                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-14-00240-CV


HENRY RAHMANI AND RAHMANI                                               APPELLANTS
MANAGEMENT, LLC

                                         V.

DAN BANET                                                                 APPELLEE


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          FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 96-241990-09

                                      ----------

              MEMORANDUM OPINION1 ON REHEARING

                                      ----------

                                   I. Introduction

      Appellants Henry Rahmani and Rahmani Management, LLC (collectively,

appellants) filed a motion for rehearing. We deny the motion but withdraw our

opinion of March 26, 2015, and substitute the following in its place.


      1
       See Tex. R. App. P. 47.4.
      Appellee Dan Banet, who was involved in various business ventures with

appellants, sued appellants for breach of contract, fraud, conversion, and breach

of fiduciary duty.

      Along with Rahmani’s and Banet’s testimonies, the trial court admitted into

evidence Plaintiff’s Exhibits 5 and 6, two versions of the parties’ agreement for

the transfer of Banet’s shares in WWWDH, LP, one of their business ventures.

Rahmani claimed that Plaintiff’s Exhibit 5 had been modified and that Plaintiff’s

Exhibit 6, bearing initials on each page and providing for no payment to Banet,

was the real contract. Banet claimed that Plaintiff’s Exhibit 5, which provided for

a $200,000 payment for Banet’s WWWDH, LP shares, was a true and correct

copy of the real contract, that he had never initialed the agreement, that the

initials on Plaintiff’s Exhibit 6 were not his despite appearing to be in his

handwriting, and that anyone who claimed that Plaintiff’s Exhibit 6 was the

original agreement was lying.

      At the trial’s conclusion, the jury was asked sixteen questions on Banet’s

causes of action and two questions on appellants’ usury defense. Ten out of

twelve jurors issued a verdict for Banet on his claims and found that Banet had

not contracted for, charged, or received usurious interest. The trial court granted

Rahmani’s motion to disregard the jury’s answers to Questions 10, 11, 12, 13,




                                        2
and 14.2 The final judgment awarded $200,000 to Banet against both appellants,

jointly and severally, and an additional $35,000 to Banet against Rahmani, in

addition to joint and several attorney’s fees and pre- and post-judgment interest.

      In six issues, appellants appeal the trial court’s judgment for Banet. In a

single cross-point, Banet contends that the trial court erred by granting

appellants’ motion to disregard jury findings as to his breach of fiduciary duty and

fraud claims. We modify the trial court’s judgment to delete Banet’s $35,000

recovery against Rahmani, which requires us to reverse the portion of the

judgment awarding attorney’s fees to Banet and to remand that portion of the

case for a new trial. We overrule Banet’s cross-point and affirm the remainder of

the trial court’s judgment.

                              II. Admissibility of Evidence

      In their first issue, appellants argue that “admission into evidence of

[Plaintiff’s Exhibit 5,] a photocopy of the alleged contract[,] was error where the

original was not produced or accounted for” because Banet failed to comply with

rule of evidence 1004’s requirements, making the document inadmissible. They

complain that Banet had the burden to prove the terms of the agreement and that

“[t]he only evidence offered by Dan Banet on that issue was a photocopy of the

alleged agreement.”


      2
      Questions 10 and 11 pertained to Banet’s fraud claim and damages;
Questions 12, 13, and 14 pertained to Banet’s breach-of-fiduciary-duty claim and
damages.

                                           3
      However, Banet testified about the alleged agreement’s terms without any

objection by appellants. Specifically, Banet testified that he agreed to transfer his

shares in the company to Rahmani in exchange for Rahmani’s agreement to pay

him $200,000 for those shares—the portion of Plaintiff’s Exhibit 5 that is different

from Plaintiff’s Exhibit 6, which appellants contended was the real contract.

Because any error in the admission of evidence is deemed harmless and is

waived if the objecting party subsequently permits the same or similar evidence

to be introduced without objection, see Bay Area Healthcare Grp., Ltd. v.

McShane, 239 S.W.3d 231, 235 (Tex. 2007); Volkswagen of Am., Inc. v.

Ramirez, 159 S.W.3d 897, 907 (Tex. 2004), we overrule appellants’ first issue

without needing to reach their rule 1004 argument.3




      3
        We nonetheless note that under the abuse of discretion standard of
review applied to the trial court’s evidentiary rulings, see Serv. Corp. Int’l v.
Guerra, 348 S.W.3d 221, 235 (Tex. 2011), and in light of the requirement that we
uphold the trial court’s evidentiary ruling if there is any legitimate basis in the
record for the ruling, Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35,
43 (Tex. 1998), the trial court does not appear to have abused its discretion by
admitting Plaintiff’s Exhibit 5. See, e.g., Scott v. U.S. Bank, Nat’l Ass’n, No. 02-
12-00230-CV, 2014 WL 3535724, at *5 (Tex. App.—Fort Worth July 17, 2014, no
pet.) (mem. op.) (stating that trial court did not abuse its discretion by determining
exhibit—a copy—was admissible under rule of evidence 1004 when the bank
claimed it sent the original to appellants and appellants claimed that they never
received it); cf. Mercer v. Daoran Corp., 676 S.W.2d 580, 583–84 (Tex. 1984)
(holding that unexecuted “sworn copy” of note that was allegedly prepared for
debtors to sign, without explaining failure to produce the original or a copy of the
executed note, was inadmissible summary judgment evidence).

