                                        NO. 07-09-0392-CV

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                           AT AMARILLO

                                              PANEL C

                                        AUGUST 31, 2011

                             ______________________________


                                BETTY DOMINGO, APPELLANT

                                                  V.

               CINDY SKIDMORE, DONNA WALKER, ESTELLA BARRON,
              BRENDA MITCHELL, GINA SCHULTZ, SHARLA PIERCE, AND
              LGROUP, A TEXAS GENERAL PARTNERSHIP, APPELLEES

                           _________________________________

              FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

                  NO. 2006-535,854; HONORABLE LES HATCH, JUDGE
                         _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                   MEMORANDUM OPINION


       Appellant, Betty Domingo, challenges the trial court's judgment rendered in favor

of Appellees, Cindy Skidmore, Donna Walker, Estella Barron, Brenda Mitchell, Gina

Schultz, Sharla Pierce and LGroup, a Texas General Partnership1 in Domingo's suit for

breach of contract. Presenting four issues, Domingo maintains the trial court erred

1
 Where necessary to the discussion, Skidmore, Walker, Barron, Mitchell, Schultz, Pierce, and LGroup will
be identified by name; otherwise, they will be collectively referred to as Appellees.
when it failed to grant (1) her request for a jury instruction that numbers were not an

essential element of the contract and such error probably caused the rendition of an

improper judgment; (2) a directed verdict and judgment on the evidence and on the

issue of the existence of a partnership between the individual Appellees because such

was established as a matter of law; (3) a directed verdict and judgment on the evidence

on the issue of damages since such was established by the trial evidence as a matter of

law; and (4) a directed verdict and judgment on the evidence on the issue of attorney's

fees since such was established by the evidence as a matter of law. By her reply brief,

she emphasizes reversible error in the trial court's refusal to instruct the jury that

numbers were not an essential element in forming a contract, arguing that this Court's

decision in Domingo v. Mitchell, 257 S.W.3d 34, 41 (Tex.App.--Amarillo 2008, pet.

denied) (Domingo I) is law of the case. We affirm.


                                  Background Facts


      Beginning in 2004, Domingo and Mitchell, friends for thirty years and also co-

workers, played the Texas Lottery on numerous occasions. Their arrangement included

an agreement to pool their money to purchase Quick Pick tickets and split all winnings

equally.   Regardless of who purchased the tickets, it was not unusual for one to

advance payment for the other and reimburse that person, win or lose.


      On March 9, 2006, Skidmore sent an e-mail to Mitchell asking if she was

interested in joining a lottery group. Skidmore added that they would have "better odds"

with a "group of people."   After enlisting a select group of friends and co-workers,

including Mitchell, on March 23rd, Skidmore sent an e-mail inviting them to meet on


                                           2
March 30th at a local restaurant to socialize, pool their money, and pick numbers to play

the lottery in April.2 That e-mail also provided, A[i]f there is someone else you want to

invite (& you feel pretty sure they won=t drop out) let me know.@


        According to Domingo, after Skidmore's March 23rd e-mail, Mitchell invited her

and Cindy Ruff, another co-worker, to participate in the lottery group for April 2006,

specifically, Lotto Texas and Mega Millions. Ruff declined the offer due to insufficient

funds. Domingo, however, inquired how much her contribution would be, and Mitchell

was uncertain but offered to cover for her and be reimbursed at a later time.


        During the March 30th gathering of the LGroup,3 Skidmore, Mitchell, and the

remaining four members of the group agreed to enter seventeen separate drawings for

April 2006 at one dollar each per drawing, i.e., seventeen dollars per person. Each of

them contributed six "unique"4 numbers. Mitchell paid her contribution and submitted

her numbers, and according to the testimony presented at trial, did not mention

Domingo's name to the group or contribute for Domingo to participate in the April

drawings.5


2
Donna Walker did not attend due to a previous engagement, but she did send money and numbers via
Gina Schultz.
3
 Skidmore testified that prior to that evening, "LGroup" was merely a "Broadcast Message ID" for
grouping e-mail contacts to save from typing individual names in the "To" line. According to Skidmore,
the LGroup subsequently became a registered general partnership but, at the time, was more akin to a
trust.
4
This term was used frequently throughout trial; basically, it refers to tickets other than Quick Picks.
5
 During her deposition taken on July 25, 2006, Mitchell testified that Domingo asked her on March 31st if
she had paid her share to enter the April drawings. Mitchell told Domingo she did not pay her part
because she did not have enough money. Notwithstanding Appellees' defensive theory that Domingo
was not invited to participate in the April drawings, at no time did Mitchell tell Domingo that she was not
invited to play in April.


