                                                                                                ACCEPTED
                                                                                            03-15-00447-CV
                                                                                                    7895484
                                                                                 THIRD COURT OF APPEALS
                                                                                            AUSTIN, TEXAS
                                                                                      11/18/2015 5:32:08 PM
                                                                                          JEFFREY D. KYLE
                                                                                                     CLERK


                   No. 03-15-00447-CV
                                                                         FILED IN
                                                                  3rd COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                       IN THE THIRD COURT OF APPEALS              11/18/2015 5:32:08 PM
                               AUSTIN, TEXAS                          JEFFREY D. KYLE
                                                                           Clerk


                        Austin Capital Collision, LLC,

                                              Appellant,

                                        v.

                              Barbara Pampalone,

                                               Appellee.


On Appeal from D-1-GN-14-003207, in the 419th Judicial District Court, Travis County
                       Honorable Todd Wong, Presiding


  BRIEF OF APPELLANT AUSTIN CAPITAL COLLISION, LLC




                                LAW OFFICE OF MICHAEL S. TRUESDALE, PLLC
                                                       Michael S. Truesdale
                                                    State Bar No. 00791825
                                                801 West Avenue, Suite 201
                                                          Austin, TX 78701
                                                              512-482-8671
                                                         866-847-8719 (fax)
                                                   mike@truesdalelaw.com
                                             COUNSEL FOR APPELLANT
                                      AUSTIN CAPITAL COLLSION, LLC

                  ORAL ARGUMENT NOT REQUESTED
              IDENTITY OF PARTIES AND COUNSEL

Appellant                Austin Capital Collision, LLC

Appellant’s Trial Counsel SLATER PUGH LTD., LLP
                          Adam Pugh
                          apugh@slaterpugh.com
                          SBN 24044341
                          8400 N. Mopac Expressway, Suite 100
                          Austin, TX 78759
                          512-474-2431
                          512-472-0432 (fax)

Appellant’s Appellate    LAW OFFICE OF MICHAEL S. TRUESDALE, PLLC
Counsel                  Michael S. Truesdale
                         mike@truesdalelaw.com
                         SBN 00791825
                         801 West Avenue, Suite 201
                         Austin, TX 78701
                         512-482-8671
                         866-847-8719 (fax)

Appellee                 Barbara Pampalone

Appellee’s Counsel       MCGINNISS LOCHRIDGE
                         Joe Lea
                         jlea@mcginnislaw.com
                         SBN12080200
                         Nelia J. Robbi
                         nrobbi@mcginnislaw.com
                         SBN 24052296
                         600 Congress Avenue, Suite 2100
                         Austin, TX 78701
                         512-485-6065
                         512-495-6093 (fax)




                                                                    i
                                       TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ i	  
TABLE OF CONTENTS ......................................................................................... ii	  
INDEX OF AUTHORITIES ................................................................................... iv	  
STATEMENT OF CASE ......................................................................................... v	  
STATEMENT REGARDING ORAL ARGUMENT .............................................. v	  
ISSUES PRESENTED ............................................................................................ vi	  
INTRODUCTION .................................................................................................... 1	  
STATEMENT OF FACTS....................................................................................... 3	  
SUMMARY OF ARGUMENT................................................................................ 9	  
ARGUMENTS AND AUTHORITIES .................................................................. 11	  
I.	   	   Standard of Review .......................................................................................11	  
II.	   	   The absence of a written agreement setting forth the terms of
              the loans at issue and signed by a purported debtor renders any
              alleged contract unenforceable......................................................................14	  
              A.	   	   Plaintiff produced no writing sufficient to satisfy the
                          statute of frauds in connection with the purported
                          agreement she sought to enforce against the “owners” of
                          Capital Collision .................................................................................14	  
              B.	   	   Plaintiff failed to demonstrate the applicability of any
                          exception to the statute of frauds sufficient to establish an
                          enforceable obligation owed by the “owners” of Capital
                          Collision, G.P......................................................................................14	  
III.	   	   Plaintiff failed to satisfy its burden of demonstrating how
              Austin Capital Collision, LLC could be liable in any event .........................16	  
              A.	   	   It is conceded that Barbara Pampalone has no writing
                          confirming that Austin Capital Collision LLC assumed
                          the unwritten debt she claims to be owed by the “owners”
                          (including her son) of Capital Collision, G.P......................................17	  
              B.	   	   Plaintiff failed to establish any exception to the statute of
                          frauds that would support a judgment against Austin
                          Capital Collision LLC for a debt purportedly undertaken
                          by a different entity .............................................................................18	  
IV.	   	   The award of attorney’s fees must be vacated ..............................................19	  
PRAYER FOR RELIEF ......................................................................................... 20	  


                                                                                                                       ii
CERTIFICATE OF SERVICE............................................................................... 21	  
CERTIFICATE OF COMPLIANCE...................................................................... 21	  
APPENDIX ............................................................................................................ 22	  




                                                                                                               iii
                                 INDEX OF AUTHORITIES
Cases	  
BACM 2001-San Felipe Road Ltd. Partnership v. Trafalgar Holdings
    I, Ltd., 218 S.W.3d 137 (Tex. App.—Houston [14th Dist.] 2007,
    pet. denied) ......................................................................................... 11

Barbara Pampalone v. Eric Hinojosa and Austin Capital Collision,
     LLC, No. D-1-GN-14-003297, in the 419th District Court, Travis
     County, Texas...................................................................................... iv

Choi v. McKenzie,
      975 S.W.2d 740 (Tex. App. – Corpus Christi 1998, pet. denied) ...... 12

Chubb Lloyds Ins. v. Andrew's Restoration,
     323 S.W.3d 564 (Tex. App. – Dallas 2010, pet. denied) ................... 18

Cruz v. Andrews Restoration, Inc.,
      364 S.W.3d 817 (Tex. 2012) .............................................................. 18

Dynegy, Inc. v. Yates,
     422 S.W.3d 638 (Tex. 2013) .............................................................. 14

Exxon Corp. v. Breezevale Ltd.,
     82 S.W.3d 429 (Tex. App.—Dallas 2002, pet. denied) ........... 9, 13, 19

Hartford Fire Ins. v. C. Springs 300, Ltd.,
      287 S.W.3d 771 (Tex. App. – Houston [1st Dist.]
      2009, pet. denied) ............................................................................... 18

Taxel v. Bishop,
      201 S.W.3d 290 (Tex. App. – Dallas 2006, no pet.) .......................... 12
Statutes	  
Tex. Bus. & Comm. Code § 26.01(a)........................................................... 14
Tex. Bus. & Comm. Code § 26.01(b)(2) ...................................................... 18
Tex. Bus. & Comm. Code § 26.01(b)(6) ...................................................... 14




                                                                                                          iv
                         STATEMENT OF CASE
Nature of the case       Barbara Pampalone sued Austin Collision Center,
                         LLC and Eric Hinojosa, its proprietor, seeking to
                         collect amounts she claimed remained due under an
                         unwritten $80,000 loan she purportedly made to the
                         owners (including her son) of a different entity
                         called Capital Collision, G.P. Barbara Pampalone
                         v. Eric Hinojosa and Austin Capital Collision, LLC,
                         No. D-1-GN-14-003297, in the 419th District Court,
                         Travis County, Texas.

Course of                The trial court conducted a one-day bench trial.
proceedings

Trial court’s            The trial court rendered final judgment in favor of
disposition              Pampalone and against Austin Capital Collision,
                         LLC, awarding breach of contract damages in the
                         amount of $56,758.68, trial court attorney’s fees in
                         the amount of $43,241.32, and conditional appellate
                         attorney’s fees. CR 50-51. The trial court entered
                         findings of fact and conclusions of law in support of
                         its judgment. CR at 53. Austin Collision Center,
                         LLC timely filed a notice of appeal. CR 67.


           STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Texas Rule of Appellate Procedure 38.1(e), Appellant

submits that oral argument will not assist this Court with the resolution of

this appeal. The theories raised on appeal are straight-forward, the

disposition of which will not be materially aided by oral argument.




                                                                               v
                          ISSUES PRESENTED
I. The judgment against Austin Capital Collision, LLC constitutes error
   because it violates the statute of frauds:

   The underlying debt

   • The statute of frauds bars Plaintiff’s claim seeking to enforce an
     unwritten, twenty-year loan contract that was never signed by any
     variation of entities against whom Plaintiff seeks to enforce the
     obligation (either the underlying general partnership, or the two
     corporations that owned that partnership, or the two individuals
     (including Plaintiff’s son) who owned those corporate entities).

   • The record does not support a “partial performance” exception to the
     statute of frauds to render enforceable such a loan because no
     evidence demonstrated that any purported performance was solely
     referable to the alleged oral contract.

   The assumption of the underlying debt and judgment against another
   entity

   • The statute of frauds bars Plaintiff’s claim seeking to enforce an
     unwritten, twenty-year, loan purportedly entered into with a now-
     dissolved partnership or its now dissolved corporate partners, or the
     two individuals who owned those corporations (including Plaintiff’s
     son), against a subsequently created entity, in the absence of a writing
     showing that any such obligation had been assumed by the new entity.

   • The record does not support a “partial performance” exception to the
     statute of frauds that will allow the entry of judgment against Austin
     Capital Collision, LLC for a debt of another because no evidence
     demonstrated that any purported performance was solely referable to
     its assumption of any alleged oral contract undertaken by another
     entity.

II. The judgment awarding attorney’s fees must be reversed in the absence
    of any theory for awarding actual damages




                                                                              vi
TO THE HONORABLE COURT OF APPEALS:

      Appellant Austin Capital Collision, LLC files this Brief of Appellant,

and in support states as follows:

                             INTRODUCTION
This case involves a claim seeking to enforce a purported loan contract that

was never put into writing, against a party not created until years after-the-

fact, and in the absence of any writing showing that entity assumed any

obligation of the alleged underlying debtor. Barbara Pampalone asserted

below that in 2005 she lent $80,000 to the “owners” of Capital Collision,

G.P., a partnership owned by two corporate entities, which in turn were

owned 50-50% by her son Erik Pampalone and Eric Hinojosa. But

Pampalone produced no documentation demonstrating the existence of the

“loan” or its terms, or rates. Barbara Pampalone conceded that all

conversations she had about the purported loan were made with her son Erik,

and the parties even stipulated that no written promissory note existed to

substantiate the terms of any such loan. Pampalone’s claim is necessarily

unenforceable under the statute of frauds, as she presented no writing, signed

by the party against whom enforcement was sought, substantiating the

existence of a loan with a twenty-year pay off.




                                                                                 1
Making matters worse, Barbara Pampalone did not even sue the purported

borrower to the alleged undocumented loan transaction. Instead, she sued

what she asserted to be a successor company, Austin Capital Collision, LLC.

The defect in this theory is that she again admitted no writing existed

demonstrating that Austin Capital Collision, LLC assumed any obligations

generally (unwritten or otherwise) of any earlier entity with whom she

allegedly contracted. More importantly, the record did not establish that

payments made by Austin Capital Collision LLC (the exception to the

statute of frauds relied upon by the trial court) were solely referable to the

assumption of a contract allegedly between Barbara Pampalone and the

“owners” of Capital Collision, G.P. In fact, the record demonstrates that

Erik Pampalone had previously asserted, in a separate lawsuit, that the

unwritten transaction was not really a loan between his mother Barbara and

the entities he jointly owed with Hinojosa, but was instead an unwritten

personal loan from Erik Pampalone to Eric Hinojosa and that payments were

due to him. The existence of that lawsuit necessarily defeats the strict

“solely referable” element of the partial performance exception to the statute

of frauds.