                                          4
                                       III. Usury

       In their fourth issue, appellants argue that the great weight and

preponderance of the credible evidence established that the alleged contract was

usurious, that the statutory usury penalty exceeds the amount of Banet’s claim

under the alleged contract, and that an offset for the usury penalty should result

in no recovery by Banet. Appellants further argue that once the usurious contract

was signed, Banet could not avoid liability by failing or refusing to collect the

usurious interest, essentially arguing that Banet is liable for contracting for

usurious interest if not for actually charging it.

       Banet responds that the jury considered and rejected appellants’ usury

argument, that the finance code sections cited by appellants—sections 303.009,

303.012, and 305.0014—do not apply to these parties and this case, and that the

evidence does not support appellants’ claim that Banet ever sought usurious

interest.

A. Statutory Usury

       Finance code section 305.001, “Liability for Usurious Interest,” provides for

liability of a “creditor” who contracts for, charges, or receives interest in an


       4
        Finance code section 303.009 sets out interest ceiling rates from 18% to
24% per year, while under finance code section 303.012, a court may take
judicial notice of interpretations issued by the consumer credit commissioner or
information published in the Texas Register under section 303.011. Tex. Fin.
Code Ann. § 303.009 (West 2006 & Supp. 2014), § 303.012 (West 2006).
Section 305.001 provides for liability under the usury statutes; we discuss it in
greater detail below. See id. § 305.001 (West 2006).

                                            5
amount greater than authorized by statute in a transaction for personal, family, or

household use and for liability of a “creditor” who contracts for or receives

interest that is greater than the amount authorized by statute in connection with a

commercial transaction.5 Tex. Fin. Code Ann. § 305.001(a), (a-1), (b). The

statute applies in the disjunctive. Smart v. Tower Land & Inv. Co., 597 S.W.2d

333, 340 (Tex. 1980) (“The statute providing penalties for usury applies in the

disjunctive to either a contract for, a charge of, or receipt of usurious interest, and

any one of these triggers the penalty provisions.”). However, usury statutes are

penal in nature and are strictly construed: “[I]f there is any doubt as to legislative

intent to punish the activity complained of under usury statutes, the doubt must

be construed in favor of the lender.” Starr v. Dart, No. 14-07-00673-CV, 2008

WL 2841685, at *2 (Tex. App.—Houston [14th Dist.] July 24, 2008, pet. denied)

(mem. op.).

      Whether Banet could be liable for usury under section 305.001 depends on

whether Banet is a “creditor” under title 4 of the finance code. To be usurious, a

contract on its face must purport to entitle a creditor, upon the happening of a

contingency or otherwise, to exact interest in an amount greater than that

allowed by law. W.E. Grace Mfg. Co. v. Levin, 506 S.W.2d 580, 584 (Tex. 1974);

see also First Bank v. Tony’s Tortilla Factory, Inc., 877 S.W.2d 285, 287 (Tex.


      5
        No one argues that the transaction here involved personal, family, or
household use, so the jury should have been charged, if at all, under subsection
(a-1) for commercial transactions.

                                          6
1994) (stating that a usurious transaction is composed of (1) a loan of money, (2)

an absolute obligation to repay the principal, and (3) the exaction of a greater

compensation than allowed by law for the use of the money by the borrower);

Anglo-Dutch Petroleum Int’l, Inc. v. Haskell, 193 S.W.3d 87, 96 (Tex. App.—

Houston [1st Dist.] 2006, pet. denied) (stating that a transaction missing any of

the three required usurious-transaction elements cannot be usurious). When a

contract does not involve a lending or credit transaction or debtor-creditor

relationship, the usury statutes do not apply. See Villanova v. Fed. Deposit Ins.

Corp., No. 08-11-00361-CV, 2014 WL 2881540, at *6, *8 (Tex. App.—El Paso

June 25, 2014, no pet.) (holding that breach of settlement agreement that

resulted in foreclosure was not the type of agreement governed by the usury

statutes); Starr, 2008 WL 2841685, at *1, *3–4 (holding that settlement

agreement in which Dart agreed to dismiss lawsuit and transfer his stock to Starr

in consideration for $424,000, paid in three installments, with an additional

$1,000 per day for any late payments, was not the type of contract to which the

usury laws applied despite $1,000 per day late fee); see also Jones v. R.O.

Pomroy Equip. Rental, Inc., 438 S.W.3d 125, 133 (Tex. App.—Eastland 2014,

pet. denied) (holding that usury laws do not apply to rental transactions).

      Under the finance code, a “creditor” is a person who loans money or

otherwise extends credit but who is not a judgment creditor.6 Tex. Fin. Code


      6
      An earlier version of the finance code applied usury penalties to “any
person” who contracted for, charged, or received interest, and defined “person”
                                         7
Ann. § 301.002(a)(3) (West 2006); see also 271 Truck Repair & Parts, Inc. v.

First Air Express, Inc., No. 03-07-00498-CV, 2008 WL 2387630, at *9 (Tex.

