                                                                                      ACCEPTED
                                                                                  03-15-00447-CV
                                                                                          8312763
                                                                       THIRD COURT OF APPEALS
                                                                                  AUSTIN, TEXAS
                                                                            12/18/2015 5:34:50 PM
                                                                                JEFFREY D. KYLE
                                                                                           CLERK
                        NO. 03-15-00447-CV

                       In the Court of Appeals                   FILED IN
                                                          3rd COURT OF APPEALS
               For the Third Judicial District of Texas        AUSTIN, TEXAS
                               at Austin                  12/18/2015 5:34:50 PM
                                                              JEFFREY D. KYLE
                                                                   Clerk
              AUSTIN CAPITAL COLLISION, LLC,
                         Appellant

                                  v.

                    BARBARA PAMPALONE,
                   Appellee and Cross-Appellant


On Appeal from the 419th Judicial District Court, Travis County, Texas
             Trial Court Cause No. D-1-GN-14-003207


             PAMPALONE’S BRIEF OF APPELLEE



                ORAL ARGUMENT REQUESTED

                           MCGINNIS, LOCHRIDGE & KILGORE, L.L.P.
                           Nelia J. Robbi, State Bar No. 24052296
                           Joe Lea, State Bar No. 24013257
                           April E. Lucas, State Bar No. 24046323
                           Stephanie N. Duff-O’Bryan, State Bar No. 24087448
                           600 Congress Avenue, Suite 2100
                           Austin, Texas 78701
                           (512) 495-6000
                           (512) 495-6093 FAX
                           nrobbi@mcginnislaw.com

                           ATTORNEYS FOR BARBARA PAMPALONE
                 IDENTITY OF PARTIES AND COUNSEL


Plaintiff/Appellee/Cross-Appellant:    Barbara Pampalone

Defendant/Appellant:                   Austin Capital Collision, LLC


Defendant/Cross-Appellee               Eric Hinojosa




Names and Addresses of Trial and Appellate Counsel

Trial and Appellate Counsel for        Nelia J. Robbi
Plaintiff:                             nrobbi@mcginnislaw.com
                                       Joe Lea
                                       jlea@mcginnislaw.com
                                       April E. Lucas
                                       alucas@mcginnislaw.com
                                       Stephanie N. Duff-O’Bryan
                                       sduffobryan@mcginnislaw.com
                                       600 Congress Avenue, Suite 2100
                                       Austin, Texas 78701
                                       (512) 495-6000
                                       (512) 495-6093 FAX
Appellate Counsel for Defendants:      Michael Truesdale
                                       mike@truesdalelaw.com
                                       801 West Avenue, Suite 201
                                       Austin, Texas 78701
                                       (512) 482-8671
                                       (866)-847-8719 FAX




                                      ii
Trial Counsel for Defendants:     Adam Pugh
                                  apugh@slaterpugh.com
                                  8400 N. Mopac Expressway, Suite 100
                                  Austin, Texas 78759
                                  (512) 472-2431
                                  (512) 472-0432 FAX




                                iii
                                         TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ......................................................................................... iv

INDEX OF AUTHORITIES.................................................................................... vi

STATEMENT OF THE CASE ................................................................................ vi

STATEMENT REGARDING ORAL ARGUMENT ........................................... viii
ISSUE PRESENTED ............................................................................................... ix

CITATION KEY...................................................................................................... ix
STATEMENT OF FACTS ........................................................................................1

   A.      The loan to Capital Collision. .......................................................................2
   B.      Dr. Pampalone’s complete performance. ......................................................2
   C.      Appellant’s Partial Performance: 94 monthly payments over 8 years. ........3

   D.      The litigation. ................................................................................................7
SUMMARY OF THE ARGUMENT ........................................................................8
ARGUMENT .............................................................................................................9
   A.      Standard of Review: Legal Sufficiency ........................................................9

   B. The trial court did not err in enforcing the loan agreement pursuant to the
   partial performance exception to the statute of frauds. ........................................12
      1. The parties’ stipulation and the trial court’s finding established payments
      constituting partial performance. ......................................................................12

      2. Oral agreements are enforceable where partial performance is
      unequivocally referable to the agreement. ........................................................13

      3. The partial performance exception applies equally to Appellant Austin
      Capital Collision, LLC and to Capital Collision GP. .......................................17


                                                            iv
      4. The evidence shows that the partial performance was unequivocally
      referable to the loan from Dr. Pampalone. ........................................................19

      5.      There is no other credible reason for the payments. ................................22

      6.      Breezevale does not save Appellant Austin Capital Collision’s argument.
              24

CONCLUSION ........................................................................................................27
PRAYER ..................................................................................................................27

CERTIFICATE OF SERVICE ................................................................................29
CERTIFICATE OF COMPLIANCE .......................................................................30
APPENDIX ..............................................................................................................31




                                                            v
                                         INDEX OF AUTHORITIES
Cases
626 Joint Venture v. Spinks, 873 S.W.2d 73 (Tex.App.—Austin 1993, no writ)
........................................................................................................................... 18, 19

ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426 (Tex. 1997) .........................11
Adams v. H & H Meat Products, Inc., 41 S.W.3d 762 (Tex. App.—Corpus
  Christi 2001, no pet.) ..................................................................................... 10, 11
Chevalier v. Lane’s, Inc., 213 S.W.2d 530 (1948)) ................................................16
Estate of Kaiser v. Gifford, 692 S.W.2d 525 (Tex. App.—Houston [1st
  Dist.] 1985 writ ref'd n.r.e.) ................................................................. 9, 14, 15, 23
National Property Holdings, LP v. Westergren, 453 S.W.3d 419 (Tex. 2015)
  ........................................................................................................... 16, 17, 25, 26
Quick v. City of Austin, 7 S.W.3d 109 (Tex. 1998) .........................................11

Rodriguez v. Klein, 960 S.W.2d 179 (Tex. App.—Corpus Christi 1997,
  no pet.)........................................................................................................... 25, 26

Stovall & Assocs. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790 (Tex. App.—
  Dallas 2013, no pet.) ......................................................................... 10, 14, 16, 21

Vehle v. Brenner, 590 S.W.2d 147 (Tex. App.—San Antonio 1979, no writ) .....12

Waggoner v. Morrow, 932 S.W.2d 627 (Tex.App.—Houston [14th Dist.]
 1996, no writ) ................................................................................................ 11, 12

Weirich v. Weirich, 833 S.W.2d 942 (Tex. 1992) ...........................................11

Rules
TEX. R. APP. P. 38.1 ................................................................................................. ix

TEX. R. APP. P. 39.1.................................................................................................. ix

TEX. R. APP. P. 39.2 ................................................................................................. ix



                                                               vi
                         STATEMENT OF THE CASE
Nature of the Case:        Appellee and Cross-Appellant, Barbara Pampalone
                           (“Dr. Pampalone”), sued Appellant, Austin Capital
                           Collision, LLC (“Appellant”), and Cross-Appellee,
                           Eric      Hinojosa     (“Hinojosa”)    (collectively,
                           “Defendants”), for breach of contract.

Parties:                   Austin Capital Collision, LLC is Appellant/Defendant

                           Dr. Barbara Pampalone is Cross-Appellant/Appellee/
                           Plaintiff

                           Eric Hinojosa is Cross-Appellee/Defendant

Trial Court:               The Honorable Todd Wong, 419th Judicial District
                           Court, Travis County, Texas.

Trial Court’s Disposition: After a bench trial on June 8, 2015, the trial court
                           granted judgment in favor of Dr. Barbara Pampalone
                           and against Appellant Austin Capital Collision, LLC,
                           awarding her the amount the parties stipulated as due
                           and owing on the loan as of the date of trial,
                           $56,758.68, plus her reasonable and necessary
                           attorneys’ fees. Appellant Austin Capital Collision,
                           LLC and Cross-Appellant Barbara Pampalone filed
                           timely notices of appeal on July 29, 2015, and on July
                           7, 2015, the trial court issued its findings of fact and
                           conclusions of law.




                                        vii
              STATEMENT REGARDING ORAL ARGUMENT
      Pursuant to Texas Rules of Appellate Procedure 38.1, 39.1and 39.2, Dr.

Pampalone requests oral argument before this Court of Appeals. Dr. Pampalone

believes oral argument will assist the Court in determining whether the trial court

erred by recognizing the applicable exception to the statute of frauds for partial

performance in this matter.




                                        viii
                                 ISSUE PRESENTED
      Whether, despite there being an acknowledged loan agreement, full

performance by Dr. Pampalone, and more than 94 monthly payments made in

accordance with the terms of the loan agreement over a period of eight years, the

trial court erred in entering judgment in favor of Dr. Pampalone for the stipulated

amount due pursuant to the partial performance exception to the statute of frauds.


                                  CITATION KEY
      CR = Clerk’s Record, Volume 1 of 1

      2RR = Reporter’s Record, Volume 2 of 3

      Appx = Appendix attached hereto

      Appx:2 = Findings of Fact and Conclusions of Law (attached hereto as
           second document in the Appendix, and also located at pp. 53-63 of the
           Clerk’s Record)

      PX = Plaintiff’s Exhibit




                                         ix
TO THE HONORABLE THIRD COURT OF APPEALS:

      Appellant Austin Capital Collision, LLC premises its entire appeal on one

argument: that the years of payments it made to Dr. Pampalone pursuant to the

loan agreement at issue in this appeal do not satisfy the partial-performance

exception to the statute of frauds because they are not “solely referable” to the loan

agreement. This argument is baseless because the payments are unequivocally

referable to the loan agreement, as the trial court found, and is supported by ample

evidence, including the fact that Appellant identified the payments as “Barbara

Pampalone Bill Payment.” Additionally, the primary case upon which Appellant

relies is distinguishable from the instant facts and does not support its argument.

Accordingly, this Court should affirm the judgment below, awarding Dr.

Pampalone $56,758.68 in damages and $43,241.00 in reasonable and necessary

attorneys’ fees. See CR 49-50.

                            STATEMENT OF FACTS
      Appellant’s statement of facts is inadequate and misleading. Among other

reasons, Appellant disregards or contradicts the facts found by the trial court,

although Appellant has not challenged those fact findings on appeal.              Dr.

Pampalone incorporates by reference the statement of facts set forth in her Cross-

Appellant’s Brief and adds the following.




                                          1
      A.    The loan to Capital Collision.

      In 2005, Dr. Pampalone, a widow and semi-retired dentist, mortgaged her

home in order to loan the sum of $80,000 to the auto body repair business being

operated by her son, Erik Pampalone, and his childhood friend, Eric Hinojosa.

2RR:52-53; Appx:2, ¶¶6, 7, 9. That business was known as and did business as

Capital Collision. Appx:2, ¶7. At the time of the loan, Capital Collision was an

assumed name being used by Capital Collision, GP, a general partnership

comprised of two corporate partners; Hinojosa was the president and a 50%

shareholder of both corporate partners, and Erik Pampalone was the vice-president

and other 50% shareholder. 2RR:97-102, 171-72.

      Pursuant to the terms of the agreement, Dr. Pampalone was to advance the

sum of $80,000 to Capital Collision, and Capital Collision was to repay the loan

over 20 years at 7% interest. Appx:2, ¶9; 2RR:59, 60, 106-07; Appx:2, ¶11.

      B.    Dr. Pampalone’s complete performance.

      Dr. Pampalone fully performed under the terms of the agreement by paying

the funds to Capital Collision in two installments: $50,000 on or about March 24,

2005, and the remaining $30,000 on or about April 13, 2005. 2RR:58-9, 107-10,

158-59; PX-1; PX-2; PX-3A; Appx:2, ¶14. The loaned funds were deposited into a

Bank of America Account held in the names of “Capital Collision” and “Eric

Hinojosa.” 2RR:107-10; PX-1; PX-2; PX-3A; Appx:2, ¶15. Although there was


                                       2
no signed promissory note for the loan, the terms of the loan were evidenced in

yearly amortization schedules generated by Erik Pampalone on Dr. Pampalone’s

behalf and sent to Hinojosa and the business. 2RR:59-60, 62; Appx:2, ¶16.

       C.   Appellant’s Partial Performance: 94 monthly payments over 8
            years.

       In accordance with the terms of the agreement between Dr. Pampalone and

Capital Collision, the company immediately began repaying the loan. Appx:2,

¶18.   Beginning in May 2005, Capital Collision began performing under the

agreement by making monthly payments to Dr. Pampalone in accordance with the

agreed-upon terms. 2RR:64-65, 112; Appx:2, ¶18. Erik Pampalone in his capacity

as vice-president set up the loan payments and testified that the intent of the

payments was to perform under the loan agreement. 2RR:112-13.

       Two years later, in 2007, Erik Pampalone exited Capital Collision

completely, and the company, now run exclusively by Eric Hinojosa, continued to

repay the loan as agreed for another 6 years. 2RR:113; Appx:2, ¶¶22, 23, 27, 31.

Dr. Pampalone had no reason to ever suspect anything was amiss until, in April

2013, the monthly payments ceased. Appx:2, ¶¶30, 37; Appx:8.

       The parties stipulated that between May 2005 and April 2013, Dr.

Pampalone received 94 monthly payments from two different Bank of America

accounts as summarized in Plaintiff’s Exhibit 3. CR:41-47; Appx:2, ¶19; Appx:8;

PX-3, PX-3A.     From May 2005 through approximately March 2010, these

                                       3
payments were made from the Bank of America Account held in the names of

“Eric Hinojosa” and “Capital Collision” (hereinafter, the “Capital Collision

Account”). PX-3; PX-3A; Appx:2, ¶32; Appx:8. Thereafter—and without missing

a payment during the transition—payments were made from a Bank of America

account held in the names of “Eric Hinojosa” and “Capital Collision GP”

(hereinafter, the “Capital Collision GP Account”). PX-3; PX-3A; Appx:2, ¶32.

However, because the payments were being electronically deposited into Dr.

Pampalone’s account, she never noticed any change in the bank account making

the payments to her. 2RR:66, 79; Appx:2, ¶32.

      Unbeknownst to Dr. Pampalone, one of the Capital Collision entities,

Capital Collision, GP, was terminated by Eric Hinojosa in 2010 in an effort to

“close old debt.” PX-20; PX-24; Appx:2, ¶¶30, 24, 26, 29; 2RR:175-76. Despite

this, Eric Hinojosa kept the old company’s bank accounts open to continue to

repay the loan to Dr. Pampalone until the statutory wind up period expired.

2RR:194-203, 248-49, 17; Appx:2, ¶¶29, 31, 33.

      In June 2009, one year before termination Capital Collision, GP, Hinojosa

formed a new company, one of the named defendants in the trial court: Appellant

Austin Capital Collision, LLC.   2RR:173-74; PX-20; Appx:2, ¶24. The new

company, like the old company, was also “basically just [Eric Hinojosa].”

2RR:174; Appx:2, ¶27.     Appellant Austin Capital Collision, LLC, became the



                                       4
owner of the Capital Collision business and, like the first business had done, filed

an assumed name certificate for “Capital Collision.” Appx:2, ¶24, PX-21, PX-22.

The trial court found that “[f]ollowing its formation, Defendant Austin Capital

Collision, LLC, assumed the loan to Plaintiff,” and Appellant Austin Capital

Collision has not appealed the finding. Appx:2, ¶25.

      There was no asset purchase agreement between Hinojosa’s old company

and his new company. 2RR:176. But his new company engaged in the same

business as his old company and continued to use the same exact assumed name

(2RR:174-75; PX-14), business email address (cptlcollision@aol.com) (2RR:217-

18, 222-23; PX-5; PX-14), and email signature block (with the same name and

physical address) (2RR:224; PX-14) as the old business.              Appx:2, ¶29.

Additionally, Appellant Austin Capital Collision, LLC, retained some of the same

employees (2RR:219, 124-25, 223-24; Appx:2, ¶29), and took control of both the

Capital Collision Account and the Capital Collision GP Account (Appx:2, ¶29).

After Appellant Austin Capital Collision, LLC, was formed, the old company was

left with nothing. 2RR:176:7-13. Thereafter, in July 2010, Hinojosa terminated

the old company. 2RR:173; Appx:2, ¶26; PX-24.

      Hinojosa did not tell Dr. Pampalone any of this, nor provide her with any

notice that “Capital Collision” was now being operated as a brand new entity.

2RR:79, 127, 247. Instead, Hinojosa simply continued to do business and repay



                                         5
Dr. Pampalone as Capital Collision, the only name by which Dr. Pampalone ever

knew the business. 2RR:55; Appx:2,¶31.

      Hinojosa, in his capacity as the managing member of Appellant Austin

Capital Collision, LLC, continued to direct that payments be made to Dr.

Pampalone on the loan.            2RR:240-41; Appx:2, ¶31.             Employees and

representatives of Appellant Austin Capital Collision, LLC, communicated with

Dr. Pampalone and Erik Pampalone on Appellant Austin Capital Collision, LLC’s

behalf, acknowledging the existence of the loan and Appellant Austin Capital

Collision, LLC’s indebtedness thereunder. Appx:2, ¶¶34-36. Erik Pampalone,

acting on his mother’s behalf, sent correspondence concerning the loan to the

cptlcollision@aol.com email address and, in response, Appellant Austin Capital

Collision, LLC continued to make payments on the loan. 2RR:127; Appx:2, ¶34;

PX-12a, PX-13, PX-14. Indeed, in September 2012 (years after the old company

had   been   terminated),     when   Mr.       Pampalone   sent   an   email   to   the

cptlcollision@aol.com address requesting that Hinojosa change where he was

sending the monthly loan payments, Mirium Matta—Hinojosa’s sister-in-law and

an employee of Appellant Austin Capital Collision, LLC—responded from the

cptlcollision@aol.com email address with “received and updated.” 2RR:123-24;

PX-14; Appx:2, ¶35.         Thereafter, three additional years of regular monthly

payments in accordance with the loan agreement occurred. PX-3; PX-3A.



                                           6
      In March 2010, just a few months before terminating Capital Collision, GP,

Hinojosa switched the monthly payments on the loan from the Capital Collision

account to the Capital Collision GP Account. 2RR:196-98; PX-3; PX-3A; Appx:9.

Around this same time, he began transferring funds from the Capital Collision

Account (of the new entity, Appellant) into the Capital Collision GP Account (the

account of the old entity) to cover the payments coming out of that account.

2RR:193-98; PX-3A; Appx:2, ¶32; Appx:9.        Of significant note, the monthly

payments made from both accounts were almost exclusively described on the

company's own bank statements as “Barbara Pampalone Bill Payment.” PX-3A;

Appx:8.

      D.    The litigation.

      When the payments ceased, Dr. Pampalone made demand for payment, but

Hinojosa failed and refused to cure the default. Appx:2, ¶39. The lawsuit in the

trial court ensued in which Dr. Pampalone sued both Appellant Austin Capital

Collision, LLC, and Hinojosa for breach of contract. CR:28-40. The case was

tried to the bench on June 8, 2015. The parties stipulated at the trial that the

amount due and owing on the loan as of the date of trial was $56,758.68. CR:41-

47; 2RR: 128-29; Appx:2, ¶41.




                                       7
      The trial court found in favor of Dr. Pampalone, rendered judgment against

Appellant Austin Capital Collision, LLC, for breach of the loan agreement, and

awarded Dr. Pampalone her attorneys’ fees. 2RR:252-53; Appx:1.

                      SUMMARY OF THE ARGUMENT
      Appellant’s only argument raised and briefed on appeal is that the 94

monthly payments made did not constitute partial performance because they were

not “solely referable” to the loan, and that therefore the judgment and attorneys’

fees should be reversed. Defendant relies on one case, Exxon Corp. v. Breezevale

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

argument. Breezevale, however, does not stand for the propositions Appellant

advances and is distinguishable from the instant case.

      Dr. Pampalone is entitled to be repaid on the loan. The oral agreement is

enforceable despite the statute of frauds.    Dr. Pampalone fully performed by

funding the loan; Capital Collision GP, d/b/a Capital Collision, and later Austin

Capital Collision, LLC, d/b/a Capital Collision, accepted and used her money and

partially performed by making eight years of monthly payments that were

unequivocally referable to the loan, as shown by ample evidence below, including

notations on the payments themselves explicitly reading, “Barbara Pampalone Bill

Payment.”    PX-3A.     Such full performance by the lender removes the oral

agreement from the statute of frauds. See, e.g., Estate of Kaiser v. Gifford, 692



                                         8
S.W.2d 525, 525-26 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.)

(holding that oral agreement “was not barred by the Statute of Frauds, because the

deceased lender had made full performance under the agreement, thereby taking

the oral agreement out of the prohibition of the statute,” and “where one party fully

performs a contract, the Statute of Frauds is unavailable to the other who

knowingly accepts benefits and partly performs”). Thus, the trial court did not err

in awarding the stipulated amount of damages to Dr. Pampalone, plus her

reasonable and necessary attorneys’ fees.

                                  ARGUMENT

      A.     Standard of Review: Legal Sufficiency

      Appellant Austin Capital Collision’s assertion that de novo review is

appropriate is mistaken.

      The one point Appellant Austin Capital Collision, LLC raised on appeal is

whether the partial performance exception to the statute of frauds applies. Whether

the circumstances of a particular case fall within an exception to the statute of

frauds is generally a question of fact, not a legal issue that would be reviewed de

novo. See, e.g., Stovall & Assocs. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790, 798




                                            9
(Tex. App.—Dallas 2013, no pet.); Adams v. H & H Meat Products, Inc., 41

S.W.3d 762, 775 (Tex. App.—Corpus Christi 2001, no pet.).1

       As Appellant Austin Capital Collision acknowledges on page 13 of its brief

discussing the standard of review, it is challenging the legal sufficiency of the

court’s factual finding that the partial performance exception applies.

       Where, as here, a party claims an exception to the statute of frauds exists,

she must secure findings to that effect; Dr. Pampalone did so. Adams, 41 S.W.3d

at 775; see Appx:2, ¶¶17-20, 25, 31-32, 34-36. In response to Appellant Austin

Capital Collision’s challenge to those findings, the court will “review the court’s

findings of fact by the same standards used to review the sufficiency of the

evidence to support a jury’s findings.” Adams, 41 S.W.3d at 769. “The judgment

of the trial court will not be set aside if there is any evidence of a probative nature

to support it, and this Court may not substitute its findings of fact for those of the

trial court if there is any evidence in the record to sustain the trial court’s findings.

Id. at 769.

       When courts “review a ‘no evidence’ or legal sufficiency of the evidence

issue, [they] must consider all of the record evidence in the light most favorable to

1
 BACM 2001-San Felipe Road ltd. Partnership v. Trafalgar Holdings I, Ltd., 218 S.W.3d 137,
143-45 (Tex. App.—Houston [14th Dist.] 2007, pet. denied), is inapposite, because it concerns
whether the statute of frauds applies at all—which is concededly a legal issue—not whether the
circumstances of this case fall within an exception to the statute of frauds, which is generally a
fact issue. See, e.g., Adams, 41 S.W.3d at 775.