      In the absence of (1) a writing establishing the existence of a “loan”

with an initial entity, (2) evidence sufficient to invoke the partial



                                                                                 2
performance exception to the statute of frauds to render such an unwritten

agreement enforceable, (3) a writing establishing that a successor entity

assumed any obligation, and (4) evidence sufficient to invoke the partial

performance exception to the statute of frauds to render such an unwritten

agreement enforceable, the judgment twice runs afoul of the statute of frauds

and must be reversed.

                         STATEMENT OF FACTS
      Erik Pampalone (Plaintiff’s son) and Eric Hinojosa had been friends

since childhood. 2RR 53-54. The two also became business partners, with

each becoming the owner of 50% of entities that in turn owned Capital

Collision, G.P.,1 which operated pursuant to an assumed name certificate

filed by Hinojosa using the name “Capital Collision”. 2RR 172. When Erik

Pampalone joined, he did not make a cash contribution, but he contributed

access to his credit.2 Hinojosa was the president, and Pampalone became

vice president, and though he continued to live in California, Pampalone

undertook responsibilities for the company’s finances. 2RR 103. While he

was not involved in the day-to-day operations at the shop, he had access to

the bank accounts to set up automatic payments to pay bills. 2RR 104-05.

1
  Those two entities, formed around 2002-03, were Hinojosa Auto Body & Paint,
Inc. (Texas), and Hinojosa Auto Body & Paint, Inc. (Nevada), sometimes
collectively referred to as the “HABP Entities”. See 2RR 171-72.
2
  Pampalone did testify that he made $2,000 contributions during certain months.
2RR 103.

                                                                                   3
      Barbara Pampalone testified that in 2005, her son Erik told her Capital

Collision was having difficult times financially, and approached her about a

loan. 2RR 56. She did not know how the entities were organized nor did she

know about the structure of the business relationships between Eric Hinojosa

and her son. 2RR 55. Hinojosa was never a party to any loan-related talks

with Barbara Pampalone, and any discussions she had remained between

mother and son. 2RR 82, 84-85. Barbara Pampalone testified that she lent

$80,000 to the owners of “Capital Collision” (which directly would

presumably be Capital Collision, GP, in turn owned by the Texas and

Nevada Hinojosa Auto Body & Paint, Inc. companies, which in turn were

owned by Eric Hinojosa and Barbara Pampalone’s son Erik). She testified

that she made the loan in two phases – an initial $50,000 payment followed

by a $30,000 payment. 2RR 58. But she also testified, and all stipulated,

that what she asserted to be the loan to the company was not documented by

any written promissory note, and that no writing existed to demonstrate the

identity of the purported lender, the identity of the purported borrower, the

amount of principal, the rate of interest or the duration of the loan. 2RR 61.

When asked about the terms of the loan she testified she just had her son

Erik set it up. 2RR 60. She recognized she could not produce any checks

substantiating that she distributed any loan proceeds to a Capital Collision



                                                                                 4
entity. Instead, she wrote a $50,000 check to her son, 2RR 58, 84, and then

wrote a check to another bank for the remaining $30,000. She had no

documents showing how or when any money went to Capital Collision. 2RR

58-59. And she testified everything went through her son. R 85.

      Bank accounts in the name of Capital Collision/Eric Hinojosa from

2005 listed a deposit in the amount of $50,000 from an entity called

Metavante Corp. made on March 24, 2005. 3RR 8 (PX 1) Erik Pampalone

testified that Metavante was affiliated with Quicken, and that the entry

reflected a deposit he made of the loan proceeds he had received from his

mother. 2RR 109, Ex. 1. Exhibit 2 also showed a $30,000 “Counter Credit”

on April 13, 2005, but the bank statement gives no indication of the source

of those funds. As Vice President with responsibility for accounting

matters, Pampalone set up the accounts of Capital Collision so it would

automatically make payments to his mother of approximately $675 per

month from that same bank account.

      In 2007, Erik Pampalone resigned as vice president and left Capital

Collision, G.P. Eric Hinojosa testified that Erik Pampalone left because the

business was in several lawsuits in which he wanted to have no involvement.

2RR 232. When he severed his ties with Capital Collision, Erik Pampalone

left in place the automatic payments set up to be made from the Capital



                                                                               5
Collision bank account, and those payments continued. He testified that

upon his departure he assumed responsibility for repaying a different

$45,000 loan made earlier by his mother to Capital Collision, G.P., but that

the obligation to repay the $80,000 loan remained with Capital Collision,

G.P. Even so, Barbara Pampalone testified she received nothing in writing

from Capital Collision telling her it would pay any loan, and admitted Eric

Hinojosa never told her he was committing to pay her back $80,000. 2RR

86-87. Hinojosa did testify that upon Pampalone’s departure, Hinojosa

personally took care of over $200,000 of then-existing debts belonging to

the entities that Pampalone was leaving. 2 RR 233.

      In 2009, Eric Hinojosa created a new entity called Austin Capital

Collision, LLC , and then in 2010, he dissolved Capital Collision, G.P. and

the two corporations that had owned it. Austin Capital Collision, LLC

continued to make monthly payments to Barbara Pampalone via the auto-

pay function that Erik Pampalone had created while serving as vice

president. Eric Hinojosa testified that it continued to make the payments to

help his childhood friend. 2RR 238-40. In April, 2013, Austin Capital

Collision, LLC made its last monthly payment, and in October 2013 made a

final payment of $6,000. Barbara Pampalone admitted that she was aware of




                                                                               6
no written agreement by which Austin Capital Collision, LLC assumed any

debt sued upon and that she was not a party to any such agreement. 2RR 98.

      Ultimately, Barbara Pampalone and Erik Pampalone hired a lawyer in

California. That lawyer filed a lawsuit in the name of Erik Pampalone

against Eric Hinojosa, claiming that the $80,000 had really been a loan from

Erik Pampalone (not Barbara Pampalone) apparently to Eric Hinojosa

personally (and not to Capital Collision, G.P., or its owners, the “HABP

Entities,” or Erik Pampalone or Eric Hinojosa, the owners of HABP owners)

2RR 92; 3RR 998 (DX1). Erik Pampalone thus initiated a lawsuit claiming

he was the maker of a loan (instead of being one of the borrowers). As with

his mother’s later lawsuit, Erik’ lawsuit relied upon an unwritten agreement,

but claimed that the $675 monthly payments had been due to him rather than

to his mother. Id. That case was ultimately nonsuited early on, after which

Barbara Pampalone brought suit in Texas against Austin Capital Collision,

LLC and Eric Hinojosa. CR 7.

      After a one-day bench trial during which Barbara Pampalone, Erik

Pampalone and Eric Hinojosa testified, the trial court rendered judgment

against Austin Capital Collision, LLC. CR 50. It found that Barbara

Pampalone had made a loan to the “owners” of Capital Collision, G.P., that

the statute of frauds did not bar the claim even in the absence of a signed



                                                                              7
promissory note, and that the loan could be enforced against Austin Capital

Collision because it had partially performed. The trial court rendered

judgment in favor of Barbara Pampalone in the amount of $56,758.68, as

well as $43,241 in attorney’s fees and an award of conditional appellate

attorney’s fees. CR 49-50.

      In support of the judgment, the trial court entered findings of fact and

conclusions of law. CR 53. Among other things, it found:

      • In 2005, Eric Hinojosa was president and 50% shareholder of
        Hinojosa Auto Body & Paint, Inc. (Texas) and Hinojosa Auto
        Body & Paint, Inc. (Nevada) (the “HABP Entities”), and Erik
        Pampalone was the vice president and other 50% shareholder, with
        the two entities serving as general partners of Capital Collision,
        GP. Capital Collision, GP operated as “Capital Collision”
        pursuant to an assumed name filed by Eric Hinojosa. CR 54.

      • In approximately March 2005, Plaintiff loaned $80,000 “to the
        owners of the Capital Collision business which, at the time were
        the HABP Entities as general partners of “Capital Collision, G.P”
        CR 54-55.

      • There was no signed promissory note for the loan but the terms of
        the loan were evidenced by yearly amortization schedules. CR 56.

      • The statute of frauds did not bar enforcement of the loan even
        though not in writing because Plaintiff performed and Defendant
        Austin Capital Collision, LLC partially performed. CR 56.

      • In July 2009, Eric Hinojosa formed Austin Capital Collision, LLC,
        and serves as its sole managing member and 99% owner. CR 54.

      • The HABP Entities and Capital Collision, G.P. were terminated in
        July 2010. CR 54.



                                                                                 8
      • Following its formation, Austin Capital Collision, LLC assumed
        the loan to Plaintiff from the HABP Entities by continuing to make
        payments, partially performed on those obligations, and defaulted.
        CR 61-62.

                      SUMMARY OF ARGUMENT
      The trial court’s liability judgment fails for two reasons.

      First, any finding of an enforceable contract for a loan between

Plaintiff and the owners of “Capital Collision” as defined by the court, runs

afoul of the statute of frauds. There is no question that the purported loan

transactions is subject to the statute of frauds – the agreement sued upon

constitutes a purported loan obligation with a twenty-year term. The

purported loan invokes the statute of frauds because the agreement sought to

be enforced is not in writing and is not signed by the party against whom

enforcement is sought. As the parties stipulated that no promissory note

supported the purported loan transaction, it is unenforceable pursuant to the

statute of frauds.

      Plaintiff’s claims are not saved by the defense of “partial

performance”. That theory is unavailable in the absence of evidence that

any performance cited by Plaintiff “unequivocally referred” to the purported

agreement and corroborated its existence, and that the performance “could

have no other purpose” than to fulfill the agreement. Exxon Corp. v.

Breezevale Ltd., 82 S.W.3d 429, 439 (Tex. App.—Dallas 2002, pet. denied).


                                                                                9
The record defeats the application of that theory – whether it shows a history

of payments, the record does not contain evidence from the party allegedly

making a contract that unequivocally refers to the purported agreement and

corroborates its existence. Indeed, Erik Pampalone’s California lawsuit

against Eric Hinojosa calls into question whether Plaintiff even viewed the

sued-upon loan as a contract existing between Barbara Pampalone and

“Capital Collision.” Under such circumstances, the doctrine of partial

performance cannot save the transaction.

      Second, assuming a finding about the existence of a loan between

Plaintiff and the “owners” of “Capital Collision, G.P.”, the judgment against

the corporate entity Austin Capital Collision, LLC separately violates the

statute of frauds. It is undisputed that Austin Capital Collision, LLC was not

a party to the underlying agreement Plaintiff seeks to enforce (and did not

even come into existence until years after that transaction purportedly

occurred). While Austin Capital Collision, LLC uses the “Capital Collision”

assumed name, nothing demonstrates that it acted as a surety for or adopted

any debts of any predecessor entities. In fact, Barbara Pampalone admitted

that no such writing established as much or that she was a party to any

contract by which Austin Capital Collision, LLC agreed to pay any

obligation owed by any other entity. Moreover, the record contains no



                                                                              10
evidence that payments made by Austin Capital Collision were

solely referable to the purported contract. In the absence of such evidence,

the partial performance theory on which the judgment against Austin

Collision Center, LLC is based fails as a matter of law.

      Finally, in the absence of any theory by which contractual claims

could be sustained against Austin Collision Center, LLC, the award of

attorney’s fees necessarily must be rejected as well. In short the judgment

against Austin Collision Center should be reversed in its entirety and

judgment rendered in its favor on all claims.