App.—Austin June 11, 2008, no pet.) (mem. op.) (“[T]he plain meaning of

‘creditor’ includes suppliers of goods or services when they charge interest on

past due amounts.’”). A “loan” is an advance of money that is made to or on

behalf of an obligor, the principal amount of which the obligor has an obligation to

pay the creditor; it does not include a judgment.               Tex. Fin. Code Ann.

§ 301.002(a)(10).

B. The Clause

      Plaintiff’s Exhibit 5, the contract that Banet claimed was the parties’

agreement, contained the following clause, which states in pertinent part:

                                 PURCHASE PRICE

            The Principles [sic] agrees [sic] to pay the Transferee a sum of
      $200,000. The sum of $200,000 shall be paid on or before Sept. 1st
      2008. If the Principles [sic] default, the Transferee will have the right
      to impose a default charge equal to $20,000 with interest of 10%

as “an individual, partnership, corporation, joint venture, trust, association[,] or
any legal entity, however organized.” Act of May 4, 1967, 60th Leg., R.S., ch.
274, § 2, arts. 1.01(e), 8.01, 1967 Tex. Gen. Laws 608, 609, 656, repealed by
Act of May 22, 1997, 75th Leg., R.S., ch. 1008, § 6, 1997 Tex. Gen. Laws 3601,
3601–03. However, in 1999, the legislature defined “creditor,” defined “loan,”
clarified that liability for usurious interest applied to “[a] creditor who contracts for,
charges, or receives interest that is greater than the amount authorized by this
subtitle,” and provided that section 305.001(b) applied only to a contract or
transaction subject to this subtitle. See Act of April 23, 1999, 76th Leg., R.S., ch.
62, § 7.18(a), secs. 301.002(3), (10), 305.001(a)–(b), 1999 Tex. Gen. Laws 222,
222, 233, amended by Act of May 29, 2005, 79th Leg., R.S., ch. 1018, §§ 1.01–
8.02, 2005 Tex. Gen. Laws 3438, 3438–63 (current version at Tex. Fin. Code
Ann. §§ 301.002, 305.001 (West 2006)).

                                            8
      monthly on the balance, continuing until payment is made in full.
      The Transferee agrees to give his 50% of shares to the Principle.
      The Principle will have ownership of 100% of WWWDH LP.

Jury Question 17 asked,

      Did Banet contract for, charge, or receive interest that is greater than
      the maximum amount authorized by law?

      “Interest” is the compensation a creditor charges for the use,
      forbearance, or detention of money.

      For a contract made for business, commercial, investment or similar
      purpose, the maximum lawful interest rate which a creditor may
      charge is 18% per year.

Neither party objected to Question 17 during the charge conference. The jury

answered “No” in response to Question 17.

C. Analysis

      We must examine the form of the transaction and its substance in

determining the existence or non-existence of usury. Anglo-Dutch, 193 S.W.3d

at 97 (citing Gonzales Cnty. Sav. & Loan Ass’n v. Freeman, 534 S.W.2d 903,

906 (Tex. 1976)). To determine whether a transaction should be classified as a

loan, we look to the parties’ intent as revealed by the contract and surrounding

circumstances. Bray v. McNeely, 682 S.W.2d 615, 617 (Tex. App.—Houston [1st

Dist.] 1984, no writ).   And we must determine whether the clause creates a

creditor-debtor relationship.

      The contract provides for Banet to exchange his 50% of the limited

partnership shares for appellants’ agreement to pay $200,000 by September 1,

2008, with a failure to pay the $200,000 by that date resulting in a default charge

                                         9
of $20,000 “with interest of 10% monthly on the balance.” The contract is not a

negotiable instrument and advances no funds to appellants. Cf. Tex. Bus. &

Com. Code Ann. § 3.104(a) (West 2002 & Supp. 2014) (defining “negotiable

instrument”). It was drafted by a layman and sets out what would be usurious

interest if it were a loan, but it does not meet the definition of “loan” under the

finance code.     Cf. Tex. Fin. Code Ann. § 301.002(a)(10).            And although

appellants refer to it as a “loan transaction set out in Dan Banet’s version of the

contract,” they do not explain how the parties’ agreement to exchange

partnership shares for money became a loan transaction subject to the finance

code or otherwise constituted an extension of credit by Banet to appellants. Cf.

Dunnam v. Burns, 901 S.W.2d 628, 631 (Tex. App.—El Paso 1995, no writ)

(“When money is advanced in exchange for an obligation to repay the advance

plus an additional amount, the added amount is interest that may not exceed the

statutory maximum.”). Therefore, we conclude that as a matter of law, Banet

was not a creditor under the finance code to whom the usury statutes would

apply,7 and we overrule appellants’ fourth issue.8


      7
        Additionally, other than Banet’s pleadings, appellants refer this court to
nothing in the record to show that Banet ever sought to enforce the controversial
provision. A pleading, by itself, “‘even if it contains a claim for usurious interest,
does not constitute a ‘charge’ of usurious interest for the purposes of the Texas
usury statute.’” Williams v. Bell, 402 S.W.3d 28, 37 (Tex. App.—Houston [14th
Dist.] 2013, pet. denied) (quoting D&S Kingsway Ventures v. Tex. Capital Bank–
Richmond, N.A., 882 S.W.2d 573, 575 (Tex. App.—Houston [14th Dist.] 1994, no
writ)); see also George A. Fuller Co. of Tex., Inc. v. Carpet Servs., Inc., 823
S.W.2d 603, 605 (Tex. 1992) (“Usury statutes are designed to correct abusive
practices in consumer and commercial credit transactions, not to serve as a trap
                                         10
                             IV. Plea in Abatement