                                               10
the party in whose favor the verdict has been rendered, and indulge in that party’s

favor every reasonable inference deducible from the evidence.” Adams, 41 S.W.3d

at 769. They “consider only the evidence and inferences tending to support the

jury’s finding, disregarding all evidence to the contrary.” Breezevale Ltd., 82

S.W.3d at 439 (citing Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992)).

      “The findings of fact must be upheld if there is more than a scintilla of

evidence in support thereof.” Adams, 41 S.W.3d at 770. “There is more than a

scintilla when the evidence creates more than a mere surmise or suspicion of its

existence.” Id. That is, “[i]f the record contains any evidence of probative force to

support the jury’s finding, the finding will be upheld.” Breezevale, 82 S.W.3d at

438 (citing ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997)).

      Moreover, Appellant Austin Capital Collision, LLC’s discussion of the de

novo standard of review, even if it were applicable, is incomplete.           When

performing a de novo review, the Court exercises its own judgment and

redetermines the legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex.

1998). The Court will uphold conclusions of law on appeal if the judgment can be

sustained on any legal theory the evidence supports. Waggoner v. Morrow, 932

S.W.2d 627, 631 (Tex. App.—Houston [14th Dist.] 1996, no writ). Even incorrect




                                         11
conclusions of law do not require reversal where, as here, the controlling findings

of fact support the judgment under a correct legal theory. 2 Id.

       Finally, in the unlikely event that Capital Collision should convince the

court that Dr. Pampalone failed to carry her burden to prove the applicability of the

exception, because there is ample evidence to raise a fact issue in her favor, the

appropriate remedy would be to reverse and remand, not, as Capital Collision

requests, to reverse and render judgment. See Vehle v. Brenner, 590 S.W.2d 147,

152 (Tex. App.—San Antonio 1979, no writ).

       B.     The trial court did not err in enforcing the loan agreement
              pursuant to the partial performance exception to the statute of
              frauds.

              1.      The parties’ stipulation and the trial court’s finding
                      established payments constituting partial performance.

       As discussed above, the parties stipulated that 94 monthly payments were

received on the loan. Appx:2, ¶19. The trial court therefore held that the statute of

frauds does not bar Dr. Pampalone’s recovery, because Dr. Pampalone fully

performed under the agreement, and Appellant Austin Capital Collision, LLC,

d/b/a Capital Collision partially performed. It held: “Capital Collision performed

on the agreement prior to the termination of the HAPB Entities by making monthly

2
  Appellant Austin Capital Collision, LLC also cites Troxel v. Bishop, 201 S.W.3d 290, 300
(Tex. App.—Dallas 2006, no pet.) for the unremarkable proposition that if the statute of frauds
applies, and no exception is available, then the loan is unenforceable. The language in question
is inapposite and arguably dicta.




                                              12
payments on the loan as agreed. . . . Austin Capital Collision, LLC, d/b/a Capital

Collision assumed the loan from the HABP Entities through its conduct and course

of performance, including by continuing to make payments on the loan in

accordance with the terms of the agreement.3 . . . Austin Capital Collision, LLC,

d/b/a Capital Collision partially performed on the agreement by continuing to make

payments on the loan to Plaintiff in accordance with the terms of the agreement.”

Appx:2, ¶ 53-55.

       Appellant’s only argument on appeal is that the 94 monthly payments by

Capital Collision GP, d/b/a Capital Collision and later by Appellant Austin Capital

Collision, LLC d/b/a Capital Collision were not “solely referable” to the loan and

thus did not qualify as partial performance that would permit Dr. Pampalone to

obtain repayment despite the statute of frauds.

               2.      Oral agreements are enforceable where partial performance
                       is unequivocally referable to the agreement.

       It is well established that an oral agreement is enforceable despite the statute

of frauds if the agreement has been fully or partially performed, because in such a

3
  Although Appellant Austin Capital Collision implies in its brief that Dr. Pampalone must make
a separate and distinct showing of partial performance of Appellant Capital Collision, LLC, d/b/a
Capital Collision, apparently on the theory that Appellant Austin Capital Collision, LLC, d/b/a
Capital Collision did not assume the loan, it does not raise an appellate point nor provide briefing
attacking the trial court’s finding that it did indeed assume the loan. Accordingly, that factual
finding is not challenged.. Moreover, there is ample evidence to support the finding, and in any
event the second entity, Appellant Capital Collision LLC d/b/a/ Capital Collision did indeed
partially perform the agreement, by continuing to make years worth of payments unequivocally
referable to the loan in question.




                                                13
case, “denying enforcement would itself amount to a fraud.” See, e.g., Stovall &

Assocs. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790, 800 (Tex. App.—Dallas 2013, no

pet.); Breezevale, 82 S.W.3d at 439 (“[C]ontracts 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 result in a virtual fraud.”); Estate of Kaiser v.

Gifford, 692 S.W.2d 525, 525 (Tex.App.—Houston [1st Dist.] 1985, writ ref’d

n.r.e.).

       For example, in a loan context, the statute of frauds does not prevent

enforcement of an oral loan agreement where the party loaning the money makes

full performance under the agreement. Estate of Kaiser v. Gifford, 692 S.W.2d

525, 525 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.). In Kaiser, as

here, there was an oral agreement creating a loan, with no executed written

agreement providing for repayment. Id. at 526. After the death of the lender, the

borrower quit making monthly payments, claiming that the money advance was a

gift, not a loan; he defended against the ensuing lawsuit by arguing the statute of

frauds. Id. The court held “that the oral installment agreement, although payable

in 300 monthly installments, was not barred by the Statute of Frauds, because the

deceased lender had made full performance under the agreement, thereby taking

the oral agreement out of the prohibition of the statute.” Id. at 525. Kaiser

followed other authorities holding that “where one party fully performs a contract,



                                        14
the Statute of Frauds is unavailable to the other who knowingly accepts benefits

and partly performs” and “where one party to an oral contract has, in reliance

thereon, so far performed his part of the agreement that it would be permitting a

fraud on him to allow the other party to repudiate the contract and set up the statute

of frauds in justification thereof, equity will regard the case as being removed from

the operation of the statute, and will enforce the contract.” Id. at 526 (internal

quotation omitted). It noted that “a great majority of jurisdictions agree with the

rule that full performance by one party to an oral contract removes the contract

from the prohibitions of the Statute.”4 Id. at 527.

       As in this case, where the creditor has provided full performance in funding

a loan in reliance on an oral agreement, with monthly payments of fixed amounts

as partial performance by the debtor, “allowing [the debtor] to invoke the Statute,

under these facts, would tend more to encourage fraud rather than discourage it as

is contemplated by the Statute.” Id. at 527. This is even more a concern in this

case, in which the debtor and its principal engaged in actual fraud to attempt to

escape its obligations. See Brief of Cross-Appellant Barbara Pampalone.

4
 The language of Kaiser strongly suggests that in the context of a loan, Dr. Pampalone’s full
performance, alone, is enough to exempt her from the statute of frauds. However, in Kaiser, as
here, there was also partial performance by the debtor in the form of monthly payments in
accordance with the oral agreement. Kaiser, 692 S.W.2d at 527. Because this case involves
ample partial performance by Appellant Austin Capital Collision, LLP, with clear notations as
well as other acts directly referencing the loan by Dr. Barbara Pampalone, this Court need not
decide whether Dr. Pampalone’s performance, alone, would have been sufficient to allow
performance despite the statute of frauds.




                                             15
      Partial performance sufficient to remove a contract from the statute of frauds

bar must be “unequivocally referable” to the oral agreement and corroborate the

existence of that agreement. Stovall, 409 S.W.3d. at 800 (citing Breezevale, 82

S.W.3d at 439). “In other words, the purpose of the alleged acts of performance

must be to fulfill a specific agreement.”       National Property Holdings, LP v.

Westergren, 453 S.W.3d 419, 426 (Tex. 2015). They must be acts that could have

been done with no other design than 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. Breezevale, 82 S.W.3d at 439-40.

      “The kind of performance that justifies the exception to the statute of frauds

is ‘performance which alone and without the aid of words of promise is

unintelligible or at least extraordinary unless as an incident of ownership, assured,

if not existing.’” Westergren, 453 S.W.3d at 427 (citing Chevalier v. Lane’s, Inc.,

213 S.W.2d 530, 533 (1948)) (emphasis added). Westergren concerned the sale of

real estate, not a loan; however, its explanation of the rule is instructive here,

where monthly payments made over years beginning immediately after the loan

funded to the person who made the loan would, in the absence of a loan agreement,

be unintelligible, or at least extraordinary. Westergren also instructs that, “[i]f the

evidence establishes that the party who performed the act that is alleged to be

partial performance could have done so for some reason other than to fulfill



                                          16
obligations under the oral contract, the exception is unavailable.” Id. at 426-27. It

gives an enlightening example of evidence establishing that the party performing

the act alleged to be partial performance did so for some other reason:            a

contradictory written contract for which the alleged partial performance was

consideration. Id. at 427. In Westergren, the alleged partial performance was

payment of $500,000; however, the payment accompanied a written document,

signed by the recipient, that stated that the $500,000 was in consideration for the

full and final release of the very claim based on an oral agreement being asserted

despite the statute of frauds.    Id.   Accordingly, the payment was not partial

performance and was not unequivocally referable to the oral agreement, because it

was made to fulfill obligations under a different agreement. There is no such other

agreement obligating Capital Collision to make payments of $657.09 to Dr.

Barbara Pampalone here. The payments made were unequivocally referable to the

$80,000 loan.

             3.    The partial performance exception applies equally to
                   Appellant Austin Capital Collision, LLC and to Capital
                   Collision GP.

      Appellant Austin Capital Collision, LLC’s hair-splitting about the identity or

name of the business or the contacts Dr. Pampalone had with one agent as opposed

to another are irrelevant to the application of the doctrine of partial performance.

Regardless of the name under which they operated or the date of their inception,



                                         17
both Capital Collision GP and Appellant Austin Capital Collision, LLC accepted

benefits by using the account into which Dr. Pampalone’s money was deposited,

and both partially performed by making payments unequivocally referable to the

loan. See 626 Joint Venture v. Spinks, 873 S.W.2d 73, 76 (Tex.App.—Austin

1993, no writ) (“Where one party to a contract has fully performed his obligations

under it, the statute of frauds is unavailable to the other who knowingly accepts

benefits and partly performs.”). In Spinks, an owner transferred real property to a

person in his name as trustee, though there was no written indication for whom he

was acting. Id. at 76. He partially paid and executed a note and deed of trust. Id.

at 74. After the transaction, a new entity, which did not exist at the time of closing,

was formed, creating the “626 Joint Venture.” Id. at 75. Because the joint venture

actively managed the property, made improvements, and made payments, it

accepted the benefits and partially performed under the agreements, even though it

didn’t even exist at the time of closing. Nor did the fact that the negotiations and

agreement occurred through an agent excuse the principal from liability under the

statute of frauds. Instead, this Court affirmed a judgment based on a jury finding

that the joint venture was liable notwithstanding the statute of frauds, holding: “In

the present case, the Spinkses [the Plaintiffs] fully performed their part of the

transaction by deeding the land to Bizzell as trustee [the Defendants’ agent].

Bizzell paid the Spinkses $300,000 cash, and signed a note for $445,000. Over the



                                          18
next three years, the joint venture managed the property, made improvements to

the property, and made payments to the Spinkses. Therefore, the defense of the

statute of frauds is unavailable to defendants.” Id. at 76.

             4.    The evidence shows that the partial performance was
                    unequivocally referable to the loan from Dr. Pampalone.

      The evidence, moreover, overwhelmingly establishes that the payments were

indeed unequivocally referable to the loan Dr. Pampalone generously made and

which Appellant seeks to cheat her out of. Each of the following facts shows that

the performance was unequivocally referable to the loan from Dr. Pampalone:

      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.” 2RR:107-10; PX-1; PX-2; PX-3A; Appx:2, ¶15. Erik Pampalone, the

person who began the payments on the company’s behalf, testified that their

purpose was to perform under the agreement. 2RR:113-14. The terms of the loan

were evidenced in yearly amortization schedules generated by Erik Pampalone on

Dr. Pampalone’s behalf and sent to Hinojosa and the business, and the payments

reflected those amortization schedules. 2RR:59-60, 62; Appx:2, ¶16; 2RR:65

(payments made in amount of $657.09); PX-5, PX-7, PX-9, PX-12, PX-12A, PX-

13, PX-15, PX-16, and PX-17 (amortization schedules reflecting payments owed in

the amount of $657.09). The payments began immediately in May 2005. 2RR:64-

65, 112; Appx:2, ¶18. From May 2005 through approximately March 2010, these

                                          19
payments were made from the Bank of America Account held in the names of

“Eric Hinojosa” and “Capital Collision” into which the funds had been deposited.

PX-3; PX-3A; Appx:2, ¶32; Appx:8. The payments were made in accordance with

telephone and electronic communications referencing the obligation, both with

Hinojosa, and other Capital Collision employees, concerning the loan. 2RR:115;

PX-3; PX-3A; PX-5; PX-6; PX-8; PX-9; PX-10; PX-14; PX-15; Appx:2, ¶22.

There was never any other explanation for or reason behind this long course of

performance other than the loan in question.

      When Erik Pampalone resigned from Capital Collision and the entities

became essentially just Hinojosa, 2RR:173, they continued to repay the loan to Dr.

Pampalone as agreed and exactly as they had been doing. 2RR:67, 113; PX-3; PX-

3A; Appx:2, ¶23.

      After June, 2009, when Appellant Austin Capital Collision was formed, it

was also “basically just [Hinojosa],” and it continued to make payments with no

feasible explanation other than the loan at issue.   Erik Pampalone, acting on his

mother’s     behalf,   sent   correspondence   concerning    the   loan   to   the

cptlcollision@aol.com email address and, in response, Appellant Austin Capital

Collision, LLC, made payments on the loan. 2RR:127; Appx:2, ¶34; PX-12a, PX-

13, PX-14.




                                        20
      Indeed, in September 2012 (years after the old company had been

terminated), when Erik Pampalone sent an email to the cptlcollision@aol.com

address requesting that Hinojosa change where he was sending the monthly

payments on the loan, Mirium Matta—Hinojosa’s sister-in-law and an employee of

Appellant     Austin     Capital    Collision,    LLC—responded         from     the

cptlcollision@aol.com email address with “received and updated.” 2RR:123-24;

PX-14; Appx:2, ¶35. And the payments continued. PX-3; PX-3A. Such behavior

has been found by courts to constitute “acts . . . sufficient to corroborate the

existence of an agreement . . . [and that] could not have been performed with any

purpose except to perform an agreement.” See, e.g., Stovall & Assocs. v. Hibbs

Fin. Ctr., Ltd., 409 S.W.3d 790, 801 (Tex. App.—Dallas 2013, no pet.) (looking to

acts of performance, in a statute of frauds dispute concerning a lease, such as dates

of possession, payments, knowing acceptance of services and performance, etc. to

determine whether performance was “unequivocally referable” to alleged

agreement).

      Payments were made by Capital Collision and Appellant Austin Capital

Collision, LLC out of two accounts, although Dr. Pampalone, a direct deposit

recipient, did not realize it at the time. Notably, these payments, from either

account, were almost exclusively described on the bank statements as “Barbara

Pampalone Bill Payment.” PX-3A. It would be difficult to imagine a more



                                         21
explicit indication that a payment was unequivocally referable to a loan made by

Dr. Barbara Pampalone, which required monthly payments of loan bills, than these

repeated bank account notations saying so in plain English.

             5.     There is no other credible reason for the payments.

      Appellant’s suggestions that there could be other reasons for its 94 equal,

monthly payments over the course of eight years that referenced the loan and

complied with its terms are incredible. They consist of: (1) Hinojosa’s testimony

that monthly payments were made to Dr. Pampalone for basically no reason, but

merely “to help his childhood friend,” and (2) the fact that Erik Pampalone, Dr.

Pampalone’s son, who is not a party to this suit, brought and then nonsuited a

claim in another state seeking payment on his mother’s behalf.

      As an initial matter, the trial court specifically found (and, again, Appellant

did not challenge the finding) that Hinojosa lacked credibility, especially in light of

the fact that he was wholly unprepared for his corporate representative deposition,

having not reviewed a single document or talked to any employees or

representatives regarding designated topics, and that he demonstrated a repeated

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

Capital Collision, LLC. 2RR:252; Appx:2, ¶48. Further, the trial court found that,

at trial, Hinojosa tried to change many of the answers he had provided at his

depositions just one month prior. Appx:2, ¶48. Indeed, Hinojosa was squarely



                                          22
impeached at trial when he tried to testify that he knew why the monthly payments

were being made to Dr. Pampalone despite the fact that at his deposition he

testified he had “no idea.” 2RR: 184-86. The fact that Appellant now offers this

same testimony—which the trial court found to lack credibility—to this Court as a

so-called credible other reason for the payments to Dr. Pampalone is incredible in

and of itself. Quite simply, given his lack of credibility, Hinojosa can offer no

credible other reason.

      Of Hinojosa’s two other explanations for the monthly payments, the first is

an argument that Hinojosa directed Capital Collision to make 94 payments over

eight years simply because he felt like it. Such an assertion is meaningless—in

every case the alleged partial performer could argue he took certain acts for no

reason at all. This is not sufficient to defeat the exception; an interested party’s

say-so does not defeat a showing that certain acts were made because of and in

partial performance of an oral contract. See, e.g., Kaiser, 692 S.W.2d at 526

(holding statute of frauds did not bar enforcement of oral loan agreement despite

debtor’s bald claim that money advanced pursuant to oral loan agreement was

instead a gift). Moreover, it flies in the face of all the evidence to the contrary

discussed above, including but not limited to the dates and schedules of the

payments, the testimony of the person who set up the payments for the company as

to why he did it, the many communications about the reasons for the payments,



                                        23
where and how they should be directed, and the notations on the payments

themselves.

       The second is a classic—but factually unsupportable—“gotcha” argument,

an attempt to use Dr. Pampalone’s son’s very efforts to recover for her, merely

because they were legally imperfect because not brought by the proper party in the

proper forum, to instead extinguish all Dr. Pampalone’s rights and entitle Capital

Collision to a windfall by keeping her money. Of course, it makes no logical sense

that an after-the-fact lawsuit could establish that years of payments

contemporaneously marked “Barbara Pampalone Bill Payment,” were instead

made for some other purpose. 5 Naturally, Appellant Austin Capital Collision can

cite to no authority supporting this position; it is not the law.

              6.     Breezevale does not save Appellant Austin Capital
                     Collision’s argument.

       Appellant Austin Capital Collision relies on one case, Exxon Corp. v.

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

support its argument. Breezevale does not stand for the propositions Defendant

advances and is distinguishable, among other reasons because it was based on the

existence of an independent obligation under a separate contract that equally

obligated the party to undertake the same purported partial performance. But, as
5
 Nor has Capital Collision ever taken the position that it owed the money to Dr. Pampalone’s
son, Erik.




                                            24
the court pointed out, a party taking acts it is otherwise obligated to do does not

evidence an oral agreement.

      In Breezevale, the court found no evidence that the alleged partial

performance, a trip to Nigeria by a liaison, was unequivocally referable to a

working interest agreement that was being negotiated. Id. at 440. The trip was not

unequivocally referable to the working interest agreement because it did not show

strong evidence establishing the existence of that agreement and its terms. Id. On

the contrary, the trip was taken consistent with other liaison services being

performed in the same time period for the same client under a separate services

agreement. Id. The services were not more likely to have been taken under the

purported oral working interest agreement than under the separate services

agreement. Id. This is why the court noted that the mere possibility that such acts

could have been taken in furtherance of the contract sought to be enforced was not

enough; the performance must be solely referable to that contract. Id.

      The Breezevale situation was thus similar to that in Westergren, where there

was a separate contract under which the party was already obligated to take the

acts alleged to be partial performance, and thus those acts were not “strong

evidence establishing the existence of the [oral] agreement and its terms.” Id. at

440 (also citing Rodriguez v. Klein, 960 S.W.2d 179, 186 (Tex. App.—Corpus

Christi 1997, no pet.) (holding that because party’s performance was required



                                        25
under one or more of three agreements, including bill of sale, it could not be

unequivocally referable to the bill of sale)).

      In this case, in sharp contrast to Breezevale, Westergren, and Rodriguez,

there simply is no other contract obligating Capital Collision to make monthly

payments to Dr. Pampalone. The regular payments, including those labeled

“Barbara Pampalone Bill Payment” are strong evidence establishing the existence

of the loan and its terms. They are unequivocally referable to the loan agreement,

and they remove it from the statute of frauds.

      Additionally, the language in Breezevale requiring evidence that the

performance be solely referable to the contract is dicta, because the court also

based its holding on the fact that the claimant suffered no substantial detriment for

which there is no adequate remedy. It said, “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. . . . 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.” Id. at 441.



                                           26
                                  CONCLUSION
      Appellant Austin Capital Collision, LLC hopes—by obfuscating details of

the loan itself, bickering over to whom payments were due, or attempting to evade

payment by sharp business practices aimed to confuse its own identity—to evade

its debt completely, a debt both it and its predecessor acknowledged and paid for

nearly a decade. It urges this position because Dr. Pampalone failed to demand a

clearer, detailed, signed and written loan agreement before providing her own

personal funds as a creditor to the fledgling business. Appellant Austin Capital

Collision, LLC appeals to this Court to keep Dr. Pampalone’s money as a windfall,

despite the obvious writings and performance evidencing its obligation to repay.

      Its argument about partial performance is factually wrong. It is contrary to

the law of the State of Texas on the statute of frauds and the longstanding partial-

performance exception thereto. And it is no way to treat a so-called friend since

childhood’s mother.

                                     PRAYER

      For the above reasons, Appellee Dr. Barbara Pampalone respectfully

requests that this Court affirm the judgment awarding her actual damages in the

amount of $56,758.68 plus reasonable and necessary attorneys’ fees and such other

and further relief to which she may be entitled in law or in equity.




