                                                                             ACCEPTED
                                                                        04-15-00008-CV
                                                             FOURTH COURT OF APPEALS
                                                                  SAN ANTONIO, TEXAS
                                                                    4/8/2015 4:18:55 PM
                                                                          KEITH HOTTLE
                                                                                 CLERK

                  NO. 04-15-00008-CV

                                                        FILED IN
           In The Court Of Appeals               4th COURT OF APPEALS
                                                  SAN ANTONIO, TEXAS
                                                 4/8/2015 4:18:55 PM
Fourth District of Texas – San Antonio             KEITH E. HOTTLE
                                                         Clerk

      BAKKE DEVELOPMENT CORPORATION
                                                        APPELLANT

                            v.

         EDDIE L. ALBIN and KIM L. ALBIN
                                                       APPELLEES.




On Appeal from 216th District Court, Kendall County, Texas
                   Cause No. 13-192


             APPELLANT’S BRIEF

                   MARK A. RANDOLPH
                   HORNBERGER FULLER & GARZA INC.
                   State Bar No. 0079148
                   randolph@hfgtx.com
                   7373 Broadway, Suite 300
                   San Antonio, Texas 78209
                   (210) 271-1700 Telephone
                   (210) 271-1731 Facsimile

                   ATTORNEY FOR APPELLANT

         ORAL ARGUMENT REQUESTED
                          Identity of Parties and Counsel

Appellant (Plaintiff):                  Counsel:
                                        Mark A. Randolph
Bakke Development Corporation           Hornberger Fuller & Garza, Inc.
                                        7373 Broadway, Suite 300
                                        San Antonio, Texas 78209
Appellees (Defendants):                 Counsel:
                                        Mark Comuzzie
Eddie L. Albin and Kim L. Albin         Matthew E. Vandenberg
                                        Jackson Walker, LLP
                                        112 E. Pecan Street, Suite 2400
                                        San Antonio, Texas 78205




                                        [i]
                                           TABLE OF CONTENTS
                                                                                                                        Page

Request for Oral Argument ....................................................................................1
Statement of Issues Presented ................................................................................. 2

Statement of Facts ....................................................................................................3

Summary of the Argument ......................................................................................7
Argument ..................................................................................................................9

1.       Standard of Review ........................................................................................9
2.       The statute of frauds is inapplicable because the agreement can be
         performed in less than one year..................................................................10

3.       The statute of frauds does not apply because the partnership agreement
         does not involve the conveyance of real estate. .........................................12
4.       Equity prevents the application of the statute of frauds because Bakke
         partially performed on the agreement. ......................................................15

Prayer ......................................................................................................................17
Certificate of Compliance......................................................................................19
Certificate of Service..............................................................................................19




                                                             [ii]
                                   TABLE OF AUTHORITIES

                                                                                                    Page(s)
CASES
Am. Tobacco Co. v. Grinnell,
  951 S.W.2d 420 (Tex. 1997) ................................................................................ 9

Bank of Texas v. Gaubert,
  286 S.W.3d 546 (Tex. App.—Dallas 2009, pet. dismissed w.o.j.) ....................15
Berne v. Keith,
   361 S.W.2d 592 (Tex. Civ. App.—Houston 1962, writ ref’d n.r.e.)..................14

Beverick v. Koch Power, Inc.,
   186 S.W.3d 145 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) ...............11
Boutell v. Hill,
  498 S.W.2d 713 (Tex. App.—El Paso 1973, no writ) ........................................11
Hamilton v. Wilson,
  249 S.W.3d 425 (Tex. 2008) (per curiam) .........................................................10
Heathington v. Heathington Lumber,
  398 S.W.2d 822 (Tex. App.—Amarillo 1996, writ ref’d n.r.e.).........................11
Holloway v. Dekkers,
  380 S.W.3d 315 (Tex. App.—Dallas 2012, no writ) ..........................................16

Howell v. Bowden,
  368 S.W.2d 842 (Tex. App.—Dallas 1963, writ ref’d n.r.e.) .......................10, 11

