properties to make a profit.
Based on the jury's findings, the trial court entered judgment in favor of Bowman for actual damages of $231,743.61 on his claim for "Redemption of [Partnership] Interest."
Statute of Frauds
In his first issue, Sewing argues that the trial court erred in denying his request for a directed verdict because Bowman's partnership claim is "wholly derivative" of an agreement for the transfer in the interest of land and, thus, whether or not the partnership agreement technically included a transfer in the interest of land, enforcing the agreement would still be barred by the statute of frauds. In his second and third issues, Sewing argues that "[i]n order for [Bowman] to have prevailed at trial, the evidence had to conclusively establish as a matter of law that" the properties in question were "owned by the partnership" and, if purchased by individuals, any "oral transfer to the partnership is barred by the statute of frauds."
The statute of frauds requires that a promise, agreement, or contract for the sale of real property be in writing and signed by the party to be charged with the promise or agreement. TEX. BUS. & COM. CODE ANN. § 26.01(a), (b)(4) (Vernon 2009). To satisfy the statute of frauds, a contract "must furnish within itself, or by reference to some other existing writing, the means or data by which the [property] to be conveyed may be identified with reasonable certainty." Morrow v. Shotwell, 477 S.W.2d 538, 539 (Tex. 1972). Whether a contract falls within the statute of frauds is a question of law. Iacono v. Lyons, 16 S.W.3d 92, 94 (Tex. App.— Houston [1st Dist.] 2000, no pet.).
Sewing argues that, "though couched in terms of a partnership agreement," Bowman's partnership redemption claim is "nothing more than a claim for [a] one-half interest in the Chenevert and Wentworth properties." In support of this argument, he cites Trammel Crow Co. No. 60 v. Harkinson, 944 S.W.2d 631 (Tex. 1997). In Trammel Crow, the plaintiff, a real estate broker, brought an action for tortious interference of a written contract, which provided him the exclusive right to sell a property. Id. at 632. Underlying the written exclusivity contract was an oral agreement stating the terms of his commission. Id. Although the plaintiff argued that his claims were "not for the recovery of a commission, but for tort damages," his requested amount of damages was equal to the commission he would have received under the oral commission agreement. Id. at 633-34. He alleged that the defendants had tortiously interfered with his ability to act as the exclusive representative; however, this agreement included no terms for the amount of commission, so any damages would still hinge on the unenforceable oral commission agreement. Id. at 634. The court ruled that such a result was directly contrary to the statutory mandate that "[a]n action may not be brought in a court in this state for the recovery of a commission for the sale or purchase of real estate unless the promise . . . is in writing and signed by the party to be charged." Id. (citing TEX. REV. CIV. STAT. ANN. art. 6573a, § 20(b) (Vernon Supp. 1997)). Thus, because the plaintiff, through the tortious interference claim, was ultimately seeking "recovery of a commission for the sale or purchase of real estate," the statute of frauds barred recovery despite the fact that it was not brought as a breach-of-contract claim. Id.
Here, Bowman is not seeking to recover a commission for the sale or purchase of real estate, and the reasoning of Trammel Crow applies to Bowman's suit only if his claim for redemption of a partnership interest was an attempt to enforce an otherwise unenforceable contract for the sale of real estate. However, merely because the value of the properties is relevant to the value of Bowman's partnership interest does not compel the conclusion that he is attempting to enforce a contract for the sale of real estate. Bowman did not make a claim for a transfer of title in the two properties, and the jury was presented with evidence that he sought only the value of his partnership interest in a "partnership regarding the properties," i.e., one that involved the development of townhomes on the properties and then the sale of the two properties.
"[A]n agreement to share in the profits of contemplated speculative deals in real estate simply does not involve the transfer of real estate, or an interest in real estate, within the meaning of the Statute of Frauds." Berne v. Keith, 361 S.W.2d 592, 597 (Tex. Civ. App.—Houston 1962, writ ref'd n.r.e.); see also Wiley v. Bertelsen, 770 S.W.2d 878, 881 (Tex. App.—Texarkana 1989, no pet.) ("The statute of frauds does not apply to an agreement to pay a certain sum of money out of the proceeds of a future sale of land."). Thus, Bowman's claim for redemption of his partnership interest may include an interest in the proceeds from the sale of the two properties without resulting in a transfer of interest in the two properties. Merely because a partnership agreement contemplates transactions in real estate does not transform the partnership itself into a transaction for the sale of real estate, bringing it under the statute of frauds. See Berne, 361 S.W.2d at 597. Thus, Sewing has not established, as a matter of law, that the statute of frauds applies to the partnership agreement. Accordingly, we hold that the trial court did not err in denying his motion for directed verdict.