                                          27
Respectfully submitted,

MCGINNIS, LOCHRIDGE & KILGORE,
L.L.P.
Nelia J. Robbi
State Bar No. 24052296
Joe Lea
State Bar No. 24013257
Stephanie N. Duff-O’Bryan
State Bar No. 24087448
600 Congress Avenue, Suite 2100
Austin, Texas 78701
(512) 495-6000
(512) 495-6093 FAX
nrobbi@mcginnislaw.com




/s/ Nelia J. Robbi
Nelia J. Robbi
State Bar No. 24052296

ATTORNEYS FOR BARBARA
PAMPALONE




        28
                       CERTIFICATE OF SERVICE


      I hereby certify that on the 18th day of December, 2015, I electronically

filed the foregoing Pampalone’s Brief of Appellee with the Clerk of the Court

using the CM/ECF system which will send notification of such filing to the

following:

Michael Truesdale
mike@truesdalelaw.com
801 West Avenue, Suite 201
Austin, Texas 78701
(512) 482-8671
(866)-847-8719 FAX

Adam Pugh
apugh@slaterpugh.com
8400 N. Mopac Expressway, Suite 100
Austin, Texas 78759
(512) 472-2431
(512) 472-0432 FAX

Attorneys for Eric Hinojosa

                                    /s/ Nelia J. Robbi
                                    Nelia J. Robbi
                                    Joe Lea
                                    Stephanie N. Duff-O’Bryan

                                    Attorneys for Barbara Pampalone




                                      29
                      CERTIFICATE OF COMPLIANCE


       I certify that the foregoing Amended Cross-Appellant’s Brief was prepared
with Microsoft Word 2007, and that, according to that program’s word-count
function, the sections covered by TEX. R. APP. P. 9.4(i)(1) contains 6,391 words. I
further certify that this brief complies with the typeface requirements of TEX. R.
APP. P. 9.4(e).


                                      /s/ Nelia J. Robbi
                                      Nelia J. Robbi
                                      Joe Lea
                                      Stephanie N. Duff O-Bryan

                                      Attorneys for Barbara Pampalone




                                        30
                                   APPENDIX


1.    Final Judgment

2.    Findings of Fact and Conclusions of Law

3.    TEX. BUS ORG. CODE § 11.052

4.    TEX. BUS. ORG. CODE § 11.356

5.    TEX. BUS. ORG. CODE § 21.223

6.    TEX. BUS. & COMM. CODE § 24.006

7.    TEX. R. APP. P. 43.3

8.    Plaintiff’s Exhibit 3 (summary of payments)

9.    Excerpts of Plaintiff’s Exhibit 3A (transfers)

10.   Excerpts of Plaintiff’s Exhibit 3A (end of payments)

11.   Stipulation of the Parties

12.   626 Joint Venture v. Spinks, 873 S.W.2d 73 (Tex.App.—Austin 1993, no
      writ)

13.   Estate of Kaiser v. Gifford, 692 S.W.2d 525 (Tex. App.—Houston [1st Dist.]
      1985 writ ref’d n.r.e.)

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

15.   National Property Holdings, LP v. Westergren, 453 S.W.3d 419 (Tex. 2015)

16.   Stovall & Assocs. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790 (Tex. App.—
      Dallas 2013, no pet.)




                                         31
APPENDIX
I
                                       DC                 BK15175 PG1024



                                                                                   Filed in The District Court
                                                                                    of Travis County, Texas

                                                                                          JUN 1 8 2015            Cf).
                                                                                 At           02/ 4-lJJ. ~M.
                                                                                 Velva L. Prier., District C~rk
                                        NO. D-1-GN-14-003207

BARBARA PAMP ALONii,                                  §                       1N THE DISTRICT COURT
                                                      §
        Plaintiff,                                    §
                                                      §
v.                                                    §                       TRAVIS COUNTY, TEXAS
                                                      §
ERIC IIINOJOSA AND AUSTIN                             §
CAPITAL COLLISION, LLC,                               §
                                                      §
       Defendants.                                    §                      419rn JUDICIAL DISTRICT

                                         FINAL JUDGMENT

       On June 8, 2015, this case was called for trial. Plaintiff Barbara Pampalone 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 JS 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.




                                               I004080302
                                                 111111111111111111111111111111111111111111111111111111


                                                                                                                         50
                                     DC                BK15175 PG1025




        rt is further ORDERED that Defendants take nothing.

        It is forther 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 from Defondant 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 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 parties and all claims and is appealable.


       SIGNED this       \<'$   dayofJune, 2015.




                                                   2
                                 DC   BK15175 PG1026




APPROVED AS TO FORM AND SUBSTANCE:

McGINNIS LOCHRIDGE
600 Congress A venue, Suite 2100
Austin, Texas 78701
(512) 495-6065



::~~~
   L~   Joe Lea
        State Bar No. 12082000
        jlea@mcginnislaw.com
        Nelia J. Robbi
        State Bar No. 24052296
        nrobbi@mcginnislaw.com
        Jordan K. Mullins
        State Bar No. 24070308
        jrnullins@mcginnislaw.com

ATTORNEYS FOR BARBARA PAMP ALONE



APPROVED AS TO FORM ONLY:

SLATER PUGH, Ltd. LLP
8400 N. Mopac Expressway
Suite 100
Austin, Texas 78759
Telephone: (512)472-2431
Telecopier: (512) 472-0432
         i~ t        '\   I
        / ! II   1        !

Dy ',   { ~,-/
        Cu·.·\. __ {I _,.'
        AdamPughc
        State Bar No. 24044341
         apugh@slaterpugh.com




                                      3
2
                                                                                                      Fil;~ in !he District Court
                                                                                                       o   rav1s County, Texas

                                                                                                        JUL - 7 2D15          r--1__
                                            NO. D-1-GN-14-003207
                                                                                                   A t _ ,3,'i./ U               0
                                                                                                    Velva L p ·             0 M.
                                                                                                           · nee, District cierk
BARBARA PAMPALONE,                                            §                           IN THE DISTRICT COURT
                                                              §
        Plaint(ff,                                            §
                                                              §
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


                       Illllll lllll lllll lllll 111111111111111111111111111111111
                        004108045
against Defendant Austin Capital Collision, LLC. Judgment was signed on June 18, 2015.

   4. Defendants requested findings of fact 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 in

California where he and Plaintiff's 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"). Plaintiff's 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 of 2009. 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 of 2005, Plaintiff loaned the principal sum of $80,000.00 to the owners of



                                                2
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-

l, 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
    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 Plaintiff's 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

Plaintiff thereunder. [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
    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,

Plaintiff has 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]. Plaintiffs 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. Plaintiffs attorneys were required to expend significant time engaging 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. Plaintiffs 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
                                                                                                        (1   I
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 of 5%.

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.

                                       DWONG




                                  11
                                               63
3
§ 11.052. WindinfJ Up Procedures, TX BUS ORG § 11.052




  Vernon's Texas Statutes and Codes Annotated
    Business Organizations Code (Refa & Annos)
      Title 1. General Provisions (Refs & A1mos)
        Chapter 11. vVinding up and Termination of Domestic Entity
           Subehaplcr B. Winding up of Domestic Entity

                                      V.T.C.A, Business Organizations Code§                1i.052


                                              § 1i.052. Winding Up Procedures

                                                Effective: September 1,          2013
                                                        Currentness


(a) Except as provided by the title of this code governing the domestic entity, on the occurrence of an event requiring winding up
of a domestic entity, unless the event requiring winding up is revoked under Section 11.151 or canceled under Section 11.152,
the owners, members, managerial officials, or other persons specified in the title of this code governing the domestic entity
shall, as soon as reasonably practicable, wind up the business and affairs of the domestic entity. The domestic entity shall:



  (1) cease to carry on its business, except to the extent necessary to wind up its business;


  (2) ifthe domestic entity is not a general partnership, send a written notice of the winding up to each known claimant against
  the domestic entity;



  (3) collect and sell its property to the extent the property is not to be distributed in kind to the domestic entity's owners or
  members; and



  (4) perform any other act required to wind up its business and affairs.



(b) During the winding up process, the domestic entity may prosecute or defend a civil, criminal, or administrative action.



Credits
:\cts 2003, 78th Leg., ch. 182, § I, eff. .Jan. L 2006. Amended by Acts 2013, 83rd Leg., ch. 9 (S.B. 847), § 3, eff Sept. L 2013.




:'1ole<, of Decisions (5)


V. T. C. A., Business Organizations Code§ 11.052, TX BUS ORO§ 11.052
Current through the end of the 2015 Regular Session of the 84th Legislature

                                                                    '!;;'   2015 Thomson Reuters. No daim to original t .S. Gowrnnwm \\orb




                                                  cl2ii(n to
4
§ 11.356. Limited Survival After Tennination, TX BUS OHG § 11.356




  Vernon's Texas Statutes and Codes Annotated
    Business Organizations Code (Refs & Atmos)
      Title 1. General Pnwisions (Refs & A1mos)
        Chapter lL v\Tincling up and Termination of Domestic
           Subcbapicr H. Claims Resolution nn Termination

                                      V.T.C.A., Business Organizations Code § 1i.356

                                        § 1i.356. Limited Survival After Termination

                                                  Effective: January 1,   2006
                                                         Currentness


(a) Notwithstanding the termination of a domestic filing entity under this chapter, the terminated filing entity continues in
existence until the third anniversary of the effective date of the entity's termination only for purposes of:


  (1) prosecuting or defending in the terminated filing entity's name an action or proceeding brought by or against the terminated
  entity;



  (2) permitting the survival of an existing claim by or against the terminated filing entity;



  (3) holding title to and liquidating property that remained with the terminated filing entity at the time of termination or
  property that is collected by the terminated filing entity after termination;


  (4) applying or distributing prope1iy, or its proceeds, as provided by Section 11.05.3; and



  (5) settling affairs not completed before termination.



(b) A terminated filing entity may not continue its existence for the purpose of continuing the business or affairs for which the
terminated filing entity was formed unless the terminated filing entity is reinstated under Subchapter E. 1


(c) If an action on an existing claim by or against a terminated filing entity has been brought before the expiration of the three-
year period after the date of the entity's termination and the claim was not extinguished under Section 11.359, the terminated
filing entity continues to survive for purposes of:



  (1) the action until all judgments, orders, and decrees have been fully executed; and



  (2) the application or distribution of any property of the terminated filing entity as provided by Section 11.053 until the
  property has been applied or distributed.
§ 11.35f:L Limited Survival /\fter Termination, TX BUS ORG § 11.356



Credits
,\els 2003. 78th Leg .. ch. 182,     s I, cff. Jan. l. 2006.


Footnotes
        \'.I.( .. '\ .. Business Ori!ani1alinns   Code~   l 1.201 ct seq.
V. T. C. A., Business Organizations Code§ 11.356, TX BUS ORG § 11.356
Current through the end of the 2015 Regular Session of the 84th Legislature




                                                                            f3overnir1ent   \/Vork~:;,
5
§ 21.22;:;. Limitation of          for               TX BUS ORG § 21,223




  'Vernon's Texas Statutes and Codes Annotated
    Business Organizations Code (Refs & Annos)
      Title 2. Corporntions (Refs & A1mos)
        Chapter 21. For-Profit Corporations (Refs & A1111os)
           S11bcbapter K Sh<neholdcr Rights and Restrictions

                                         V.T.C.A., Business Organizations Code § 2i.223

                                         § 2i.223. Limitation of Liability for Obligations

                                                  Effective: September 1, 2007
                                                           Currentness


(a) A holder of shares, an owner of any beneficial interest in shares, or a subscriber for shares whose subscription has been
accepted, or any affiliate of such a holder, owner, or subscriber or of the corporation, may not be held liable to the corporation
or its obligees with respect to:


  ( 1) the shares, other than the obligation to pay to the corporation the full amount of consideration, fixed in compliance with
  Sections 21. 157-21. 162, for which the shares were or are to be issued;


  (2) any contractual obligation of the corporation or any matter relating to or arising from the obligation on the basis that
  the holder, beneficial owner, subscriber, or affiliate is or was the alter ego of the corporation or on the basis of actual or
  constructive fraud, a sham to perpetrate a fraud, or other similar theory; or


  (3) any obligation of the corporation on the basis of the failure of the corporation to observe any corporate formality, including
  the failure to:


     (A) comply with this code or the certificate of formation or bylaws of the corporation; or


     (B) observe any requirement prescribed by this code or the certificate of formation or bylaws of the corporation for acts
     to be taken by the corporation or its directors or shareholders.


(b) Subsection (a)(2) does not prevent or limit the liability of a holder, beneficial owner, subscriber, or affiliate if the obligee
demonstrates that the holder, beneficial owner, subscriber, or affiliate caused the corporation to be used for the purpose of
perpetrating and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of the holder, beneficial
owner, subscriber, or affiliate.


Credits
Acts 2003. 78th Leg., ch. 182, § Leff Jan. 1, 2006. Amended by Acts 2007, 80th Leg., ch. 688, § 74, eff. Sept 1, 2007.




'.\Oles of Decisions (2 J3)
§ 21.223. Limitation of Liability for Obligations, TX BUS ORG § 21.223


V. T. C. A., Business Organizations Code§ 21.223, TX BUS ORG § 21.223
Current through the end of the 2015 Regular Session of the 84th Legislature

                                                                              l   ~:,   { ; \ )\ \.' ~




1
    i"ft~stlr;rvvf\.Je:-{r   <f;) 2015 Thornson F<.f::uter:s_
6
§ 24.006. Transfers Fraudulent as to Present Creditors, TX BUS & COM § 24.006




     KeyCite Yellow Flag- Negative Treatment
Unconstitutional or Preempted   Negative Treatment Vacated by   Gulky v. Sunbelt Sa\., F.S.lL   5th Cir.(Tex.),   June 01, 1990

  Vernon's Texas Statutes and Codes Annotated
    Business and Commerce Code (Refs & A1111os)
      Title 3. Insolvency, Fraudulent Transfers, and Fraud
        Chapter 24. Uniform Fraudulent Transfer Act (Refs & Annos)

                                                  V.T.C.A., Bus. & C. § 24.006
                                        Formerly cited as V.T.C.A., Bus. & C. Code § 24.03

                                      § 24.006. Transfers Fraudulent as to Present Creditors

                                                                Currentness


(a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was
made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably
equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became
insolvent as a result of the transfer or obligation.


(b) A transfer made by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if the transfer
was made to an insider for an antecedent debt, the debtor was insolvent at that time, and the insider had reasonable cause to
believe that the debtor was insolvent.


Credits
Amended by Acts 1987, 70th Leg., ch. I004, § I, eff. Sept. 1, 1987.



Notes of Decisions (253)

V. T. C. A., Bus. & C. § 24.006, TX BUS & COM§ 24.006
Current through the end of the 2015 Regular Session of the 84th Legislature

 End of Document
7
43.3. Rendition                 Unless Remand       Nece~ss<HV     TX R /\PP Ru!e 43.3




  Vernon's Texas Rules Annotated
   Texas Rules of Appellate Proceclme
      Section '1\vo ..Appeals from Trial Court .Judgments and Orders (Refs & A1rnos)
        Rnle 43. ,Judgment oftlw Court oC Appeals (Refs & Annos)

                                                  TX Rules App.Proc., Rule 43.3

                                   43.~-s.   Rendition Appropriate Unless Remand Necessmy

                                                            Currentness


When reversing a trial court's judgment, the comi must render the judgment that the trial court should have rendered, except
when:


(a) a remand is necessary for further proceedings; or


(b) the interests of justice require a remand for another trial.


Credits
Eff. Sept. 1, 1997.



Notes of Decisions (52)

Rules App. Proc., Rule 43.3, TX RAPP Rule 43.3
Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure are current with amendments received through
September 1, 2015. Bar Rules, Rules of Disciplinary Procedure, Code of Judicial Conduct, and Rules of Judicial Administration
are current with amendments received through September 1, 2015. Other state court rules and selected county rules are current
with rules verified through June 1, 2015.

                                                                        ,i   .2! 1J::   Thom~,nn   R1.?utl..'rs. No claim h) original U.S. (J1.)vernmcnt \Vorks.
8
                                   CAUSE NO. D-1-GN-14-003207

BARBARA PAMPALONE,                               §                   IN THE DISTRICT COURT
                                                 §
            Plaintiff,                           §
                                                 §
v.                                               §                   TRAVIS COUNTY, TEXAS
                                                 §
ERIC HINOJOSA AND AUSTIN                         §
CAPITAL COLLISION, LLC,                          §
                                                 §
            Defendants.                          §                   419TH JUDICIAL DISTRICT

              Sum~ary        of Payments Made by Defendants to Plaintiff

No.                  Date              Amount           Bank Account
      1.             05/20/2005        $675.09
      2.             06/20/2005        $675.09
      3.             07/20/2005        $675.09   Bank of America Business Advantage
      4.              08/19/2005       $675.09   Checking Account No. XXXX XXXX
      5.             09/20/2005        $675.09   9118
      6.              10/20/2005       $675.09
      7.              11118/2005       $675.09   Capital Collision
      8.              12/20/2005       $675.09   Eric A. Hinojosa
      9.             01/20/2006        $675.09
      10.            02/17/2006        $675.09
      11.            03/20/2006        $675.09
      12.            04/20/2006        $675.09
      13.            05/19/2006        $675.09
      14.            06/20/2006        $675.09
      15.            07/20/2006        $675.09
      16.            08/18/2006        $675.09
      17.            09/20/2006        $675.09
      18.           . 10/20/2006       $675.09
      19.             11120/2006       $675.09
      20.             12/20/2006       $675.09
      21.             01/19/2007       $675.09
      22.             02/20/2007       $675.09
      23 ..          03/20/2007        $675.09
      24.            04/20/2007        $675.09
      25.            05/18/2007        $675.09
      26.            06/20/2007        $675.09
      27.             07/20/2007       $675.09
      28.            08/06/2007        $505.07
                     08/20/2007        $170.02
"'
\    No.
           29.
           30.
                 Date
                 09/20/2007
                 10/19/2007
                              Amount
                              $675.09
                              $675.09
                                                Bank Account


           31.   11/20/2007   $675.09
           32.   12/20/2007   $675.09
           33.   01118/2008   $675.09
           34.   02/20/2008   $675.09
           35.   03/20/2008   $675.09
           36.   04/18/2008   $675.09
           37.   05/20/2008   $675.09
           38.   06/20/2008   $675.09
           39.   07/18/2008   $675.09
           40.   08/20/2008   $675.09
           41.   09/19/2008   $675.09
           42.   10/20/2008   $675.09
           43.   11/20/2008   $675.09
           44.   12/19/2008   $675.09
           45.   01/20/2009   $675.09
           46.   02/20/2009   $675.09
           47.   03/20/2009   $675.09
           48.   04/20/2009   $675.09
           49.   05/20/2009   $675.09
           50.   06/19/2009   $675.09
           51.   07/20/2009   $675.09
           52.   08/20/2009   $675.09
           53.   09/18/2009   $675.09
           54.   10/20/2009   $675.09
           55.   11120/2009   $675.09
           56.   12/20/2009   $675.09
           57.   01/20/2010   $675.09
           58.   02/19/2010   $675.09
           59.   03/19/2010   $675.09
           60.   04/20/2010   $675.09   Bank of America Business Advantage
           61.   05/20/2010   $675.09   Checking Account No. XXXX XXXX
           62.   06/18/2010   $675.09   4193
           63.   07/20/2010   $675.09
           64.   08/20/2010   $675.09   Capital Collision GP
           65.   09/20/2010   $675.09   Eric A. Hinojosa
           66.   10/20/2010   $675.09
           67.   11119/2010   $675.09
           68.   12/20/2010   $675.09
           69.   01/20/2011   $675.09
           70.   02/18/2011   $675.09
                 03/--/2011   --
                 04/--/2011   --
                                   Page 2 of3
r   No.         Date
                05/--/2011
                             Amount
                             --
                             $675.00
                                              Bank Account

          71.   06/10/2011
          72.   06/20/2011   $675.00
          73.   07/20/2011   $675.00
          74.   08/19/2011   $675.00
          75.   09/20/2011   $675.00
          76.   10/20/2011   $675.00
          77.   11/18/2011   $675.00
          78.   12/20/2011   $675.00
          79.   01/20/2012   $675.00
          80.   02/17/2012   $675.00
          81.   03/20/2012   $675.00
          82.   04/20/2012   $675.00
          83.   05/18/2012   $675.00
          84.   06/20/2012   $675.00
          85.   07/20/2012   $675.00
          86.   08/20/2012   $675.00
          87.   09/20/2012   $675.00
          88.   10/19/2012   $675.00
          89.   11120/2012   $675.00
          90.   12/20/2012   $675.00
          91.   01118/2013   $675.00
          92.   02/20/2013   $675.00
          93.   03/20/2013   $675.00
          94.   04/19/2013   $675.00
                05/--/2013
                06/--/2013
                07/--/2013
                08/--/2013
                09/--/2013
          95.   10/25/2013   $6,000.00




r                                 Page 3of3
9
                                                                                                                                                  H
                                                      :·.~.



                 ll>nk of 1\mcrica, N.A.                 "··)~t'                                             Page l or 4
                 I' .o. no, 2~1 IU                                                                           S1a1cmcn1 rcriod
                 hmp3, fl. lJl12~·51llS                                                                      O~.'Oi:H, th: ou:;l1 u:. ~:;   ,\.
                                                                                                             C!O l' 1'11 OE 48                        01422()')
                                                                                                             lindosu res 0
                                                                                                             Accoun1 1'umbc1




                   fl :t1U "I 11!i':'"IIl1111 •• 11,. ,1,11, u J, I u1!1Ii:11!11111!1!
                                                                   01059 001 SCM999 I    ~   4 o
                   CJ\PITAT, COJ,!.ISIOW
                   ERIC A HINOJOSA
                   4304 BURCH DR
                   DEL VALLE Ti< 78617-32?3




               Our free Online lla11ldug service allow• you to chcct balances, iracl: occouut •ctivity. pay bills and 111ore.
                        Willi 0:-illnc Banking you can also viow up lo 13 months of Ibis stntemcnl unl!nc.
                                             f.nroll at www.bankofamcric•.con\/smollbusincss.




We recently made changes to our Overdraft Protection Transfer Fee to better serve you. Effective
immediately, when we determine your account is overdrawn by a total amount less than $10 for a day
and we transfer runds from your linked savings account or line of credit to cover it. we will not charge an
Overdrart Protection Transfer Fee. Overdraft Protection lels you link your cl1ecki11g account to another
account to help avoid overdrafts. If you haven't already signed up, call the number on your statement or
visit your nearby banl~ing center and an associate can help you.


Stay ahead or your bills - such as rent. mortgage. credit card or utility payments - by setting up
automatic reminders to be sent right to your e-mail or smart phone. With Payment Reminders from Bank
of America®. it's easy to know when a payment is due.

Get starte<:l at banltofarnerica.com/solutions today.
                                                                                                                                                  I
                                                                                                                                                  ~
                                                                                                                                   =_j
                                                                                                                                          H

                                                                                                          Pazc 2 of 4
                                                                                                          S1a1cmcn1 l'criod
                           CAPITAL COl.LlSlOI'                                                            02101/10 through 02/28110
                           E.RIC II 11 INOJ OSA                                                           EO   P PE     OE 48
                                                                                                          Enclosures 0        -
                                                                                                          Account Number




                                                      Business Advantage Checking
                                                  CAPlTAL COLl.ISION      ERIC A lllNOJOSA

                                                         Yuur Account ut     11   Gln11cc
        Account Number                                                     Statement Reginning Balance                       S3,71 !.24
        Statement Period       02/01/10 through 02/28/10                   Amount of Deposits/Credits                        $7,002.90
        Number of Deposits/Credits                     8                   Amount of Withdrawals/Debits                     SI0,501.42
        Number of Withdrawals/Debits                  21                   Statement Ending Dal:mcc                            $212.72
        Number of Deposited Items                      6
                                                                           Average Ledger Balance                            $2,174.17
        Number of Days in Cyck                              28             Service Charge                                         so.oo
        Your account has overdraft protection provided by Linc of Credit number 6871 1022 401299.