                  ARGUMENTS AND AUTHORITIES

I.    Standard of Review

      The judgment below is predicated on the trial court’s conclusion that

the loan asserted by Pampalone satisfied the statute of frauds despite the

conceded absence of a writing signed by “Capital Collision’s” owners and

despite the absence of a writing demonstrating that any such debt was

assumed by Austin Capital Collision, LLC. See CR 56, ¶ 17; 61, ¶51; 61-62,

¶¶ 54-55. Accordingly, the judgment is based on a conclusion of law,

subject to de novo review. See BACM 2001-San Felipe Road Ltd.

Partnership v. Trafalgar Holdings I, Ltd., 218 S.W.3d 137, 143 (Tex. App. –

Houston [14th Dist.] 2007, pet. denied) (judgment from a bench trial



                                                                               11
predicated on a conclusion of law that an agreement satisfied statute of

frauds held to be subject to de novo review). In conducting such review, the

Court exercises its own judgment and re-determines each issue. Id.

      Given the applicability of the statute of frauds as facially rendering

unenforceable the underlying loan claim as well as the claim that any such

loan was assumed by Austin Capital Collision, LLC, Plaintiff assumed the

burden of proving the applicability of exceptions. See Choi v. McKenzie,

975 S.W.2d 740, 743 (Tex. App. – Corpus Christi 1998, pet. denied). Thus,

given the stipulations of the parties and the evidence at trial, the focus of this

appeal is not on whether the statute of fraud renders unenforceable any

purported loan agreement between Plaintiff and “Capital Collision” or any

assertion that such a loan had been assumed by Austin Capital Collision,

LLC. Barring any applicable exceptions substantiated by the record, the

answer to those questions are settled – any of the agreements on which the

judgment below rely are unenforceable by operation of the statute of frauds.

Taxel v. Bishop, 201 S.W.3d 290, 300 (Tex. App.—Dallas 2006, no pet.).

      To support a judgment against Austin Capital Collision, LLC, Barbara

Pampalone assumed the burden to establish two exceptions – first, a “partial

performance” exception that would transform the unwritten purported loan

agreement with unidentified parties into an enforceable contract, and second,



                                                                                12
a partial performance exception that would allow liability under that

unwritten agreement to be imposed upon Austin Capital Collision, LLC.

The “partial performance” exception imposes an evidentiary burden of

proving that the performance relied upon to allow invocation of the

exception was “unequivocally referable” to the alleged agreement sued upon

and corroborative of the fact a contract was actually made. Breezevale, 82

S.W.3d at 430. Moreover, the evidence must establish that the acts of

performance relied upon could have been undertaken with no desire other

than to fulfill the purported agreement sought to be enforced. Id.

      In the absence of evidence that the actions relied upon by Barbara

Pampalone were unequivocally referable, the invocation of the partial

performance test fails under a legal sufficiency challenge. During the no

evidence review the question is not whether there is evidence that the

performance could have been referable to the contract, but whether the

evidence that the performance was solely referable. Id. As the record

conirms the absence of any evidence establishing the performance was

solely referable to the contract, the judgment fails as a matter of law, and

must be reversed in its entirety.




                                                                               13
II.   The absence of a written agreement setting forth the terms of the
      loans at issue and signed by a purported debtor renders any
      alleged contract unenforceable

      A.     Plaintiff produced no writing sufficient to satisfy the statute
             of frauds in connection with the purported agreement she
             sought to enforce against the “owners” of Capital Collision

      The statute of frauds provides that certain types of agreements are

unenforceable unless in writing and signed by the person to be charged with

the agreement or a legally authorized representative. See Tex. Bus. &

Comm. Code § 26.01(a); see also Dynegy, Inc. v. Yates, 422 S.W.3d 638,

641 (Tex. 2013) (statute of frauds renders contract voidable and

unenforceable against an objecting party). It is not disputed that the

purported loan on which this lawsuit is based was never reduced to writing

generally and in particular was never reflected by a writing signed by the

purported debtors, the owners of Capital Collision, G.P. See 2RR 58; Tex.

Bus. Comm. Code §§ 26.01(a), 26.01(b)(6). Thus, the purported agreement

is unenforceable barring any evidence establishing an exception to the

statute of frauds.

      B.     Plaintiff failed to demonstrate the applicability of any
             exception to the statute of frauds sufficient to establish an
             enforceable obligation owed by the “owners” of Capital
             Collision, G.P.

      As noted, all concede that the purported loan was not documented by

a writing that would satisfy the statute of frauds. And the record does not


                                                                              14
support the invocation of the partial performance exception as found by the

trial court that would allow the contract to be enforced despite the statute of

frauds. CR 61 (FOF 51).

      Here, the trial court found that the statute of frauds did not bar a

finding of an agreement between Barbara Pampalone and “Capital

Collision” (as defined), because “Austin Capital Collision, LLC, d/b/a

Capital Collision partially performed.” CR 61 (FOF 54). Setting aside that

this finding collapses the two ‘partial performance’ questions,3 there is no

evidence to support the application of the partial performance exception to

establish the existence of an underlying loan agreement between Barbara

Pampalone and the owners of Capital Collision, G.P.

      Barbara Pampalone relies on the existence of numerous payments

made over the years as constituting evidence of partial performance. But as

noted, the question on appeal is not whether there is evidence that acts

asserted to constitute partial performance could be referable to a contract.

Instead, she must present proof that any performance was solely referable to

the purported contract. Breezevale, 82 S.W.3d at 440. Here, the record

3
  These are: (1) whether partial performance allows for the avoidance of the
statute of frauds in connection with determining whether an underlying agreement
could be enforced, and (2) whether partial performance years later on the part of
Austin Capital Collision, LLC allows for the avoidance of the statute of frauds and
excuses the absence of a writing showing it assumed the debt of another.

                                                                                 15
contains no such evidence. The very fact that Erik Pampalone sued Eric

Hinojosa claiming the existence of an $80,000 loan and entitlement to

monthly payments of $675 defeats any conceivable argument that the

evidence establishes the payments referenced by Barbara were solely

referable to the unwritten agreement she seeks to enforce. Under

Breezevale, her claim necessarily falls because no evidence supports her

attempt to invoke the partial performance exception to the statute of frauds.


III.   Plaintiff failed to satisfy its burden of demonstrating how Austin
       Capital Collision, LLC could be liable in any event

       As noted, Barbara Pampalone failed at trial to establish a theory by

which it could have held Capital Collision, G.P. liable for the asserted loan

in the absence of a writing satisfying the statute of frauds because she

produced no evidence demonstrating that any partial performance by Capital

Collision was solely undertaken in connection with the purported contract.

The same defects defeat her efforts to enforce any purported loan obligations

against Austin Capital Collision, LLC.

       Barbara Pampalone stipulated she had no writing demonstrating that

Austin Capital Collision, LLC assumed any obligation that she asserted

previously belonged to the “owners of Capital Collision” (or to anyone else

for that matter). That admission invokes the statute of frauds bar to



                                                                                16
enforcing the assumption of a debut onto Austin Capital Collision, LLC.

And in the absence of any such writing she cannot rely on a partial

performance exception to render any assumption enforceable because she

failed to present evidence demonstrating that the performance she cites was

solely referable to the assumption by Austin Capital Collision, LLC of a

contractual obligation owed by Capital Collision to Pampalone.

      A.     It is conceded that Barbara Pampalone has no writing
             confirming that Austin Capital Collision LLC assumed the
             unwritten debt she claims to be owed by the “owners”
             (including her son) of Capital Collision, G.P.

      It is undisputed that Barbara Pampalone can point to no writing by

which Austin Capital Collision, LLC agreed to assume any obligations

purportedly owed to her under an unwritten loan agreement made to the

owners of Capital Collision, G.P., including her son. In fact, she stipulated

that no such document exists and that she was not the subject to any such

agreement with Eric Hinojosa on behalf of Austin Capital Collision, LLC.

2R 88. That fact demonstrates that, barring an exception, the statute of

frauds bars any theory by which Barbara Pampalone could seek to impose

liability on Austin Capital Collision, LLC for any purported loan between

Barbara Pampalone and the “owners” of “Capital Collision, G.P.”




                                                                            17
      B.     Plaintiff failed to establish any exception to the statute of
             frauds that would support a judgment against Austin
             Capital Collision LLC for a debt purportedly undertaken
             by a different entity

      Nor does the record support the trial court’s conclusion that Austin

Collision Center, LLC can be liable under a partial performance theory. In

the face of the stipulation that no writing or contract exists demonstrating

Austin Capital Collision, LLC assumed any loan from the “owners” of

Capital Collision, G.P.,4 the trial court relied on two intertwined theories to

hold it liable, but both fail. The conclusion that Austin Capital Center, LLC

made an unwritten assumption of obligations of Capital Center, GP depends

upon the “partial performance” exception to avoid the statute of frauds

because no agreement demonstrating any assumption appears in writing.

See CR 61 (COL 54) (“Austin Capital Collision, LLC d/b/a/ Capital

Collision assumed the loan from the HAPB Entities though [sic] its conduct

and course of performance, including by continuing to make payments on the

loan in accordance with the terms of the agreement.”). (emphasis added).




4
 Another type of agreement that must meet the requirements of the statute of
frauds is a promise by one person to answer for the debt of another. TEX. BUS. &
COMM. CODE § 26.01(b)(2); see Cruz v. Andrews Restoration, Inc., 364 S.W.3d
817, 827 (Tex. 2012); Chubb Lloyds Ins. v. Andrew's Restoration, 323 S.W.3d
564, 571-572 (Tex. App. – Dallas 2010, pet. denied); Hartford Fire Ins. v. C.
Springs 300, Ltd., 287 S.W.3d 771, 777 (Tex. App. – Houston [1st Dist.] 2009,
pet. denied).

                                                                               18
      The partial performance theory fails as a matter of law because the

record contains no evidence that any payments referred to were solely

referable to the loan in question. As noted, to the extent even Erik

Pampalone asserted that the historical payments were in satisfaction of a

debt owed to him by Eric Hinojosa, there is no evidence that the payments

were instead solely referable to the assumption of a debt by Austin Capital

Collision, LLC, previously owed by the owners of Capital Collision, GP

(including Erik Pampalone), to Barbara Pampalone).

      Indeed, the record further confirms that Austin Capital Collision, LLC

did not undertake to make payment, and in fact never made a payment to,

Barbara Pampalone, as every payment referenced was made from an account

in the name of Eric Hinojosa and Capital Collision, G.P., and not Austin

Capital Collisionn, LLC. See 3RR 19-21 (Ex. 3). The absence of evidence

of performance by Austin Capital Collision thus independently undermines

any attempt to defeat the statute of frauds and hold Austin Capital Collision,

LLC liable for an unwritten loan to the owners of Capital Collision, G.P.

See Breezevale, 82 S.W.3d at 439.


IV.   The award of attorney’s fees must be vacated

      Finally, to the extent the preceding arguments defeat Pampalone’s

claims against Austin Capital Collision, LLC, the award of attorney’s fees


                                                                              19
must also be vacated. In the absence of a liability claim decided in her

favor, Pampalone is not entitled to an award of attorney’s fees. Accordingly,

Austin Collision Center, LLC requests that those fees be vacated as well.

                         PRAYER FOR RELIEF
      Austin Collision Center, LLC respectfully prays that this Court

reverse the judgment below, and render judgment that Barbara Pampalone

take nothing by her claims, that costs be taxes against Pampalone, and for

whatever additional relief to which Austin Collision Center may be entitled.