       In their third issue, appellants argue that the trial court abused its

discretion when it denied their plea in abatement and refused to order that

Banet’s ex-wife be made a party and alternatively that Banet’s recovery on the

contract action should be reduced to delete the part of the claim owned by his ex-

wife. They base this argument on the fact that the alleged contract was made in

late September 2008 but Banet’s divorce was not finalized until December 2008

in a divorce decree that did not divide the community interest in the contract or

Banet’s claims against appellants.     Appellants complain that the trial court’s

failure to join Banet’s ex-wife potentially subjected them to multiple suits and

uncertain liability and that Banet had no standing to pursue his ex-wife’s claims in

the trial court.

       Banet responds that because his ex-wife was not a party to any of the

agreements or the owner of any of the companies made the basis of this suit,

there was no need to abate to make her a party. Banet is correct—because his

ex-wife was not a party to the alleged contract, she therefore lacked standing to

bring a breach-of-contract claim against appellants. See Tex. Fam. Code Ann.

for the unwary pleader in a court proceeding.”). Likewise, nothing in the record
indicates that Banet ever received any interest from appellants.
       8
        Although the trial court should not have submitted Jury Question 17 to the
jury, because the jury answered it in the negative, any such error was harmless.
See Tex. R. App. P. 44.1(a); cf. Catalina v. Blasdel, 881 S.W.2d 295, 296 (Tex.
1994) (stating that usury, when not apparent from an instrument’s face, is a fact
question for a jury).

                                        11
§ 3.102(a) (West 2006) (defining sole management community property),

§ 3.104(a) (West 2006) (setting out sole management community property

presumption); Wells v. Dotson, 261 S.W.3d 275, 284–85 (Tex. App.—Tyler 2008,

no pet.) (explaining that although parties were married, because husband

entered contract in his name only, it was presumed to be his sole management

community property for which he had the sole authority to bring an action related

to it); see also Heartland Holdings, Inc. v. U.S. Trust Co. of Tex. N.A., 316

S.W.3d 1, 7 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (“Generally, in order

to enforce a contract, a litigant must be either a party to that contract or an

intended third-party beneficiary.”); Bell v. Moores, 832 S.W.2d 749, 752 (Tex.

App.—Houston [14th Dist.] 1992, writ denied) (“It is a fundamental rule of law that

only the person whose primary legal right has been breached may seek redress

for an injury.”).

       Although appellants are correct in stating that the divorce decree did not

mention Banet’s $200,000 breach-of-contract claim against appellants, when a

divorce decree does not dispose of an asset, a suit by the ex-spouse against his

or her former spouse for partition of the former community property is the

appropriate remedy. See Harrell v. Harrell, 692 S.W.2d 876, 876 (Tex. 1985) (“It

has long been the rule in Texas that community property not partitioned or

divided upon divorce is held by the former spouses as tenants in common or joint

owners.”). That is, Banet’s ex-wife’s claim, if any, would be against Banet for

partition of his breach-of-contract recovery, not against appellants.         See

                                        12
Stephens v. Marlowe, 20 S.W.3d 250, 254 (Tex. App.—Texarkana 2000, no pet.)

(stating that the plaintiff in a partition action bears the burden to prove that the

divorce court did not consider or dispose of the asset); see also Tex. Fam. Code

Ann. § 9.201 (West 2006) (providing that either former spouse may file a suit to

divide property not divided or awarded to a spouse in a final decree of divorce).

We overrule appellants’ third issue.

                                  V. Sufficiency

      In their second, fifth, and sixth issues, appellants argue that the evidence

is legally and factually insufficient to support the judgment against Rahmani

Management, LLC for $200,000; to support the award of attorney’s fees to Banet;

and to support the judgment against Rahmani for the additional sum of $35,000.

A. Standards of Review

      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence 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

mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and

“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In

determining whether there is legally sufficient evidence to support the finding

under review, we must consider evidence favorable to the finding if a reasonable

                                        13
factfinder could and disregard evidence contrary to the finding unless a

reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005). Anything more than a scintilla of evidence is legally sufficient to

support the finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450

(Tex. 1996); Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996).

      When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing

all of the evidence in the record pertinent to that finding, we determine that the

credible evidence supporting the finding is so weak, or so contrary to the

overwhelming weight of all the evidence, that the answer should be set aside and

a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)

(op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar,

395 S.W.2d 821, 823 (Tex. 1965). When the party without the burden of proof on

a fact issue complains of an adverse fact finding, that party must show that there

is “insufficient evidence” supporting the finding; that is, that the credible evidence

supporting the finding is too weak or that the finding is against the great weight

and preponderance of the credible evidence contrary to the finding. See Garza,

395 S.W.2d at 823; W. Wendall Hall, Hall’s Standards of Review in Texas, 42

St. Mary’s L.J. 3, 41–42 (2010).