Keystone Int’l, Inc. v. Ingham,
  593 S.W.2d 354 (Tex. App.—Texarkana 1979, no writ) ...................................11
N.E. Indep. Sch. Dist. v. Kelley,
   277 S.W.3d 442, 444 (Tex. App.—San Antonio 2008, no pet.) .......................... 9

Pappas v. Gounaris,
  311 S.W.2d 644 (Tex. 1958) ..............................................................................14

Sewing v. Bowman,
   371 S.W.3d 321 (Tex. App.—Houston [1st Dist.] 2012, writ denied).........13, 14


                                                     [iii]
Shropshire v. Adams,
   40 Tex. Civ. App. 339, 89 S.W. 448 (Tex. Civ. App. 1905, no writ) ................ 11

Smith v. O’Donnell,
  288 S.W.3d 417 (Tex. 2009) ................................................................................ 9

Sysco Food Serv., Inc. v. Trapnell,
   890 S.W.2d 796 (Tex. 1994) ................................................................................ 9

STATUTES
Texas Business Organizations Code § 152.052 .......................................................10

Texas Business & Commerce Code § 26.01......................................................10, 13




                                                     [iv]
                           Request for Oral Argument
      Appellant Bakke Development Corp. (“Bakke”) urges the Court to hear oral

argument because Bakke believes that oral argument will assist the Court in

addressing the issues and deciding this appeal.




                                        [1]
                           Statement of Issues Presented

First Issue:

      Can a fully-formed partnership that is terminable at will violate the statute of

frauds requirement that contracts must be performable within one year from the

date of the making of the agreement?

Second Issue:

      Is a partnership which is formed for the purpose of jointly developing (not

purchasing) real property subject to the statute of frauds?




                                         [2]
                                  Statement of Facts
      Bakke Development Corp. (“Bakke”) develops real property. 1 Eddie L.

Albin and Kim Albin represented to Bakke that they owned an approximately 65

acre tract of land located in Boerne, Texas known as the Theis Property. 2 The

parties expressed an intent and desire to develop the Theis Property into an

apartment complex/mixed use development (hereinafter, the “Project”).3 After

meetings at the Theis Property, the parties formed a general partnership for the

development and operation of the Theis Property (the “Partnership”) as an

apartment complex/mixed use development. 4

      Per the Partnership terms, the parties agreed in pertinent part that:

      • Mr. and Mrs. Albin would contribute the Theis Property to the
        Partnership;5

      • Bakke would contribute to the Partnership a retail shopping center and
        the associated real property located in Kendall County, Texas, known as
        the “Menger-Shumard Retail Center”;6

      • Bakke would pay debt associated with the Theis Property out of cash
        flow from the Menger-Shumard Retail Center and/or through the
        proceeds of debt financing obtained by Bakke; 7



      1
        1 C.R. at 199.
      2
        1 C.R. at 211, 227.
      3
        1 C.R. at 227.
      4
        1 C.R. at 211, 227-228.
      5
        1 C.R. at 211-212, 228.
      6
        1 C.R. at 212, 228.
      7
        1 C.R. at 212, 228.


                                         [3]
      • Bakke would develop and operate the Project;8 and

      • Bakke and the Albins would share equally the profits and losses of the
        Project. 9

      Upon formation of the Partnership, Bakke immediately began, among other

things, to develop the Project, including obtaining plans and meeting with

government officials for the necessary approvals to commence the Project.10 Bakke

also began obtaining financing for both the Project and to satisfy the debt

associated with the Theis Property and contributing the Menger-Shumard Retail

Center to the Partnership. 11

      Despite Bakke’s performance of its obligations to the Partnership, the Albins

refused the Partnership use of the Theis Property. 12 Furthermore, the Albins

disclaimed the Partnership and all their obligations to it. 13 The Albin’s actions in

breach of the Partnership agreement and their fiduciary duties have halted

development of the Project, necessitating the filing of this lawsuit.14




      8
        1 C.R. at 212, 228.
      9
        1 C.R. at 212, 228.
      10
         1 C.R. at 228-229.
      11
         1. C.R. at 228-229.
      12
         1 C.R. at 228.
      13
         1 C.R. at 147, 228-229.
      14
         1 C.R. at 200-201.