                                            Your Business                Pricing Relationship
        Account                                                                        Qualifying Type of
        Name                                                                          Balance     Balance                             Date
       Business Advantage Checking                                                       2,549.01 Average                             02-25
                                                      Totnl Qualifying Balance          $2,549.01

      Please note that the balances in your account(s) are below the minimum required to avoid the monthly maintenance fee. To give
      you time to make adjustments, we have waived the monthly maintenance ree for this statement cycle ending 02/28/10. If you have
      questions about your account or would like to discuss how you may avoid the monthly fee, please call us at the number listed
      above.


                                                            J>cposits nnd Credits
          nle                                                                                                         Ull
        Po~ted                     Amount   ($)   Description                                                     Reference
        02/04                             2,022.19 Deposit                                                        813204730657492
        02/05                             1,756.00 Deposit                                                        813204730902628
        02/09                             1,628.46 Deposit                                                        813204730269247
        il2/I                               32 I 16. Deposit                                                      813204730526383
               I
                                                  0
      ~=0~2~/:6:,::::::::::::::::::::6~7~'i~Jl~9J~ n Ii n c Ban king trans fer fr om Chk 4193
                                                     Confirmation# 0136551719
                                                                                                                  957202167505928
         02/19                              300.00 Overdraft Protection From 68711022401299                       080602190005922
         02/22                              100.00 Ovcrdnift Protection From 68711022401299                       080602220011991
         02125                              200.00 BankCnrd            Dcs:Merch Seti 10:430134840051477          902556010903684
                                                     lndn:Cnpilal Collision        Co ID:1210001923 Ced




;"'
\
                                                                                                                                  H

                                                                                                      Page 3 of.\
                                                                                                     St~tcmcnt Period
                         CAPITAi. COLLISION                                                          02/0l/IO throu~b 02/:!SllO
                         El\IC /\ HINOJOSA                                                           fJI I' PE ()~ 48                 014'.!211
                                                                                                     E.ndo:rnrcs 0  -
                                                                                                      Accou111 Number

                                                         Wlthtlrawuls 11nd   Debit~

                                                                Other Debits

       Dale                                                                                                  Uauk
       Poste<l       Amount ($)               Dcscript ion                                                   Reference

       02101               436.45             Milchcll International Bill Pavmcnt                            943202010008790
       02/01                71.15             13ankCard          J)e$;J·,1 erch Fees JD:ll3013'18400S M77    90::!532006926873
                                              Jndn:Cnpital Collision           Co ID:J21U001923 Ced
       02101                  6.47            Milchel! lnlernnlional Bill Payment                            ~43202010003800
       02/02                 39.95            Discover N~twork Dcs:Se11\cmcni ID:601101323c>56387            902532010206729
                                              lndn:Eric A. Hinojosa, Dh:i Co ID:1510020270 Ceil
       02/04              !,000.()0           'Jn!inc Banking transfer to C'.hk 4191                         957102047530162
                                              Confirmntionfl 3932735010
       02/04                700.00            Home DeJlol         Dcs:Onlinc Pint ID:56002S980320388         902534010998444
                                              lndn:Capitul Collision Gp         Co ID:Citiccsweb Web
       02105                500.00            Ge Money            Des:Paymcnt        l0:504662Ul4152661      902535005381136
                                              lndn:Hinojosa,Eric               Co ID:1061537262 Web
       02/05                200.00            Mlrna Crcdil Cards Rill l'aymenl                               943202050008802
       02/03                516.35            Exxonmobil Comm Dcs:Onlinc ?mt 10:560030703322458              902536010818361
                                              l.ndn:Capilnl Collision          Co ID:Citioi!web Web
       02/09              1,600.00            Online Banking transfer to Ch!: 4193                           957202097591378
                                              Confirmn tionll 0375764844
       02116              3,211.69            Online Banking tran$fcr to Chk 4193                            957302167513449
                                              Confirmation# 622Sl274:i4
       02/16              1,146.06            2 Pawnee Lensing Dcs:Lease Pmt ID:320955                       902547007520285
                                              Indn:Capit:il Collision G.P. Co 10:3840884553 Ppd

r      ""'16
        J

       02122
       Card Account II
                                              Dell Commercial Credit Bill Pavmcnl
                                                         um 11 one 1         a mcnt
                                                                                                             943202160008797
                                                                                                             943202190008795
                                                                                                             080602190005923
                                                                                                             080602220011992
       02!01                                                                                                 905701291164022
       02/01                                                                                                 905701290007749
       02104                                                                                                 905702020337081
       02/04                                                                                                 905702020739800
       02/22                                                                                                 905702200677744
       SubtQtal

                                                            Dully Ll!dgcr Balaaccs
       Uate          13alance (S)                 Date               tlalance ($)            Date               Balance ($)
       02101              3,163.22                02108                 3,862.07             02119                       43.94
       02/02              3,123.27                02/09                 3,890.53             02/22                       12.72
       02/04              3,322.42                02111                 4,211.69             02/25                      212.72
       02105              4,376.42                0211 (j                 429.03




,...
(
           • ....,.,
                   ..
                          O:rnk of America, N .II.
                          P .0. Dox 1511&
                          T~mpo, FL 33622·~1 IS
                                                                                                                       Page I of 4
                                                                                                                       Stntcmcnl Period
                                                                                                                       02/01/10 lhrougb 02'28110
                                                                                                                       l!O p ra OB 44
                                                                                                                                                   H




                                                                                                                                                       0372574

                                                                                                                       llccount Number -




                            II 111ll 11 lu llu 111 II l111l11IIml1ll 111 l11 Il1 l1 lu I, l11 l11 I: I
                                                                                01099 001        S0'.~99   \ 2 4   ~

                            CAPITAL COLLISION GP
                            ERIC A HINOJOSA
                            4304 BURCH DR
                            DEL VALLE TX 78617·3273




                        Our free Online Banking service ollow• you 10 check bobnccs, tr•ck •ccount •ctivity, poy bills :ind more.
                                  With Onlinr llonl:ing you cun al•o vlo\\· up lo Ill months of thb sl:ltcmcnl onlino,
                                                     Enron r.1 www.bant..or.:amerlca.c('llm/1mla1lbusincss .



.ttr'
·\




        We recently made changes to our Overdralt Protection Transfer Fee to better serve you. Effective
        immediately, when we determine your account is overdrawn by a total amount less than $10 for a day
        and we transfer funds rrorn your linked savings account or line of credit to cover it. we will not charge an
        Overdraft Protection Transfer Fee. Overdraft Protection lets you link your checking account to another
        account to help avoid overdrafts. If you haven't already signed up. call the number on your statement or
        visit your nearby banking center and an associate can help you.


        Stay ahead or your bills · such as rent, mortgage. credit card or utility payments • by setting up
        automatic reminders to be sent right to your e·mail or smart phone. With Payment Reminders from Bank
        of America®, lt's easy to know when a payment is due.

        Get started at bankofamerica.com/solutions today.
                                                                                                                                                      H

                                                                                                                      !'age 2 of 4
                                                                                                                      St;. lcmen l I' er iod
                                 CAPITAL COLLISION GP                                                                 02101110 throuuh 02/2:VIO
                                 ERIC A HINOJOSA                                                                      f:ll I' PU OU 44

                                                                                                                      Account Number -

      ,.                                                                                                               ::·
                                                                                                                                            '·"·
      I                              :· .-       ::·.


                                                           Business f.1.dvc.1n!age    Cl•~cl~ing

                                                        CAPITAL COLLISION GP          ER.IC A HINOJOSA

                                                                 Your Account at n       Gkn~c

            Account Number                     - -                                   Statement Beginning Balnncc                       S2,524.SO
            Statcmcn< Period          02101110 th~                                   /\mount of Dcposits/Crcclil~                     528,160.08
            Numhcr of Deposits/Credits             7                                 /\mount of WithdrawalsfJ)cbils                   :523,675.12
            Number of WithdrawalslOebits          38                                 Statement J::n<ling Balance                       $7,009.76
            Nun1bcr of Deposi11.:d items           7
                                                                                     i\Yerngc Ledger l3uhincc                          $6,613.07
            Number of Days in Cycle                                 28               Service Charl!C                                      $29.95
           Help &void Overdrar. & ~lSF: Rotumod Item fees. Us:i Alerts lO get messages by email or tc:<t to inform ycu when you; balance Is
           low. Use Overdraft ProteeUon lo transfer available runds lrom linlced savings. aedit card. or credit lin2 to yo:Jr eh:?d1ing account to


'""
 t(        ielp cover items t112t would overdraw your account. Call us for details.




                                                        Your Bu!dness                           Relationship
           Account                                                                                    Qualifying Type of
           Na ie                                                                                     Balance       Bnl nee                         Date
           Business Advantage Checking                                                                   6,129.33 Average                          02-25
                                                                                                       $5,1:1.9.33

          Bnscd on your combined b2lance of $6,129.33, your Business Advantage account has boon charged a monthly malntcnoncc foe.
          You c.:n avoid tllis fca In lhc ruwr:t by m.:intainlng 535.000 in combinad balsnces.



                                                                     Deposits :ind Crccllts
             ale                                                                                                                an
            Posted                           Amm1111 !S) Description                                                          Reference
            02102                               5,000.00 Online Banking advance from        Loe 1299                          957102027580889
                                                            Confirmation# 3915169063
            02/0tl                              1,000.00 Online 13anking tran::fcr from     Chk 9111\                         957102047530163
                                                            Cunlirmationll 3932735010
            02109                               1,600.00 Online Banking iransfer from       Chk   911~                        957202097591379
                                                            Confirmation# 0375764844
            02116                               3,211.69 Online Banking 1ran5fcr ironi      Chk 91 IS                         957302167513450
                                                            Confirmation# 6228127454
            02/17                              11,872.04 Dcpo~it                                                              313204830622344
            02117                               1,164.60 Dcposil                                                              813204830622343
            02/23                               4,3 I I. 75 Dcpo~it                                                           s13204730584475
""
\


              ~".!:;
                                                                                                                                                  H
            ~~'''
          .._:• D~
                                                                                                                    Pngc 3 or 4
                                                                                                                    Stulcmcrtl P.:riod
                         CAPITAL COLLISION GI'                                                                      02101110 1hruu:;h O:!il8110
                         cR!C A HIHOJ OSA                                                                           1\0   P l'B    Oil 4·1            0312S76

                                                                                                                    A«Ount Number • • • • •

                                                                   Wtthdrnwnls &nd        D~b!ts
                                                                          Chee: ks
     Check                                  Date   Bank                          Check                              Date    Bani:
     Nurrob.:r           AiiHlt1n:    (Sl   Posted Reference                     £:!ur.ih-:r         Amount   {~)   Po•lr,d R!;fr1·c11c~
     5095                       557.40       02101     l: I JOll'J\1923%654      20148                       2.20    02/04        813009692604239
     5097°                      550.CtO      02/12     8130098922&4554           20149                      2352     02/08        813006892470800
     5103°                       184.~li     02/16     813009292032928           20150                      92.31    02117        813009292693306
     20061°                      95.CO       02/03     81300939245262 7          20151                     215.57    02117        813009292693305
     20088°                     340.(1()     02/03     313009392452626           20152                      69.99    02111        813009692 786278
     20091°                       12.98      02108     8 l 300l\79267653 I       20153                     830.00    02/IO        813006592162010
     20123°                     500.l!O      02/IS     813204730039963           20154                     150.00    02116        813008992748692
     20129$                      71.00       02101     81300Gll92690586          20156•                    261.63    02124        813009592563760
     20131"                      9SJi0       02/0S     11130091192124599         20157                     178.14    02/23        813009292733366
     20139"                     671.25       02/08     813008892194461           20159•                  6,109.14    02122        Sl30089920270SO
     20140                      116.65       02/02     313005992002173           20161°                  2,198.63    02122        313006092750085
     20141                      747.lil      02104     813009592350002           20162                     406.48    02125        813004092553$13
     20143°                     600.C-O      02108     813008792668691           '.?0163                 1.829.41    02122        813002992359349
     20144                    3.272.55       02/0S     813007692811653           20164                     360.80    02122        813204730398781
     20145                      172.00       02/08     813008792910492           20170"                    192.57    02126        813009992586446
     20147°                      64.88       02112     813009992791685


                                                                        Other Debits
     Dale                                                                                                                    Bank
     Poslcd            Amount (S)                    Dcscri1,11 ion                                                          Reference
     02/04                    303.00                 Dat;i Check       Des:RcJcpchcck ID:020085                              902535001904590
                                                     lndn:Cnpital Collision Gp   Co !0:1261961596 Rck
     02/04                     32.48                 Data Check        Des:NSF Fee    10:020085                              902535001904592
                                                     lndn:Capital Collision Gp  Co 10:1261961596 Ppd
     02/09                    400.00                 Online ll~nking ~~~mcnt to J.oe 1299                                    957302095105249
     0.,116                   ti?~   ?2              B~f~;n'J:.~ k"/n ...;
                                                                    0
                                                                             J :U!f.,~o C!Jk    0113 I                       957202167505927
                                                     Confirmation# 0136551719
     02125                    663.31                 Trail Creek Inve Dcs:Note Pmt lD:Capital Collisi                        902555005209896
                                                     lndn :Cupit al Collision   Co ID:3262646872 Ced
     02126                    600.00                 Mirna Line Of Credit Bill Payment                                       943202260005105
     02/26                     29.95                 Momhly Maintenance Fee

                                            Total Overd1·art Fees r.ud NSF: Returned Item Fees

                                                     IOllll IOI'            Tot.at
                                                 'i'his Period           Ycnt·lo-Dat•
      Total Overdrafi Fees                               S0.00                $35.00
      Tot:il NSF: Rct11rnctl llcm         rec~              so.oo            $1(15.00


                                                                    Udly Ledger Balances
     Date              13;i lu nee {S)                    D:llc                13:i lance (S)              Date                   Balance (S)
     02101                 l,896.40                       02/09                    2,611.96               02fl8                      15,528.07
     02102                 6,779.75                       02/10                    I, 781.96              02122                       5,030.09
     02/03                 6,344. 75                      02111                    1,711.97               02/23                       9,163.70
     02/04                 6.259.26                       02112                    1,097.09               02124                       8,902.07
     02105                 6,164.26                       02/16                    3,299.31               02125                       7,832.28
     02108                 1,411.96                       02/17                   16,028,07               02/26                       7,009.76

~
                                                                                                                                                   H
~                         Balfli~\ aif America                       ,.,. . _
\                       Bank of Amcricn. N.A.                 ~                                                     !'age I of4
                        l'.0. llox 2~118                              ':ti!".                                       SUlcmcnl l'criod
                        Tamp>. ~-L 33622·5118                                                                       03101!10 through 03131/10
                                                                                                                    f.0 P PE OE 43                     013Ui56
                                                                                                                    l!nclasurcs 0   -
                                                                                                                    /\ccuunt Number




                          ll111Il11l11It11mIII111I11II111I1l l1ul11II1l 1lnl1lu l11 l1 I
                                                                           01099 001 SCM999 11        0
                          CJ\.l?ITAI, COLLISION
                          ERIC A HINOJOSA
                          4304 BURCH DR
                          DF.L VALLE TX 78617-3273




                      Our free Online Bankini; service nllows you lo chc"k l>olanccs, tr:1ck occuunt activity, pay bills nnd mot'c,
                              Wllh Online llnnldng you can olsP •·Jew up to 18 innntlu uf !Ills •lattincnl onllnc.
                                                       Enroll   Ot     www.b:\nkofamcrica.com/smallbu$incu.




··""
\



                                                        Business Advantage Checking
                                                   CAPITAL COLLISION ERIC A HINOJOSA

                                               ~unt                                   nt    11   Glnncc
       Account Number                  - - -                                               Slntement Beginning Bnlance                   $212.72
       Statement Period       03/01/10 through 03/31/10                                    Amount of Deposits/Credits                 Sl4,318.31
       Number of Deposits/Credits                     5                                    Amount of Withdrawals/Debits               $14,531.03
       Number of Witl1drawals/Dcbits                  8                                    Statement ~nding Balance                        S0.00
       Number or Deposited Items                      0
                                                                                           Average Ledger Balance                       5961.76
       Number of Dnys in Cycle                                          31                 Service Charge                                 $0.00

       Your account has ovcrdral\ protc:ction provided by Linc of Credit number 6871 1022 401299.




~
\
                                                                                                                                       H
~
\                                                                                                       Page 2 of 4
                                                                                                        Statement Period
                         CAl'ITAL COLl.lSION                                                            03/01/10 through QJ/31/10
                         F.RIC A HINOJOSA                                                               EO   P PE   OE 4S
                                                                                                        Enclosures 0      -
                                                                                                        Account Nutnbcr




                                           Your Business Advantugc Pricing Rclntionshlp
     Account                                             Account                 Qualifying Type of
     Nnme                                                Number                 Balance S Rnlance                                   D te
     Business Advantage Checking                                                     922.81 Average                                 03-30
                                                 Total Qualifying Balance           $922.81

    Please note that the balances in your account(!>) are below the minimum required to avoid the monthly malntemmce fee. We have
    waived the monthly maintenance fee for an additional cycle in case you need time to make balance adjustments. If your balances
    are below the minimums next month you'll still enjoy all the many benems that come with your Business Ad11antage account, but
    the monthly maintenance fee will apply. Please call us at the number listed above If you have questions about your account.



                                                           Deposits nncl Creillts
       ate                                                                                                       an
      Posted                     Amount (S) Description                                                         Reference
      03/04                           2,658.42 Sf Mutual         Des:A25Sf0001 ID:xxxxx6250Ka0301              902562006583464
                                               lndn:Capitnl Collision        Co ID:9A25Sf'OOOI Ced
                                               Pmt lnfo:Nte"zzz*xxxxx6250Ka030l !370533100
                                               \
      03/17                           2,797.16 Sf Mutunl         Dcs:A25Sf0001 ID:xxxxx1236Ka0312              902575003591285
                                               lndn:Cnpital Collision        Co ID:9A25Sf0001 Ced
                                               Pmt lnfo:Nte'"zzz•xxxxx 1236Ka0312l370533100
                                               \
         18                           7,316.73 Sf Mutual         Des:A25Sf0001 ID:xxxxxl784Ka0315              902576008234102
                                               lndn:Capital Collision        Co ID:9A25Sf0001 Ced
                                               Pmt lnfo:Nte=t<zzz*J<xxxx 1784Ka03151370533100
                                               \
      03/26                             805.00 BunkCard           Oes:Merch Seti 10:430134840051477            902585006694446
                                                lndn:Capital Collision       Co ID:1210001923 Ced
      03/29                             741.00 Online Banking transfer from Chk 4193                           957303297562545
                                               Confirmation# 5288477014
                                                         Wltl1drawals nnd Debits
                                                               Other Debits
      Date                                                                                                     Bank
      Posted           Amount (S)              Dcscr hll ion                                                   Reference
      03/01                   67.85            13ankCard         Dcs:Merch Fees 10:430134840051477             902560012434131
                                               lndn:Capital Collision      Co ID:32l0001923 Ced
      03/02                   89.90            Discover Network Des:Sclllement ID:601101323656387              902560015685838
                                               lndn:Eric A. Hinojosa, Oba Co ID:I510020270 Ced
      03/04                  794.00            Jlome Depot        Dcs:Onlinc !'mt ID:56005317233lll2           902562007188203
                                               lndn:Capital Collision Gp    Co ID:Citiccsweb Web
      03/08                  100.00            Mbna Credit Cards Bill Payment                                  943203080008804
      03/18               11,342.43            Online Banking transfer to Chk 4193                             957203187554340
                                               Conlirmationl/ 0692331669
      03/26                  805.00            Online Banking transfer to Chk 4193                             957103267571096
                                               Confirmationll 3762903721
      03131                  741.00            Home Depot         Dcs:Onlinc Pmt 10:560076464300917            902589010785632
      Card Account #
      03/17
                        ·······•WldlPlfapital               Collision Gp    Co ID:Citiccsweb Web
                             S90.8S            CheckCard 0316 Entcrpri~e Rent-A-Car                            90570':11(.J UW>29
                                                                                                                  H


"'
"                CAPITAi. COl.LlSION
                 ERIC A HINOJOSA
                                                                                      Page 3 of4
                                                                                      S101cmcn1 Period
                                                                                      03/01110 1hrough 03131/10
                                                                                      F.O I' PE OE 48
                                                                                      l!nclosurcs ()
                                                                                      Account Number

                                         Withdrawals and Debits - Continued
                                                   Oilier Debits
     Date                                                                                    Bank
     Posted     Amount (S}             Description                                           Reference
     Suhtolul        590.85

                                                   Daily Ledger Balances
     Date       Balance (S)                Date            Hnlnnce ($)        Date              Balance($)
     03/01           144.87                03/08              1,819.39        03/29                    741.00
     03/02            54.97                03/17              4,02.5.70       03/31                      0.00
     03/04         1,919.39                03/18                   0.00
 r    .




                                                                                                                                                                       H

                                Bonk of Amedeo, N.A.                                                                                     rage I of4
                                l'.O. Box 2SI 18                                                                                         Stocement Period
                                1·:1mpa, FL 33622·5l18                                                                                   03/0l/lll through 03131110
                                                                                                                                         L'O   P PB   Oil 44               03°18980

                                                                                                                                         Acooun1 Numbor -




                                 11 ... n. ,1 .. lluu ,111 ... 1•• u. 11! 1 llu .1 .. 11r1. I11I1I11 Inl
                                                                                     0105~     001
                                                                                                           t'
                                                                                                      SG!~39       11    0
                                  CAPITAL COLLISION GP
                                  ERIC A HINOJOSA
                                  4304 BURCH DR
                                  DEL VALLE TX 78617-3273




                             Our free: Online B:tnking s.crvicc aUnw$ yon to check balilnccs, tr3ck ;;a.ccounc ;1ctiv1ly, p:iy bills nr1d n1otc.
                                      With 011llpe Banking you cun ~ho vi~•v up to 18 monchs                                 or
                                                                                                           this statcmcnc onllnc.
                                                                   Enroll at www.b;inl:ofamCTica.co1nlsma llbusiM•~.