                                         14
B. Judgment against Rahmani Management, LLC for $200,000

      In their second issue, appellants claim that Plaintiff’s Exhibit 5 requires

payment only from Rahmani and not from Rahmani Management, LLC when

(1) the contract’s language “makes it clear that ‘Principle’ refers only to Henry

Rahmani, not to Rahmani Management, LLC,” (2) Rahmani Management, LLC

received nothing in the transaction and remained as the general partner holding

only a 1% interest, and (3) Banet testified that Rahmani owed him $200,000 but

did not testify that Rahmani Management, LLC owed him $200,000.

      1. Ambiguity

      Whether a contract is ambiguous is a question of law for the court; when a

contract is ambiguous, its interpretation becomes a fact issue for the jury to

resolve. Coker v. Coker, 650 S.W.2d 391, 394–95 (Tex. 1983); see Dynegy

Midstream Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009)

(stating that a contract is ambiguous when its meaning is uncertain and doubtful

or is reasonably susceptible to more than one interpretation); cf. David J. Sacks,

P.C. v. Haden, 266 S.W.3d 447, 450 (Tex. 2008) (stating that an unambiguous

contract will be enforced as written). Whether parties intend to be bound by the

terms of an agreement is also a question of fact for the jury.9 Cleveland Reg’l


      9
       Here, Jury Question 1 asked, “Did either of the parties named below
agree to pay Banet $200,000 for his 50% ownership interest in WWWDH, L.P.?”
Jury Question 2 asked, “Did either of the parties named below fail to comply with
that agreement?” The jury answered “Yes” to both Rahmani and Rahmani
Management, LLC in each question.

                                       15
Med. Ctr., L.P. v. Celtic Props., L.C., 323 S.W.3d 322, 334 (Tex. App.—

Beaumont 2010, pet. denied).

      We begin our review of the evidence with the pertinent portions of

Plaintiff’s Exhibit 5, to determine whether the trial court could have found the

contract ambiguous. Plaintiff’s Exhibit 5 begins by identifying itself as a contract

“by and between Rahmani Management, LLC, Henry Rahmani and Daniel

Banet.” The sentence that immediately follows this identification states, “Daniel

Banet hereinafter collectively referred to as ‘Transferee,’ and Henry Rahmani

Assignee hereinafter, referred to as ‘Principle.’”      The recitals refer to the

“Principle” and the “Transferee” as “individuals or entities residing in Tarrant

County, Texas” and “the owners of a Limited Partnership called WWWDH, LP,”

and state that “Transferee is desirous of withdrawing his 50% shares from

WWWDH LP and Principle is desirous of acquiring 50% [of the] shares from the

Transferee of WWWDH LP . . . .”

      As set out above in our usury discussion, the paragraph addressing

purchase price states, “The Principle will have ownership of 100% of WWWDH

LP.” The contract was executed by “PRINCIPLE: Rahmani Management, LLC,

General Partner,” signed by Rahmani, first as manager and then as limited

partner. See Tukua Inv., LLC v. Spenst, 413 S.W.3d 786, 794 (Tex. App.—El

Paso 2013, pet. denied) (noting that traditionally, the presence or absence of

signatures on a contract is relevant in determining whether the contract is binding

on the parties).

                                        16
      Based on the above, the trial court could have reasonably concluded that

there was an ambiguity with regard to whether Rahmani and Rahmani

Management, LLC each intended to be bound.             See Hyundai Motor Co. v.

Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999) (stating that the trial court has

broad discretion in submitting a charge to the jury as long as the charge is legally

correct).

      2. Additional Evidence

      Rahmani testified that he was the sole owner of Rahmani Management,

LLC. When he and Banet created WWWDH, LP in 2004, Banet owned 50% as a

limited partner, Rahmani owned 49% as a limited partner, and Rahmani

Management, LLC owned 1% as the general partner.              Plaintiff’s Exhibit 3, a

February 4, 2004 memorandum, signed by Rahmani for Rahmani Management,

LLC and for himself and signed by Banet, states in pertinent part:

      Hereby, the general partner, herein noted as Rahmani Management,
      LLC, has full legal authorization to act as Executor including, but not
      limited to, the following: Establishing loan accounts; establishing
      checking, savings, and money market accounts; withdrawing,
      transferring, and depositing funds; sale of real estate property and
      land, purchase of real estate property and land; all legal
      representation, etc., concerning all legal and financial matters or
      otherwise for WWWDH, L.P.

      With regard to Plaintiff’s Exhibit 6,10 Rahmani testified that he signed the

transfer of shares agreement as limited partner and as manager for Rahmani


      10
       All of the pertinent provisions in Plaintiff’s Exhibit 5, except for payment of
$200,000 for the shares, are identical to those set out in Plaintiff’s Exhibit 6.
Rahmani testified that he never promised to pay Banet a single dollar for his
                                         17
Management, LLC, and entered the agreement on behalf of himself and

Rahmani Management, LLC.