                                          [4]
       Bakke is suing the Albins for breach of the partnership agreement, breach of

fiduciary duties, establishment of a constructive trust, promissory estoppel and

fraud. 15

       The Albins filed three motions for summary judgment in this case. 16 In the

first motion, the Albins argued that the partnership agreement was an oral contract

to convey real property and thus was enforceable under the statute of frauds. 17 On

April 22, 2104, Judge Stephen B. Ables denied this motion. 18

       Then on August 21, 2014, the Albins moved for partial summary judgment

on the grounds that the statute of frauds applies because (1) the agreement cannot

be performed within a year, (2) the agreement involves the transfer of an interest in

land, (3) there is no signed writing, and (4) no exception applies to prevent

application of the statute of frauds. 19 Although Judge Ables denied the Albins’ prior

motion that was limited to the sale of real estate issue, Judge Bill Palmer granted

this motion on September 29, 2014 and found that the statute of frauds applies to

the agreement. 20 The Albins then moved for a traditional and no-evidence summary

judgment seeking to dismiss all Plaintiffs’ claims in light of Judge Palmer’s



       15
          1 C.R. at 53-55.
       16
          1 C.R. at 16-49, 146-193, 239-263.
       17
          1 CR at 16-23.
       18
          1 CR at 144-145.
       19
          1 CR at 146-157.
       20
          1 CR at 238.


                                               [5]
September 29, 2014 ruling.21 Judge Palmer granted this motion on December 8,

2014, 22 and this appeal followed.




      21
           1 CR 239-243.
      22
           1 CR 316.


                                     [6]
                            Summary of the Argument
      The trial court improperly subjected the parties’ oral partnership agreement

to the statute of frauds.

      The parties entered into an oral partnership agreement to jointly develop

property owned by the Albins. The partnership agreement did not require the

conveyance of any real property. That fact was established by the summary

judgment evidence and was uncontroverted. After substantial performance by

Bakke, the Albins wholly repudiated the partnership agreement and all of their

obligations under the agreement.

      The trial court first properly ruled in this matter by denying Albins’ motion

for summary judgment regarding the applicability of the statute of frauds to the

parties’ agreement. Thereafter, the Albins presented what was essentially the same

motion to the court. On the second attempt, the trial court ruled that the statute of

frauds did apply and ultimately dismissed all of Bakke’s claims.

      The trial court’s application of the statute of frauds to an oral partnership

agreement whose purpose is to jointly develop real property is contrary to the case

law regarding the statute of frauds, undermines Texas law regarding formation of

oral partnerships and would serve to render most oral joint ventures for the

development of real property unenforceable.




                                         [7]
      Accordingly, the trial court was in error for applying the statute of frauds to

a partnership whose formation was factually established to be for the joint

development and not conveyance of real property.




                                        [8]
                                            Argument

1.      Standard of Review
        This Court reviews a summary judgment de novo.23 When reviewing a

traditional summary judgment in favor of a defendant, the Court determines

whether the defendant conclusively disproved an element of the plaintiff’s claim or

conclusively proved every element of an affirmative defense.24 The Court must

take evidence favorable to the nonmovant as true and must indulge every

reasonable inference and resolve every doubt in Bakke’s favor.25

        When reviewing a no-evidence summary judgment, the Court inquires

whether the nonmovant adduced sufficient evidence to raise a genuine issue of fact

on the challenged elements. Appellate courts “review the evidence in the light most

favorable to the respondent against whom the summary judgment was rendered. If

the respondent brings forth more than a scintilla of probative evidence to raise a

genuine issue of material fact, a no-evidence summary judgment cannot properly

be granted.”26 That is, a no-evidence summary judgment should be reversed if the




        23
             N.E. Indep. Sch. Dist. v. Kelley, 277 S.W.3d 442, 444 (Tex. App.—San Antonio 2008,
no pet.).
        24
           Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).
        25
           See Sysco Food Serv., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994).
        26
           Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009).