                             Respectfully submitted,

                             /S/ Michael S. Truesdale
                             Michael S. Truesdale

                             LAW OFFICE OF MICHAEL S. TRUESDALE, PLLC
                             State Bar No. 00791825
                             801 West Avenue, Suite 201
                             Austin, TX 78701
                             512-482-8671
                             866-847-8719 (fax)
                             mike@truesdalelaw.com
                             COUNSEL FOR APPELLANT




                                                                             20
                      CERTIFICATE OF SERVICE
      On November 18, 2015, the undersigned certifies that he served a
copy of this Brief of Appellants on the following in the manner listed below,
in compliance with Texas Rules of Appellate Procedure 9.5 and 25.1(e):

MCGINNISS LOCHRIDGE
Nelia J. Robbi
nrobbi@mcginnislaw.com
SBN 24052296
600 Congress Avenue, Suite 2100
Austin, TX 78701
512-485-6065
512-495-6093 (fax)

Counsel for Barbara Pampalone
Via e-service

                                      /s/ Michael S. Truesdale
                                      Michael S. Truesdale
                                      SBN 00791825

                  CERTIFICATE OF COMPLIANCE
      The undersigned certifies that this brief complies with the word
limitation contained in Texas Rule of Appellate Procedure 9.4(i)(2)(E) in
that the brief contains a total of 4,404 words, excluding parts of the brief
exempted by Tex. R. App. P. 9.4(i)(1), as calculated by the word count tool
of Microsoft Word (2008) for Mac.

                                       /s/ Michael S. Truesdale
                                      Michael S. Truesdale




                                                                           21
                          APPENDIX
Tab 1   Final Judgment (CR 50-52)

Tab 2   Findings of Fact and Conclusions of Law (CR 53-63)

Tab 3   Exxon Corp. v Breezevale, Ltd., 82 S.W.3d 429 (Tex.
        App—Dallas 2002, pet denied)




                                                              22
Tab 1
                                       DC                  BK15175 PG1 024



                                                                                         Filed in The District Court
                                                                                          of Travis County, Texas

                                                                                                 JUN I 8 2015          Cf)
                                                                                      At              0(,' 4-l!J   '£:M.
                                        NO. D-1-GN-14-003207                           Velva L. Prier., District &rk

BARBARA P AMPALONE,                                    §                            IN THE DISTRICT COURT
                                                       §
        Plaintiff,                                     §
                                                       §
v.                                                     §                           TRAVIS COUNTY, TEXAS
                                                       §
ERIC IUNOJOSA AND AUSTIN                               §
CAPITAL COLLISION, LLC,                                §
                                                       §
       Defendants.                                     §                           419rn JUDICIAL DISTRICT

                                         FINAL JUDGMENT

       On June 8, 2015, this case was called for trial. Plaintiff Barbara Pampa! one appeared in

person and announced ready for trial.           Defendant Eric Hinojosa appeared in person and

announced ready for triaL        Defendant Austin Capital Collision, LLC, appeared through its

representative, Eric Hinojosa, and announced ready for trial.

       All matters in controversy, legal and factual, were submitted to the Court for its

determination.       The Court heard the evidence and arguments of counsel and announced its

decision for Plaintiff Barbara Pampalone.

       The Court orally RENDERED judgment for Plaintiff Barbara Pampalone and against

Defendant Austin Capital Collision, LLC, on June 8, 2015, and this written judgment

memorializes that rendition.

       IT lS THEREFORE ORDERED that Plaintiff recover the following from Defendant

Austin Capital Collision, LLC:

       1.        Actual damages in the amount of$56,758.68;

       2.        Plus reasonable and necessary attorneys' fees in the amount of$43,241.32; plus

       3.        Post-judgment interest at the rate of 5.0%, compounded annually from the date this

                 judgment is entered until all amounts are paid in full.




                                               I\IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII Ill\ Ill\
                                               004080302

                                                                                                                             50
                                     DC             BK15175 PG1 025




        It is further ORDERED that Defendants take nothing.

        It is ftnther ORDERED that if Defendant Austin Capital Collision, LLC, unsuccessfully

appeals this judgment to an intermediate court of appeals, Plaintiff Barbara Pampalone will

additionally recover from Defendant Austin Capital Collision, LLC, the amount of $20,000.00,

representing the anticipated reasonable and necessary fees and expenses that would be incurred by

Plaintiff in defending the appeal.

       It is further ORDERED that if Defendant Austin Capital Collision, LLC, unsuccessfully

appeals this judgment to the Texas Supreme Court, Plaintiff Barbara Pampalone will additionally

recover fiom Def(mdant Austin Capital Collision, LLC, the amount of $20,000.00, representing the

anticipated reasonable and necessary fees and expenses that would be incurred by Plaintiff in

defending the appeal.

       It is fmther ORDERED that Plaintiff may have all writs, orders and executions necessary

for collection of this judgment, which may issue immediately.

       It is further ORDERED that except as specifically provided herein, all relief not expressly

granted is hereby DENIED.

       This judgment finally disposes of all patties and all claims and is appealable.


       SIGNED     this~~ day of June, 2015.




                                                2




                                                                                                     51
Tab 2
                                                                                                   Filfdr in !he District Court
                                                                                                    o   rav1s County
                                                                                                                      , -r'exas
                                                                                                        JUL - 7 2015         r--1__
                                           NO. D-1-GN-14-003207
                                                                                                At_       ,3,· i..j U
                                                                                                                         0 M.
                                                                                                                                  0
                                                                                                 Velva L p ·
                                                                                                        · nee, District clerk
BARBARA PAMPALONE,                                          §                          IN THE DISTRICT COURT
                                                            §
        Plaintiff,                                          §
                                                            §
v.                                                          §                         TRAVIS COUNTY, TEXAS
                                                            §
ERIC HINOJOSA AND AUSTIN                                    §
CAPITAL COLLISION, LLC,                                     §
                                                            §
        Defendants.                                         §                         419TH JUDICIAL DISTRICT

                      FINDINGS OF FACT AND CONCLUSIONS OF LAW

                                                 I. Introduction

        On June 8, 2015, this case was called for trial, and all matters in controversy, legal and

factual, were submitted to the Court for its determination.                       In addition to all other findings

necessary to support the Judgment rendered in favor of Plaintiff and against Defendant Austin

Capital Collision, LLC, in this cause, the Court hereby makes and files the following specific

findings of fact and conclusions of law.                Any finding of fact that should be construed as

conclusion of law is hereby adopted as such. Any conclusion of law that should be construed as

a finding of fact is hereby adopted as such.

                                             II. Findings of Fact

A. Procedural History.

     1. Plaintiff Barbara Pampalone ("Plaintiff') filed her original petition on August 26, 2014,

alleging causes of action for breach of contract against Defendant Eric Hinojosa and Defendant

Austin Capital Collision, LLC.

     2. This is an expedited action under Texas Rule of Civil Procedure 169.

     3. This case was called for bench trial on June 8, 2015, and the parties appeared and

announced ready for trial. At the close of trial, judgment was rendered in favor of Plaintiff and


                        1111111111111111111111111111111111111111111111111111111
                        004108045
                                                                                                                              53
against Defendant Austin Capital Collision, LLC. Judgment was signed on June 18, 2015.

   4. Defendants requested findings offact and conclusions oflaw on June 18,2015.

B. The Parties and Associated Persons/Entities.

   5. Defendant Eric Hinojosa is a resident of Texas.         Eric Hinojosa previously lived m

California where he and Plaintiffs son, Erik Pampalone, became friends.

   6. Plaintiff is a semi-retired dentist who resides in Chatsworth, California.

   7. In 2005, when the loan at issue in this lawsuit was made, Eric Hinojosa was the president

and a 50% shareholder of Hinojosa Auto Body & Paint, Inc. (Texas), and Hinojosa Auto Body &

Paint, Inc. (Nevada), (collectively, the "HABP Entities"). Plaintiffs son, Erik Pampalone, was

the vice president and other 50% shareholder of the HABP Entities. The HABP Entities were the

general partners of Capital Collision, G.P., and the business-auto body repair shop--operated

under the assumed name filed by Eric Hinojosa of Capital Collision [Exh. P-19]. The HABP

Entities were terminated in July of 2010 and, accordingly, the general partnership of Capital

Collision, G.P. was also terminated.

   8. Prior to the termination of the HABP Entities in 2010, Eric Hinojosa formed Defendant

Austin Capital Collision, LLC, in June of2009. Eric Hinojosa is the sole managing member and

99% owner of Austin Capital Collision, LLC, which is also engaged in auto body repair. On the

same day that Austin Capital Collision, LLC, was formed, Defendant Eric Hinojosa filed an

assumed name certificate on behalf of Austin Capital Collision, LLC, for the name "Capital

Collision."   Austin Capital Collision, LLC, continues to conduct business today as Capital

Collision.

C. The Loan Agreement.

   9. Around March of2005, Plaintiff loaned the principal sum of$80,000.00 to the owners of



                                                2
                                                                                                  54
the Capital Collision business which, at the time, were the HABP Entities as general partners of

Capital Collision, G .P. The owners of the Capital Collision business are referred to herein as

"Capital Collision."

    10. At the time, Capital Collision had an option to purchase the land it was renting but lacked

the necessary funds.          Erik Pampalone and Eric Hinojosa, as corporate officers/directors,

discussed the issue, and Erik Pampalone suggested to Eric Hinojosa that he could ask his mother,

Plaintiff, to loan the funds to Capital Collision.     Eric Hinojosa agreed that Erik Pampalone

should ask Plaintiff to loan funds to Capital Collision.

    11. Erik Pampalone, in his capacity as Vice-President of Capital Collision, approached

Plaintiff and proposed that Plaintiff loan Capital Collision the sum of $80,000.00 and, in

exchange, Capital Collision would repay the $80,000.00 over a twenty year period, plus annual

interest at the rate of 7%.

    12. Plaintiff understood, and Capital Collision agreed, that the loaned funds would be used

for business purposes, including the possible purchase of land.

    13. Plaintiff had previously loaned funds to Capital Collision for business purposes in 2003

and, at the time of the loan at issue in this lawsuit, was being repaid by Capital Collision as

agreed.

    14. Plaintiff agreed to loan $80,000.00 to Capital Collision. Plaintiff performed under the

terms of the agreement and paid the funds to Capital Collision in two installments: $50,000.00

on or about March 24, 2005, and the remaining $30,000.00 on or about April 13, 2005. [Exhs. P-

1, P-2].

    15. The loaned funds were deposited into Capital Collision's bank account, a Bank of

America account held in the names of"Capital Collision" and "Eric Hinojosa."



                                                   3
                                                                                                      55
    16. The parties have stipulated that there is no signed promissory note for the loan. However,

the terms of the loan were evidenced in yearly loan amortization schedules generated by Erik

Pampalone and sent to Defendants and their representatives. [Exhs. P-5, P-7, P-9, P-12, P-12A,

P-13, P-15, P-16, P-17].

    17. The statute of frauds does not bar the agreement, even though it is not in writing, because

Plaintiff fully performed under the agreement, and Defendant Austin Capital Collision, LLC,

partially performed.

D. Payments on the Loan.

    18. Thereafter, beginning on or about May 20, 2005, Capital Collision began performing

under the agreement by making monthly payments on the loan pursuant to the agreed upon terms.

Payments were made by electronic bill payment from Capital Collision's Bank of America

account held in the names of "Eric Hinojosa" and "Capital Collision" into Plaintiffs bank

account.

    19. The parties stipulated that from May 2005 through April 2013, Plaintiff received 94

monthly payments on the loan. [Exhs. P-3, P-3A].

    20. The 94 monthly payments were made by Capital Collision to Plaintiff as repayment on

the loan.