      During cross-examination, the following dialogue occurred between

appellants’ counsel and Banet:

             Q. But in this lawsuit, you sued Rahmani Management, LLC,
      this limited liability company. You’ve—You’ve sued them. Are you
      suing them for the same $200,000?

            A. No, sir.

           Q. Okay. So, basically, Henry Rahmani is the only one that
      owes you $200,000?

            A. I only want what’s fair, what was offered to me. Yes, sir.[11]



interest in WWWDH.        Plaintiff’s Exhibit 6’s purchase price section states, in
pertinent part,

             Since the Principles [sic] contributions to the Partnership
      exceeded the Transferees [sic] contribution. The Transferee agrees
      to give his 50% of shares to the Principle. The Principle will have
      ownership of 100% of WWWDH LP for his contribution. The
      Transferee will have no further obligations to pay the Principle any
      further monies.

Banet testified that Rahmani tried to get him to sign a transfer agreement
indicating that the shares were being transferred for no money “in case your wife
needs it for the divorce,” that Banet refused, and that Rahmani also told him that
if he signed the agreement to sell the shares for no money, Rahmani would still
pay him.
      11
        In his live pleading, Banet sought “damages for all sums contractually
due and owing pursuant to the terms of the contracts and agreements between
the parties. Such damages include, but are not limited to the Two Hundred
Thousand ($200,000) Dollars due under the ‘Transfer of Shares of the
Partnership of WWWDH, LP.’” Banet asked to recover judgment “against
Defendants for damages as above alleged.”

                                         18
During his redirect examination, Banet said that he had drafted Plaintiff’s Exhibit

5 and that he was a nonlawyer with no legal training.

      3. Analysis

      Based on the evidence set out above, particularly with regard to the

percentages of ownership,12 the jury could have reasonably concluded that

Rahmani Management, LLC was liable on the contract along with Rahmani.

Likewise, we cannot conclude that the credible evidence supporting the finding is

so weak, or so contrary to the weight of all of the evidence, that the answer

should be set aside and a new trial ordered.         Therefore, we hold that the

evidence is legally and factually sufficient to support the jury’s findings, and we

overrule appellants’ second issue.

C. Judgment against Rahmani for $35,000

      In part of their sixth issue, appellants argue that the evidence is legally and

factually insufficient to support the $35,000 judgment against Rahmani because

Plaintiff’s Exhibit 1’s plain language reflects a lack of consideration to pay that

amount.13   Banet responds that this claim relates to both written and verbal


      12
        That is, with the transfer of Banet’s shares, Rahmani would have
possessed only 99% of WWWDH, LP’s shares if he stood alone as the
“Principle,” and Rahmani Management, LLC would possess only 51% of
WWWDH, LP’s shares if it stood alone as the “Principle.” Rahmani and Rahmani
Management, LLC would only possess 100% of WWWDH, LP’s shares if they
were considered together to be the “Principle.”
      13
       In Question 4, the jury was asked, “Did Rahmani agree to pay Banet the
proceeds from the WWWDH, L.P. v. Reliant litigation?” Question 5, conditioned
on an affirmative answer to Question 4, asked the jury whether Rahmani had
                                        19
representations that Banet would be paid the proceeds of a matter that was

ongoing at the time he sold his ownership interest in WWWDH, LP, and that

Plaintiff’s Exhibit 1 is not the sole evidentiary basis for the claim.

      1. Consideration

      Consideration is a present exchange bargained for in return for a promise

and consists of either a benefit to the promisor or a detriment to the promisee.

Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex. 1991). The

detriment must induce the making of the promise, and the promise must induce

the incurring of the detriment. Id. A promisor “benefits” when it acquires a legal

right to which it would not otherwise be entitled in exchange for a promise, while

a promisee suffers a legal “detriment” when, in return for a promise, the promisee

surrenders a legal right that it otherwise would have been entitled to exercise.

Bryant v. Cady, 445 S.W.3d 815, 820 (Tex. App.—Texarkana 2014, no pet.)

(citing N. Natural Gas Co. v. Conoco, Inc., 986 S.W.2d 603, 607 (Tex. 1998)).

Lack of consideration occurs when the contract, at its inception, does not impose

obligations on both parties.        Id.    A contract that lacks consideration is

unenforceable. Hall v. Hubco, Inc., 292 S.W.3d 22, 28 (Tex. App.—Houston

[14th Dist.] 2006, pet. denied) (op. on reh’g); see also Frequent Flyer Depot, Inc.

v. Am. Airlines, Inc., 281 S.W.3d 215, 225 (Tex. App.—Fort Worth 2009, pet.

denied) (explaining that consideration can be established by part performance by

failed to comply with the agreement. The jury replied “Yes” to both questions and
awarded $35,000 to Banet as his damages on that issue.

                                           20
the promisee), cert. denied, 559 U.S. 1036 (2010); City of The Colony v. N. Tex.

Mun. Water Dist., 272 S.W.3d 699, 725 (Tex. App.—Fort Worth 2008, pet.

dism’d) (defining consideration as benefits accruing to one party, such as a right,

interest, profit, or benefit, and detriments accruing to the other, such as

forbearance, loss, or responsibility that is undertaken or incurred).