In his second and third issues, Sewing argues that the Wentworth and Chenevert properties cannot be considered as "partnership assets" because "any oral transfer to the partnership" was "barred by the statute of frauds." However, the jury could consider the market value of the property to determine the "fair value" of Bowman's partnership interest, i.e., Bowman's entitlement to the proceeds of any future sale, without considering the properties themselves to be assets of the partnership. See id.
We overrule Sewing's first, second, and third issues.
In support of his argument that the statute of frauds bars Bowman from recovering the value of his interest in the partnership formed with Sewing, our dissenting colleague asserts:
The Court properly distinguishes between (1) an oral partnership agreement to transfer an ownership interest in land to a partner or the partnership—an agreement that violates the statute of frauds—and (2) an oral partnership agreement to develop land for resale and share in the sale profits without transferring an ownership interest in the land—an agreement that does not. . . . But, contrary to the Court's holding, the agreement alleged at trial and found by the jury falls within the first category rather than the second, and the damages Bowman recovered depend on that unenforceable oral agreement.(citations omitted). However, contrary to our colleague's assertion that this case concerns two "oral partnership agreement[s]," Bowman actually asserted against Sewing two separate and distinct claims: (1) a claim for redemption of Bowman's interest in the partnership "regarding the properties located at 1718 Wentworth and 4810 Chenevert in Houston, Texas" (emphasis added) and (2) an alternative breach-of-contract claim that concerned Bowman's "purchase of an one half interest or 50% ownership in the properties located at 4810 Chenevert and 1718 Wentworth for $300,000." As outlined above, these distinct claims appear separately in Bowman's "Original Petition and Request for Disclosure," and the trial court submitted the two different claims to the jury for separate findings and damage awards.
In order to find that Bowman and Sewing had formed a partnership "regarding" the pertinent properties, the jury need not have believed that Bowman had also specifically agreed to purchase an interest in the properties. And, in order to find that Sewing had failed to comply with a contract to sell an interest in the pertinent properties, the jury need not have believed that Bowman and Sewing had formed a partnership. Indeed, although the jury found that Bowman and Sewing had formed a partnership, it separately found that neither Bowman nor Sewing had failed to comply with an agreement for Bowman to purchase an interest in the properties. Thus, our dissenting colleague's conclusion that the statute of frauds bars Bowman's claim for "Redemption of [Partnership] Interest" is based entirely on a false premise and the conflation of two separate and distinct theories of liability. And the statute of frauds does not bar Bowman's claim for "Redemption of [Partnership] Interest."
Partnership Agreement
In his fourth issue, Sewing argues that the evidence is legally and factually insufficient to establish an enforceable agreement or contract between him and Bowman because Bowman failed to pay $300,000 for a one-half interest in the Chenevert and Wentworth properties. In his fifth issue, Sewing argues that the evidence is legally and factually insufficient to establish the necessary elements of a contract between the parties because Bowman failed to present "evidence of acceptance," a "meeting of the minds," the terms of any agreement, and delivery or performance of any agreement. In his seventh issue, Sewing argues that the evidence is legally and factually insufficient to establish the formation of a partnership because there is no evidence of a partnership contract, no testimony that Bowman had expressed an intent to enter a partnership, no evidence to show an agreement to share profits and losses, and Bowman's payment of $300,000 was a required condition of any partnership agreement.
Standard of Review
We will sustain a legal sufficiency or "no-evidence" challenge if the record shows one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In conducting a legal sufficiency review, a court must consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. Id. at 822. If the evidence allows only one inference, neither jurors nor the reviewing court may disregard it. Id. However, if the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so. Id. A reviewing court cannot substitute its judgment for that of the fact finder, so long as the evidence falls within this zone of reasonable disagreement. Id.
In reviewing a factual-sufficiency challenge, we consider and weigh all of the evidence supporting and contradicting the challenged finding and set aside the finding only if the evidence is so weak as to make the finding clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); see Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). When a party attacks the factual-sufficiency of an adverse finding on an issue on which it did not have the burden of proof at trial, it must show that there is insufficient evidence to support the adverse finding. Vongontard v. Tippit, 137 S.W.3d 109, 112 (Tex. App.—Houston [1st Dist.] 2004, no pet.). The jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
Evidence of Contract
In his fifth issue, Sewing argues that Bowman cannot recover on his partnership claim without also proving the existence of a contract because "to sustain a cause of action for redemption of a partnership interest, the alleged partnership must be based on a valid, enforceable agreement like any other contract."