"'
·vz




                                                                 Business Advantage Checking
                                                           CAPITAi- COLLISION GP                                ERIC A HINOJOSA

                                                                                                           al a Gl:ince
           Account Numbei-                                                                                      Statement Beginning Balance               S7,009.76
           Stalcmcnt Period       03/01/10 through 03/31/10                                                     Amount of Deposits/Credits               $16.357.41
           Number of Deposits/Credits                     6                                                     Amount of Withdrawals/Debits             s21;s2s.19
           Number of Withdrawals/Debits                                            26                           Statement Ending Balance                  Sl,841.38
           Number    or Deposited    Items                                          4
                                                                                                                Average Ledger Balance                     S3,195.62
           Number of Days in Cycle                                                 31                           Service Charge                                $29.95
          Help avoid Overdraft & NSF: Rcwmcd hem fees. Use Alerts to gel messages by email or text to inform you when your balance is
          low. Uso Overdraft Protection to transfer avaih:ible funds from linked savings, credit card, or credit line to your checking account to
          help cover items that would overdraw your account. Call us for details.
                                                                                                                                               H

                                                                                                               l'•i;c 2 of ·I
                                                                                                               .Slah:menl PctioJ
                           CAPITAL COLLISIOr. Gr                                                               0"01110 throush O~/Jl/10
                           J;RJC I\ lllNOJOSA                                                                  1:0 I' ro ou    "-1

                                                                                                               /\cc.oul\l Number -




    Account                                                          Accvunl                    Q\1alifying Type of
    Nam.:                                                             •·· . .-·r               Bu!uncc S 13'1h•nr.c                       Date
    nu~incs~    1\dv:1n1ngc     hcclung                                                            3,532.49 Avcn:gc                       03-30
                                                         1'otnl Qunllfying         BcJanc~       :S3,5B2.t.!S

  6as\!d on your combined b<ilt.ncc o~ SJ,58V!9, yi;ur Business Advimti::gc aceourrt has been charged n monthly maliltcnance lee.
  You ei:n avoid !his ra:: in tho rutura by maintaining $35,00U in combinctl balances.
                                                                                       -----
                                                                 Deposit:; amt Crctlits
      ate                                                                                                             13anl<
    J'o~lcd                         At'nou nt ($) Descrfo!ion                                                         Reference
    03/08                                   497.50 Deposit                                                               813204730856293
    03118                                11,342.43 Online Banking transfer from Chk 9118                                 957203 l 3755i134 I
                                                   Confirmation# 0692331669
    03/22                                 2,593.20 Deposit                                                               313204730423785
    03123                                   319.20 Deposit                                                               813204730616062
    03/26                                   805.00 Online Banking tr:in~fcr from Chic 9118                               957103267571097
                                                   Confirmation/I 3762903721
    03/29                                   300.08 Deposi1                                                               813204730042952
                                                               Witbdrn'll'als and Debits
                                                                        Chcdts
    Check                               ])n1c  Bnnk                                Check                       Date   Bank
    Number                 Amo11111 (S) Posted Reference                           Number      Amounl    (~l   Posted Reference
    5101                          557.40     03/01     813008992394512             20172             213.10     03102      813()03092277479

    201io 8                       2H.06      ~11~9
                                                       g8noo96921S4126
.__..,;.lo!-lllR~i..;.,..._ _ _ _~l~w2~R~.;;.._..,\jR~~f....
                                                         l1;u1 ggg~3~~cm I~        20173
                                                                                   20174
                                                                                   20175
                                                                                                     434.51
                                                                                                       15.00
                                                                                                     500.00
                                                                                                                03/0l
                                                                                                                03/04
                                                                                                                03123
                                                                                                                           813008992065404
                                                                                                                           813009892820470
                                                                                                                           s 13009792480484
    20167°                        219.96     03/01     813006192752812             20176          10, 113.89    03/19      &13008992770587
    20169°                      1,142.98     03/01     313006192220154             20177             623.77     03/:!5     Nl32047306731i3
    20171"                        380.00     03/01     813008792863716


                                                                       Other Ocbits
    Date                                                                                                                 Bank
    Posted               Amount !S)                  l>cscripl ion                                                       Reference
    0)/01                       100.00               3 Pawnee Leasing Des:l.easc Pmt ID:320955                           902560009530707
                                                     lndn:Capital Collision G.P. Co ID:4R408845S3 Ppd
    03/02                      400.00                Bank of America ·I.inc of Credit Dill Payment                       943203020005110
    03/04                      500.00                Ge Money           Oes:Payment    JD:S04662014152661                902562006293580
                                                     lndn:llinojosa,Eric         Co ID:l061537262 Web
    03111                       91.37                3 Pawnee l,c:isin~ Dcs:Lcase Pmt ID:320955                          ')02569012439754
                                                     lndn:Caphal Collision O.P. C~1 ID:4S408S4553 Ppd
    03/15                     1,146.06               2 Pawnee Leasin~ Dcs:Leasc Pm1 ID:320955                            902574003359778
                                                     lndn:Capital Collision G.P. Co ID:3340884553 Ppd
    03/16                      100.00                Dell Commerci:il Credit Bill Payment                                943203160005104
    03125                      663.31                Trail Creel{ lnve Dcs:Note Pmt ID:Capilal Collisi                   902583009909906
                                                     lndn:Capital Collision      Co 10:32626461:72 Ced
                                                                                                                    H

                                                                                        rage 3 of 4
                                                                                        Su1einen1 Perfod
                CAPITAL COLUS!ON GP                                                     03101/lO through Ol/311!0
                ERIC A HINOJOSA                                                         EO   P Pll    l)U 44            0)48982

                                                                                        Accoun1 Number -

                                      Withdrnwuls anti Debits - Continued
                                                Other D<:bits
Date                                                                                           Bank
Posted        Ammrnl   rs>         Description                                                 Reference
0~/26              600.00          Mbna Linc Of Credit Bill Payment                            943203260005108
03/29              741.00          Online Bankini,; transfer to Chk 9118                       957303297562544
                                   Con firmationtl 5288477014
03129              500.00          Ge Money           J)es:Payment    10:504662014152661        902588010526693
                                   lndn:llinojosa,Eric          Co ID:1061537262 Web
03/29              400.UO          Bank of Amcricn • Line of Credit Bill Payment                943203290005114
03/30              557.40          Marlin Lensing Bill Payment                                  943203300005107
03/31               2?.95          Monthly Maintenance Fee

                              Total Ovcrdr:ift Fees and NSF: Returned ltcm Fees

                                   ·rotat tor          ·1 ol.al
                                  Tlii" Period      Year-to-DaL
 Total Overdraft fees                     $0.00         S35.00
 Total NSF: Returned Item fees            $0.00        Sl05.00

                                                Dally Ledger Dnlnnccs
Date          Balance (S)               Date             Balance (S)            Date                 Balance ($)
03/0J             4,174.91              03112                     2,631.9~      03/23                   4,351.73
03/02             3,561.81              03/15                  1,485.88         03125                   3,064.65
03/04             3,<146.81             03/16                  l,3S5.88         03/26                   3,269.GS
03/08             3,544.31              03/18                 12,053.22         03/29                   2,428.73
03/09             3,273.31              03/19                  1,939.33         03/30                   1,871.33
0311 l            3,181.94              03/22                  4,532.53         03/31                   l,841.38
                                                                                                                                                                   H

                        [bnl: of An1cric•,     ~.A.                                                                    l'of,C I of ·I
                        r.o. no: 2s11:1                                                                                St~tcmcn1 Period
                        T~mpa, fl. 33~22·51 I<;                                                                        t;.;.·?!. i<r !~:-"•t:ti,?1 u~   .~n   !O
                                                                                                                       1:0 I' PF. OE 4~                                OlilllOI
                                                                                                                       r.nclo»Hc> 0
                                                                                                                       Ai..·co11nt r\umbc1 -




                          U: I I Hnl 111luu:111: :1l11l l111 ltlh1: t,, u.1,1 •• I1! i: In l1I
                          Cil.!'ITl\T. COLLISION
                          ERIC 1\ m:;oJOSA
                          4304 BURC:J DR
                          DRL VALLP. TX 78617-3273




                      Gm free Online Honking service allows you In chccl bolancc•, track o<eou111 nctn·ity, p:iy bills anti more.
                             Wlih Onl:nc Bnnldni: )'OU con 111~0 view u11 tu 13 monl:.• of tl1b •totem en I 0111111~.
                                                 Euioll Oll www.1•ankofamcrica.com/~mal1bu$incs.s.




                                                          Susiness Advantage Checking
                                                      CAPITAL COLLISION                     ERIC A HINOJOSA


                                                                  Your Account ot                i::   Glnn1:e
       Account Numbc:r                                                                       Stutcment Beginning Balance                             $0.00
       St;itemcnt Period      04/01/10 through 04/30/10                                      A111ount of Dcposils/Crcdils                        SS,686.37
       Number or DcpositsiCredits                     3                                      Amount of Withdrawals/Debits                        SS,716.32
       Number of Withdrawals/Debits                   6                                      Statement Ending Balanc-.:                             S29.95-
       Number of Deposited   hem~                                        0
                                                                                             Avcr;igc Ledger Bnlancc                                     S9.74-
       Number or 1.>ay5 in Cycle                                       JO                    Service Charge                                             $29.95

       Your account has overdrafi protection provided by l.ine of Credit number 6il71 1022 401299.




,,._
\
                                                                                               l'ai;c 2 of 4
                                                                                               Stolcmcnl   l'~riod
                    CAPITAL COLLISION                                                          04101110 lhrou~h 04/30!10
                    ERIC A HINOJOSA                                                            EO I' PE Ot: 48
                                                                                               t!nclosurcs 0
                                                                                               Account Number




                                     Your Uusincss Advantngc Pricing Rclulionsl1ip
  Account                                           Account                 Qualifying Type: of
  Name                                              Number                 Jhlance . Bnlancc                               Date
 Business Advantage Checking                                                      -9.74 Average                            04-29
                                           Totnl Qunllfylng Balance              S9.74

Based on your combined balance of S9.7h your Business Advantage account has been charged a monthly maintemmce rec. You
cnn avoid this fee in the future by maintaining $35,000 In combined balances.


                                                        Deposits and Credits
    ale                                                                                                 an·
  l'osted                   Amount   ($) De~cript ion                                                  Reference
  04/01                              70.05 Online Banking 1ransfer from Chk 4193                       957104017596899
                                           Confirmation# 3813438100
  04113                              82.31 Online Banking trnnsfcr from Chk 4193                       957304137545894
                                           Confirmation# 6217?02175
  04119                          l!,534.01 Online Ranking transfer from Chk 4193                       957204197556974
                                           Confirma1ion# 156S911673
                                                       Withdraw:tls und Debits
                                                            Other Debits

    .te                                                                                                B:ink
  l'osted         Amount ($)             Dcssrirtion                                                   Reference

  04/01                  70.05     BankCard          Dcs:Mercll Fees lD:4301348400Sl477                90259!009342190
                                   lndn:Capital Collision     Co 10:3210001923 Ced
  04113               35.00        Overdrnft Item Fee For Activity Of' 04-12                           934804120008265
                                   Electronic Transaction
  04119               35.00        Extended Overdrawn Buhmcc Charge                                    971404190000102
  04/19            8,464.01        IRS            Des:UsataJ>pymt 10:270050900391617                   9025090 I 0633189
                                   lndn:Capilal Collision Gp    Co ID:3387702000 Ced
  04130               29.95        Monlhly Mninten:incc Fee
  Curd Account # • • • • • • • • • •
  04112               11.t: •.)J   CheckCurd 0410 Waterfront Restaurant                                 905704101027032
  Su btotul           82.31

                                   Totnl Overdraft Fees nnd NSF: Returned Item Fees

                                         ·101:11 tor           "lotal
                                        This Period         Ycar-10-Dntc
   Tolal Overdraft Fees                        S70.00             S70.00
   Total NSF: Returned Item Fee•                $0.00              $0.00
                                                                                                       H

                                                                          P:igo 3 of 4
                                                                          Slatcmcnt Period
                 CAl'lTAI.. COl.J.JSION                                   O-l/01110 through 04/30/10
                 ERIC A HIN010SA                                          EO   P PE    0£ 48               0128303
                                                                          Enclosures 0
                                                                          Account Number

                                                  Daily Ledger Bahrnccs
        Date    Balance($)                Dnte            Balance (S)
        04/12         82.31-              04/19                  0.00
        04/13         35.00-              04/30                 29.95 -




.;~~k
;,< :
!
''
I




!~
(·
I
"·
\
                 '.:   .....   i   • •• ·•
           .......·#'··-: .. \. •' ....
                                              ;">_ ~ ·:·--= ~:~: ,. ;·/~ -
                                             ~·  -· . " .. .            \:




                                                                                                                                                                                H

                                        Bonlc or Amedeo, N.A.                                                                             l'•gc I of 4
                                         r.o.llox 2ms                                                                                     Sta ICtnttl l p Cl iod
                                        T•ml'n, FL 33<•22·~118                                                                            iJ~.01, l(J thro~i:h ~''· .lO• Ill
                                                                                                                                          F.O   I'   re    OB 44                    034051~


                                                                                                                                          Account NumbCT -




                                             IJ,.,11, 1l 111!,,,.,lll:a!1:ll1ul1li: "l11ll1l1l:1lel:1l11 l:!
                                                                                                                     2 .t f\
                                             CAPJ:TJl..L COI.• LISTON GP
                                             ERIC A HINOJOSA
                                             4304 BURCH DR
                                             DEL VALLE TX 78617-3273




                                   Our &cc Online B:inkinit scr,·ice ~llows »ou lo ch«'k h:a.bnccs~ 1([tck <1Ccuuni c:.ctivi1y, pay bills and moi-c.
                                          Wltlt Online llonhlng you con oho,.;~,. up to m months or lhl~ statement onllne.
                                                                Enr<>ll nl W\V\Y.b•nkofam•-ric~.com/sm:tllbusincu.




                                                                             Bus!ness Adv;;.ntage Checldng
                                                                         CAPITAL COLJ.ISJON GP ERIC A HINOJOSA

                                                                                                          at n Gian ce
      Account Number                                                                                           Statcmcn1 13cginning Balance                        Sl,841.3~
      Statement Period       04101/10 through 04/30/IO                                                         Amount of Deposits/Credits                      $15,241.47
      Number of Dcposits/Crcdiis                     5                                                         Amount of Withdrawn ls/Debit:;                  Sl7,458.75
      Number of Withdrawals/Debits                  18                                                         S1atcmcn1 ~nding. B.alancc                         537:5.90.
      Number of Deposited hems                       4
                                                                                                               Avcr:igc Ledger Balance                             S2,736.'J3
      Number of Dnys in Cyc:lc                                                          30                     Service Charge                                         S29.95
     1-lalp avoid Overdraft 8: NSF: Returned Item fees. Use Alens lo get messages by cmnil or tei:l lo Inform you when your balance is
     10111. U'.le Overdraft Protection to transtcr available funds from lin!(cd savings, credit card, or credit line to your chccl1ing account to
     t:elp cover lte:ns that would overdraw your account. Cllll us for details.
                                                                                                                                                     H

                                                                                                                    Page 2 of 4
                                                                                                                    S1a1cmen1 Period
                             CAP 1'11\1. COLLISION     ur                                                           04/01110 throuL:h ()4/30/10
                             F.l\IC A HINOJOS/\                                                                     EO P l'!l Oil 44

                                                                                                                    Account Number




         Account
         Name                                                                                                                                     Date
         Business Advantap.e Checking                                                                                                             04·29


       Bcsed on your combined b11l;mce of $2,809.84, your Business Advanlng~ occount h<is 1:leen :hllrged     o mo:it:ity maintenance     fee.
       YOLt can <1•1oid tl'lis iec in the ruture bl' maintaining $35.000 In combln::id balances.




                                                                    Depo!>its nntl CretlHs
         l.>atc                                                                                                             Bank
         l'ostecl                    Amount ($) Deserio! ion                                                                Reference
         04/06                             5,506.64    Deposit                                                              813204730146319
         04/16                             7,645.00    Counter Credit                                                       813204730364109
         04116                                183.00   Deposit                                                              8132047303641l1
·~
'('.     04/26
         (M/26
                                           I. 763.31
                                              143.52
                                                       Deposit
                                                       Deposit
                                                                                                                            813204730379002
                                                                                                                            813204730379004
                                                                   Wlthdrawnls 11ntl Debits
                                                                          Chcclcs
         Check                           Date   Bank                           Check                                Date     13ank
         Numhcr              /\mount (S) Posted Reference                      Number                 /\mount (S)   Po!'.ted Reference
         20178                   2.032.&J      04/07        81300!1892579215   20180                       635.47    04114 813009292043338
         20179                      32.5~      04/19        813009992337563    20181                       500.00    04/16 813204730341334
                                                                         Other Debits
         Date                                                                                                               Bank
         Posteq           Amount (Sl                   De!'criNinn                                                          Reference
         04/01                    70.05                Online Banking transfer to Chk 91         rn                         957104017596898
                                                       Conlirmntion# 3813438100
         04/02                  550.00                 Lear          Bill Payment                                           943204020005109
         04/0$                  200.00                 Business Card Bill Payment                                           943204080005117
         04/13                    82.31                Online Banking transfer to Chic 9118                                 95730413754Sll93
                                                       Confirmation# 6217702175
         04/15                 1,146.06                2 Pawm:e Leasin~ Dcs:Lcase Pnn lD:320955                             90250501015392<\
                                                       Indn:Capital Collision G.P. Co JD:3S'I08S4553 P1ld
         04/15                  500.00                 Home Dcpol          Dcs:Online l'mt ID:5600S9433223077 ·             902.504008383098
                                                       ln<ln:Capital Collision Gp    Co ID:Citiccswcb Web
         04/16                   100.00                Dell Commercial Credit Bill Payment                                  943204160005111
         04/19                8.534.01                 Online Banking transfer to Chk 9118                                  957204197556973
                                                       Con lirmation# 1568911673
         0,\/70                 67'\ !14               Bprhara Ppmpgl9ng Bill     Ppyn1~n\   I                              943204200005112
         04/26                  663.31                 Trail Creek lnvc Des:Nolc Pmt    ID:Capital Collisi                  902Sl3010940091
                                                       lndn:Capital Collision     Co ID:3262G16S72 Ced
         04/26                  600.00                 Mbna Line Of Credit Bill Paymcnl                                     943204260005115
         04129                  500.00                 Ge Money           Des:Paymcnl   ID:50:166201415266J                 902:518006435221
                                                       lndn:Hinojosa,Eric         Co ID:l061537262 Web
         04/30                  557.40                 Marlin Leasing Bill Payment                                          943204300005113


r,
         04/30                   29.95                 Monthly Maintenance Fee
""
\


                                                                                                                         H

                                                                                           l'agc 3 or 4
                                                                                           S1a1cmcn1 l'e<iod
                     CAPITAi. COLLISION GP                                                 04/01110 1hro11gh ,)l/30/10
                     ERIC A HINOJOSA                                                       i:.o r PD    oil 44               0340546

                                                                                           Accuun1 Number -


                                    Total Ov<.'nlraft F<.'es and NSF: Returned Item Fees



     Total Ovcrurn ft Fee~
     Totnl NSF: Returned II      l'ees

                                                     Daily Ledger Bal:mccs
     Date          Balance (S)               Date            Balance ($)           Date               Balan::e (S)
     04/01            1,771.33               04/13              4.413.06           04/20                       67.93
     04102            1,221.33               04114              3,777.59           04/26                      711.45
     04/06            6,727.97               04/15              2,131.53           04129                      211.45
     04/07            4,695.37               04/16              9,359.53           04/30                      375.90-
     04/08            4,495.37               04/19                743.02
10
                                                                                                                                                       H

                      Bank or America, N.A.                                                                              Pa;;o I of 3
                      l'.O. Dox :2.SllS                                                                                  St.nlcrncnl Period
                      Trunpa, l'L 3JG2:!·511S                                                                            01!01!13 tin ouch O·l/S0/13
                                                                                                                         Ell E I'll   EB 44                C0151~6


                                                                                                                         Ac<:<•Unl Kumber -




                       11 ... 11.. 1•• 11 ..... II!,, ,I,,. 111

                       CAPITAL COLLISION GP
                       ERIC A HINOJOSA
                       4304 BURCH DR STE A4
                       DEL VALI,E, TX                             78617-3275




                           Our Ontint!' u~nking S~)'Vite nUm.\'8 you tn check hnl.inr.~~. lrud:: a<:<:oun!. M:ti\•ily nual 1nor1!.
                            With OuUn" B"nl<i11g you """ "loo ''icw up tn 18 month" of tl1i• st"t"m"11t online.
                                                           E11roll M www.l1011kofomcriro.com/smallbu$i11.,,;,.




     We're improving the system that supports automatic transfers ror deposit accounts which will change the
     timing of certain automatic transfers. Effective April 23, when an <>utomatic transfer between two of your
     Bank of America accounts falls on a weekend or federal holiday, it will now occur the prior business
     day. Please keep this change in mind when you schedule bill payments. Any other scheduled transfer
     thal falls on a weekend or federal holiday will continue to occur the rollowing business day. Additionally.
     you'll now be able to manage your transfers through Online Banking by going to the Tr<1nsfers tab, as
     well as by calling the number on this statement or visiting your nearby bunking ce11te1.


     Good News! In-response to customer feedback we've made sorne changes to your statements to make
     them easier lo read. Soon you will notice color and graphics to highlight account details and draw
     nUention to notifications and special offers. Over the next rew months, a guide will be included with your
     nev-1 statement that will detail tile enhancements. Stay tuned!