                                                      3
       Schultz offered to buy the tickets for the LGroup and on March 31st at 2:51 p.m.,

sent the following e-mail to the other Appellees:


       Here are the numbers we're playing in APRIL. I decided to pick different
       numbers for Mega and Lotto. I'm going to wait until tomorrow to actually
       buy the tickets, so if anyone decided to pick different numbers from the
       ones listed below or if you'd like to use different numbers for Mega and
       Lotto, just email me by noon tomorrow.


       On April 29, 2006, one of the tickets purchased by the group won.                         After

choosing the cash value option, the winnings totaled $20,925,315.23.6                     Domingo=s

exclusion from a share of the winnings eventually prompted her to consult an attorney

because, according to her theory, but for Mitchell's broken promise, she would have

been entitled to a share. She filed suit on July 18, 2006, and subsequently amended

her allegations to assert a breach of contract cause of action against Mitchell, as well as

joint and several liability against the LGroup and its members, contending that Mitchell

acted with full authority of the LGroup under sections 3.02 and/or 3.03 of the Texas

Revised Partnership Act. See Tex. Bus. Orgs. Code Ann. §§ 152.302, 152.303 (West

Pamph. 2010).7 Domingo also sought recovery of attorney's fees.


       Mitchell filed a combination traditional and no-evidence motion for summary

judgment, which the trial court granted. After a severance from the causes of action

against the remaining Appellees, Domingo appealed and this Court found the existence

of a genuine issue of material fact as to whether Domingo and Mitchell had entered into


6
 According to pretrial hearings, pursuant to a Rule 11 agreement, Skidmore, Walker, Barron, Mitchell,
Schultz, and Pierce each received a one-seventh share or $2,989,333.75. The remaining one-seventh
was deposited in trust pending the outcome of this case.
7
 Effective January 1, 2006, statutes related to general partnerships appear in chapter 152 of the Texas
Business Organizations Code (West Pamph. 2010)

                                                  4
a valid oral contract and whether Mitchell had breached that contract. Domingo, 257

S.W.3d at 41. Summary judgment was reversed and the cause was remanded to the

trial court for further proceedings. Id. at 42.


       The trial court then consolidated the severed claims with the underlying cause of

action and the case was called for jury trial on October 26, 2009. After presentation of

the evidence, the case was submitted to the jury with five questions. The jury answered

"No" to Question No. 1 which asked whether Domingo and Mitchell intended to bind

themselves to an agreement with specific terms which were listed in the question. The

jury's negative finding to Question No. 1 pretermitted consideration of the remaining

questions.   Based on the jury's answer, the trial court signed a judgment granting

Appellees' motion for judgment on the verdict, denied Domingo's judgment

notwithstanding the verdict and ordered that Domingo take nothing by her suit.

Domingo appealed and presents four issues for consideration.


Issue One. The trial court erred when it failed to grant her request for a jury
instruction that numbers were not an essential element of the contract and such
error probably caused the rendition of an improper judgment.

       As submitted to the jury, Question No. 1 asked:

       Did Betty Domingo and Brenda Mitchell intend to bind themselves to an
       agreement that included the following terms:

       1. Betty Domingo would participate in the LGroup Lottery Pool for April
       2006;

       2. Brenda Mitchell would pay for Betty Domingo's costs to participate in
       the LGroup Lottery Pool for April 2006;

       3. Betty Domingo would repay Brenda Mitchell for Betty Domingo's cost to
       participate in the LGroup Lottery Pool for April 2006; and



                                                  5
      To form an agreement, the parties must have the same understanding of
      the subject matter of an agreement and all its essential terms.

      You are instructed that if Betty Domingo and Brenda Mitchell agreed to
      other essential terms but failed to specify price, it is presumed a
      reasonable price was intended.

      You are instructed that, in deciding whether Betty Domingo and Brenda
      Mitchell reached an agreement, you may consider what they said and did
      in light of the surrounding circumstances, including any earlier course of
      dealing. You may not consider the parties' unexpressed thoughts or
      intentions.

      You are instructed that a fact may be established by direct evidence or by
      circumstantial evidence or both. A fact is established by direct evidence
      when proved by documentary evidence or by witnesses who saw the act
      done or heard the words spoken. A fact is established by circumstantial
      evidence when it may be fairly or reasonably inferred from other facts
      proved.

      Answer "Yes" or "No."