In support of his assertion, Sewing relies on Volpe v. Schlobohm, 614 S.W.2d 615 (Tex. App.—Texarkana 1981, no writ) and Ferch v. Baschnagel, No. 03-04-00605-CV, 2009 WL 349149 (Tex. App.—Austin Feb. 13, 2009, no pet.) (mem. op.). In Volpe, the court applied the contractual concept of rescission to a partnership, stating that a "partnership agreement, like any other agreement or relationship, may be rescinded when proper grounds exist." Volpe, 614 S.W.2d at 617. The existence of a partnership agreement was not in dispute, and the elements of contract formation were not discussed. Id. at 617. Rather, the court only applied the concept of rescission to a written partnership agreement in determining whether rescission was a proper remedy in the parties' dispute. Id.
In Ferch, a party brought suit for breach of a partnership agreement, and the court discussed the evidence supporting the finding of such an agreement. Ferch, 2009 WL 349149, at *1. The court stated, "It is well established that, 'even if an offer and acceptance are not recorded on paper, dealings between parties may result in an implied contract where the facts show that the minds of the parties met on the terms of the contract without any legally expressed agreement.'" Id. at *9. (citing Ishin Speed Sport, Inc. v. Rutherford, 933 S.W.2d 343, 348 (Tex. App.— Fort Worth 1996, no writ); City of Houston v. First City, 827 S.W.2d 462, 473 (Tex. App.—Houston [1st Dist.] 1992, writ denied)). The court went on to state that "because the jury was required to determine if there was a 'meeting of the minds'" for the plaintiff to recover on his breach-of-contract claim, "it was necessary for the jury to determine" whether the plaintiff and defendant had agreed to form a partnership. Id.; see also Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (holding that dispositive issue in determining whether contract exists is intent of parties to be bound, without which there can be no contract upon which to base breach-of-contract action); Oakrock Exploration Co. v. Killam, 87 S.W.3d 685, 689 (Tex. App. —San Antonio 2002, pet. denied). Although the court in Ferch did reference the elements of contract formation, it did not state that a plaintiff must provide evidence on each of the elements of a contract claim to establish the formation of a partnership. Id. at *9-10. Rather, the court looked at the factors indicating existence of a partnership agreement. Id.
Partnership formation may be implied from the facts and circumstances of a case. Elhamad v. Quality Oil Trucking Service, Inc., No. 2-02-412-CV, 2003 WL 22211543, at *3, (Tex. App.—Fort Worth Sep. 25, 2003, no pet.) (mem. op.) (citing Cavazos v. Cavazos, 339 S.W.2d 224, 226 (Tex. Civ. App.—San Antonio 1960, writ ref'd n.r.e.)); see also Shindler v. Marr & Assocs., 695 S.W.2d 699, 703 (Tex. App.—Houston [1st Dist.] 1985, writ ref'd n.r.e.). In Ingram v. Deere, the Texas Supreme Court, in deciding whether the parties had formed a partnership, did not apply the elements of a contract claim to the oral partnership agreement; rather, it looked at the totality of the circumstances and the elements of partnership formation. 288 S.W.3d 886, 891 (Tex. 2009). Accordingly, we conclude that, in regard to Bowman's partnership claim, Bowman need not prove each element establishing the existence of a contract.
We note that although the jury did also find that Sewing and Bowman had a contract, Bowman did not recover on his breach-of-contract claim.
We overrule Sewing's fifth issue.
Existence of a Partnership Formation
Under the Texas Revised Partnership Act ("TRPA"), factors indicating the formation of a partnership include: (1) receipt or right to receive a share of profits of the business; (2) expression of intent to be partners in the business; (3) participation or right to participate in control of the business; (4) sharing or agreeing to share losses and liabilities of the business; and (5) contributing or agreeing to contribute money or property to the business. Act of May 31, 1993, 73d Leg., R.S., ch. 917, § 1, 1993 Tex. Gen. Laws 3890 (expired Jan. 1, 2010) (former article 6132b-2.02(a)). Unlike at common law, the TRPA "does not require proof of all of the listed factors in order for a partnership to exist." Ingram 288 S.W.3d at 896. Rather, whether a partnership exists is to be determined by looking at the "totality of the circumstances" and considering "all of the evidence bearing on the TRPA partnership factors." Id.
Although TRPA expired on January 1, 2010, it was in effect during the events made the basis of this lawsuit.