      2. Evidence

      Plaintiff’s Exhibit 1, a document entitled, “AGREEMENT BETWEEN

HENRY RAHMANI AND DANIEL BANET,” was signed by Rahmani on February

1, 2009, and Banet on February 2, 2009. It set out the following:

      To whom it may concern:

      Proceeds from the following cases: Fars VS Yenigani, WWWDHLP
      VS Reliant Heating/AC can be distributed into 100% to Daniel Banet
      and wired into his personal account.

      It is also agreed that Henry Rahmani and Daniel Banet will split the
      proceeds 50/50 from Planet BooBoo (Planet Beach) as the contract
      is stated with Shelly and Randy Nedrow.[14]

      Henry also agrees to pay Daniel $5,000 on April 1st and $10,000 on
      May 15th, 2009. If proceeds do not come by these dates, this will be
      reimburse[d] to Henry.[15]

      14
         Planet Beach tanning salon was owned by Sherakat, L.P. Sherakat’s
ownership was comprised of Banet (50%), Rahmani (49%), and Rahmani
Management, LLC (1%). Sherakat sold Planet Beach to the Nedrows in 2007.
Rahmani agreed that when Planet Beach was sold, Banet would have been
entitled to 50% of the sales proceeds with or without the February 2, 2009
agreement. Rahmani had no evidence that he had paid Banet his share of the
sales proceeds in cash. Banet said that he did not receive any portion of the
Planet Beach sales proceeds.
      15
       Rahmani testified that he paid Banet $5,000 in cash in April but had no
witnesses and that he did not pay Banet $10,000 in May. He further testified that
                                         21
The italicized portion of the document was handwritten.

      Rahmani testified that the litigation involved WWWDH’s lawsuit against

Reliant for removing the air conditioners from WWWDH’s building during a

dispute over final payment. Rahmani also testified as follows:

           Q. But the amount of the settlement ended up being
      $35,000—

            A. Yes, sir.

            Q. —that you actually did, indeed, collect?

            A. Yes, we collected.

           Q.    And Mr. Banet was never paid any portion of—of that
      money?

            A. No, sir.

             Q. But he was a partner and half-owner of the company at the
      time the dispute arose?

            A. No, sir.

             Q. Well, at the time the air conditioners were taken off the
      building, wasn’t he still a half-owner of the company?

            A. Yes.

      Banet testified that with regard to Reliant, he had put air-conditioning

condensers on his personal credit card. He also testified that Plaintiff’s Exhibit 1


he did not collect on the Fars judgment and so did not pay Banet anything from it.
Banet said that a $500 check was the only cash payment he had received from
Rahmani on anything Rahmani owed him or for anything Banet was entitled to
with regard to their business ventures.

                                        22
arose when Rahmani visited him in Belize to “settle those loose ends” on the

companies that they owned, a point in time during which he was still anticipating

the $200,000 he believed would come from the sale of his WWWDH, LP shares.

Banet testified that Rahmani was not to receive anything from him in return for

their February 2009 agreement to pay him the Reliant settlement; he also

testified that this “agreement” had been a stall tactic to continue to avoid paying

the $200,000 that Rahmani owed him under the WWWDH, LP agreement signed

by the parties in September 2008.

      The trial court admitted Plaintiff’s Exhibit 9, an April 1, 2009 email from

Rahmani to his lawyer.      In the email, Rahmani stated, “Per our phone call

yesterday, Would you please wire the $35,000.00 recovery from settlement with

HVAC Company to WWWDH Acc.”              The same exhibit shows an email from

Banet later that day to the same lawyer, stating, “Greg[,] please do not wire these

funds, these funds are to be sent to me 100%. Evidently there is a dispute,

please hold these funds until the matter is resolved.” Banet said that when he

saw Plaintiff’s Exhibit 9 showing that Rahmani had intercepted the funds, he

knew that he had been “had,” and he hired an attorney. Rahmani never paid

Banet anything from the Reliant litigation.

      3. Analysis

      As set out above, the evidence pertaining to the $35,000 agreement is

legally insufficient to show a valid oral or written agreement between the parties

because it discloses a complete absence of a vital fact—consideration to support

                                         23
the agreement. See Hall, 292 S.W.3d at 26–28 (holding that agreement was

unsupported by consideration when unambiguous writing and circumstances

reflected no detriment to appellant or benefit to appellee); see also Uniroyal, 977

S.W.2d at 334. Therefore, we sustain this portion of appellants’ sixth issue,

render a take-nothing judgment for Rahmani on the $35,000 claim, and do not

reach the remainder of their arguments under this issue. See Tex. R. App. P.

47.1. Because we have sustained this portion of appellants’ sixth issue, reducing

the overall damages award against Rahmani by $35,000, and because we

cannot be reasonably certain that the jury was not significantly influenced by the

erroneous amount of damages it considered with regard to Rahmani, we must

remand the case for a redetermination of the joint-and-several attorney’s fees

awarded against Rahmani and Rahmani Management, LLC, and do not reach

the merits of appellants’ fifth issue regarding sufficiency of the evidence to

support attorney’s fees.16 See Barker v. Eckman, 213 S.W.3d 306, 313–15 (Tex.

2006).