   21. During this time period, there was email correspondence among the parties and persons

acting on their behalf acknowledging the existence of the loan and Defendants' indebtedness to

Plaintiffthereunder. [Exhs. P-5, P-7, P-8, P-9, P-10, P-11, P-12, P-12A, P-13, P-15, P-16, P-17].

E. Defendant Austin Capital Collision's Assumption of the Loan.

   22. Erik Pampalone began the process of leaving Capital Collision in 2006, and he formally

resigned in approximately April of 2007. After resigning, Erik Pampalone assisted Plaintiff in



                                                4
                                                                                                      56
oversight of repayment of the loan, corresponding by telephone and email with Defendant Eric

Hinojosa and other Capital Collision employees concerning the loan.

    23. Following Erik Pampalone's resignation, Defendant Eric Hinojosa became and remained

the sole officer/director of Capital Collision. Capital Collision continued to repay the Loan to

Plaintiff pursuant to the agreed upon terms.

    24. In June of 2009, Defendant Eric Hinojosa formed a new company, Defendant Austin

Capital Collision, LLC, [Exh. P-20] which became the owner of the Capital Collision business and

filed an assumed name of"Capital Collision." [Exhs. P-21, 22].

    25. Following its formation, Defendant Austin Capital Collision, LLC, assumed the loan to

Plaintiff.

    26. Approximately one year later, in July of 2010, Defendant Eric Hinojosa terminated the

HABP Entities (and, accordingly, the general partnership). [Exh. P-24].

    27. At the time of termination of the HABP Entities and formation of Austin Capital Collision,

LLC, all entities were operated solely by Defendant Eric Hinojosa.

    28. Defendant Eric Hinojosa did not provide notice-statutory or otherwise-to Plaintiff or

Erik Pampalone that he was terminating the HABP Entities or that Capital Collision was owned or

being operated by a new entity, Austin Capital Collision, LLC.

    29. Although there was no formal purchase or transfer of assets between Austin Capital

Collision, LLC, and the HABP Entities, Austin Capital Collision, LLC, continued to use the same

assumed name, business email address (cptlcollision@aol.com) and email signature block (with the

same name and physical address) as the as the HABP Entities [Exh. P-14]. Austin Capital

Collision, LLC, also retained some of the same employees, took over control of the bank accounts

of the HABP Entities, and operated the same general business as the HABP Entities.



                                                 5
                                                                                                     57
    30. Prior to institution of this lawsuit, neither Plaintiff nor Erik Pampalone was aware or had

any reason to be aware that the HABP Entities had been terminated or that a new entity, Austin

Capital Collision, LLC, was operating the business and using the assumed name of Capital

Collision.

    31. Following formation of Austin Capital Collision, LLC, and termination of the HABP

Entities, Austin Capital Collision, LLC, d/b/a Capital Collision continued to make payments to

Plaintiff pursuant to the agreed upon terms of the loan.

    32. Austin Capital Collision, LLC, d/b/a Capital Collision made its payments from the Bank of

America account held in the names of "Eric Hinojosa" and "Capital Collision" until approximately

March of 2010 when the payments began being made from a Bank of America account held in the

names of "Eric Hinojosa" and "Capital Collision GP ." Because the payments were electronically

deposited into Plaintiff's bank account, Plaintiff was not aware of any change in the bank account

making the payments to her.

    33. Defendant Austin Capital Collision, LLC, d/b/a Capital Collision was operating the Bank of

America accounts making the payments to Plaintiff.         Its sole managing member and majority

owner, Defendant Eric Hinojosa, intentionally put money into the Bank of America account held in

the names of "Eric Hinojosa" and "Capital Collision, GP" to cover the monthly bill payments to

Plaintiff on the loan.

    34. After Austin Capital Collision, LLC, was formed, Erik Pampalone, acting on behalf of

Plaintiff,    continued   to   send    correspondence      concerning   Plaintiffs   loan   to   the

cptlcollision@aol.com email address.      [Exhs. P-12a, P-13, P-14]. In response, Austin Capital

Collision, LLC, d/b/a Capital Collision continued to make payments on the loan as agreed. [Exhs.

P-3, P-3A].




                                                  6
                                                                                                       58
    35. In September of 2012, Erik Pampalone, acting on behalf of Plaintiff, sent an email to

cptlcollision@aol.com requesting that Eric Hinojosa change where he was sending the monthly

deposits to Plaintiff on her loan to Capital Collision. [Exh. P-14]. In response, Mirium Matta, Eric

Hinojosa's sister-in-law and an employee of Austin Capital Collision, LLC, responded from the

cptlcollision@aol.com email with "received and updated." [Exh. P-14].

    36. Austin Capital Collision, LLC, acknowledged the loan to Plaintiff and its indebtedness

thereunder through its conduct and course of performance.

F. Austin Capital Collision, LLC's, Default on the Loan.

    37. Defendant Austin Capital Collision, LLC, d/b/a Capital Collision made its last regular

monthly payment on the loan in April of2013. [Exhs. P-3, P-3A].

    38. In October of 2013, Austin Capital Collision, LLC, d/b/a Capital Collision made a payment

of $6,000.00 to Plaintiff. [Exhs. P-3, P-3A]. No further payments have been made to Plaintiff.

Austin Capital Collision, LLC, d/b/a Capital Collision has breached and defaulted on the loan to

Plaintiff.

    39. Plaintiff made demand for payment upon Defendants, but Defendants failed and refused to

cure the default on the loan. [Exhs. P-16, P-25].

G. Plaintiff's Damages.

    40. As a result of Defendant Austin Capital Collision, LLC's, default on the loan to Plaintiff,

Plaintiffhas suffered damages.

    41. The parties stipulated that the amount due and owing on the loan as of the date of trial is

$56,758.68.

H. Attorneys' Fees.

    42. As a result of Defendants' default, Plaintiff was compelled to file the instant lawsuit and




                                                    7
                                                                                                       59
incur attorneys' fees and costs associated with same.

   43. Through April 2015, Plaintiff incurred attorneys' fees in the amount of $44,950.30. [Exh.

P-18]. Plaintiff's fees incurred through trial are in excess of$90,000.00. These fees are reasonable

and necessary in Travis County, Texas.

   44. The parties stipulated to Ms. Robbi's qualifications to present attorneys' fees testimony and

the reasonableness of the hourly rates being charged.

   45. Plaintiff's attorneys were required to expend significant time engagmg m discovery,

drafting and filing a motion to dismiss claims asserted by Defendants, compelling discovery from

Defendants, attempting to subpoena documents from Defendants' accountant, preparing for and

attending depositions and mediation, attending hearings on Defendants' special exceptions and

motion for continuance, preparing for and attending trial, and drafting pre-trial motions, including a

motion to exclude the testimony of Defendant's corporate representative, Eric Hinojosa, who was

wholly unprepared for his deposition in which it was agreed he would provide answers in his

individual capacity and as the corporate representative for Defendant Austin Capital Collision,

LLC.

    46. Plaintiff's reasonable and necessary fees for Travis County in the event of an unsuccessful

appeal by either Defendant to the Court of Appeals are $20,000.00.

   47. Plaintiffs reasonable and necessary fees for Travis County in the event of an unsuccessful

appeal by either Defendant to the Texas Supreme Court are $20,000.00.

L Other Findings by the Court.

    48. Defendant Eric Hinojosa lacks credibility, especially in light of the fact that Eric Hinojosa

was wholly unprepared for his corporate representative deposition, had not reviewed a single

document produced in the lawsuit or otherwise talked to any Austin Capital Collision, LLC,



                                                  8
                                                                                                         60
employees or representatives regarding the designated deposition topics, and demonstrated a

repeated inability to provide substantive responses on his own behalf or on behalf of Austin Capital

Collision, LLC. Further, at trial of this cause, Eric Hinojosa tried to change many of the answers he

provided at his deposition which occurred approximately one month before trial.

                                      III. Conclusions of Law

A. Breach of Contract.

   49. Plaintiff and Capital Collision ("Capital Collision," as indicated, supra, referring to the

owners of the Capital Collision business which, at the time, were the HABP Entities as the general

partners of Capital Collision, G.P.) intended to and did enter into an agreement whereby Plaintiff

would loan the sum of $80,000.00 to Capital Collision and, in exchange, Capital Collision would

repay the loan over 20 years at 7% interest.

    50. This agreement constitutes a valid, enforceable contract.

    51. The statute of frauds does not bar the agreement, even though it is not in writing, because

Plaintiff fully performed under the agreement, and Defendant Austin Capital Collision, LLC, d/b/a

Capital Collision partially performed.

    52. Plaintiff fully performed under the terms of the agreement, paying the sum of $80,000.00 to

Capital Collision.

    53. Capital Collision performed on the agreement prior to the termination of the HABP Entities

by making monthly payments on the loan as agreed.

    54. Austin Capital Collision, LLC, d/b/a Capital Collision assumed the loan from the HABP

Entities though its conduct and course of performance, including by continuing to make payments

on the loan in accordance with the terms of the agreement.

    55. Austin Capital Collision, LLC, d/b/a Capital Collision partially performed on the agreement




                                                  9
                                                                                                        61
by continuing to make payments on the loan to Plaintiff in accordance with the terms of the

agreement.

   56. Austin Capital Collision, LLC, defaulted on the loan.

   57. As a result of Austin Capital Collision, LLC's, default, Plaintiff suffered damages in the

amount of $56,758.68. Accordingly, Plaintiff is entitled to recover the sum of $56,758.68 from

Defendant Austin Capital Collision, LLC.

   58. Plaintiff is entitled to post-judgment interest at the rate of5%.

B. Attorneys' Fees.

   59. Because this is an expedited action under Texas Rule of Civil Procedure 169 and Plaintiff

cannot recover more than $100,000.00 inclusive of attorneys' fees, Plaintiff is entitled to attorneys'

fees in the amount of $43,241.32 which fees are reasonable and necessary in Travis County, Texas.

   60. Plaintiff is entitled to a conditional award of $20,000.00 in the case of an unsuccessful

appeal by either Defendant to the Court of Appeals. This sum is reasonable and necessary in Travis

County, Texas.

   61. Plaintiff is entitled to an additional conditional award of $20,000.00 in the case of an

unsuccessful appeal by either Defendant to the Texas Supreme Court. This sum is reasonable and

necessary in Travis County, Texas.

C Defendants' Affirmative and Other Defenses.

   62. All of Defendants' affirmative or other defenses as alleged in its Fourth Amended Original

Answer, Verified Denial and Special Exceptions lack merit and any relief associated with same is

expressly denied.

   63. Any conclusion of law deemed a finding of fact is hereby adopted as such.




                                                  10
                                                                                                         62
SIGNED this   1 ~day of July, 2015.