In regard to the factors indicating partnership formation, we note, first, that Sewing asserts that there are no documents or testimony establishing that Bowman had a right to sharing any profits from a partnership regarding the Wentworth and Chenevert properties. He argues that although he testified that he and Bowman would have shared in any profits if a partnership had been formed, his "answer was conjecture and clearly conditioned on a circumstance that never occurred—the men's joint ownership of the properties." He asserts that he "was indulging counsel in his questions and guessing what the terms would have been, assuming co-ownership of the property occurred."
Bowman points to the following testimony at trial as evidence of profit sharing:
[Bowman's Counsel]: And you and Bill were going to share in the profits of it?Sewing's testimony constitutes some evidence that he and Bowman had an agreement to share profits in regard to the development of the Wentworth and Chenevert properties. See Hoss v. Alardin, 338 S.W.3d 635, 643 (Tex. App.— Dallas 2011, no pet.) (holding testimony that parties "were going to split profits" was sufficient to uphold finding of right to receive profits even though it "could be interpreted [as] an agreement to agree"). Sewing's own admission that the parties were to share profits constitutes evidence of the "receipt or right to receive a share of profits of the business." See TRPA art. 6132b-2.03(a)(1).
[Sewing]: The —
[Bowman's Counsel]: The investment?
[Sewing]: The development, yes.
In regard to whether Sewing and Bowman had expressed an intent to be partners, Sewing argues that Bowman presented no evidence because there is no testimony or documents created by Bowing that refer to Sewing as his "partner" in business, LeVesseur "admitted that he could offer no competent testimony that Sewing was Bowman's business partner," and "Sewing's testimony that if Bowman [had] purchased half ownership interest in the two properties, then Sewing would have considered them [to] be equal partners is no evidence at all of an actual expressed intent by the men to be partners."
The expression-of-intent factor requires "an inquiry separate and apart from the other factors," and courts should "only consider evidence not specifically probative of the other factors." Ingram, 288 S.W.3d at 900. Courts should review the "putative partners' speech, writings, and conduct" in determining whether the parties had expressed an intent to be partners. Id. at 899. Additionally, "there must be evidence that both parties expressed their intent to be partners." Id. at 900.
In support of this factor, Bowman points to Sewing's testimony that the men would be "equal partners." Here, Sewing testified as follows:
[Sewing]: I'm selling him half of something I already own. That $300,000 goes in my pocket. That's mine. Now we're equal partners, and we move forward. But I'm not — his money is not in for me to do that with. If I sell him half interest in my — in something I own, that belongs to me.(Emphasis added.) Although Sewing's testimony is that Bowman did not pay him $300,000, which he asserts was a required condition of any partnership, the jury could have reasonably inferred from this testimony that the two men had expressed an intent to be partners. See id. at 901. Thus, Bowman, through Sewing himself, presented some evidence that the men expressed an intent to be partners.
[Bowman's Counsel]: So you were going to take this $300,000, put it in your pocket; is that right?
[Sewing]: If he had accepted it.
In regard to an agreement to share in the losses of any partnership, Sewing argues that there is no evidence of such an agreement because there is no document reflecting such an agreement nor is there any credible testimony that either party agreed to share in any losses. The absence of an agreement to share losses is not dispositive of the existence of a partnership; however, the existence of such an agreement could support Bowman's argument that a partnership existed between him and Sewing. TRPA art. 6132b-2.03(a)(4)(A). Sewing asserts that the "only testimony on the issue is Sewing's affirmative response to a hypothetical: 'And if the development took a bath, you would share in the losses?'" Sewing clearly stated that if the development had failed, both parties "would share in the losses." Moreover, the evidence is undisputed that Sewing was in possession of $223,275 that Bowman had provided to Sewing—money that Sewing had not returned. Thus, the record contains evidence from which the jury could have inferred an agreement to share losses.
Regarding any right to participate in the control of any partnership, Sewing asserts that there is no evidence that Bowman ever participated or had such a right. He asserts that it is "uncontroverted that Sewing owned both properties and controlled the maintenance, renovations and other operation on the properties." Further, Sewing asserts that his "testimony that if Bowman had purchased the half interest and agreed to develop the townhomes, Bowman would have 'some input in developing it' is not evidence that an agreement was in place concerning the properties.'"