."
('
"
\




                                                                                                                                           H

                                                                                                             l'.,ge 2 o( 3
                                                                                                             St.alcmcnt Period
                         c11rrrAL COLLlSIO:-J GI'                                                            01/01/13 tl1rouch 01/30.113
                         f.RIC A HINO,IOS/I                                                                  DJ E PD 1::1\ 44

                                                                                                             Account Number -




                                                     Business Economy Checking
                                             CAP11'AI, COLLISION GP ERJC A               HI~QJOSA


                                                         Your Account nt n Glance
     Account Number                                                            St..lt.cmcnt Beginning Bnlnncc                     $15.46
     Statement Period         04/01/13 through 04/30/13                        Amoullt of Deposil.s/Ctcdits                    $1,505.00
     Number of Deposits!Crcdits                       3                        Amount. of Withdrnwals/Dcbilfl                  $1,498.18
     Numbot· of Withdt·nwo.ls/Dobits                  4                        Statement Ending Bnlancc                           $22.28
     Numbc1• of Deposited Items                       2
                                                                               Average Ledger Balance                            $574.45
     Number of Days in Cycle                                   30

                                                               Deposits and C1•cdits
      ate                                                                                                             on·
     Posted                      /\mouat    ($)   Description                                                        Reference
     01/01                             1,300.00 Dopo!lit                                                             813008930688463
     04/10                                15.00 Online Busim..'S!l Suite A11d Wiro 'l'ransfci·     l~cfund           945004105761959
                                                Fdcs Nmo 0006576 Nliksloz
     04/19                               190.00 Deposit                                                              813006930066384
                                                              Withdrawnls nncl Debits
                                                                    Othc1• Dcbit11
     Dntc                                                                                                            Bank
     Posted         Amount 1$)                    Dcscrietion                                                        Reference
     04/05                    15.00          Online Business Suite Acct Mgmt Services                                 943204050129517
     04/11                  789.11           Bank Of America . Linc Of Ct•cdit Bill Payment                           943204110005312
     04/19               • •6•.7.5•.0IO••••B(m·lmi·n P:unpnlonc Bill Pnynwnt                                          943204190005310
     C1u·tl Account II
     04/02                    1:;1.w              ~hcckCnrd      0.101 Ei;:pcriau    ~crcditrcpo                      90570-1011364961
     Subtotnl                 l!l.07

                                                              Duily Ledger Balnnccs
    Dntc            ·s11lnnce    ($)                  Date               Bnlancc ($)                 Date               Bnl:1ncc ($)
     04/0J                1,315.46                   04i05                   1,281.39                04fll                     507.28
     04/02                1,296.39                   0'1/10                  1,296.39                04/19                       22.28
""
\




                                                                                                                                                                                              H




                                                                                                                                                                                                  0015198

                                               How To Balance Your Bank of America Account
     FIRST. starl wiU1 yo"r Acco11r11 ReuiMer/Checkbook:
     i   l•rA you1 Aeco.:nt   Acoi~tet/CheckbOok      D.cl:in.:;c here                                                                        . ·····-·····--· $ _ _ _ __
                                                                                                                                                               $ _ _ _ __
     2'. Sucuocl an}' sarvtco charges°' other dC':tuc:i:os OOl           prnvu')u~ty   rcccrdcd tOM .:1rc 11!.~t.'<l 011 nw. Mmcmcl1l   •N·


     3. J\d:t ~ny crcrMs oot ptC'llDusty •ccordcd Ut&t :ire h:.~cd on Ui1~ :.t~1.crr.cn~ (~or cx~n1ptr. 1tiic.-,c5.~) .                          ·······-·---·· $ _ _ _ _ __
     ~   Tto,~ r.. )"""   HEW ACCOUNT REG1S1LR          !!AlllNC~                                                                               ····--·- ... s _____
     NOW.....irh your Account Statomcnt:
                                                                                                                                                               s _____
     1. l•~I   >"'"' S1a1cm~ Fowlirg B.,lancc ''"'ft ... ··-··· .......                                                                                        $ _ _ _ __




                                                                                                            SUBTOTAL
     3. Ust nnd 1010.1 all cutt.t:ul<lmg C.'1Cc.k:;. /\TM. 0-.Cck Cara Ot'ld other c1cc\rof11r. w1tl,dH'hvat:;

               Chocks, ATM, Chock C:ird,                            Checks, ATM. Check Card,                                Checks, ATM, Check Card,
               [lectronic Withdrawals                               (lnctronlc Wlthdr.11\'/alS                              Eloctrcn!c Withdrawals
          OarcJChcck (I                 Amoun:                   Oatc/Chcck d            Amount                          Date/Check t          Amount




     ~. TOTAL OF OUT ST llNDING CHECKS. 11TM, Check Crud or.a ottiar electronic w1th~rawois .•.•....•.. --····· ·-· ..---------.. $ - - - - - - -
     5. Subrr<N:t rctal OUISUlndlng Cheeks, AlM. Check Cara ~n~ "'""' elattroo1c wilhdt~'K.lls lro·n Su~tolol
        Thi$ 0ol'1ncc $1\Culd mAICll your '1CW Account Rcgl.icr S.'IM<~ · - - - - - •. _ _ _ _ _ - - - - - - - - - - - - - · S                                     =======
     Upo.'1 rec:otp of your siat~mcmt. (.f:ffctenc°'. d any. shout:J bo reportl'd 10 100 h.11v. pomp~ly •n v:r1h:ig :wd 1n ac:ccu:l:!ncc o.\•1ttl provls!or~s in your '10~1t
     O:Jf<em<:nl.
                                           IMPORTANT INFORMATION FOR BANK DEPOSIT ACCOUNTS
     Ch:tnge of Address.. Plft."l!'>e call u~ .0t ltif! tr:f~hcric nurnticr llsrcd M 1he fren1 of lhi~ !.l\\ICr:1r.n• !o lt:U us :about rt change or nddteS.!,.

     Ucposa1 Agreement. \\'tlcn yctJ ope:11td you'" 3cccur.t. you tE:oivet! o CeP0"'11 t1grcernem an:: fee s.ehed'ukJ ord Cg."ced 1h.at ~'Cur accci.-nt \','Ould be
     g:wrtnP'd by the 1t!fm~ cf ~e 1.1.:cumcnt~. a~ v..e may nnu:nd t.~ h:;i.m ti11e 10 l11i,eo. 1h~l· dccurncms are J1"'ft cf Ute amtroc~ for )'Ollt deposit .;,ccc;lrnl
     a"td 90'1Cfn ~II :t';)rtS~ttiOt1' rel~ing to your :!rctx.J~~ irc.!uding :\ti ~O!i•!S :::nd \.".flthdrilW:llS. Co.pies :~ b-01h the <Jcpostt ~!J'Citmc-r:t .nr.d fee schc<fute.
     \\1lich c<Y.:nin the eutrtml ve1$icn of tho •et•ft!i. :in!! coni::tilo~ a: )"CYr accuurc rc:l~Nlw..Jup. may l.lit!' tb'..:iine(j tal cw banking et:Mt'f$
     t:lcctron'c Tr3ns!ers: tn caso or etrors er 11ucs1icns tslsout your ctec1ronic 1rAnsfct:s
     11 you tr.Ink your statt'fl".<ln\ or t.i:c:eipt •~ wr0"l9 o:- ii yo;• ot:cd 1r.o·e i1,tormnticn abo~ ~n tlc<.tron1c tre11srcr \c 9. ATM tr~nS~(\icm, direct d'cpo:s-t" er
     wjt'lefro\•1:sts. p~ir.t·of·SD10 tronsaaians) en the suHcrnr.!tt 11-r receipt. uitei:1tonu or wute L'S a' tho acitJrt>~s aoe nut11t:J~r listed on tho rronc of this stattniont
     D::t soon ~s ;yo.J con. Wa musl lle1.:r ftcm yoa f'O •~tct th3:'l 6.'l day.5 alter we ~eru ~rA.. lhe flRS. T ~10:crner.t <'.:"1 wfliC.tl thd cncr or J)!'cbk-n" CJ';21'.!irtd.
     • Ttt• us yrur no:iw o!ltl acc01:n1 numb<».
     • Cc:;cri~ tne erto:" or the u~fc: you a.re ~me ~b::>I..'".. ~rd c,.plo::in us ct(~r1y l!~ yw CM \•,h'/ )'CU bcl~t thC!C '" ~n ~rrCT c: \'thy yoo ne:d rn.cfe
     info11n~tion.
     • Ten us the dollar a-noum ol the SU$f.l'Cted e:ror.
     for ccr.~vrnet ai:cour.\S t/$CU;j primorily for r.cr!.Cnlll. tamtly er 11~\.l!t-ehold p.urposcs. VJi!. w1tl 1nvesti9ate yc-iJr i:err.p!nin~ ~!'\d will c.orreel eny crrtlr
     PTC>mpUy. II we :a~o metR thnn 10 bus1no~~ d~ys (10 cnlondor d~~ of you ~ro o Moss~e11uso11s customer) 120 \lusinc:os dnys if .¥0\I uro D r.ow customer.
     tor crcctrOf'lic transfers cc.curring du1ir.g '""' l1rst 3.0 C:ay-5i a'1cr lhe fir:;t d~osi~ is ma'te I:') )'0•1r ur.our.:} to I'!:> 1•11!-. we VJ!ll rec.redit your l'\C.Cnunt fM tho
     arncuN y-6\.. lhtt\k l! '" Ctret. so thal ycu wall ticwc u5C ef tt!C mor.ey d1..;ring ma! m~ tt tno(,c~ us to CCr.'lptcto cur 1fl·le'!.hg.lt•cn
     ror lltt~r .«CO".J1"J.s. \\1!' inve5tig:ate. an:::I al \VC fir.cf i.w: h.iv.: m;.r'oP. an erro... '/IC. (rtd11 'fOJt CY.c0t;o: ot u~e ccrclu~.011 of oar ir.-c~·f9:it on
     Rcpattir.g Other ProhJotns. You musl eao.mif\U yoU"' ~~1t'N'r.? c.urefuuy 8.r\d f'O!'Tlptl)'. You ore 1~ •he Dt!.t ~·:>~tie. to d:!.covcr e:·cis !nd unauth0r1zed
     u.,11sacu011s on )'O';t t,ccou:·I(. !I )W ru.il ~o r.cmfy us m wrnmg of suspcc;ted prn~lcms er unnutllor1zcd tran.sncuc.r:z wa,....:n t~ umo pcr;Cds specif•Od In
     ;rio de1=0~11 ~greemcmt (\•lhich pGriod"S "'" no mo;c r·.l\n r.~ dll)~ l'.if:er W"l make the ~utemor.~ .ovn1lt1blc to yo"J nn:11n s.orr.~ r..i!e5 :.itc- ~ di'lys er ins~}. wo
     arc not liottc to ycu 101, o.nd you tl;irtc n:it to t~ko o clnim cgn1nst us fer ~h¢ prcblem$ eir unouthori;e:c.d trons:ietlcn~.

     Dlroct Deposits. U \'OU ~vo orrange<l :o ha•10 dircc1 dopr.s·ts m~~;; to your ttcour.t at lea" c•.co overy 60 ~~y~ from t~c somo porson or ccm~. you
     m:1y ctin us t! the tclt~hCl"lO rr.im!:er lislcd Ol'I U\e tror.? er lhis !>~cite-nt.nt 10 !trt:: Cu! 1r :rie ~po~it w~s mtidc .a.~ !CM:1u~td.
"
\




                                                                                                                                          H

                     Bmik or Amcric:i., N.A.                                                                  Pago I of 3
                     P .0. Box 25118                                                                          Stat<•muut l'c1fod
                     'fum1111, Fl, 33622·5118                                                                 05/01/13 throueh 05/31/13
                                                                                                              l:.'O t: I'll ES 44

                                                                                                              Account Nwnber -



                       II 111II11I11IIu111111111 It II Ill
                                                                   01099 Eo1   sc~:999        o
                       CAPITAL COLLISION GP
                       ERIC A HINOJOSA
                       4304 BURCH DR STE A4
                       DEL VALLE, TX 786l7-3275




                          Our Online Hanking $<ll'\>ice allows you to ch<)Ck bolnnces, track nccounl activity ond more.
                           With Onlh1e B:wlting you cnn :i.lso view up to 18 months of tltis 5'Catcment ouline.
                                                       Enroll nl. www.bankofomeric3.com/smn1Jbu•inoss.




    Good News! In response to customer feedback we've made some changes to your statements to make
    them easier to read. Soon you will notice color and graphics to highlighl account dctnils and draw
    attention to notifications and special offers. Over the next rew months. a guide will be included with your
    new statement that will detail the enhancements. Stay tuned!
P.O. R1t\ 15!?~i
\Vi11nint:hi:;.. 1'£   lfl~!in
                                                                     Customer service informati<Jn


                                                               ®     Customer service: 1.888.BUSINESS

                                                               if)   banl<ofamerica.com

                                                               ~     Bank of Amerir.o, N.A.
  CAPITAL COLLISION GP                                               P.O. Box 25118
  ERIC A HINOJOSA                                                    Tarnpil, FL 3362::>·5:!.18
  1950 nuTLAND DR
  AUSTIN, TX 78758-5420




Your Business Fundamentals Chk
for October 1. 2013 to October 31, 2013                         Account number:

Account sumrnary
Beginning balance on October 1, 2013            $21. 79
                                                           Ii of <lc;;osits/credits: 1
D<:posils and 0U1er credits                   6.050.00
                                                           tt or 1..ithdrawal~/deblls: 2
                                              ·6.0?.1.20
-----------------
Checks
                                      ---· ----- ·0.00     I/ o1 deposited l:ems: O

     ---------·-------
Scivicc fees                                     ·0.00
                                                           I! or days in   cycle: 31

-------          ----- ·-----------------
Ending bal<irn::e on October 31, 2013          $50.59
                                                           Averngc ledger balance: $598.04
r
.
    CAPITAl COLLISION GP   I   Account   ~            I   October 01, 2013 lo October 31, 2013


    IMPORTANT INFORMATION:
    BANK DEPOSIT ACCOUNTS
    Change of address - Pleiise call us at lhe telephone number listed on the front of this statement to tell us about a
    clmnge of address.

    Deposit agreement - \i\11en ycu opened your occou11t, you received a deposit agreement and fee sclieclule and agreed
    that your account would be governed by the terms of these documents, as we may amend them from time to lime.
    These documents are part of the contract for your deposit account and govern all transactions relating to your account.
    including all deposits and withdrawals. Copies of both the deposit agreement and fee schedule which contain the
    current version of the tenns and conditions of your account relationship ma~· be obtained at our ban!ling centers.

    Elect1onic transfers: In c;;;se of errors or questions al.lout your electronic transfers - If you think your statement or receipt
    is wrong or you need more lnformntion about an electronic transfer (e.g., ATM transactions, clirect deposits or
    wltl1drawals. point-of-sale transactions) on the statement or receipt, telephone or write us at the address nnd numbef
    listed on the front of this statement as soon as you can. We must hear from you no later tllan 60 days after we sent you
    the FIRST statement on which the error or problem appeared.

    Tell us your name and account number.

    Describe the error or transfer you are unsure about, ancl explflin as clearly as       ~·ou   can why you believe there is an error or
    why you need more inrormation.

    Tell us the dollar amount of the suspected error.

    For consumer accounts used primarily for personal, family or household purposes, we will investigate your complaint and
    will correct any error promptly. If we take mo.-e than 10 business days (10 calendar days If you are a Massachusetts
    customer) (20 business da~·s if you are a new customer. for electronic transfers occurring during the first 30 days after
    the first deposit is mndc lo your account) to do this, we will credit your account for the amount you think is in error. so
    that you will have use of the money during the time it will tal<e to complete our investigation.

    For other accounts, we Investigate, and if we find we have made an error, we credit your account ;it the conclusion of our
    lnvesligalion.

    Reporting other problems - You must examil1e your statement carefully and promptly. You are in the best posilion to
    discover errors and unauthorized transactions on }'our account. If you fail to notify us in writing of suspected problems or
    an unauthorized transaction within the time period specified in the deposit agreement {which periods are no more than
    60 clays after we make the statement available to you and in some cases are 30 days or less), we are not liable to you
    for. and you agree to not malle a claim against us for the problems or unauthorized transactions.

    Direct depo5its - lf you have arranged to have c!irect deposits made to your account at least once every 60 days from the
    same person or company, you may call us al the telephone number listed on the front of this statement to find out if the
    deposit was made tis scheduled.

    © 2013 B11nk of America Corporation


                                   Bank of America, N.A. Member FDIC and     @        Equnl Housing Lender




                                                                                                                            Page 2 of 4
    ,_.,
    ~··.




                                                                                                           Your checking account
           ~ITAL COLLISION   G?    I   Account II                    I   October 01, 2013 to Octcbcr 3:!., 2_0_13_ _ _ _ _ _ _ _ _ _ _ _ _~




           Deposits and other credits
           Dnte         DosCTi;rtlcn                                                                                                 Amount

           10/22/13     Ceposlt                                                                                                    6,050.00
           Total dep0slts and other credits                                                                                      $6,050.00


           Withdrawals ancl other debits                                                      _ _ _ _ _ _ _ _ _ _ _ _ ___......JtL
           Qato         0c?Ctjmf

           :!. 25 13    Barbara Pam alone Bill Pa :ment                                                                            .s 000.00
           Cllrd oceount #

           10/02/13     CHECKCARO 1001 EXPERIAN               ~CREDITREPO 877·2847942 CA                                              .21.20
                        24351783274003500053334 RECURRING CKCD 5968 46357200071461132 4635 7200
                        07146432
           ~su~b~to~ra~181~oruc~awmta~cc~o\illmit]#f.Jlllllllllllllllllll:=::=.=:::==::::==:=:::::::===:::=:::=::::::::~:.::::::=::~~S2:2120
           ~                                                                             --~-·~-----·-----=~-'-'-                        .....
           Total withdrawals and other debits                                                                                    -$6,021.20


           Dally ledger balances

r          Doto

           10l01
           10l02
                                                earance ($)
                                                    21.79
                                                     0.59
                                                              Date

                                                              10L22
                                                                                    ·~----~
                                                                                              ea1ancc($)

                                                                                             61050.59
                                                                                                           D8te

                                                                                                           10/25
                                                                                                                                   &lance{$)

                                                                                                                                      50.59




""
\                                                                                                                            Page3of 4
CAPITAL COLLISION GP   I   AcC1>unt #        I   October 01, 2013 to October 31, 2013




                                        This page lntentlonally left blank




                                                                                        Pagc4 of 4
11
NOTICE THIS DOCUMENT CONTAINS SENSITIVE DATA
                                                                                         6/8/2015 8:29:09 AM
                                                                                                            Velva L. Price
                                                                                                           District Clerk
                                                                                                           Travis County
                                                                                                        D-1-GN-14-003207
                                               NO. D-1-GN-14-003207

         BARBARA PAMP ALONE,                                §                   IN THE DISTRICT COURT
                                                            §
                Plaintiff;                                  §
                                                            §
        V.                                                  §                   TRAVIS COUNTY, TEXAS
                                                            §
        ERIC HINOJOSA AND AUSTIN                            §
        CAPITAL COLLISION, LLC,                             §
                                                            §
                Defendants.                                 §                   419rn .JUDICIAL DISTRICT

                                       STIPULATION OF THE PARTIES

                Plaintiff Barbara Pampalone and Defendants Eric Hinojosa and Austin Capital Collision,

        LLC, hereby agree and stipulate as follows:

        1.      If Plaintiff is entitled to damages arising from default on the loan she has alleged, then the

        amount of damages is $56,758.68 as of June 8, 2015. This amount is calculated pursuant to the

        amortization schedule attached as Exhibit A to Plaintiff's Second Amended Petition, and is

        exclusive of attorneys' fees and other pleaded for relief.

        2.     The attorneys' fees and costs incurred by Plaintiff through April 2015 total $44,950.30.

        This amount is established by the documents Bates-labeled BP_000403-BP_ 00431.                  These

        documents are preadmitted for the purposes of attorneys' fees testimony and the hourly rates

        reflected therein are reasonable. Further, Nelia J. Robbi may testify as to attorneys' fees in lieu of

        Plaintiff's designated testifying expeti, Joe Lea. Ms. Robbi is qualified in all respects to present

        testimony as to attorneys' fees and costs on behalf of Plaintiff and may present direct testimony in

        the narrative form.    This agreement shall not preclude Plaintiff from offering testimony and

        evidence as to attorneys' fees incurred and/or anticipated after April 2015.

        3.     Any document produced by any Patiy in this lawsuit and used at trial as an exhibit by any

        Party shall be preadmitted; the Parties reserve relevancy objections. This agreement shall apply to




                                                                                                                   41
those documents which have been produced by the Parties as of the date of this stipulation.

4.     The Summary of Payments to Plaintiffs, attached hereto as Exhibit A, is a true and accurate

reflection of the infmmation it purports to sununarize.

S.     There is no signed promissory note for the loan at issue in this lawsuit.

                                                 Respectfully submitted,

                                                 McGINNIS LOCHRIDGE
                                                 600 Congress Avenue, Suite 2100
                                                 Austin, Texas 78701
                                                 (512) 495-6065
                                                 (512) 495-6093 (Fax)


                                             .   By~'~ ~~J\,L)
                                                         Joe Lea              '-~~
                                                         State Bar No. 12082000
                                                         1le.&(f..~®9£irmisla,.w.,QQID.
                                                         Nelia J. Robbi
                                                         State Bar No. 24052296
                                                         mobbiia)mcginnislaw.com
                                                         Jordan K. Mullins
                                                         State Bar No. 24070308
                                                         imullins@'!mQginnislaw.com

                                                 ATTORNEYSFORBARBARAPAMPALONE

                                                 SLATER PUGH,    Ltd. LLP
                                                 8400 N. Mopac Expressway
                                                 Suite 100
                                                 Austh:i, Texas 78759
                                                 Teleph~ne (5 2) 47~2:£~i~
                                                 Telecopi · (5 2) 472~ }'

                                                 By:._, __..::__-------   -fT··- ....
                                                         A <1mPugh
                                                         State Bar No. 24044341
                                                         i'llfilJ?.h@)sJaterpu1m.com




                                                    2
                               CJW.TlFICATE OF SERVICE

       I hereby ce1iify that a true and correct copy of the foregoing document was served via
facsimile and/or electronic mail on this the fih- June 201 S on the following:

       Adam Pugh
       8400 N. Mopac Expressway
       Suite 100
       Austin, Texas 78759
       (5l2) 472-2431
       (512) 472-0432 fax




                                              3
Exhibit A
                                                                 CAUSE NO. D-l-GN-14-003207

  BARBARA P AlvflJ ALONE,                                                                           §                    JN TI-IB DISTlUCT COURT
                                                                                                    §
               P la inti.ff,                                                                        §
                                                                                                    §
  v.                                                                                                §                    TRAVIS COUNTY, TEXAS
                                                                                                    §
  ElUC HINOJOSA AND AUSTIN                                                                          §
  CAPITAL COLLISION, LLC,                                                                           §
                                                                                                    §
             Defendants.                                                                            §                    419TH JUDICIAL DISTRICT

                                                 Summary of Payments to Plaintiff

 .$fo?;i/'},    \~~:·   .·:; :. ·n.ai~',·:'\:;':1ti':'.: ':':,ii_:;y~;.:;~61'.b'U)if'.;'h,: :'._i.:~t~~~j.:;.
       I.                     05/20/2005        $675.09
       2.                     06/20/2005        $675.09
       3.                     07/20/2005        $675.09                                             Baiik of America Business Advantage
       4.                     08/19/2005·-··    $675.09                                             Che eking Account No. XXXX XXXX
       5.                     09/20/2005 ------$675.09                                              911 8
       6.                     10/20/2005        $675.09
       7.                     11/18/2005        $675.09                                             Cap ital Collision
       8.                     12/20/2005        $675.09                                             Eric A. Hinojosa
·----·····---~··

       9.                     01/20/2006        $675.09
        10.                   02/17/2006        $675.09
       11.                 . 03/20/2006         $675.09
       12.                    04/20/2006        $675.09
                                                                                                -
        13.                   05/19/2006        $675.09
                                       --                                                   -~·-