                                       TH   DWONG




                                  11
                                                    63
Tab 3
82 S.W.3d 429 (Tex.App. —Dallas 2002), 05-98-02050, Exxon Corp. v. Breezevale Ltd.
Page 429
82 S.W.3d 429 (Tex.App. —Dallas 2002)
EXXON CORPORATION, Appellant,
v.
BREEZEVALE LIMITED, Appellee.
No. 05-98-02050-CV.
Court of Appeals of Texas, Fifth District, Dallas
April 4, 2002
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        David J. Beck, Beck Redden & Secrest, L.L.P., Houston, Nina Cortell, Haynes & Boone,
L.L.P., Dallas, for Appellant.
        Stephen D. Susman, Susman Godfrey, L.L.P., Houston, for Appellee.
        Before Justices BRIDGES, FITZGERALD, and FARRIS. [1]
OPINION
        Opinion By Justice David F. FARRIS (Retired).
        Exxon Corporation (Exxon) appeals the trial court's judgment following a jury verdict
awarding Breezevale Limited (Breezevale) $34.3 million as damages for breach of an oral
contract, $1 million for breach of a contract implied in law, and $3.495 million in attorneys' fees. In
its first three issues, Exxon asserts (1) the evidence is legally and factually insufficient to support a
finding that the parties reached an enforceable oral agreement, (2) the claimed agreement is not
enforceable under the statute of frauds, and (3) the trial court incorrectly instructed the jury
regarding the doctrine of promissory estoppel. In its
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final five issues, Exxon complains about the lost profits award, the attorneys' fees award, some of
the trial court's evidentiary rulings, and the judgment being contrary to public policy.
        Breezevale brings three issues in a cross appeal. Breezevale first contends the trial court
erred in its calculation of interest on the breach of contract award. In two conditional cross-points,
Breezevale complains of the trial court's dismissal of its breach of fiduciary duty claim by directed
verdict and the trial court's exclusion of evidence.
        For the reasons that follow, we reverse the trial court's award of $34.3 million on
Breezevale's breach of contract claim, affirm the award of $3.495 million in attorneys' fees, and
affirm the trial court's directed verdict on Breezevale's breach of fiduciary duty claim. [2]
FACTUAL BACKGROUND
        In the early 1990s, the Nigerian government opened its deepwater offshore to oil and gas
exploration, inviting bids from international oil companies for deepwater blocks. Exxon submitted a
bid requesting blocks 209 and 210. In June 1993, the Nigerian government formally awarded block
209 to Exxon. Exxon subsequently leveraged some of its interest in block 209, through trades and
farm-ins, to acquire interests in other blocks that had been awarded to other companies.
       This case arises from a dispute between Exxon and Breezevale, a company hired by Exxon
to provide local assistance in its effort to procure exploration rights in Nigeria. Breezevale, a
London-based corporation, operated in various countries in Europe, the Middle East, and Africa,
including Nigeria. Exxon contacted Breezevale in 1990, requesting its assistance with services
such as arranging appointments, conducting briefings, obtaining information and technical data on
available blocks of interest to Exxon, and speaking with government officials on Exxon's behalf.
Breezevale provided these types of services to Exxon over a period of approximately eighteen
months, with no formal agreement in place as to Breezevale's compensation for its services. As
the business relationship progressed, the parties began negotiating the terms of a contract to
formalize their relationship. Although Exxon initially pursued only a short-term services agreement
with Breezevale, Breezevale expressed an interest in a more involved, long-term relationship in
which Breezevale would share the risk and rewards of Exxon's Nigerian exploration.
Representatives of Exxon and Breezevale met several times to discuss their business relationship.
       The last of these meetings occurred on April 3, 1992. In this and previous meetings, the
parties discussed both a services contract and a participation agreement. The parties discussed
different options that would provide Breezevale with a participation interest in Exxon's Nigerian
exploration and production, including a 2 1/2 percent paid working interest, whereby Breezevale
would pay 2 1/2 percent of the costs of production and receive 2 1/2 percent of the production
profits. The parties' dispute as to whether an oral working interest agreement was reached at the
April 3rd meeting became the basis for Breezevale's lawsuit against Exxon. Breezevale claimed
Exxon offered, and it accepted, a 2 1/2 percent working interest in all of Exxon's Nigerian oil
operations. Exxon
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claimed an agreement on essential terms was never reached and it terminated negotiations with
Breezevale before a contract was formed. Neither party disputes an agreement on the services
contract was never reached.
       The day after the April 3, 1992 meeting, Exxon's main contact at Breezevale, Habib Bou-
Habib, traveled to Nigeria to speak with the Ministry of Petroleum on Exxon's behalf. Breezevale
contends the trip was made at the request of Exxon; Exxon asserts it never requested nor
authorized the visit. On April 9, 1992, Habib contacted Gerald Mudd, an Exxon representative,
telling him to "[g]o open the champagne," because Exxon had been awarded a block. Block 209
was formally awarded to Exxon by the Nigerian government in June 1993.
       On April 13, 1992, Exxon sent Breezevale a letter terminating its relationship with
Breezevale and enclosing a $30,000 check to cover Breezevale's services. According to Mudd,
Exxon had begun to have concerns about Habib's actions in Nigeria; consequently, Exxon decided
to terminate the business relationship. Habib returned the check.
       Breezevale sued Exxon, claiming, among other things, that Exxon breached its oral contract
with Breezevale and its fiduciary duty to Breezevale. The case was tried to a jury. After Breezevale
rested its case, Exxon moved for a directed verdict on all counts. The trial court granted Exxon's
motion for a directed verdict with regard to Breezevale's breach of fiduciary duty claim, but denied
the remainder of the motion. The jury found the parties had entered into an oral agreement that
Breezevale would acquire a 2 1/2 percent working interest in "any deepwater blocks awarded to
Exxon by the government of Nigeria" and "any deepwater blocks in which Exxon obtains a farm-in
from a private company by trading any interest awarded to Exxon by the government of Nigeria."
The jury valued the working interest at $34.3 million and additionally awarded Breezevale $1
million for services on an implied contract in law, and $3.495 million for attorneys' fees. The trial
court entered judgment on the jury verdict. Exxon appealed.
EXXON'S APPEAL
       In its first three issues, Exxon attacks the jury's findings that an enforceable contract existed
between the parties. Specifically, Exxon claims there is no or insufficient evidence to support the
jury's finding that the parties reached an agreement on all the material terms necessary to the
formation of an enforceable agreement. Additionally, Exxon contends that, as a matter of law, the
claimed oral agreement is unenforceable under the statute of frauds. Finally, Exxon argues the
trial court erred in its submission of the jury question on promissory estoppel. Because we agree
with Exxon that the statute of frauds applies, we assume without deciding the parties reached an
oral agreement, and address Exxon's second issue regarding the applicability of the statute of
frauds.
Statute of Frauds
        The statute of frauds, in section 26.01 of the Texas Business and Commerce Code,
provides in pertinent part:
       (a) A promise or agreement described in subsection (b) of this section is not enforceable
unless the promise or agreement, or a memorandum of it, is
       (1) in writing; and
       (2) signed by the person to be charged with the promise or agreement or by someone
lawfully authorized to sign for him.
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       ...
       (b) Subsection (a) of this section applies to:
       (4) a contract for the sale of real estate;
       ...
       (6) an agreement which is not to be performed within one year from the date of making of the
agreement.
       TEX. BUS. & COM.CODE ANN. § 26.01 (Vernon 1987). Whether a contract falls within the
statute of frauds is a question of law to be decided by the court. Gerstacker v. Blum Consulting
Eng'rs, Inc., 884 S.W.2d 845, 849 (Tex.App.-Dallas 1994, writ denied).
       In its second issue, Exxon contends the claimed agreement is not enforceable under the
statute of frauds because it was not in writing, and (1) the agreement involved the transfer of
working interests in oil and gas properties, which are interests in real estate, and (2) the
agreement could not possibly have been performed within one year. Breezevale responds that the
agreement does not involve real estate and could possibly have been performed within one year.
Breezevale alternatively contends that, if this Court determines the statute of frauds applies,
Breezevale avoids the application of the statute of frauds on the ground of either promissory
estoppel or partial performance.
 Interest in Real Estate
        It is undisputed that no written and signed working interest agreement existed between the
parties. We, therefore, first turn to the issue of whether the alleged agreement conveyed an
interest in real estate. Under Texas law, a conveyance of a working interest in oil and gas is a real
property interest that subjects the agreement conveying the interest to the statute of frauds. Hill v.
Heritage Res., Inc., 964 S.W.2d 89, 134 (Tex.App.-El Paso 1997, pet. denied); EP Operating Co.
v. MJC Energy Co., 883 S.W.2d 263, 267 (Tex.App.-Corpus Christi 1994, writ denied); see also
Procom Energy, L.L.A. v. Roach, 16 S.W.3d 377, 381 (Tex.App.-Tyler 2000, pet. denied) (working
interest and overriding royalty interest in oil and gas lease come within ambit of statute of frauds).
       Conceding that the transfer of severable mineral interests in oil and gas leases are regarded
as a sale of real estate under the Texas statute of frauds, Breezevale contends on appeal that its
agreement with Exxon conveyed an interest in Nigerian Production Sharing Contracts (PSC), not a
working interest in mineral production. According to Breezevale, a PSC differs from a Texas oil
and gas lease in that the foreign state retains title to the minerals in the ground, giving the holder
of the PSC only a contractual right to a share of the production. Consequently, an interest in a
PSC is not an interest in real estate and is not subject to the statute of frauds.
        Even if the conveyed interest were an interest in a PSC, the relevant issue in determining
whether the contract involves real estate is not whether title to the minerals passes, but whether
the interest is derived from rights to oil and gas in the ground, making the interest a realty interest
subject to the statute of frauds. As the Texas Supreme Court has stated, "a right to land
essentially implies a right to profits accruing from it, since, without the latter, the former can be of
no value ... [t]hus a devise of the profits of land, or even a grant of them, will pass a right to land
itself." Sheffield v. Hogg, 124 Tex. 290, 77 S.W.2d 1021, 1028 (1934) (quoting Green v. Biddle, 21
U.S. 1, 76, 5 L.Ed. 547 (8 Wheat. 1823)); see also United States Pipeline Corp. v. Kinder, 609
S.W.2d 837, 839 (Tex.Civ.App.-Fort Worth 1980, writ ref'd n.r.e.)
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. Thus, a conveyance of an interest in the minerals that are produced from land, such as a working
interest or a royalty interest, passes a right to the land itself. Pecos Dev. Corp. v. Hydrocarbon
Horizons, Inc., 803 S.W.2d 266, 267 (Tex.1991) (overriding royalty interest in future production
from unleased land is subject to statute of frauds; specifically disapproving court of appeals's
holding to contrary).
        Here, Breezevale argues Exxon offered it a 2 1/2 percent working interest in its Nigerian
production. One of Breezevale's experts, Patrick Rooney, testified the parties' use of the term
"working interest" connoted agreement in part to share in the risks, losses, production, and profit
of Exxon's mineral development. The PSC gave Exxon unrestricted right of ingress to and egress
from "the Contract area,"and the right to lift and export oil from the allocated block. We conclude
the interest in this case is derived from rights to oil in the ground and is a property interest subject
to the statute of frauds.
       Breezevale nonetheless contends the characterization a working interest carries under
Texas law is irrelevant because the Texas statute of frauds does not apply to an agreement
involving property located in a foreign country. According to Breezevale, the nature of a
transferred interest is determined by the law of the place where the property is located; thus, the
law of Nigeria should apply to the characterization of the agreement. Even if Breezevale is correct
in claiming that Nigerian law should apply to determine the nature of the interest conveyed,
Breezevale failed to give notice and prove Nigerian law in the trial court.
       A party who intends to raise an issue about foreign law shall give notice and, at least thirty