"The right to control a business" involves "the right to make executive decisions." Ingram, 288 S.W.3d at 901. Courts have considered various facts in deciding whether an individual had such a right to control, including the exercise of authority over a business's operations, the right to write checks on a business's checking account, control over and access to a business's books, and receiving and managing all of a business's assets and monies. Id. at 901-02. Sewing's testimony that Bowman would have had "some input in developing" the properties does not constitute evidence of a right to make executive decisions. Such "input" does not necessarily include control over a business. See id. at 903 ("[O]wners talk with consultants, employees, accountants, attorneys, spouses, and many others about their businesses, and these conversations do not establish that these people have control of the business."); see also Knowles v. Wright, 288 S.W.3d 136, 147 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (holding that testimony that parties "made decisions together" did not constitute evidence of control where one party "retained ultimate control over business decisions"). Here, Bowman submitted no evidence that he made executive decisions or had the right to make such decisions.
In regard to any contribution or agreement to contribute property or funds to an alleged partnership, Sewing asserts that there is no evidence that Bowman made any such contribution or entered any such agreement. He further asserts that the "only funds mentioned in the testimony and documents were sent from Bowman to [Sewing] for the purchase of an ownership interest in the properties." He asserts that Bowman's contributions "would have been monies owed directly to Sewing to gain an interest in the properties personally owned by Sewing, and no funds were to be contributed to an alleged partnership."
In regard to the TRPA factors concerning partnership formation, Bowman asserts that "adequate evidence supports the jury's finding that the parties created a partnership and that Bowman was paying down an interest in their venture, not buying real estate." The evidence shows that Bowman made several payments over the course of the parties' dealings: $50,000 to invest in Rescue Properties, the $68,275 that Sewing retained from the investment in Rescue Properties, two additional payments of $50,000 to Sewing, and a $5,000 payment to Sewing. The jury could have reasonably concluded that Bowman contributed the money to form a partnership with Sewing and he made the continuous payments to pay down on his partnership contribution.
In regard to Sewing's fourth issue, we note that the jury was not required to believe Sewing's testimony that Bowman was to first buy an interest in the Wentworth and Chenevert properties before the partnership would be formed. Because the jury could have disbelieved his testimony on this point, we overrule Sewing's fourth issue.
Sewing asserts that his testimony regarding the right to receive profits, the intent to be partners, and the obligation to share in losses constitutes no evidence of these factors because his testimony was "conjecture and clearly conditioned on a circumstance that never occurred—the men's joint ownership of the properties." Again, however, the jury was free to disbelieve his assertion that co-ownership of the properties was a prerequisite to the formation of the partnership while taking into account his testimony regarding the terms of such a partnership. See, e.g., Golden Eagle Archery, 116 S.W.3d at 774-75 (stating that jury may "believe all or any part of the testimony of any witness and disregard all or any part of the testimony of any witness"); Travelers Pers. Sec. Ins. Co. v. McClelland, 189 S.W.3d 846, 852 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (stating that jury could have disbelieved part of witness's testimony where he "appeared to backtrack" on his prior testimony).
Accordingly, we conclude that Bowman presented sufficient evidence on four of the five TRPA factors indicating the existence of a partnership agreement. See TRPA art. 6132-2.03(b). Viewing the evidence in the light most favorable to the verdict, we further conclude that a reasonable and fair-minded fact-finder could find the existence of a partnership. See City of Keller, 168 S.W.3d at 810. Moreover, we conclude that the evidence supporting the jury's finding is not so weak as to make the finding clearly wrong and manifestly unjust. Cain, 709 S.W.2d at 176. Accordingly, we hold that the evidence is legally and factually sufficient to support the jury's finding of the existence of a partnership.
Sewing argues that the trial court erred in not excluding LeVesseur's testimony and, as a result, it is not competent evidence to support the jury's finding that a partnership existed. Having held that the evidence is legally and factually sufficient to support the jury's finding of a partnership agreement without relying on LeVesseur's testimony, we need not address this argument.
We overrule Sewing's seventh issue.
Damages
In his sixth issue, Sewing argues that Bowman presented no competent evidence of the fair market value of his partnership interest because Bowman presented no expert testimony as to the value of his partnership interest and Sewing's testimony cannot serve as evidence of the partnership interest. In his eighth issue, Sewing argues that the evidence is legally insufficient in regard to the redemption price of Bowman's partnership interest, if any, because he submitted no evidence of the value of the Wentworth property. In his ninth and tenth issues, Sewing argues that the awarded damages are excessive and against the great weight of the evidence because "the value of [Bowman's] interest, if any, was less than zero [as] he owed the alleged partnership for his capital contribution and losses . . . related to the properties" and the trial court erred in not providing set-offs to the jury's calculation of the redemption price.