       14.                    06/20/2006        $675.09
       15.                    07/20/2006        $675.09
       16.                    08/18/2006        $675.09
       17.                    09/20/2006        $675.09
       18.                    10/20/2006        $675.09
       19 .
....---···~--··~·-~--
                              11/20/2006        $675.09
       20.                    12/20/2006        $675.09
       21.                    01/19/2007        $675.09
       22.                    02/20/2007        $675.09
       23.                    03/20/2007        $675.09
       24.
---·--·-··----....-..-.-..... 04/20/2007        $675.09
       25.                    05/18/2007        $675.09
       26.                    06/20/2007        $675.09
       27.                    07/20/2007        $675.09
       28.                    08/06/2007        $505.07
                              08/20/2007        $170.02
                                            ·-                                               --·    --
               %i-t¢>\' .. <::~;:"'·' L~~31;ci.ri{lf •. •.:·L'2~~=~~13.±-iril~f\:~c\n1:Uf_:>~;···_c,··~···"'. -_';.~ .. ·. .··   ~i:
         29.               09/20/2007 ·---~?_5.09
  ---- - 30.               10/19/2007
                             - - - ·--·-----
                                               $675.09
         31.
 1-------1----·--l
                           11/20/2007          $675.09
         32.
          ·----+-------
                           12/20/2007          $675.09
                                             --·--·---
         33.              01/18/2008           $675.09
         34.              _,,   ____ ______ _ $675.09
                          02/20/2008,


         35.              03/20/2008           $675.09
         36.              04/18/2008           $675.09
         37.              05/20/2008           $675.09
         38.
       --------         -
                          06/20/2008 ---·-----------
                                               $675.09
         39.              07/18/2008           $675.09
        40.               08/20/2008           $675.09
        4L                09/19/2008           $675.09
 __     42_.- - · 10/20/209~- ___ _±~~~.:.92__
        43.        _Jl{~Q/2008 _____ $67~_
        44.               12/19/2008           $67 5. 09
        45.               01/20/2009           $675.09
        46.               02/20/2009           $675.09
        47.               03/20/2009           $675.09
        48.               04/20/2009           $675.09
        49.               05/20/2009           $675.09
,____   50.               06/19/2009           $675.09
        51.               07/20/2009           $675.09
        52.               08/20/2009           $675.09
        53.               09/18/2009           $675.09'
        54.               10/20/2009           $675.09
        SS.               11120/2009           $675.09
        56.               12/20/2009           $675.09
        57.               01/20/2010 --~-$675.09
        58.               02/19/2010
                                      t - - -$675.09
                                                ----+---------
- --~ - ·- -- 03/19/2010                       $675.09.
        60.               04/20/2010           $675.09   Bank of America Business Advantage
        61.               05/20/2010           $675.09   Checking Account No. X:XXX XXXX
        62.               06/18/2010           $675.09   4193
        63.               07/20/2010           $675.09
        64.               08/20/2010           $675.09   Capital Collision GP
        65.               09/20/2010           $675.09   Eric A Hinojosa
        66.
----···------ ··-------
                          10/20/2010 - .
              ----~-----·--···-
                                               $675.09
                                    ---~---·-·~·----------


        67.               11/19/2010           $675.09
        68.               12/20/2010           $675.09
        69.               01/20/2011 -----------
                                               $675.09
        70.               02/18/2011           $675.09
                          03/--/2011
                          04/--/2011

                                                        Page 2 of3




                                                                                                                                       46
I.No'..'.'.''',·:·: P~:tJ .      {:.:: .,_;~ ·. ·:
                                     :·.. ;·: .':~':   _,.,_ :<::.• x:Ami:iifo.f. )·\>~:,;:, 'JJa~iiLA:C.c\>WAt;~'
            -----
                       05/--/2011                                      --
         71.           06/10/2011                              $675.00
-------·-·
        ·~-----·-·                                          ------··----
         72.           06/20/2011                              $675.00
~-~--
         73.           07/20/2011                              $675.00
---------
         74.           08/19/2011                              $675.00
---
         75.           09/20/2011                              $675.00
         76.           10/20/2011                              $675.00
         77.           11/18/2011                              $675.00
         78.
---····-·-·----------
                       12/20/2011                              $675.00
                                                            ···~···-


         79.           01/20/2012                              $675.00
         80.           02/17/2012                              $675.00
        81.            03/20/2012                              $675.00
        82.            04/20/2012                              $675.00
        83. -          05/18/2012                              $675.00
        84.            06/20/2012                              $675.00
        85.           07/20/2012                               $675.00
        86. --        08/20/2012                               $675.00
        87. ·-        09/20/2012                               $675.00
        88.            10/19/2012                              $675.00
        89,            11/20/2012                              $675.00
        90.           12/20/2012
                                                             - $675.00
~-
        91.           01/18/2013                               $675.00
        92.           02/20/2013                               $675.00
        93.           03/20/2013                               $675.00
       94.            04/19/2013                               $675.00
                                                                -----
                      05/--/2013
                      06/--/2013
----~-----·----
                      07/--/2013
                    --------·-·--- ----
                      08/--/2013
                      09/--/2013
      95.          ---
                      10/25/2013                                       $6,000.00           -




                                                                            Page 3 of3




                                                                                                                     47
12
626 Joint Venture v. Spinks, 873 S.W.2d 73 (1993)
24 UCC Rep.Serv.2d 151




                    873 S.W.2d 73
               Court of Appeals of Texas,                      [2]
                                                                     Appeal and Error
                        Austin.                                        Extent of Review
                                                                     Appeal and Error
      626 JOINT VENTURE d/b/a Cedar Canyon                             Clear or Palpable Weight or Preponderance
      Ranch, Charles Steger, John Gantt, and Jim
                 Caskey, Appellants,                                 When reviewing jury verdict to determine
                          v.                                         factual sufficiency of evidence, Court of
      James H. SPINKS and Claudette L. Spinks,                       Appeals must consider and weigh all evidence
                      Appellees.                                     and should set aside judgment only if it is so
                                                                     contrary to overwhelming weight of evidence as
         No. 3–92–638–CV. | Dec. 29, 1993.                           to be clearly wrong and unjust.

Vendors brought suit against joint venture and its                   Cases that cite this headnote
individual venturers to recover deficiency following
foreclosure of deed of trust. The 368th Judicial District
Court, Williamson County, Burt Carnes, J., rendered
judgment for vendors, and defendants appealed. The
Court of Appeals, Jones, J., held that: (1) references in      [3]
                                                                     Evidence
note and other sale document to individual as “Trustee”                Evidence for Purpose Other Than Varying
were ambiguous, and thus, parol evidence rule did not bar            Rights or Liabilities Dependent Upon Terms of
introduction of evidence showing that individual was                 Writing
acting as representative of joint venture; (2) statute of
frauds defense was unavailable to defendants; (3) even if            Parol evidence rule is inapplicable when suit is
absence of individual joint ventures’ signatures would               brought on underlying transaction rather than
prevent them from being liable on note, it would not                 note itself.
preclude their liability for underlying indebtedness
assumed when they agreed to purchase land; and (4)
jury’s finding that joint venture agreed to pay                      Cases that cite this headnote
indebtedness established not only joint venture’s liability,
but also that of individual venturers.

Affirmed.
                                                               [4]
                                                                     Evidence
                                                                       Grounds for Exclusion of Extrinsic Evidence

                                                                     Parol evidence rule only excludes evidence that
 West Headnotes (12)                                                 varies terms of unambiguous contract.


[1]
        Appeal and Error                                             Cases that cite this headnote
          Interrogatories and Special Verdicts

        In deciding no-evidence point, Court of Appeals
        must consider only the evidence and inferences         [5]
        tending to support trier of fact and disregard all           Evidence
        evidence and inferences to the contrary.                       Grounds for Admission of Extrinsic Evidence

                                                                     Parol evidence rule does not exclude evidence
        Cases that cite this headnote                                offered to clarify or explain ambiguous writing.


                                                                     Cases that cite this headnote
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  1
626 Joint Venture v. Spinks, 873 S.W.2d 73 (1993)
24 UCC Rep.Serv.2d 151




[6]                                                         [9]
       Evidence                                                    Joint Adventures
         Contracts of Sale                                           Actions by or Against Third Persons

       References in note and other sale documents to              Legally and factually sufficient evidence
       individual as “Trustee” were ambiguous, and,                allowed jury to find that joint venture agreed to
       thus, parol evidence rule did not bar introduction          pay indebtedness underlying note signed in
       of evidence showing that individual was acting              connection with purchase of real property, even
       as representative of joint venture with respect to          though note was signed only by one individual
       purchase of real property; references to “trustee”          joint venturer as “Trustee,” where, over the next
       showed that note was signed by individual in                three years, joint venture managed property,
       representative capacity, but did not show for               made improvements to property, and made
       whom he was acting.                                         payments to vendors.


       Cases that cite this headnote                               1 Cases that cite this headnote




[7]                                                         [10]
       Frauds, Statute Of                                          Joint Adventures
         Contracts Completely Performed                              Rights and Liabilities of Parties as to Third
                                                                   Persons
       When one party to contract has fully performed
       his obligations under it, statute of frauds is              Even if absence of signatures of individual joint
       unavailable to the other who knowingly accepts              venturers would prevent them from being liable
       benefits and partly performs. V.T.C.A., Bus. &              on note signed in connection with purchase of
       C. § 26.01.                                                 real property, it would not preclude their
                                                                   liability for underlying indebtedness assumed
                                                                   when they agreed to buy property. V.T.C.A.,
       6 Cases that cite this headnote                             Bus. & C. § 3.401.


                                                                   2 Cases that cite this headnote
[8]
       Frauds, Statute Of
         Agreements to Convey Land
                                                            [11]
       Defense of statute of frauds was unavailable to             Joint Adventures
       preclude finding that joint venture was liable for            Joint Adventures
       underlying indebtedness for purchase of real
       property, where vendors fully performed their               Joint venture is generally governed by same
       part of transaction by deeding land to individual           legal rules as partnership.
       joint venturer as trustee, trustee paid vendors
       $300,000 in cash and signed note for $445,000,
       and joint venture, over the next three years,               2 Cases that cite this headnote
       managed property, made improvements to it,
       and made payments to vendors. V.T.C.A., Bus.
       & C. § 26.01.
                                                            [12]
                                                                   Joint Adventures
       6 Cases that cite this headnote                               Actions by or Against Third Persons


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    2
626 Joint Venture v. Spinks, 873 S.W.2d 73 (1993)
24 UCC Rep.Serv.2d 151

        Jury’s finding that joint venture agreed to pay         was no evidence to support the jury instruction on
        indebtedness for purchase of real property              ratification. We will affirm the trial court’s judgment.
        established not only joint venture’s liability, but
        also that of individual venturers. Vernon’s
        Ann.Texas Civ.St. art. 6132b, § 15(1).

                                                                 FACTUAL AND PROCEDURAL BACKGROUND
        Cases that cite this headnote
                                                                The Spinkses owned 626 acres of land in Lampasas
                                                                County known as Cedar Canyon Ranch. In 1985 they
                                                                listed the land for sale with a real estate agent. The realtor
                                                                told them a group of businessmen were interested in
                                                                purchasing the property. In touring the property, Gantt
Attorneys and Law Firms                                         and Caskey introduced themselves to the Spinkses as two
                                                                of the people who were going to buy the land. A short
*74 Dennis L. Roossien, Jr., Strasburger & Price, L.L.P.,       time later, the Spinkses entered into a contract for the sale
Dallas, for appellants.                                         of the land with “Don Bizzell, Trustee.” The Spinkses
                                                                believed Bizzell signed the contract on behalf of the
Donna Gregg, Law Offices of Jim Dear, P.C., Austin, for         group, and was not signing the contract as an individual.
appellees.                                                      Bizzell testified that he entered into the contract for the
                                                                group.
Before POWERS, JONES and KIDD, JJ.

Opinion                                                         On the date of closing, the group had not yet executed any
                                                                formal written joint venture agreement, and apparently the
JONES, Justice.                                                 venture did not yet have a name. The Spinkses deeded the
                                                                property to “Don Bizzell, Trustee” in exchange for
                                                                $300,000 cash, a note for $445,000, and a deed of trust
James H. Spinks and Claudette L. Spinks, appellees,             covering 446 of the 626 acres. The note and deed of trust
brought suit against 626 Joint Venture d/b/a Cedar              were executed by “Don Bizzell, Trustee.” None of the
Canyon Ranch, Charles Steger, John Gantt, and Jim               documents reflected for whom Bizzell was acting as
Caskey (collectively, “defendants”), appellants, for a debt     trustee.
allegedly owed to the Spinkses. Trial was to a jury, which
found that (1) Steger, Gantt, Caskey, and Don Bizzell           *75 Some months after closing, Bizzell, Steger, Gantt,
were partners;1 (2) the partnership’s agent, Bizzell, signed    and Caskey executed a written joint venture agreement to
a note and deed of trust on behalf of the partnership; and      form the “626 Joint Venture.” The agreement was made
(3) the partnership agreed, through its agent, to pay the       effective as of the date of the sale of the property. Over
indebtedness to the Spinkses. Based on these findings, the      the next three years, the joint venture actively managed
trial court rendered judgment for the Spinkses.                 the property, including paying taxes, making permanent
                                                                improvements, imposing restrictive covenants, listing it as
1
       Bizzell was initially named as a defendant, but
                                                                a partnership asset on tax returns, and making payments
       apparently was dropped from the lawsuit after he filed   to the Spinkses.
       bankruptcy.
                                                                In 1989 Bizzell informed the Spinkses by letter that the
                                                                next payment due under the note would not be made.
                                                                Bizzell signed the letter as Trustee for “626 Joint Venture
Defendants bring four points of error. They assert that (1)
                                                                d/b/a Cedar Canyon Ranch.” After the note went into
as a matter of law, defendants are not liable for the
                                                                default, the Spinkses foreclosed on the property and later
indebtedness evidenced by the note because the note does
                                                                brought this suit to recover the deficiency balance.
not bear any of their names; (2) there is no evidence, or
alternatively insufficient evidence, to sustain the jury’s
finding that the agent signed the note and deed of trust on
behalf of the partnership; (3) there is no evidence, or
alternatively insufficient evidence, to sustain the jury’s                            DISCUSSION
finding that the partnership agreed, through its agent, to
pay the indebtedness evidenced by the note; and (4) there       The Spinkses asserted several causes of action in their

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        3
626 Joint Venture v. Spinks, 873 S.W.2d 73 (1993)
24 UCC Rep.Serv.2d 151

suit. They alleged that the joint venture and its individual   Inc.     v.   Forrest,     687     S.W.2d      457,    459
venturers were liable for the deficiency balance both on       (Tex.App.—Houston [14th Dist.] 1985, no writ).
the note and on the underlying transaction for the sale of     Moreover, even when the parol evidence rule applies, it
land. In their first and third points of error, defendants     only excludes evidence that varies the terms of an
assert that they are not liable because neither the joint      unambiguous contract. Denman v. Hall, 144 Tex. 633,
venture’s name nor the individual venturers’ names are on      193 S.W.2d 515 (1946); Lassiter v. Rotogravure Comm.,
the note. See Tex.Bus. & Com.Code Ann. § 3.401(a)              Inc., 727 S.W.2d 8 (Tex.App.—Dallas 1986, writ ref’d
(West 1968). Defendants argue that if they are not liable      n.r.e.). The rule does not exclude evidence offered to
on the note, they likewise cannot be liable on the             clarify or explain an ambiguous writing. Lassiter, 727
underlying transaction. They also contend that any             S.W.2d at 9; Byrd v. Southwest Multi–Copy, Inc., 693
evidence that the joint venture agreed to pay the debt was     S.W.2d 704 (Tex.App.—Houston [14th Dist.] 1985, no
barred (1) by the parol evidence rule because it               writ). In the present case, the references in the note and
contradicts the note of which only “Bizzell, Trustee” was      other sale documents to “Don Bizzell, *76 Trustee” are
maker and (2) by the statute of frauds because it was not      ambiguous.2 They show that the note was signed by
in writing.                                                    Bizzell in a representative capacity, but do not show for
                                                               whom he was acting. Accordingly, evidence showing that
[1]
   In deciding a no-evidence point, we must consider only      Bizzell was acting as a representative of the joint venture
the evidence and inferences tending to support the finding     was admissible.
of the trier of fact and disregard all evidence and
inferences to the contrary. Alm v. Aluminum Co. of Am.,        2
                                                                             This case is distinguishable from Vector Corp. v. First
717 S.W.2d 588, 593 (Tex.1986), cert. denied, 498 U.S.                       State Bank & Trust Co., 430 S.W.2d 536
847, 111 S.Ct. 135, 112 L.Ed.2d 102 (1990); Garza v.                         (Tex.Civ.App.—Waco 1968, writ ref’d n.r.e.), on
Alviar, 395 S.W.2d 821, 823 (Tex.1965); see generally                        which defendants rely. The Vector court held that there
William Powers, Jr. & Jack Ratliff, Another Look at “No                      was no ambiguity in a note signed by an agent
Evidence” and “Insufficient Evidence,” 69 Tex.L.Rev.                         “individually and as Trustee.” Id. at 538. The evidence
515 (1991).                                                                  in Vector was undisputed, however, that the Bank relied
                                                                             on the agent personally to pay the note. Id. The court
[2]                                                                          held that because the principal was disclosed and the
   When reviewing a jury verdict to determine the factual                    agent was bound, the Bank elected to look to the agent,
sufficiency of the evidence, we must consider and weigh                      and the principal was not liable. Id. However, Vector
all the evidence and should set aside the judgment only if                   involved a suit on a note, not on the underlying
it is so contrary to the overwhelming weight of the                          transaction. Id. at 537. In addition, the evidence in the
evidence as to be clearly wrong and unjust. Cain v. Bain,                    present case showed that both the Spinkses and
709 S.W.2d 175, 176 (Tex.1986); In re King’s Estate, 150                     defendants believed the debt was an obligation of the
Tex. 662, 244 S.W.2d 660, 661 (1951); see also Pool v.                       joint venture and not solely of Bizzell. Finally, while in
Ford Motor Co., 715 S.W.2d 629 (Tex.1986); see                               Vector the agent was individually liable on the note, the
generally Powers & Ratliff, supra.                                           agent in the present case, Bizzell, who signed the note
                                                                             only as trustee, may not be liable on the note. See
                                                                             Bradford      v.    McElroy,      746     S.W.2d      294
Steger, Gantt, and Caskey testified that they authorized                     (Tex.App.—Austin 1988, no writ).
Bizzell to purchase the land in Bizzell’s name as trustee
for the group. Bizzell was authorized to pay $300,000 to
the Spinkses and execute, as trustee, a note for $445,000.     [7] [8] [9]
Steger, Gantt, and Caskey testified that they intended for             We also disagree with defendants’ contention that
the obligation to be “non-recourse.” They meant for the        any liability based on the underlying indebtedness is
note to be an obligation of the group, but not the             barred by the statute of frauds. The statute of frauds
individual members of the group. They apparently               provides that certain types of promises and agreements,
believed that as long as Bizzell executed the note as          including contracts for the sale of real estate, are
“trustee,” they would not incur personal liability on the      unenforceable unless in writing and signed by the person
debt.                                                          to be charged or by someone lawfully authorized to sign
                                                               for him. See Tex.Bus. & Com.Code Ann. § 26.01 (West
[3] [4] [5] [6]
           Defendants contend first that any evidence that     1987). However, where one party to a contract has fully
the joint venture agreed to pay the debt was barred by the     performed his obligations under it, the statute of frauds is
parol evidence rule. We disagree. Where suit is brought        unavailable to the other who knowingly accepts benefits
on the underlying transaction rather than the note itself,     and partly performs. Estate of Kaiser v. Gifford, 692
the parol evidence rule is inapplicable. National Mar–Kit,     S.W.2d 525, 526 (Tex.App.—Houston [1st Dist.] 1985,
                                                               writ ref’d n.r.e.); LeSage v. Dunaway, 195 S.W.2d 729,

                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
626 Joint Venture v. Spinks, 873 S.W.2d 73 (1993)
24 UCC Rep.Serv.2d 151

                                                                     [11] [12]
731 (Tex.Civ.App.—Waco 1946, no writ). In the present                        A joint venture is generally governed by the same
case, the Spinkses fully performed their part of the                 legal rules as a partnership. Pardco v. Spinks, 836 S.W.2d
transaction by deeding the land to Bizzell as trustee.               649, 651 (Tex.App.—El Paso 1992, writ denied);
Bizzell paid the Spinkses $300,000 cash, and signed a                Woodrum v. Cowan, 468 S.W.2d 592, 598–99
note for $445,000. Over the next three years, the joint              (Tex.Civ.App.—Austin 1971), modified on other
venture managed the property, made improvements to the               grounds, 472 S.W.2d 749 (Tex.1971). It is, of course,
property, and made payments to the Spinkses. Therefore,              settled law that “[a]ll partners are liable jointly and
the defense of the statute of frauds is unavailable to               severally for all debts and obligations of the partnership.”
defendants. We conclude there was legally and factually              Tex.Rev.Civ.Stat.Ann. art. 6132b, § 15(1) (West 1970 &
sufficient evidence for the jury to find that the joint              Supp.1994). Therefore, the jury’s finding that the joint
venture agreed to pay the indebtedness underlying the                venture agreed to pay the indebtedness establishes not
note.                                                                only the joint venture’s liability, but also that of the
                                                                     individual venturers.
[10]
    Defendants also argue that the absence of their names
from the note relieves them of liability, notwithstanding            We overrule points of error one and three. Because the
any agreement to pay for the land. See Tex.Bus. &                    jury’s finding challenged by these points of error will
Com.Code Ann. § 3.401(a) (West 1968) (“No person is                  support the judgment, we need not address the remaining
liable on an instrument unless his signature appears                 points of error.
thereon.”). We disagree. Even if the absence of their
signatures would prevent defendants from being liable
“on the note,” it would not preclude their liability for the
underlying indebtedness assumed when they agreed to
buy the land: “Nothing in this section is intended to                                   *77 CONCLUSION
prevent any liability arising apart from the instrument
itself. The party who does not sign may still be liable on           We affirm the trial court’s judgment.
the original obligation for which the instrument was
given....” Tex.Bus. & Com.Code Ann. art. 3.401 cmt. 1
(West 1968). The Spinkses’ pleadings clearly reflect that            All Citations
they brought suit both on the note and on the original
indebtedness. Under these circumstances, section 3.401               873 S.W.2d 73, 24 UCC Rep.Serv.2d 151
does not relieve defendants of liability.

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.                                             5
13
Estate of Kaiser v. Gifford, 692 S.W.2d 525 (1985)




                                                                        Lender who was entitled to judgment on its debt
   KeyCite Yellow Flag - Negative Treatment                             was also entitled to reasonable attorney’s fees
Distinguished by Dynegy, Inc. v. Yates, Tex.App.-San Antonio,           for preparation and trial as well as those fees
August 25, 2010                                                         allowed for appeal. Vernon’s Ann.Texas Civ.St.
                   692 S.W.2d 525                                       art. 2226.
               Court of Appeals of Texas,
                   Houston 1st Dist.
                                                                        2 Cases that cite this headnote
      The ESTATE OF Herbert KAISER, Appellant,
                         v.
            Myrvin H. GIFFORD, Appellee.