      Domingo submitted a proposed charge that was essentially the same as the one

submitted to the jury with the exception of two additional paragraphs:


      You are instructed that providing numbers for the lottery drawing was not
      an essential term of the agreement, if any, between Betty Domingo and
      Brenda Mitchell.

      You are instructed that consideration is essential to a contract and the
      Court has found that sufficient consideration to create a binding contract is
      present by the exchange of promises wherein Brenda Mitchell agreed to
      advance Betty Domingo's share of the lottery tickets and Betty Domingo
      agreed to reimburse Brenda Mitchell, if you find that conversation to have
      occurred.

During the charge conference, Domingo's request for inclusion of those paragraphs was

refused.


      We review an alleged error in the jury charge for abuse of discretion. Louisiana-

Pacific Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998). "The court shall submit

                                            6
such instructions and definitions as shall be proper to enable the jury to render a

verdict." See Tex. R. Civ. P. 277. See also Transcontinental Ins. Co. v. Crump, 330

S.W.3d 211, 221 (Tex. 2010). An instruction is proper if it (1) assists the jury, (2)

accurately states the law, and (3) finds support in the pleadings and evidence. Crump,

330 S.W.3d at 221. Failure to submit a question shall not be deemed a ground for

reversal of the judgment, unless its submission, in substantially correct wording has

been requested in writing and tendered by the party complaining of the judgment . . . .

Tex. R. Civ. P. 278. "A judgment will not be reversed for charge error unless the error

was harmful because it probably caused the rendition of an improper verdict . . . ."

Crump, 330 S.W.3d at 225. "Charge error is generally considered harmful if it relates to

a contested, critical issue." Id. We examine the entire record to determine whether the

charge probably caused an improper judgment. Id.


       In Domingo I, in the context of reversing a summary judgment in favor of Mitchell,

this Court provided that because numbers were subject to change after the March 30th

meeting of the LGroup, they could not have been regarded as an essential element of

the contract, as a matter of law.8 57 S.W.3d at 41. We found a fact issue existed as to

whether Mitchell and Domingo had entered into a binding contract sufficient to defeat

summary judgment.9 Id.




8
 It was undisputed that Domingo did not provide unique numbers for the April drawings. Mitchell's
defensive theory was that Domingo was not entitled to judgment, as a matter of law, because numbers
were an essential element of any contract between Domingo and Mitchell or the LGroup.
9
 We did not decide, as a matter of law, that numbers were not an essential element of the disputed
contract. We merely decided that Mitchell did not establish, as a matter of law, that they were. Whether
they were or were not was a fact issue to be decided.

                                                   7
       At trial, Appellees' defensive theory was that Domingo was never invited to

participate in the April drawings.    Mitchell testified she never invited Domingo to

participate in April because it was not her group and she did not have authority to invite

anyone. Skidmore explained that her March 9th e-mail in which she stated, A[i]f there is

someone else you want to invite (& you feel pretty sure they won=t drop out) let me

know,@ meant the group would talk about others to determine whether they should be

invited.    Skidmore unequivocally testified that even if another member had invited

Domingo to participate in the April 2006 drawings and Domingo had paid her money

and submitted numbers, she would still have refused to allow Domingo to participate

because she had not personally invited her.


       By her own testimony, Domingo admitted she had no expectation of being

involved in the April 2006 drawings. She testified as follows:


       Q.     Well, did you have any expectation after [Mitchell] told you she
       didn't put you in the lottery, did you have any expectation of being in the
       group after that for the April drawing?

       A.      No.

       Q.     Okay. So when they announced the April results, did you expect to
       be involved?

       A.      No.

                                           ***

       Q.      Did you get angry at [Mitchell], and in between the time that she
       didn't pay your money and the time that you finally got in the May lottery,
       did you complain at all?

       A.      No.

       Q.      Why didn't you?


                                            8
       A.    I just didn't have a reason to complain, because I had gotten over it.
       There was no reason for me to keep -- we were friends. I wasn't going to
       keep harping on it because she didn't pay my money . . . .

       Because the question of whether or not numbers were an essential element of

the disputed contract was a disputed fact issue, Appellant's requested instructions

would have constituted an impermissible comment on the weight of the evidence and

the trial court would have erred in giving those instructions.            Furthermore, even

assuming arguendo that the trial court erred in refusing Domingo's requested

instructions, based on the evidence presented, any alleged error did not result in the

rendition of an improper judgment. Issue one is overruled.