The TRPA provides that "the redemption price of a withdrawn partner's partnership interest is the fair value of the interest as of the date of withdrawal." TRPA art. 6132b-7.01(b)(1). The death of a partner constitutes an event of withdrawal. Id. art. 6132-6.01(b)(7)(A). And the redemption price has been referred to as a "buyout" of the withdrawing partner's interest. Coleman v. Coleman, 170 S.W.3d 231, 237 (Tex. App.—Dallas 2005, pet. denied). Interest is payable on the amount owed. TRPA art. 6132b-7.01(b)(2).
At trial, Sewing testified that, at the time of Bowman's death, Bowman had contributed approximately $211,000 to the development plan. He noted that the value of the Chenevert property had been appraised at approximately $700,000, when Sewing "put it on the market" in June 2006, and, in August 2005, "shortly after Bowman's death," it was valued at approximately $750,000. Sewing also interpreted his valuations in the document entitled, "BOWMAN-SEWING TRANSACTIONS," which listed the price for the Wentworth and Chenevert properties at $300,000 each. Sewing explained that he arrived at this number by taking the combined square footage of both properties and valuing them at $35 per square foot, giving a total value of $600,000, which he divided by two. Because the Wentworth property was larger, Sewing noted that his $300,000 valuation of that property was "underpriced." With 9,500 square feet, at $35 per square feet, Sewing would have valued the Wentworth property at $332,500. In explaining his valuations, Sewing testified, "I know those property values. I've been there 45 years." In June 2006, the Wentworth property sold for $390,000.
Sewing argues that the above evidence is not competent to establish the redemption price of Bowman's partnership interest because "[n]o one testified as to how to account for the partners' capital contributions or expenses" and "expert testimony by an accountant or other professional was necessary to properly guide the jury as to the proper partnership value." He asserts that Bowman "presented no expert evidence, or any other credible evidence at all, of [his] partnership interest, as required by Texas law." However, Sewing cites to no authority which would have required Bowman to provide expert testimony on the "fair value" of his partnership interest. See TRPA art. 6132b-7.01(b)(1). Instead, for the proposition that section 8.06 of the TRPA requires "the profits and losses that result from the liquidation of the partnership property [to] be credited and charged to the partners' capital accounts," he cites Coleman, 170 S.W.3d at 237. However, as explained in Coleman, section 8.06 applies only to the disposition of the partnership assets upon a winding up of the partnership. Id. at 238. In Coleman, the court held that section 8.06 did not apply where the redeeming partner had died, and, thus, withdrawn from the partnership, and there was no winding up of the partnership. Id. Here, the partnership's only "assets" at the time of Bowman's death were Bowman's capital contribution and, arguably, the two properties as valued by Sewing. We conclude that, under these circumstances, Bowman was not required to provide expert testimony on the value of his partnership interest.
Sewing further argues that his own testimony is not competent evidence of the value of the Wentworth and Chenevert properties because "a property owner cannot offer testimony with respect to anyone else's property," citing Redman Homes, Inc. v. Ivy, 920 S.W.2d 664, 669 (Tex. 1996). In Redman Homes, both parties conceded that a homeowner's statements regarding the price that he paid for his home were not admissible to show its market value at the time that the home was destroyed by fire ten months later. Id. at 668. However, the court held that the homeowner was qualified to testify as to the market value of the home and his personal property as their owner. Id. at 669. Here, it is undisputed that Sewing owned both properties at the time of Bowman's death. "A property owner is qualified to testify to the market value of his property." Id. (citing Porras v. Craig, 675 S.W.2d 503, 504 (Tex. 1984)). "This evidence is probative if it is based on the owner's estimate of the market value and not some intrinsic or other value such as replacement cost." Id. Thus, the jury could have reasonably relied on Sewing's testimony regarding the value of his properties.
Sewing next argues that there is no competent testimony specifically regarding the value of the Wentworth property at the time of Bowman's death because the only evidence that Bowman offered concerning it was "a settlement statement from the sale of the property more than a year later on June 2006." However, the evidence also included Sewing's own valuation of the property in the "BOWMAN-SEWING TRANSACTIONS" document prepared in December 2004. The jury was not required to determine the exact market value of the property at the time of Bowman's death but only the "fair value" of his partnership interest. See TRPA art. 6132b-7.01(b)(1). We conclude that the above evidence would have enabled the jury to reasonably determine the fair value of Bowman's partnership interest.
Accordingly, we overrule Sewing's sixth and eighth issues.