days before trial, furnish all parties copies of any written materials or sources the party intends to
use as proof of foreign law. TEX.R. EVID. 203; Long Distance Int'l, Inc. v. Telefonos de Mexico,
S.A. de C.V., 49 S.W.3d 347, 350 (Tex.2001). If a party fails to give notice and prove foreign law
as provided by the rule, the foreign law may not be applied. In re Garcia-Chapa, 33 S.W.3d 859,
863 (Tex.App.-Corpus Christi 2000, no pet.); see also Pellow v. Cade, 990 S.W.2d 307, 313
(Tex.App.-Texarkana 1999, no pet.) (absent proper invocation of foreign law by pleading and
proof, Texas courts must presume foreign law to be same as that of Texas).
       Because Breezevale did not give notice and prove up Nigerian law in the trial court, it cannot
rely on Hunt v. Coastal States Gas Producing Co., 583 S.W.2d 322, 325-26 (Tex.1979), to support
its assertion that the language of the PSC should control the nature of the interest. In Hunt, the
parties properly proved up Libyan law in a pretrial hearing that included testimony of international
and foreign law experts. Id. at 327 (Steakley, J., dissenting). Conversely, in this case, Breezevale
told the court there was "no need to invoke Nigerian law" and, consistent with that statement, did
not submit any evidence of Nigerian law. Breezevale cannot now rely on Nigerian law to claim the
conveyed interest was not an interest in real estate. See Garcia-Chapa, 33 S.W.3d at 863; Pellow,
990 S.W.2d at 313.
       Because the interest is an interest in real estate, we conclude the oral agreement is subject
to the statute of frauds.
Exceptions to the Statute of Frauds
       At trial, Breezevale sought to avoid the statute of frauds based upon two exceptions to the
statute: promissory estoppel and partial performance. The jury answered "yes" to questions on
both of these exceptions. Exxon contends the evidence
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is legally and factually insufficient to support the jury's answers to both questions.
 Standard of Review
       When considering the legal sufficiency of the evidence, we consider only the evidence and
inferences tending to support the jury's finding, disregarding all evidence to the contrary. Weirich
v. Weirich, 833 S.W.2d 942, 945 (Tex.1992). If the record contains any evidence of probative force
to support the jury's finding, the finding will be upheld. ACS Investors, Inc. v. McLaughlin, 943
S.W.2d 426, 430 (Tex.1997). When considering the factual sufficiency of the evidence, we assess
all the evidence and reverse for a new trial only if the challenged finding is so against the great
weight and preponderance of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715
S.W.2d 629, 635 (Tex.1986). When both legal and factual sufficiency points are raised, we first
review legal sufficiency to determine if there is any evidence of probative value to support the
jury's findings. Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981); In re King's
Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).
 Promissory Estoppel
       In its third issue, Exxon complains the trial court erred in its submission of the jury question
on promissory estoppel because it was an incorrect statement of the law. Exxon also attacks the
sufficiency of the evidence to support the jury's answer. Jury question No. 3 asked, "Did
Breezevale reasonably rely upon the oral promise of Exxon, if any, to reduce its oral agreement to
writing?"
        Promissory estoppel applies to bar the application of the statute of frauds and allow the
enforcement of an otherwise unenforceable oral agreement when (1) the promisor makes a
promise that he should have expected would lead the promisee to some definite and substantial
injury; (2) such an injury occurred; and (3) the court must enforce the promise to avoid the injury.
Nagle v. Nagle, 633 S.W.2d 796, 800 (Tex.1982); " Moore" Burger, Inc. v. Phillips Petroleum Co.,
492 S.W.2d 934, 936 (Tex.1972). To invoke the application of promissory estoppel where there is
an oral promise to sign an agreement, as in this case, the agreement that is the subject of the
promise must comply with the statute of frauds. " Moore" Burger, 492 S.W.2d at 940 (op. on
reh'g). That is, the agreement must be in writing at the time of the oral promise to sign it.
Sonnichsen v. Baylor Univ., 47 S.W.3d 122, 126 (Tex.App.-Waco 2001, no pet.); Mann v. NCNB
Tex. Nat'l Bank, 854 S.W.2d 664, 668 (Tex.App.-Dallas 1992, no writ); Beta Drilling, Inc. v.
Durkee, 821 S.W.2d 739, 741 (Tex.App.-Houston [14th Dist.] 1992, writ denied).
        Breezevale first contends the law is unclear as to whether the doctrine of promissory
estoppel may be applied in the absence of a written contract in existence at the time of the
promise. However, we agree with the court in Sonnichsen that "the holding from "Moore" Burger is
clear" that the agreement must be in writing at the time the promise is made. Sonnichsen, 47
S.W.3d at 126; see also Mann, 854 S.W.2d at 668 (where this Court held an agreement in writing
at time of promise is required element of promissory estoppel). According to Breezevale, because
Mudd told Habib at the April 3rd meeting that Exxon was going to memorialize the working interest
agreement into an attachment to the draft service agreement, "there was every reason for Mr.
Habib to believe this either had been done or could be done and [would be] ready to sign during
their next meeting." Irrespective of what Habib believed, there is no evidence
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either that (1) the attachment was ever prepared or (2) Mudd or any other Exxon representative
told Habib the working interest agreement had already been prepared. Thus, there is no probative
evidence in the record that the working interest agreement was in writing on April 3, 1992.
       Pointing out that the promissory estoppel question submitted to the jury did not include the
requirement that a writing exist when the promise was made, Breezevale argues Exxon waived
any charge error by not submitting a substantially correct jury question. However, if there is no
evidence to support one or more of the elements of the doctrine, it is irrelevant whether Exxon
submitted a proper question. See TEX.R. CIV. P. 279 ("A claim that the evidence was legally or
factually insufficient to warrant the submission of any question may be made for the first time after
the verdict, regardless of whether the submission of such question was requested by the
complainant.") Rather, the issue is whether the evidence supports the finding, including any
deemed findings on elements not included in the question. See Crosbyton Seed Co. v. Mechura
Farms, 875 S.W.2d 353, 363-64 (Tex.App.-Corpus Christi 1994, no writ); see also Auto. Ins. Co. v.
Davila, 805 S.W.2d 897, 902 (Tex.App.-Corpus Christi 1991, writ denied) (element may not be
deemed found by court if no evidence supports it).
         We conclude that, because there is no evidence there was a written working interest
agreement in existence on April 3, 1992, there is no evidence to support the jury finding of
promissory estoppel. We therefore overturn the jury's finding on Question No. 3. [3]
 Partial Performance
       Breezevale also relies on the jury's affirmative answer to the question, "Did Breezevale
partially perform the agreement, if any?" in arguing the doctrine of partial performance bars
application of the statute of frauds in this case. Exxon contends there is no or insufficient evidence
to support a finding of partial performance.
         Under the partial performance exception to the statute of frauds, contracts that have been
partly performed, but do not meet the requirements of the statute of frauds, may be enforced in
equity if denial of enforcement would amount to a virtual fraud. Carmack v. Beltway Dev. Co., 701
S.W.2d 37, 40 (Tex.App.-Dallas 1985, no writ). The fraud arises when there is strong evidence
establishing the existence of an agreement and its terms, the party acting in reliance on the
contract has suffered a substantial detriment for which he has no adequate remedy, and the other
party, if permitted to plead the statute, would reap an unearned benefit. Id.; see also Hooks v.
Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (1921). The partial performance must be
"unequivocally referable to the agreement and corroborative of the fact that a contract actually was
made." Wiley v. Bertelsen, 770 S.W.2d 878, 882 (Tex.App.-Texarkana 1989, no writ) (citing
Chevalier v. Lane's, Inc., 147 Tex. 106, 213 S.W.2d 530, 533-34 (1948)). The acts of performance
relied upon to take a parol contract out of the statute of frauds must be such as could have been
done with no other design than
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to fulfill the particular agreement sought to be enforced; otherwise, they do not tend to prove the
existence of the parol agreement relied upon by the plaintiff. Teague v. Roper, 526 S.W.2d 291,
293 (Tex.Civ.App.-Amarillo, 1975 writ ref'd n.r.e.) (citing Francis v. Thomas, 129 Tex. 579, 106
S.W.2d 257, 260 (1937)).
         Exxon contends Breezevale's claim of partial performance is not "unequivocally referable" to
the working interest contract because Breezevale's actions could be referable to the services
contract. Breezevale does not dispute that it never paid Exxon any of the costs associated with a
working interest in Exxon's blocks. The action on which Breezevale relies as evidence of its partial
performance is Habib's trip to Nigeria on April 4, 1992. [4] Breezevale contends Habib's trip to
Nigeria during this time period constituted sufficient partial performance to take the contract out of
the statute of frauds because Habib went to Nigeria in reliance on Exxon's promise of a working
interest in any block awarded. Exxon argues that such performance does not "show strong
evidence establishing the existence of the [working interest] agreement and its terms," see
Carmack, 701 S.W.2d at 40, and is more referable to the services agreement the parties were
negotiating than the working interest agreement.
       Applying the no-evidence standard of review, and viewing the evidence in the light most
favorable to Breezevale, we find there is no evidence that Habib's actions in going to Nigeria were
unequivocally referable to the working interest contract, because even Breezevale admits there
was a services contract being negotiated between the parties and that it had been providing Exxon
with liaison services similar to those provided during the trip throughout the eighteen-month
period. See Teague, 526 S.W.2d at 293 (performance must be such as could have been done with
no other design than to fulfill particular agreement sought to be enforced); see also Rodriguez v.
Klein, 960 S.W.2d 179, 186 (Tex.App.-Corpus Christi 1997, no pet.) (because party's performance
was required under one or more of three agreements, including bill of sale, it could not be
unequivocally referable to bill of sale); Beta Drilling, 821 S.W.2d at 741 (overturning jury finding on
partial performance because appellee's employment services were not unequivocally referable to
oral agreement for sale of securities). In a no-evidence review of whether the performance was
"unequivocally referable," the relevant issue is not whether there is evidence that the performance
could be referable to the contract which the party is trying to enforce; rather, it is whether there is
evidence that the performance is solely referable to the contract. See Teague, 526 S.W.2d at 293;
Rodriguez, 960 S.W.2d at 186.
       Habib's actions in traveling to Nigeria and speaking with the government officials on Exxon's
behalf were consistent with the services Breezevale had performed in the previous eighteen
months and could be referable to the services agreement. Further, nothing in Habib's trip to
Nigeria, even if made at the request of Exxon, showed "strong evidence establishing the existence
of the [working interest] agreement and its terms." See Carmack, 701 S.W.2d at 40. We conclude
there is no evidence that Breezevale's performance was unequivocally referable to the working
interest agreement.
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        Moreover, even assuming there was evidence that Breezevale's actions were unequivocally
referable to the working interest agreement, the doctrine of partial performance also requires that
the party acting in reliance on the agreement suffer a substantial detriment for which there is no
adequate remedy. See Hooks, 229 S.W. at 1116; Carmack, 701 S.W.2d at 40. If Breezevale were
successful in removing the oral agreement from the statute of frauds because of partial
performance, Breezevale would be entitled to only reliance damages. See Magcobar N. Am. v.
Grasso Oilfield Servs., Inc., 736 S.W.2d 787 (Tex.App.-Corpus Christi 1987) (court's holding that
party may recover reliance damages and not breach of contract damages in case where
promissory estoppel takes case out of statute of frauds is consistent with equity, the principle
underlying all exceptions to statute of frauds), writ dism'd by agr., 754 S.W.2d 646 (Tex.1988); see
also Adams v. Petrade Int'l, Inc., 754 S.W.2d 696, 708 (Tex.App.-Houston [1st Dist.] 1988, writ
denied) (relying on "settled law" that party's damages based on promissory estoppel as exception
to statute of frauds are not measured by profits that reliance led him to expect, but limited to
amount necessary to compensate party for loss already suffered). Breezevale's reliance damages
would encompass only the services Habib performed during his April trip to Nigeria. See Fretz