                                                [9]
evidence is sufficient for reasonable and fair-minded jurors to differ in their

conclusions.27

2.     The statute of frauds is inapplicable because the agreement can be
       performed in less than one year.
       The statute of frauds requires a signed writing for “an agreement which is

not to be performed within one year from the date of making the agreement.” 28 The

Albins argued to the trial court that the partnership agreement was subject to the

statute of frauds because development of the apartment complex would likely take

more than one year. 29 This argument fails for three reasons.

       First, a partnership is performed on formation. The Texas Organizations

Code expressly provides for the creation of an oral partnership. 30 Once agreed

upon, the partnership is fully performed. 31 That is, the formation of the partnership

satisfies its performance requirement. Thus, the Statute of Frauds does not apply.

       Second, the Partnership was for an indefinite term and could be terminated

at any time under the Business Organization Code.32 Partnerships that are formed

for an indefinite term are not within the statute of frauds even if “the parties


       27
          See Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam).
       28
          Tex. Bus. & Comm. Code § 26.01(b)(6).
       29
          1 C.R. at 149-150.
       30
          Tex. Bus. Org. Code § 152.052.
       31
          Howell v. Bowden, 368 S.W.2d 842, 846 (Tex. App.—Dallas 1963, writ ref’d n.r.e.)
(holding that an oral contract to form a partnership was fully performed when the partnership
was formed).
       32
          1 C.R. at 212.


                                              [10]
contemplated such agreement to extend beyond a year.” 33 This is because, absent

an agreement on duration, the partners can terminate the partnership at any time

and the partnership is susceptible to being performed within a year.34 In short, if a

partnership can be terminated at will—as with the Partnership in this case—then it

can be performed within a year as a matter of law and thus falls outside the statute

of frauds.

       Finally, it is irrelevant if the parties expected the apartment complex

development to take longer than one year. The inquiry is whether or not the

“contract could possibly be performed within a year, however improbable

performance within a year may be.” 35 “It makes no difference how long the parties

expect performance to take or how reasonable and accurate those expectations are,

if the agreed performance can possibly be completed within a year.”36

       To that end, the development of an apartment complex was one of many

possible development opportunities for the property. 37 The partnership agreement



       33
           Boutell v. Hill, 498 S.W.2d 713, 714 (Tex. App.—El Paso 1973, no writ).
       34
           Howell, 368 S.W.2d at 846; Heathington v. Heathington Lumber, 398 S.W.2d 822, 825-
826 (Tex. App.—Amarillo 1996, writ ref’d n.r.e.) (holding that the statute of frauds did not apply
to an oral partnership that was terminable at will and thus susceptible to performance within a
year); Shropshire v. Adams, 40 Tex. Civ. App. 339, 89 S.W. 448 (Tex. Civ. App. 1905, no writ).
        35
           Beverick v. Koch Power, Inc., 186 S.W.3d 145, 149 (Tex. App.—Houston [1st Dist.]
2005, pet. denied).
        36
           Keystone Int’l, Inc. v. Ingham, 593 S.W.2d 354, 357 (Tex. App.—Texarkana 1979, no
writ).
        37
           1 C.R. at 212.


                                              [11]
did not restrict the property to any particular development. 38 The ultimate way in

which the property would be developed was subject to change, and many of the

development opportunities could have been fully completed within one year.39

Thus, the partnership agreement is not subject to the statute of frauds.

3.    The statute of frauds does not apply because the partnership agreement
      does not involve the conveyance of real estate.
      The Albins argued to the lower court that the statute of frauds applies

because the partnership agreement involves the sale of real estate.40 Tellingly,

Judge Ables rejected this argument when he denied the Albins’ first motion for

summary judgment. 41 Although the Albins re-raised this argument in its later

motions, the Albins never moved for reconsideration April 22, 2014 Order nor did

the court vacate this order. Thus, Judge Palmer presumably based his granting of

the Albins later motions for summary judgment on other grounds that were not

present in the Albins’ original motion—namely that the agreement allegedly could

not be performed within one year. Out of an abundance of caution, however, Bakke

will show that the partnership agreement does not involve the sale of real estate.