In regard to his ninth issue, Sewing argues that the evidence is insufficient to support the jury's damage award and the damages are excessive and against the great weight of the evidence presented at trial because Bowman "owed the alleged partnership for his capital contribution and losses/expenses related to the properties." However, as noted above, the jury was free to disbelieve Sewing's testimony that Bowman's payment of $300,000 for receipt of a one-half interest in the two properties was a condition precedent to the formation of the partnership, and it was free to disbelieve some or all of Sewing's testimony regarding the expenses paid on the Chenevert property and whether they were expended pursuant to the partnership agreement and before Bowman's death. See Golden Eagle Archery, 116 S.W.3d at 774-75. Accordingly, we hold that the damages were not excessive and the evidence that supports the award is not so weak as to render the jury's award clearly wrong and manifestly unjust.
We overrule Sewing's ninth issue.
In his tenth issue, Sewing asserts that the trial court erred in not applying set-offs to the jury's partnership award. See TRPA art. 6132b-7.01(l). The TRPA provides that a "withdrawn partner . . . may maintain an action . . . to determine the terms of redemption of that partner's interest, including a contribution obligation or setoff under Subsection (c) or (d) or other terms of the redemption obligations of either party." Id. However, subsection (c) only states that a wrongfully-withdrawn partner is liable for contributions he "would have been liable to make," while subsection (d) states that the partnership may set off damages for "wrongful withdrawal." Id. art. 6132b-7.01(c),(d). As Bowman was not a wrongfully-withdrawing partner, the provisions in subsections (c) and (d) would not apply to him, and the jury was entitled to disbelieve Sewing's testimony that there were any expenses incurred in furtherance of the partnership that Bowman was liable for. See Golden Eagle Archery, 116 S.W.3d at 774-75. Accordingly, we overrule Sewing's tenth issue.
Attorney's Fees
In his eleventh issue, Sewing argues that the trial court erred in awarding Bowman attorney's fees because he "failed to plead and present evidence to sustain a judgment for such fees on his partnership claim." See TRPA art. 6132b- 7.01(l). Sewing asserts that Bowman's plea for attorney's fees applied only to his breach-of-contract claim, on which he was unsuccessful, and an award of attorney's fees in an action to recover on a partnership interest requires a showing of "vexatious conduct." See id.
A trial court's award of attorney's fees will not be disturbed on appeal absent an abuse of discretion. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Absent contrary evidence, we must presume that a trial court's judgment is valid. Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex. App.— Houston [14th Dist.] 1999, pet. denied) (stating court would uphold award of attorney's fees "if it can be upheld on any legal theory supported by the evidence").
A party "may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for . . . an oral or written contract." TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) (Vernon 2008). Bowman pleaded for attorney's fees under section 38.001(8), but Sewing argues that because Bowman did not recover on his breach-of-contract claim, he cannot recover attorney's fees. Sewing asserts that Bowman was required to plead for attorney's fees under the TRPA, which states that "[i]f the court finds that a party acted arbitrarily, vexatiously, or not in good faith . . . the court may assess . . . reasonable attorney's fees" against that party. TRPA art. 6132b-7.01(l). However, "[s]ection 38.001(8) does not narrow its scope to claims of breach of contract, nor differentiate between types of contracts. . . ." ½ Price Checks Cashed v. United Auto. Ins. Co., 344 S.W.3d 378, 388 (Tex. 2011) (holding that section 38.001(8) applied to claim for breach of obligation owed by drawer of check); see also Med. City Dallas, Ltd. v. Carlisle Corp., 251 S.W.3d 55, 61 (Tex. 2008) (upholding award of attorney's fees under section 38.001(8) in claim for breach of express warranty because claim, while not breach of contract, was "contract-based").
Although Bowman did not recover on his breach-of-contract claim, his partnership-redemption claim was still based on an oral agreement. Accordingly, we hold that the trial court did not abuse its discretion in awarding him attorney's fees. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8); see also Atterbury v. Brison, 871 S.W.2d 824, 828 (Tex. App.—Texarkana 1994, writ denied) (holding that because plaintiff's claim was "founded on an oral or written partnership agreement," attorney's fees were recoverable under Chapter 38 in action for accounting of partnership interest).
We overrule Sewing's eleventh issue.
Jury Questions and Instructions
In his twelfth and thirteenth issues, Sewing asserts that the trial court erred in not submitting his proposed jury questions and instructions regarding formation of the partnership, "the existence of a condition precedent to the parties' agreement or partnership," and the application of the statute of frauds.