                                VI. Cross-point

      In a single cross-point, Banet argues that the trial court abused its

discretion by granting appellants’ motion to disregard jury findings as to his

      16
        The jury awarded $94,000 in attorney’s fees plus $7,500 in conditional
attorney’s fees for an appeal to this court and $7,500 in conditional attorney’s
fees for an appeal to the supreme court, and the trial court entered judgment on
this verdict and made appellants jointly and severally liable for these attorney’s
fees. The appellants were also jointly and severally liable for $200,000, while
Rahmani individually was liable for $35,000.

                                        24
breach-of-fiduciary-duty and fraud claims because there was adequate evidence

to support both findings. Appellants reply that the economic loss rule precludes

recovery in tort for economic losses resulting from the failure of a party to

perform under a contract, and that because Banet argues in his appellate brief

that he only asked for breach-of-contract damages with regard to these claims,

only the breach-of-contract action could be pursued.

      The contractual relationship of the parties may create duties under both

contract and tort law, and their acts may breach duties in tort, contract, or both

simultaneously. Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex.

1986). However, when the only injury is the economic loss to the subject of the

contract itself, the action sounds in contract alone. Id. (holding that when the

Reeds’ injury was that the house they were promised was not the house they

received, the cause of action was for breach of contract); see also LAN/STV v.

Martin K. Eby Constr. Co., 435 S.W.3d 234, 242 n.35 (Tex. 2014); cf. Chapman

Custom Homes, Inc. v. Dallas Plumbing Co., 445 S.W.3d 716, 718 (Tex. 2014)

(“[A] party states a tort claim when the duty allegedly breached is independent of

the contractual undertaking and the harm suffered is not merely the economic

loss of a contractual benefit.”).

       In Banet’s live pleading at the time of the trial, Banet recited facts

pertaining to breach of various agreements before setting out his claims for

breach of those agreements, fraud as related to false representations of

appellants’ intention to pay him under those agreements, and breach of fiduciary

                                       25
duty “to recover damages for the breach of the agreements outline[d] above, the

value of the businesses and funds wrongfully converted as well as punitive

damages for the intentional breach of such duties by Defendants.”

      The jury awarded $235,000 as damages for fraud based on “the

difference, if any, between the amount paid by Rahmani pursuant to the contract

and the amount owed Banet pursuant to the terms of the contract.” The jury also

awarded $235,000 as damages for breach of fiduciary duty, finding that a

relationship of trust and confidence existed between Rahmani and Banet and

that the transactions were not fair and equitable to Banet; that Rahmani did not

make reasonable use of Banet’s confidence in him; that Rahmani failed to act in

the utmost good faith or exercise the most scrupulous honesty toward Banet; that

Rahmani placed his own interests before Banet’s, used the advantage of his

position to gain a benefit for himself at Banet’s expense, or placed himself in a

position where his self-interest might conflict with his obligations as a fiduciary; or

that Rahmani failed to fully and fairly disclose all important information to Banet

concerning the transactions. As in the fraud damages question, the jury was

asked to consider the difference, if any, between the amount paid by Rahmani

“pursuant to the contract and the amount owed Banet,” but this question also

added “pursuant to the terms of the ‘Transfer of Shares of the Partnership of

WWWDH, L.P.’ and ‘Agreement Between Henry Rahmani and Daniel Banet’”

contracts. The jury awarded no punitive or exemplary damages to Banet.



                                          26
      When a party fails to allege in its fraud claim that it suffered any loss

independent of its contract damages, in the absence of an independent injury, its

cause of action sounds only in contract. Heil Co. v. Polar Corp., 191 S.W.3d

805, 816–17 (Tex. App.—Fort Worth 2006, pet. denied); see also Fish v. Tex.

Legis. Serv., No. 03-10-00358-CV, 2012 WL 254613, at *15 (Tex. App.—Austin

Jan. 27, 2012, no pet.) (mem. op.) (applying economic loss rule to breach-of-

fiduciary-duty claim when the damages alleged arose only from the

nonperformance of duties governed by partnership agreement and claim was

more appropriately characterized as breach of contract). Because Banet’s fraud

and breach-of-fiduciary-duty claims are barred by the economic loss rule, the trial

court did not abuse its discretion by granting appellants’ motion to disregard the

jury findings on those claims, and we overrule his sole cross-point. See Fish,

2012 WL 254613, at *15; Heil, 191 S.W.3d at 816–17. But see ERI Consulting

Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 873 (Tex. 2010) (distinguishing

damages that cross line from actual damages for breach of contract or fraud that

redress specific harm to further, equitable return of contractual consideration

when fiduciary breaches a contract).

                                 VII. Conclusion

      Having sustained appellants’ sixth issue in part, we modify the trial court’s

judgment to delete the $35,000 award against Rahmani, reverse the portion of

the judgment awarding $94,000 in attorney’s fees to Banet, and remand that

portion of the judgment to the trial court for a new trial on attorney’s fees. Having

                                         27
overruled the remainder of appellants’ dispositive issues and Banet’s cross-point,

we affirm the remainder of the trial court’s judgment as modified.



                                                   /s/ Charles Bleil
                                                   CHARLES BLEIL
                                                   JUSTICE

PANEL: WALKER and MEIER, JJ.; and CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment)

DELIVERED: May 7, 2015




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