              Standard of Review for Directed Verdict in Favor of Plaintiff


       Essentially, a challenge to the denial of a directed verdict is a challenge to the

legal sufficiency of the evidence. See Haynes & Boone, L.L.P. v. Chason, 81 S.W.3d

307, 309 (Tex.App.--Tyler 2001, pet. denied). A directed verdict in favor of a plaintiff on

their cause of action is proper under Rule 26810 only when the evidence conclusively

establishes a party's right to judgment as a matter of law. See Kline v. O'Quinn, 874

S.W.2d 776, 785 (Tex.App.--Houston [14th Dist.] 1994, writ denied). It is a rare case

where a trial court errs in failing to grant a directed verdict in favor of a plaintiff because

if there is any evidence of probative value raising an issue of fact on any material

question presented, a directed verdict is improper. Qantel Business Sys. v. Custom

Controls, 761 S.W.2d 302, 304 (Tex. 1988).




10
 Tex. R. Civ. P. 268.

                                              9
Issue Two. The trial court erred when it failed to grant a directed verdict and
judgment on the evidence and on the issue of the existence of a partnership
between the individual Appellees because such was established as a matter of
law.


         Domingo argues that notwithstanding Mitchell's denial that she entered into an

oral contract with Domingo, Mitchell had the authority to do so under a general

partnership.      We disagree.       The Texas Business Organizations Code governs

partnerships formed on or after January 1, 1996. See Tex. Bus. Orgs. Code Ann. §

402.001 (West Pamph. 2010). See Ingram v. Deere, 288 S.W.3d 886, 894 n.4 (Tex.

2009).     Hence, we apply chapter 152 of the Code.             The rules for determining the

existence of a partnership include:


         (1) receipt or right to receive a share of profits of the business;

         (2) expression of an intent to be partners in the business;

         (3) participation or right to participate in control of the business;

         (4) agreement to share or sharing:

            (A) losses of the business; or

            (B) liability for claims by third parties against the business; and

         (5) agreement to contribute or contributing money or property to the
         business.


Tex. Bus. Orgs. Code Ann. § 152.052 (West Supp. 2010).


         The only members of LGroup to testify at trial were Skidmore and Mitchell.

When asked whether LGroup was a general partnership, Skidmore testified over

objection that it was a trust. After the group won the lottery in April 2006, an attorney

set up LGroup Managed Trust. Skidmore testified that her intent for the March 30th


                                                10
meeting was to gather with friends and co-workers of her choosing for the purpose of

socializing, pooling their money to play the lottery, sharing in winnings and establishing

LGroup. According to her, there was no official LGroup prior to that meeting. Mitchell

did not offer any testimony regarding LGroup as a partnership.                 Additionally, no

evidence was presented that all Appellees expressed an intent to be partners,

participate in control of LGroup or be liable for claims by third parties.


       Although the common law required proof of all five factors enumerated above to

establish the existence of a partnership, Coastal Plains Dev. Corp. v. Micrea, Inc., 572

S.W.2d 285, 287 (Tex. 1978); the statutory scheme contemplates a less formalistic

approach to recognizing formation of a partnership. Ingram, 288 S.W.3d at 895. In

Ingram, the Court was presented with a case of first impression on how many factors

were required to form a partnership.11 In applying a totality of the circumstances test,

the Court concluded that conclusive evidence of all five factors established a

partnership as a matter of law. Id. at 903-04.


       In the underlying case, there was not conclusive evidence establishing any of

those factors. Consequently, a partnership was not established as a matter of law and

the trial court did not err in refusing to grant a directed verdict on the issue of

partnership. Issue two is overruled.




11
 The Ingram Court was reviewing the existence of a partnership under the Texas Revised Partnershp
Act (TRPA), the predecessor to the Texas Business Organizations Code. See 288 S.W.3d at 894 n.4.

                                               11
Issue Three. The trial court erred when it failed to grant a directed verdict and
judgment on the evidence on the issue of damages since such was established
by the trial evidence as a matter of law.


       Domingo urges that she was entitled to one-seventh, $2,989,330, of the lottery

winnings because it would have placed her in the economic position she would have

occupied if Mitchell had not breached their oral contract. We disagree. The universal

rule for measuring damages for breach of a contract is just compensation for the loss or

damage actually sustained. Qaddura v. Indo-European Foods, Inc., 141 S.W.3d 882,

888 (Tex.App.--Dallas 2004, pet. denied) (citing Stewart v. Basey, 150 Tex. 666, 245

S.W.2d 484, 486 (1952)). Damages for breach of contract protect three interests: a

restitution interest, a reliance interest, and an expectation interest.   Qaddura, 141

S.W.3d at 888. The most common interest protected in a breach of contract case is the

expectation or benefit of the bargain interest. Id.