We review a trial court's decision to submit or refuse a particular question or instruction under an abuse of discretion standard. See La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998). When a trial court refuses to submit a requested question or instruction on an issue raised by the pleadings and evidence, the question on appeal is whether the request was reasonably necessary to enable the jury to render a proper verdict. Tex. Workers' Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000) (referring to Texas Rules of Civil Procedure 277 and 278). The omission of a question or instruction constitutes reversible error only if the omission probably caused the rendition of an improper judgment. TEX. R. APP. P. 44.1(a); see Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 723 (Tex. 2003). Error in the omission of an issue is harmless "when the findings of the jury in answer to other issues are sufficient to support the judgment." See Shupe v. Lingafelter, 192 S.W.3d 577, 579-80 (Tex. 2006); Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 750 (Tex. 1980).
A trial court must submit questions, instructions, and definitions that the pleadings and evidence raise. See TEX. R. CIV. P. 278; Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992). A trial court may refuse to submit a jury question only if no evidence exists to warrant its submission. See Elbaor, 845 S.W.2d at 243; Brown v. Goldstein, 685 S.W.2d 640, 641 (Tex.1985) (citing Garza v. Alviar, 395 S.W.2d 821, 824 (Tex. 1965)). Conflicting evidence presents a fact question for the jury to decide. Gunn Infiniti, Inc. v. O'Byrne, 996 S.W.2d 854, 862 (Tex. 1999); Brown, 685 S.W.2d at 641-42; Phillips Pipeline Co. v. Richardson, 680 S.W.2d 43, 48 (Tex. App.—El Paso 1984, no writ).
Sewing first asserts that the trial court should have included a predicate question on the formation of a contract before the jury could answer affirmatively on the partnership issues. However, as noted above, a party need not prove the required elements of a contract claim in order to prove the existence of a partnership because a partnership can be implied from the facts and circumstances of a case. Shindler, 695 S.W.2d at 703; see also Elhamad, 2003 WL 22211543, at *3. In regard to Sewing's assertion that the trial court should have submitted an instruction stating that his previously-owned properties could not be considered partnership property, the jury heard evidence from which it could conclude that the two properties were not partnership assets. Rather, the jury could have considered the partnership agreement to pertain Bowman's entitlement to the proceeds from the development of townhomes and subsequent sale of the properties.
Sewing next argues that the trial court's partnership instruction to the jury was incomplete because it "failed to identify a specific business purpose," only stated that the partnership was "regarding the properties," and failed to include proper guidance as to what constitutes the right to participate in control of a business. Jury question number one tracked the five factors to consider in determining the existence of a partnership and properly defined a partnership as "an association of two or more people to carry on a business, as owners, for profit." See TRPA art. 6132b-2.02(a). Sewing cites no authority indicating that a trial court must in its instructions to a jury identify a "specific business purpose." Here, the trial court's charge to the jury sufficiently tracked the language of the TRPA, and the trial court did not abuse its discretion in not submitting further instructions regarding a "specific business purpose" or examples of the right to control a business. See Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994) ("When liability is asserted based upon a provision of a statute or regulation, a jury charge should track the language of the provision as closely as possible.").
In regard to Sewing's assertion that the trial court should have submitted an instruction on "the existence of a condition precedent to the parties' agreement or partnership," the jury found the existence of a partnership, necessarily rejecting Sewing's argument that Bowman's complete payment of $300,000 and the transfer of an interest in the Wentworth and Chenevert properties was a condition precedent to the formation of the partnership. Again, we note that the jury was free to disbelieve Sewing's assertion of a condition precedent, and the trial court did not abuse its discretion in not including an instruction on the issue. See, e.g., Golden Eagle Archery, 116 S.W.3d at 774-75.
Finally, Sewing argues that the trial court erred in not submitting "a Statute of Frauds fact question" to the jury asking "whether the transfer of an interest" in either of the two properties in question "was part of the alleged agreement in this case." Sewing's proposed questions are substantially similar to jury question number three, which asked,
Did William C. Bowman and Richard Sewing bind themselves to a contract that included the following terms: 1) William C. Bowman's purchase of a one-half interest or 50% ownership in the properties located at 4810 Chenevert and 1718 Wentworth for $300,000; and 2) The development of townhomes on both properties to make a profit.The jury answered, "Yes" to this question, but, in question number four, found that neither Sewing nor Bowman had failed to comply with the agreement. It further found in jury question number one that Sewing and Bowman had formed a partnership regarding the "properties," and, in question number two, that the value of Bowman's "interest in the partnership" was $231,743.61. However, as noted above, the statute of frauds did not apply to Bowman's claim for redemption of his partnership interest.
Accordingly, we hold that the trial court did not abuse its discretion in not submitting to the jury Sewing's requested questions and instructions.
We overrule Sewing's twelfth and thirteenth issues.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Brown. Justice Brown, dissenting.