      38
         1 C.R. at 212.
      39
         1 C.R. at 212.
      40
         1 C.R. at 18-19, 150-151.
      41
         1 C.R. at 144-145.


                                         [12]
      The statute of frauds requires a signed writing for “a contract for the sale of

real estate.” 42 The partnership agreement did not contain an agreement for the

conveyance of real property. 43 The summary judgment evidence established that

the partnership was formed for the purpose of jointly developing real property and

did not require the conveyance of the property. 44

      Under Texas law, merely because a partnership agreement involves real

estate development does not bring the agreement within the purview of the statute

of frauds. In Sewing v. Bowman, 45 the plaintiff sought damages for breach of a

partnership agreement wherein the parties agreed that they would equally own the

properties and would share equally in the rents and profits. 46 The defendant

claimed that the trial court erred in not granting a directed verdict against the

plaintiff on the basis that enforcement of the agreement was barred by the statute of

frauds. The court held that “[m]erely because a partnership agreement

contemplates transactions in real estate does not transform the partnership itself

into a transaction for the sale of real estate, bringing it under the statute of




      42
         Tex. Bus. & Comm. Code § 26.01(b)(4).
      43
         1. C.R. at 228.
      44
         1 C.R. at 228.
      45
         371 S.W.3d 321 (Tex. App.—Houston [1st Dist.] 2012, writ denied).
      46
         Id. at 324-325.


                                           [13]
frauds.”47 Like the parties in Sewing, Bakke and the Albins agreed to form a

partnership in which they would jointly develop certain property.

        In moving for summary judgment, the Albins relied on Pappas v.

Gounaris,48 a 1958 case with a convoluted set of facts to support their position that

the non-existent claim of specific performance is barred by the statute of frauds. In

Pappas, the court addressed a narrow issue regarding the technical requirements

for foreclosure of a deed of trust. Pappas fails to shed any meaningful light on this

case. Bakke does not seek to foreclose any interest in realty or enforce any

agreement for the conveyance of realty. Instead, Bakke seeks the recovery of

damages for breach of a partnership agreement involving the development of real

property.

        Accordingly, the trial court erred in applying the statute of frauds to the

parties’ partnership agreement which was factually established to not require the

conveyance of real property. Further, at a minimum, a fact issue was established

regarding the parties’ agreement, which should have prevented the granting the

motion for summary judgment and ultimately dismissing Bakke’s case in its




        47
           Id. at 329. See also Berne v. Keith, 361 S.W.2d 592, 597 (Tex. Civ. App.—Houston
1962, writ ref’d n.r.e.) (holding that an “[a]greement to share in the profits of contemplated
speculative deals in real estate does not involve transfer of real estate or interest in real estate
within the statute of frauds”).
        48
           311 S.W.2d 644, 645-646 (Tex. 1958).


                                                  [14]
entirety. Bakke should be allowed to present the parties agreement to the jury for

determination.

4.     Equity prevents the application of the statute of frauds because Bakke
       partially performed on the agreement.
       Even assuming the statute of frauds applies, it would be unconscionable to

allow the Albins to gain from their wrongful conduct. Bakke believes that the

Albins never intended to perform under the agreement into which they entered

with Bakke, yet they consciously and purposefully represented otherwise.49

       Texas courts have long recognized partial performance as an equitable

exception to the statute of frauds.50 Equity will intervene to override the statute of

frauds in circumstances where the agreement has been partially performed and

enforcing the statute would itself amount to fraud.51

       This case plainly requires the Court’s equitable intervention to avoid this

injustice. The summary judgment evidence shows that Bakke performed all its

obligations under the parties’ agreement prior to the Albins’ repudiation.52 It would

be patently unjust to allow the Albins to prosper from their conduct and leave

Bakke without any remedy. The jury should be allowed to decide whether the



       49
          1 C.R. at 223.
       50
          Bank of Texas v. Gaubert, 286 S.W.3d 546, 553-554 (Tex. App.—Dallas 2009, pet.
dismissed w.o.j.).
       51
          Id.
       52
          1 C.R. at 213, 229.