Constr. Co. v. Southern Nat'l Bank, 626 S.W.2d 478, 483 (Tex.1981) (reliance damages are
amount necessary to restore plaintiff to position he would have been in had he not acted in
reliance on promise). We conclude that because Breezevale received $1 million on its contract
implied in law claim, it had an adequate remedy as a matter of law. Cf. Carmack, 701 S.W.2d at
40 (in analyzing partial performance of Beltway, court noted Beltway had no other adequate
remedy because broker could not recover for same services on implied contract, quasi contract, or
quantum meruit theory); Wiley, 770 S.W.2d 878, 882 (if person receives payment for services,
those services will not constitute partial performance as exception to statute of frauds).
       Because there is no evidence that Breezevale's partial performance was unequivocally
referable to the working interest agreement, and because Breezevale did not suffer a substantial
detriment for which it had no adequate remedy, there is no evidence to support the jury's finding
on partial performance. We overturn the jury's finding to Jury Question No. 4.
Attorneys' Fees
        Exxon contends if the award for breach of contract is reversed, this Court must likewise
reverse the trial court's award of $3.495 million in attorneys' fees. Breezevale responds that even if
this Court reverses the breach of contract claim, it is still entitled to attorneys' fees on its $1 million
award for the contract implied in law, or quantum meruit, claim. We agree with Breezevale.
       Exxon does not appeal the jury's finding that Breezevale performed compensable services in
the amount of $1 million, nor does it argue attorneys' fees are not recoverable for the cause of
action underlying the $1 million award. Rather, Exxon asserts Breezevale cannot recover
attorneys' fees based on the award because Breezevale claimed, in a pretrial hearing, that it was
not seeking compensation for services rendered. According to Exxon, because Breezevale could
not have expended attorney time and expenses on a claim it disavowed, there would be no
evidence to support an award of attorneys' fees on that basis. Exxon further claims there could
have been no presentment of a claim that Breezevale denied it was seeking.
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        The fact that Breezevale stated in a pretrial hearing it was not seeking compensation for
services rendered is irrelevant in light of the fact that the trial court submitted a jury question on
the issue, which Exxon does not appeal. Because Exxon did not complain of the trial court's
submission of the question and the jury's affirmative answer to it, it cannot now complain the issue
was not raised and litigated at trial. Further, because the issues involved in the quantum meruit
claim are necessarily interrelated with Breezevale's breach of contract claim, we also decline to
find there was no presentment of the attorneys' fees claim. The record shows that, after receiving
the letter from Exxon terminating the relationship, Breezevale communicated with Exxon regarding
its belief that it had a valid contract with Exxon, that Exxon should fulfill the contract, and that it
had performed valuable services for Exxon. We conclude this is sufficient evidence of
presentment. See Jones v. Kelley, 614 S.W.2d 95, 100 (Tex.1981) (no particular form of
presentment required); see also Criton Corp. v. Highlands Ins. Co., 809 S.W.2d 355, 358
(Tex.App.-Houston [14th Dist.] 1991, writ denied) (holding oral request to tender full performance
under contract, which was refused, sufficient to establish presentment).
       Exxon does not dispute that attorneys' fees may be awarded for claims arising out of
quantum meruit, or that the quantum meruit claim is not so interrelated with the contract claim as
to be more or less inseparable. See Weitzul Constr., Inc. v. Outdoor Environs, 849 S.W.2d 359,
366 (Tex.App.-Dallas 1993, writ denied). Therefore, because attorneys' fees are authorized on the
quantum meruit cause of action, Breezevale may recover the total amount of attorneys' fees the
trial court awarded. See id.
Conclusion
       Because we conclude the statute of frauds applies to render the oral agreement
unenforceable, we need not reach Exxon's other issues. We reverse the jury's finding to Question
No. 1 and its award of $34.3 million. We render judgment that Breezevale take nothing on its claim
for breach of an oral contract. We affirm the $3.495 million award of attorneys' fees.
BREEZEVALE'S CROSS APPEAL
       Breezevale brings three issues in a cross appeal. Because of our disposition of Exxon's
appeal, we address only one of Breezevale's issues.
       In its second issue, Breezevale contends the trial court erred in granting a directed verdict on
Breezevale's breach of fiduciary duty claim based on a two-year statute of limitations. In a "reply
point and conditional cross point," [5] Exxon contends that even if the trial court erred in granting
the directed verdict based on the statute of limitations, the breach of fiduciary duty claim was still
properly dismissed because there was no evidence of a fiduciary relationship. We agree with
Exxon's conditional cross point.
        A court may direct a verdict if no evidence of probative force raises a fact issue on the
material issue. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994). On review, we
examine the evidence in the light most favorable to the party against whom the verdict was
rendered,
Page 443
disregarding all contrary evidence and inferences. Id.; Rodriguez v. United Van Lines, Inc., 21
S.W.3d 382, 383 (Tex.App.-San Antonio 2000, pet. denied). When no evidence of probative force
on an ultimate fact element exists, or when the probative force of the evidence is so weak that only
mere surmise or suspicion is raised as to the existence of essential facts, the trial court has the
duty to instruct the verdict. Villarreal v. Art Inst. of Houston, Inc. 20 S.W.3d 792, 796 (Tex.App.-
Corpus Christi 2000, no pet.). The reviewing court may affirm a directed verdict even if the trial
court's rationale for granting the directed verdict is erroneous, provided the directed verdict can be
supported on another basis. Id.
        There are two types of fiduciary relationships-formal and informal. Crim Truck & Tractor Co.
v. Navistar Int'l Transp. Corp., 823 S.W.2d 591, 593-94 (Tex.1992). Formal fiduciary relationships
arise as a matter of law, and include the relationships between attorney and client, principal and
agent, partners, and joint venturers. Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex.1998).
Informal fiduciary relationships arise from "a moral, social, domestic or purely personal relationship
of trust and confidence, generally called a confidential relationship." Associated Indem. Corp. v.
CAT Contracting, Inc., 964 S.W.2d 276, 287 (Tex.1998). Confidential relationships may arise
when one party has dealt with another in a certain manner for a long period of time such that one
party is justified in expecting the other to act in its best interest, Morris, 981 S.W.2d at 674, and in
cases where "influence has been acquired and abused, in which confidence has been reposed
and betrayed." Associated Indem. Corp., 964 S.W.2d at 287. However, to give full force to
contracts, we do not recognize such a relationship lightly. Burleson State Bank v. Plunkett, 27
S.W.3d 605, 611 (Tex.App.-Waco 2000, pet. denied) (citing Thigpen v. Locke, 363 S.W.2d 247,
253 (Tex.1962)). To impose such a relationship in a business transaction, the relationship must
exist prior to, and apart from, the agreement made the basis of the suit. Schlumberger Tech. Corp.
v. Swanson, 959 S.W.2d 171, 177 (Tex.1997). The fact that one businessman trusts another and
relies on another to perform a contract does not give rise to a confidential relationship, because
something apart from the transaction between the parties is required. Crim, 823 S.W.2d at 594.
Although the existence of a confidential relationship is ordinarily a question of fact, where there is
no evidence to establish the relationship, it is a question of law. Seymour v. Am. Engine &
Grinding Co., 956 S.W.2d 49, 60 (Tex.App.-Houston [14th Dis.] 1996, writ denied); Kline v.
O'Quinn, 874 S.W.2d 776, 786 (Tex.App.-Houston [14th Dist.] 1994, writ denied).
        Breezevale first asserts that a formal fiduciary relationship existed because it was partners
with Exxon. However, we have held there was no working interest agreement between the parties
because any oral agreement violated the statute of frauds. Therefore, there is no evidence the
parties were working interest partners. See Schlumberger, 959 S.W.2d at 176 (partnership
consists of express or implied agreement containing four required elements: (1) community of
interest in venture, (2) agreement to share profits, (3) agreement to share losses, and mutual right
of control or management of enterprise). Without an agreement, there is no evidence the parties
were partners and no evidence to support Breezevale's argument that a formal fiduciary
relationship existed arising from the partnership.
        Breezevale also argues it submitted evidence that Breezevale and Exxon
Page 444.
had developed a relationship of trust and confidence and there was some evidence of an informal
fiduciary relationship between the parties. It relies on evidence that before Exxon and Breezevale
began the dealings at issue in this suit, Breezevale had a ten-year distributorship relationship with
Exxon Chemical in Nigeria. However, the evidence shows Exxon Chemical is a separate Exxon
affiliate, and nothing in the record indicates this relationship was anything more than an arms-
length business relationship. See Gillum v. Republic Health Corp., 778 S.W.2d 558, 568
(Tex.App.-Dallas 1989, no writ) (plaintiff could not bootstrap prior relationship with two separate
entities to claim twenty-six year confidential relationship with defendant hospital).
        Breezevale also relies on evidence it "trusted Exxon's numerous promises that an
agreement ... would be forthcoming;" it clearly informed Exxon it wanted a long-term relationship; it
shared with Exxon confidential information it learned from the Nigerian officials regarding the
bidding process; and Exxon requested that Breezevale work exclusively for Exxon. Even if true,
these facts are not evidence of an informal fiduciary relationship. Breezevale's claim that it
subjectively trusted Exxon to provide it a working interest agreement is insufficient to impose
fiduciary obligations on Exxon as a matter of law. Mere subjective trust does not transform arms-
length dealing into a fiduciary relationship. Schlumberger, 959 S.W.2d at 177; Crim, 823 S.W.2d at
595; see also Tyra v. Woodson, 495 S.W.2d 211, 213 (Tex.1973) ("[T]he fact that one
businessman trusts another, and relies upon his promise to carry out a contract, does not create a
constructive trust ... [t]o hold otherwise would render the Statute of Frauds meaningless.") The
record shows the parties had an arms-length relationship, with each party separately represented
by its own counsel. There is no evidence of a long-term relationship apart from the parties'
negotiations for the services contract and working interest agreement. See Crim, 823 S.W.2d at
594. We conclude that, because the record contains no evidence of a fiduciary relationship
between the parties, the trial court did not erred in granting Exxon's motion for directed verdict on
Breezevale's breach of fiduciary duty claim. Furthermore, the trial court erred in denying Exxon's
motion for directed verdict on Breezevale's claim that it had a "special relationship of trust and
confidence" with Exxon. Consequently, we find no merit in Breezevale's second issue in its cross
appeal.
        We reverse the trial court's award of $34.3 million against Exxon for breach of contract and
affirm the remaining portions of the trial court's judgment that are the subject of this appeal.
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Notes:
[1] The Honorable David F. Farris, Retired Justice, Second District Court of Appeals, Fort Worth,

Texas, sitting by assignment.
[2] Exxon does not appeal the portion of the trial court's judgment awarding Breezevale $1 million

for breach of contract implied in law, acknowledging that Breezevale provided services for which it
should be compensated. Therefore, we express no opinion as to the validity of that portion of the
judgment, and the $1 million award stands.
[3] In its appellate brief, Breezevale also argues Exxon should be equitably estopped from relying

on the statute of frauds because of its claims that Exxon misled Breezevale. The doctrine of
equitable estoppel, being distinct from the doctrine of promissory estoppel, was never submitted to
the jury. Breezevale thus waived any equitable estoppel claim. See TEX.R. CIV. P. 279; Brown v.
Bank of Galveston, N.A., 963 S.W.2d 511, 515 (Tex.1998).
[4] Any performance by Breezevale in reliance on the contract necessarily had to occur between

April 3, 1992, the date of the agreement, and mid-April, when Exxon terminated the relationship by
letter, because only during this time could Breezevale have reasonably relied on the existence of
an agreement.
[5] Because the trial court denied Exxon's motion for directed verdict on Breezevale's claim that it

had enjoyed a "special relationship of trust and confidence" with Exxon, Exxon conditionally
appeals this ruling in the event we reach the issue of whether there was a special relationship.
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