       In the underlying case, it is undisputed among the parties that one-seventh of the

total lottery winnings would have been a proper measure of damages.            However,

recovery of those damages was contingent upon the jury finding the existence of a valid

contract. As discussed earlier, the evidence did not conclusively establish a contract

between Domingo and Mitchell. Hence, the trial court did not err in refusing to grant a

directed verdict on the issue of damages. Issue three is overruled.


Issue Four. The trial court erred when it failed to grant a directed verdict and
judgment on the evidence on the issue of attorney's fees since such was
established by the trial evidence as a matter of law.


       A party is entitled to recover reasonable attorney's fees in a breach of contract

case if the claim is for an oral or written contract. Tex. Civ. Prac. & Rem. Code Ann. §

                                             12
38.001(8) (West 2008). To recover under the statute, a litigant must (1) prevail on the

breach of contract claim and (2) recover damages.                    MBM Financial v. Woodlands

Operating Co., 292 S.W.3d 660, 666 (Tex. 2009).


        Relying on Brown v. Bank of Galveston Nat. Ass'n., 963 S.W.2d 511 (Tex. 1998),

and Board of County Com'rs v. Amarillo Hosp., 835 S.W.2d 115 (Tex.App.--Amarillo

1992, no writ), Domingo maintains she should recover her attorney's fees because clear

and uncontradicted testimony was presented and the trier of fact was duty bound to

award attorney's fees as a matter of law. Again, we disagree.


        Extensive testimony and evidence was presented by one of Domingo's attorneys

in support of an award of attorney's fees for her legal team. However, any award of

attorney's fees was contingent on proof of a valid contract and recovery of damages.

Conflicting evidence was presented throughout trial on whether Domingo and Mitchell

entered into an oral contract. The jury found against Domingo on that issue. Without

prevailing on the contract claim, Domingo was not entitled to recover attorney's fees

under section 38.001 of the Code regardless of whether uncontradicted evidence of

those fees was presented.12 See Green Intern. v. Solis, 951 S.W.384, 390 (Tex. 1997)

(attorney's fees not recoverable without first recovering on breach of contract claim).

Issue four is overruled.




12
 An important distinction in Amarillo Hospital District, 835 S.W.2d at 126-128, was that attorney's fees
were awarded on appeal to the prevailing party at trial. Domingo's failure to prevail on her contract claim
prevents her from recovering attorney's fees under section 38.001(8).

                                                    13
Reply Issue. Law of the Case Doctrine


       By her reply brief, without citation to a single authority, Domingo reurges her

argument that the trial court reversibly erred in refusing to instruct the jury that numbers

were not an essential element of the contract. She maintains that our statement in

Domingo I that "any numbers submitted at the meeting on March 30th were an

uncertainty as they were subject to being changed . . . could not have been regarded by

the parties as an essential element of the contract," is law of the case. We disagree.


       "The 'law of the case' doctrine is defined as that principle under which questions

of law decided on appeal to a court of last resort will govern the case throughout its

subsequent stages."      Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986).

(Emphasis added). The doctrine applies to questions of law and does not apply to

questions of fact. Id. Under the law of the case doctrine, an appellate court is ordinarily

bound by its initial decision if there is a subsequent appeal in the same case. Briscoe v.

Goodmark Corp. 102 S.W.3d 714, 716 (Tex. 2003). The law of the case doctrine is

intended to achieve uniformity of decisions as well as judicial efficiency. The doctrine is

based on public policy and is aimed at putting an end to litigation by barring a party from

challenging matters of law fully litigated and determined in the previous appeal.


       In Domingo I, this Court did not decide as a matter of law that numbers were not

essential to formation of the alleged contract. We simply held that in the context of a

summary judgment, there was more than a scintilla of evidence "to raise a genuine

issue of material fact on whether the parties entered into a valid oral contract . . . ." In

other words, we did not decide that numbers were not an essential element of the


                                            14
contract as a matter of law; we merely decided that Mitchell, the summary judgment

movant, did not establish, as a matter of law, that they were.          Consequently, the

doctrine of "law of the case" is inapposite.


       Whether or not providing a set of numbers was an essential element of

Domingo's agreement with either Mitchell or the LGroup was a fact issue to be decided

by the jury. Therefore, not only did the trial court not err by denying the requested

instruction, it would have erred if it had. Domingo's reply issue is overruled.


                                        Conclusion


       Having overruled Betty Domingo's four issues and sole reply issue, the trial

court's judgment is affirmed.




                                                    Patrick A. Pirtle
                                                        Justice




                                               15