                                            [15]
Albins’ conduct in this case justifies applying an exception to the statute of

frauds.53

       Here, equity should intervene to allow the jury to hear all the evidence and

determine whether an exception should be applied. Accordingly, the trial court’s

order dismissing Bakke’s claims should be reversed.




       53
          See Holloway v. Dekkers, 380 S.W.3d 315, 320 (Tex. App.—Dallas 2012, no writ)
(holding “the question of whether an exception to the statute of frauds applies is generally a
question of fact” for the jury to decide).


                                               [16]
                                       Prayer
      The trial court in this case wrongly concluded that fully-formed oral

partnerships are subject to the statute of frauds and overlooked the uncontroverted

fact that the partnership agreement did not require the conveyance of real property.

Accordingly, the trial court applied the statute of frauds in error and wrongly

summarily dismissed all of Bakke’s claims.


      Bakke respectfully requests that this Court:

      1.    Hold that the statute of frauds does not as a matter of law apply to the
            partnership agreement and/or reverse the trial court’s ruling regarding
            the application of the statute of frauds and/or find that a fact issue
            exists regarding the purpose of the parties’ partnership agreement
            thereby necessitating the remand of this case.
      2.    Reverse the trial court’s dismissal of Bakke’s claims in this lawsuit.
      3.    Remand the case to the trial court for trial.

      4.    Award Bakke such other and further relief to which it is justly
            entitled.




                                        [17]
Dated: April 8, 2015   Respectfully submitted,

                       HORNBERGER FULLER & GARZA, INC.

                       /s/ Mark A. Randolph
                       ________________________________
                       MARK A. RANDOLPH
                       State Bar No. 0079148
                       randolph@hfgtx.com
                       7373 Broadway, Suite 300
                       San Antonio, Texas 78209
                       (210) 271-1700 Telephone
                       (210) 271-1730 Facsimile

                       ATTORNEY FOR APPELLANT




                        [18]
                           Certificate of Compliance
      Appellant certifies that this Brief contains 2,794 words. (Max 15,000)

                              Certificate of Service
      The undersigned hereby certifies that a true and correct copy of the

foregoing document was served on the 8th day of April, 2015 in accordance with

Texas Rule of Civil Procedure 9.5 on the following:

      Counsel for Appellees Eddie L. Albin and Kim L. Albin: Mark Comuzzie
      and Matthew E. Vandenberg at Jackson Walker, LLP, 112 E. Pecan Street,
      Suite 2400, San Antonio, Texas 78205 (Fax No. 210-978-7790)

                               /s/ Mark A. Randolph
                               _______________________________
                               Mark A. Randolph




                                       [19]
                              NO. 04-15-00008-CV

                       In The Court Of Appeals
            Fourth District of Texas – San Antonio
                 BAKKE DEVELOPMENT CORPORATION
                                                                   APPELLANT

                                         v.

                     EDDIE L. ALBIN and KIM L. ALBIN
                                                                  APPELLEES.


           On Appeal from 216th District Court, Kendall County, Texas
                              Cause No. 13-192


    APPENDIX IN SUPPORT OF APPELLANT’S BRIEF

DOCUMENT                                                                TAB
Order Granting Defendants’ Motion for Partial Summary Judgment on        A
Applicability of the Statute of Frauds, Sept. 29, 2014

Order Granting Defendants’ Second Hybrid Motion for Summary              B
Judgment and Motion for Partial Summary Judgment in the Alternative

Texas Business Organizations Code § 152.052                              C
Texas Business & Commerce Code § 26.01                                   D
Affidavit of Phillip P. Bakke, Mar. 28, 2014                             E
Affidavit of Jack Hebdon, Jr., Sept. 10, 2014                            F
APPENDIX TAB A
238
APPENDIX TAB B
316
317
APPENDIX TAB C
§ 152.052. Rules for Determining if Partnership is Created, TX BUS ORG § 152.052




  Vernon's Texas Statutes and Codes Annotated
    Business Organizations Code (Refs & Annos)
      Title 4. Partnerships (Refs & Annos)
        Chapter 152. General Partnerships
           Subchapter B. Nature and Creation of Partnership

                                      V.T.C.A., Business Organizations Code § 152.052

                                § 152.052. Rules for Determining if Partnership is Created

                                                   Effective: January 1, 2006
                                                          Currentness


(a) Factors indicating that persons have created a partnership include the persons':


  (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.


(b) One of the following circumstances, by itself, does not indicate that a person is a partner in the business:


  (1) the receipt or right to receive a share of profits as payment:


     (A) of a debt, including repayment by installments;


     (B) of wages or other compensation to an employee or independent contractor;


     (C) of rent;




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                1
§ 152.052. Rules for Determining if Partnership is Created, TX BUS ORG § 152.052




     (D) to a former partner, surviving spouse or representative of a deceased or disabled partner, or transferee of a partnership
     interest;


     (E) of interest or other charge on a loan, regardless of whether the amount varies with the profits of the business, including
     a direct or indirect present or future ownership interest in collateral or rights to income, proceeds, or increase in value
     derived from collateral; or


     (F) of consideration for the sale of a business or other property, including payment by installments;


  (2) co-ownership of property, regardless of whether the co-ownership:


     (A) is a joint tenancy, tenancy in common, tenancy by the entirety, joint property, community property, or part ownership;
     or


     (B) is combined with sharing of profits from the property;


  (3) the right to share or sharing gross returns or revenues, regardless of whether the persons sharing the gross returns or
  revenues have a common or joint interest in the property from which the returns or revenues are derived; or


  (4) ownership of mineral property under a joint operating agreement.


(c) An agreement by the owners of a business to share losses is not necessary to create a partnership.


Credits
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.



Notes of Decisions (129)

V. T. C. A., Business Organizations Code § 152.052, TX BUS ORG § 152.052
Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   2
APPENDIX TAB D
§ 26.01. Promise or Agreement Must Be in Writing, TX BUS & COM § 26.01




  Vernon's Texas Statutes and Codes Annotated
    Business and Commerce Code (Refs & Annos)
      Title 3. Insolvency, Fraudulent Transfers, and Fraud
        Chapter 26. Statute of Frauds

                                                  V.T.C.A., Bus. & C. § 26.01

                                     § 26.01. Promise or Agreement Must Be in Writing

                                                 Effective: September 1, 2005
                                                          Currentness


(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.


(b) Subsection (a) of this section applies to:


  (1) a promise by an executor or administrator to answer out of his own estate for any debt or damage due from his testator
  or intestate;


  (2) a promise by one person to answer for the debt, default, or miscarriage of another person;


  (3) an agreement made on consideration of marriage or on consideration of nonmarital conjugal cohabitation;


  (4) a contract for the sale of real estate;


  (5) a lease of real estate for a term longer than one year;


  (6) an agreement which is not to be performed within one year from the date of making the agreement;


  (7) a promise or agreement to pay a commission for the sale or purchase of:


     (A) an oil or gas mining lease;


     (B) an oil or gas royalty;



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§ 26.01. Promise or Agreement Must Be in Writing, TX BUS & COM § 26.01




     (C) minerals; or


     (D) a mineral interest; and


  (8) an agreement, promise, contract, or warranty of cure relating to medical care or results thereof made by a physician
  or health care provider as defined in Section 74.001, Civil Practice and Remedies Code. This section shall not apply to
  pharmacists.


Credits
Acts 1967, 60th Leg., vol. 2, p. 2343, ch. 785, § 1. Amended by Acts 1977, 65th Leg., p. 2053, ch. 817, § 21.01, eff. Aug. 29,
1977; Acts 1987, 70th Leg., ch. 551, § 1, eff. Aug. 31, 1987; Acts 2005, 79th Leg., ch. 187, § 1, eff. Sept. 1, 2005.



Notes of Decisions (2132)

V. T. C. A., Bus. & C. § 26.01, TX BUS & COM § 26.01
Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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