 No. 01–84–0438–CV. | April 11, 1985. | Rehearing               [3]
                                                                        Contracts
             Denied June 27, 1985.                                        Acts Constituting Renunciation and
                                                                        Liabilities Therefor
Administratrix of decedent lender’s estate brought suit to              After borrower repudiated entire loan
recover balance due under loan given to decedent’s                      agreement, lender was entitled to consider the
nephew. The 149th District Court, Brazoria County, Paul                 repudiation as an anticipatory breach and sue for
Ferguson, J., held that action to enforce payment of loan               the entire amount due under the agreement.
was barred by statute of frauds, and administratrix
appealed. The Court of Appeals, Warren, J., held that oral
installment loan agreement, although payable in 300                     4 Cases that cite this headnote
monthly installments, was not barred by statute of frauds.

Reversed and judgment rendered.
                                                                [4]
                                                                        Gifts
                                                                          Gift of Money or Bank Deposits in General

 West Headnotes (4)                                                     Trial court’s finding that transfer of funds from
                                                                        uncle to nephew was loan, rather than gift, was
                                                                        not against great weight and preponderance of
[1]
         Frauds, Statute Of                                             evidence, as nephew had issued monthly checks
           Contracts Completely Performed                               to uncle after the transaction, several of which
                                                                        contained the notation “for house.”
         Oral installment loan agreement, although
         payable in 300 monthly installments, was not
         barred by statute of frauds [V.T.C.A., Bus. & C.               Cases that cite this headnote
         § 26.01(b)(6)], because lender had made full
         performance under the agreement, thereby
         taking the oral agreement out of the prohibition
         of the statute.
                                                                Attorneys and Law Firms
         25 Cases that cite this headnote
                                                                *525 Floyd H. Christian, Jr., Angleton, for appellant.

                                                                Leland B. Kee, Kee & Patterson, Angleton, for appellee.

[2]
         Costs                                                  Before WARREN, DUGGAN and HOYT, JJ.
           Particular Actions or Proceedings
         Costs
           Attorney Fees on Appeal or Error

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      1
Estate of Kaiser v. Gifford, 692 S.W.2d 525 (1985)



                        OPINION                                 Kaiser, and appellee was estopped to claim the Statute of
                                                                Frauds. In his second point of error, appellant claims that
                                                                the trial court erred in not awarding appellant attorney’s
WARREN, Justice.                                                fees.
This is an appeal from a take nothing judgment on               In two cross points of error, appellee claims: (1) that the
appellant’s suit for debt.                                      trial court erred in finding that appellant’s pre-trial
                                                                demand for payment of the amount due under the loan
The court found that Herbert Kaiser, deceased, and              agreement was not excessive, and (2) that the trial court’s
appellee had entered into an oral installment loan              finding that the money furnished by Kaiser was a loan
agreement, but also found that the appellant estate’s           was against the great weight and preponderance of the
action to enforce payment of the loan was barred by the         evidence.
Statute of Frauds, prohibiting oral contracts not to be
performed within one year.                                      Article 26.01 provides in part:
[1]
   We hold that the oral installment agreement, although          (a) A promise or agreement described in Subsection (b)
payable in 300 monthly installments, was not barred by            of this section is not enforceable unless the promise or
the Statute of Frauds, because the deceased lender had            agreement, or a memorandum of it, is
made full performance under the agreement, thereby
taking the oral agreement out of the prohibition of the           (1) in writing; and
statute.
                                                                  (2) signed by the person to be charged with the promise
In May 1975, appellee purchased a home in Brazoria                or agreement or by someone lawfully authorized to sign
County. Appellee’s uncle, Herbert Kaiser, issued one              for him.
check for $14,692.16 to Southwest Land Title Company
as payment for the home, and one check *526 for $2,308            (b) Subsection (a) of this section applies to:
to appellee for the purchase of the household furnishings.
Appellee and Kaiser never executed a written agreement            ....
providing for the repayment of the loan. However,
between October 1975 and July 1979, when Kaiser died,
appellee made 44 monthly payments to Kaiser totalling
$6,685.14.

Following Kaiser’s death in 1979, appellee quit making            (6) an agreement which is not to be performed within
monthly installments, claiming that the money advanced            one year from the date of making the agreement
by Kaiser was a gift rather than a loan.
                                                                In Ware v. Poindexter Furniture & Carpet Co., 88
After several written demands for payment of the                S.W.2d 718 (Tex.Civ.App.—Fort Worth 1935), rev’d on
installments were refused by appellee, Dorothy M. Kaiser,       other grounds, 131 Tex. 568, 117 S.W.2d 420 (1938), the
administratrix of Kaiser’s estate, filed suit to recover the    court held that the oral contracts to sell $7744.96 worth of
balance due under the loan.                                     furniture for $500 down with the balance to be paid in
                                                                monthly installments of not less than $100, was not barred
After a non-jury trial, the court entered a take nothing        by the Statute of Frauds, because the seller had fully
judgment for appellee and found: (1) that Kaiser loaned         performed and the buyer had knowingly accepted the
appellee $17,000.16; (2) that appellee agreed to repay the      benefits. Thus, the court followed the rule that where one
$17,000.06 in 300 monthly installments of $151.49 each;         party fully performs a contract, the Statute of Frauds is
(3) that appellee had paid interest and principal of            unavailable to the other who knowingly accepts benefits
$6,685.41; (4) that a principal balance of $16,276.37 was       and partly performs. Callahan v. Walsh, 49 S.W.2d 945
owed under the loan; (5) that the debt was barred by            (Tex.Civ.App.—San Antonio 1932, writ ref’d). The court
Tex.Bus. & Comm.Code Ann. art. 26.01(b)(6)                      further cited Texas Co. v. Burkett, 117 Tex. 16, 296 S.W.
(Tex.U.C.C.) (Vernon Supp.1985), the Statute of Frauds.         273 (1927), for the general rule that:

In two points of error, appellant claims that the trial court               where one party to an oral contract
erred in holding the debt was barred by the Statute of                      has, in reliance thereon, so far
Frauds, because there was complete performance by                           performed his part of the agreement
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      2
Estate of Kaiser v. Gifford, 692 S.W.2d 525 (1985)



             that it would be permitting a fraud               as required by Tex.Rev.Civ.Stat.Ann. art. 2226 (Vernon
             on him to allow the other party to                Supp.1985); (2) that the demand made was not excessive;
             repudiate the contract and set up                 and (3) that a reasonable attorney’s fee would be
             the statute of frauds in justification            $5564.23 for the trial and its preparation, and an
             thereof, equity will regard the case              additional $2500 would be reasonable if the case was
             as being removed from the                         appealed to the Court of Appeals. Based on its holding
             operation of the statute, and will                that the claim was unenforceable, the trial court correctly
             enforce the contract.                             refused to award appellant the attorney’s fees. Magids v.
                                                               Dorman, 430 S.W.2d 910 (Tex.Civ.App.—Houston [14th
The Restatement (Second) of Contracts, sec. 130(d)             Dist.] 1968, writ ref’d n.r.e.). However, since we have
(1982) sets forth the general rules regarding the              found that appellant is entitled to judgment on its debt, it
inapplicability of the Statute of Frauds to our situation as   follows that it is also entitled to reasonable attorney’s fees
follows:                                                       for preparation and trial as well as those fees allowed for
                                                               the appeal.
             If either party promises a                        [3]
             performance that cannot be                           Appellee’s first cross point urges that the trial court
             completed within a year, *527 the                 erred in finding that appellant’s pre-trial demand for
             Statute applies to all promises in                payment was excessive, because it demanded payment of
             the contract, including those which               the entire, accelerated amount due prior to maturity,
             can or even must be performed                     without proving that it was entitled to accelerate the
             within a year. But unlike other                   amount due. We disagree with this contention. After
             provisions of the Statute, the                    appellee repudiated the entire loan agreement, appellant
             one-year provision does not apply                 was entitled to consider the repudiation as an anticipatory
             to a contract which is performed on               breach and sue for the entire amount due under the
             one side at the time it is made, such             agreement. Universal Life & Accident Insurance Co. v.
             as a loan of money, nor to any                    Sanders, 129 Tex. 344, 102 S.W.2d 405 (1937).
             contract which has been fully                     [4]
             performed on one side, whether the                   Appellee’s remaining cross-point contends that the trial
             performance is completed within a                 court’s finding that the transfer of funds from Kaiser to
             year or not.                                      Gifford constituted a loan was against the great weight
                                                               and preponderance of the evidence. In reviewing this
A great majority of jurisdictions agree with the rule that     contention, we must review all of the evidence in the
full performance by one party to an oral contract removes      record to determine if the finding that a loan existed was
the contract from the prohibitions of the Statute. See 3 S.    so against the great weight and preponderance of the
Williston, A Treatise on the Law of Contracts, sec. 504        evidence as to be manifestly unjust. In re King’s Estate,
(3d ed. 1970 and Supp.1983); 2 A. Corbin, Contracts sec.       150 Tex. 662, 244 S.W.2d 660 (1951). The evidence
457 (1962 and Supp.1984).                                      showed that Kaiser’s check to the title company included
                                                               a notation in the corner that matched the description of the
In our case there was not only full performance by Kaiser,     land Gifford purchased with the money received from his
but there were 42 separate written instruments evidencing      uncle. Dorothy Kaiser, the decedent’s widow, testified
an agreement that a monthly installment of a fixed             that she found an envelope in a box in Kaiser’s closet on
amount was payable to Kaiser in satisfaction of the debt.      which he had written two notations: “May 5, 1975, loan to
Allowing appellee to invoke the Statute, under these facts,    Myrvin Gifford” and “loan papers.” She also testified that
would tend more to encourage fraud rather than                 inside the box was an amortization schedule calculating
discourage it as is contemplated by the Statute.               monthly payments of $151.49. Also in evidence are
                                                               copies of 42 checks written essentially on a monthly basis
Appellant’s first point of error is sustained.                 by Gifford to Kaiser in the amount of $151.49 or $152.00.
                                                               Several of the checks contained the notation, “for house.”
We also sustain appellant’s second point of error which
contends that the court should have awarded attorney’s         *528 The evidence tending to show that the funds were a
fees to the appellant.                                         gift, rather than a loan, is the testimony by Gifford that
                                                               the parties considered the funds a gift, copies of Gifford’s
[2]
  The court found: (1) that appellant made timely written      income tax returns indicating that he did not claim an
demand on appellee to pay the amount owing on the debt,        interest deduction for the payments to his uncle, and

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       3
Estate of Kaiser v. Gifford, 692 S.W.2d 525 (1985)



testimony of Kaiser’s sister, who is Gifford’s mother, that         as provided by statute.
Kaiser had never indicated to her that the funds were a
loan. We hold that the trial court’s finding that the
transaction was a loan is not against the great weight and
preponderance of the evidence. Appellee’s cross points              All Citations
are overruled.
                                                                    692 S.W.2d 525
The judgment of the trial court is reversed, and judgment
is rendered for appellant for $16,276.37, plus attorney’s
fees of $8,064.23, together with interest at the legal rate
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.                                             4
14
Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002)
157 Oil & Gas Rep. 785


                                                                       [2]   Frauds, Statute Of
     KeyCite Yellow Flag - Negative Treatment                                    Agreements as to mining claims
Called into Doubt by Westergren v. National Property Holdings, L.P.,
                                                                             Conveyance of working interest in oil and gas
 Tex.App.-Hous. (14 Dist.),  June 28, 2013
                                                                             is real property interest, subjecting agreement
                       82 S.W.3d 429                                         conveying the interest to the statute of frauds.
                  Court of Appeals of Texas,                                 V.T.C.A., Bus. & C. § 26.01.
                            Dallas.
                                                                             3 Cases that cite this headnote
           EXXON CORPORATION, Appellant,
                       v.                                              [3]   Property
           BREEZEVALE LIMITED, Appellee.                                         Ownership and incidents thereof
                                                                             Property
        No. 05–98–02050–CV.              |    April 4, 2002.
                                                                                 Right of alienation
Local liaison hired by oil company to assist the company                     Right to land essentially implies right to profits
in procuring Nigerian oil development rights brought action                  accruing from it; without the latter, the former
against the company for breach of contract. The 101st                        can be of no value, and thus devise of the profits
Judicial District Court, Dallas County, Jay Patterson, J.,                   of land, or even the grant of them, will pass right
entered judgment on jury verdict awarding the liaison $34.3                  to the land itself.
million for breach of oral contract, $1 million for breach of
implied-in-law contract, and $3.495 million in attorney fees.                Cases that cite this headnote
Appeal was taken. The Court of Appeals, David F. Farris,
J., (Retired), held that: (1) the oral agreement involved an           [4]   Mines and Minerals
interest derived from rights to oil in the ground, and was thus                  Nature of estate granted or reserved
subject to the statute of frauds; (2) the oil company could
                                                                             Conveyance of interest in minerals that are
not be bound by the oral agreement under the doctrine of
                                                                             produced from land, such as working interest or
promissory estoppel; (3) enforcement of the oral agreement
                                                                             royalty interest, passes right to the land itself.
under the partial performance exception to the statute of
frauds was precluded; (4) evidence was sufficient to show                    2 Cases that cite this headnote
that liaison had presented claim for compensation for services
rendered; and (5) evidence did not show that oil company
                                                                       [5]   Frauds, Statute Of
and liaison had been involved in either formal fiduciary
                                                                                 Agreements as to mining claims
relationship or informal confidential relationship.
                                                                             Agreement between oil company and its local
Affirmed in part; reversed in part.                                          liaison to share in the risks, losses, production,
                                                                             and profits from oil development in deepwater
                                                                             block which had been obtained from the Nigerian
                                                                             government involved an interest derived from
 West Headnotes (33)                                                         rights to oil in the ground, and was thus subject
                                                                             to the Texas statute of frauds, notwithstanding
 [1]     Frauds, Statute Of                                                  whether the oil company had merely obtained,
             Questions for jury                                              through its “production sharing contract” with
                                                                             the Nigerian government, an interest in the
         Whether contract falls within statute of frauds
                                                                             production of oil rather than an interest in the
         is question of law to be decided by the court.
                                                                             oil itself; conveyance of an interest in the oil
         V.T.C.A., Bus. & C. § 26.01.
                                                                             produced from the land effectively passed right
         Cases that cite this headnote                                       to the land itself. V.T.C.A., Bus. & C. § 26.01.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               1
Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002)
157 Oil & Gas Rep. 785

                                                                     When considering the factual sufficiency of the
       2 Cases that cite this headnote                               evidence, an appellate court assesses all the
                                                                     evidence and reverse for new trial only if the
 [6]   Frauds, Statute Of                                            challenged finding is so against the great weight
           What law governs                                          and preponderance of the evidence as to be
                                                                     manifestly unjust.
       Company which provided local assistance to oil
       developer seeking to procure territory off the                Cases that cite this headnote
       Nigerian coast, and which expected to obtain
       percentage interest in the profits of the venture
       by way of compensation, was precluded from             [10]   Appeal and Error
       arguing that Nigerian law rather than the Texas                  Power of appellate court in general
       statute of frauds should determine whether the                When both legal and factual sufficiency of the
       compensation agreement, which had not been                    evidence points are raised on appeal, an appellate
       executed in writing, was enforceable; the local               court first reviews legal sufficiency to determine
       company neither gave the requisite notice that its            if there is any evidence of probative value to
       intent was to raise an issue of foreign law, nor              support the jury's findings.
       proved the foreign law which it was seeking to
       apply. V.T.C.A., Bus. & C. § 26.01; Rules of                  4 Cases that cite this headnote
       Evid., Rule 203.
                                                              [11]   Estoppel
       Cases that cite this headnote
                                                                         Future events; promissory estoppel
                                                                     Frauds, Statute Of
 [7]   Action                                                            Waiver of bar of statute; estoppel
            What law governs
                                                                     Promissory estoppel applies to bar the
       If one fails to give notice and prove the foreign             application of the statute of frauds and allow
       law that he seeks to apply at trial, the foreign law          the enforcement of an otherwise unenforceable
       may not be applied. Rules of Evid., Rule 203.                 oral agreement when: (1) the promisor makes a
                                                                     promise that he should have expected would lead
       Cases that cite this headnote
                                                                     the promisee to some definite and substantial
                                                                     injury; (2) such an injury occurred; and (3) the
 [8]   Appeal and Error                                              court must enforce the promise to avoid the
          Verdict                                                    injury. V.T.C.A., Bus. & C. § 26.01.
       Appeal and Error
                                                                     11 Cases that cite this headnote
          Sufficiency of Evidence in Support
       When considering the legal sufficiency of the
       evidence, an appellate court considers only the        [12]   Estoppel
       evidence and inferences tending to support the                    Future events; promissory estoppel
       jury's finding, disregarding all evidence to the              Frauds, Statute Of
       contrary; if the record contains any evidence of                  Waiver of bar of statute; estoppel
       probative force to support the jury's finding, the            To invoke the application of promissory estoppel
       finding will be upheld.                                       where there is an oral promise to sign an
                                                                     agreement, the agreement that is the subject of
       Cases that cite this headnote
                                                                     the promise must comply with the statute of
                                                                     frauds, meaning that the agreement must be in
 [9]   Appeal and Error                                              writing at the time of the oral promise to sign it.
          Manifest weight of evidence                                V.T.C.A., Bus. & C. § 26.01.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002)
157 Oil & Gas Rep. 785

                                                                     requirements of the statute of frauds, may be
        11 Cases that cite this headnote                             enforced in equity if denial of enforcement
                                                                     would amount to virtual fraud; the fraud arises
 [13]   Estoppel                                                     when there is strong evidence establishing the
            Future events; promissory estoppel                       existence of an agreement and its terms, the
                                                                     party acting in reliance on the agreement has
        Frauds, Statute Of
                                                                     suffered substantial detriment for which he
            Waiver of bar of statute; estoppel
                                                                     has no adequate remedy, and the other party,
        There was no probative evidence that agreement
                                                                     if permitted to plead the statute, would reap
        under which oil company seeking to develope
                                                                     unearned benefit. V.T.C.A., Bus. & C. § 26.01.
        Nigerian reserves had allegedly bound itself
        to convey “working interest” in production                   52 Cases that cite this headnote
        and profits to local company assisting in the
        procurement of development rights had been
                                                              [16]   Frauds, Statute Of
        reduced to writing, as required by the Texas
                                                                          Necessity that part performance relied on be
        statute of frauds, by the date on which the parties
                                                                     referable to contract
        had allegedly promised to sign it, and thus the
        oil company could not have been bound thereby                For purposes of the partial performance
        under the doctrine of promissory estoppel; the               exception to the statute of frauds, “partial
        oil company had merely indicated on the date in              performance” must be unequivocally referable to
        question that the terms of the “working interest”            the agreement and corroborative of the fact that
        would be memorialized in the future. V.T.C.A.,               an agreement actually was made. V.T.C.A., Bus.
        Bus. & C. § 26.01.                                           & C. § 26.01.

        1 Cases that cite this headnote                              44 Cases that cite this headnote


 [14]   Appeal and Error                                      [17]   Frauds, Statute Of
             Ratification, estoppel, waiver, and res                      Necessity that part performance relied on be
        judicata                                                     referable to contract
        Local liaison which had assisted oil developer               Acts of performance relied upon to take parol
        in the procurement of development rights for                 contract out of the statute of frauds under the
        Nigerian oil reserves, and which claimed to                  partial performance exception must be such as
        have entered into oral agreement with the oil                could have been done with no other design
        company for compensation in the form of                      than to fulfill the particular agreement sought to
        “working interest” in production and profits,                be enforced; otherwise, such acts do not tend
        failed to preserve for appeal its claim that the             to prove the existence of the parol agreement.
        oil company was bound under the agreement by                 V.T.C.A., Bus. & C. § 26.01.
        the doctrine of equitable estoppel; the issue of
                                                                     51 Cases that cite this headnote
        equitable estoppel was never submitted to the
        jury. Vernon's Ann.Texas Rules Civ.Proc., Rule
        279.                                                  [18]   Frauds, Statute Of
                                                                          Necessity that part performance relied on be
        Cases that cite this headnote                                referable to contract
                                                                     There was no evidence that local liaison assisting
 [15]   Frauds, Statute Of                                           oil company in the procurement of Nigerian
            Part Performance in General                              oil development rights had taken any action
        Under the partial performance exception to                   that was unequivocally referable to an alleged
        the statute of frauds, contracts that have                   oral agreement between the parties conveying
        been partly performed, but do not meet the                   “working interest” in production and profits to



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        3
Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002)
157 Oil & Gas Rep. 785

        the local company, and thus enforcement of                  precluding the oil company from arguing on
        the agreement under the partial performance                 appeal that the issue had neither been raised nor
        exception to the statute of frauds was precluded;           litigated.
        the liaison claimed that in reliance upon the oral
        agreement, it had sent one of its representatives           1 Cases that cite this headnote
        to meet with Nigerian government officials, but
        this action was also consistent with an ordinary     [21]   Implied and Constructive Contracts
        services agreement then under negotiation.                      Services Rendered, Weight and Sufficiency
        V.T.C.A., Bus. & C. § 26.01.
                                                                    Evidence was sufficient to show that local liaison
        15 Cases that cite this headnote                            which had been hired by oil company to assist
                                                                    in the procurement of foreign oil development
                                                                    rights had presented claim for compensation
 [19]   Frauds, Statute Of                                          for services rendered, notwithstanding that the
            Part Performance in General                             liaison had stated during pretrial proceedings
        Even if local liaison assisting oil company in              that it would not seek to recover for services
        the procurement of Nigerian oil development                 rendered; after the oil company had informed the
        rights had taken certain actions which could have           liaison of its intent to sever their relationship, the
        been characterized as unequivocally referable to            liaison communicated its belief in the existence
        an alleged oral agreement between the parties               of an enforceable contract between the parties,
        conveying “working interest” in production and              that the oil company should fulfill the contract,
        profits to the local company, the local company             and that it had performed valuable services for
        had adequate remedy at law for any detriment                the company.
        suffered by it in reliance upon the agreement, and
        thus the agreement was not enforceable under                Cases that cite this headnote
        the partial performance exception to the Texas
        statute of frauds; the local company received        [22]   Trial
        $1 million on an implied-in-law contract claim,                  Sufficiency to present issue of fact
        and thus had adequate remedy at law for its
                                                                    Court may direct verdict if no evidence of
        reliance damages, which consisted merely of
                                                                    probative force raises any fact question on the
        costs associated with one trip to meet with
                                                                    material issue.
        Nigerian government officials. V.T.C.A., Bus. &
        C. § 26.01.                                                 1 Cases that cite this headnote

        15 Cases that cite this headnote
                                                             [23]   Appeal and Error
                                                                         Effect of evidence and inferences therefrom
 [20]   Appeal and Error
                                                                    on direction of verdict
           Fees
                                                                    On appeal from directed verdict, appellate court
        Oil company which had hired local liaison
                                                                    examines the evidence in the light most favorable
        to assist in the procurement of foreign oil
                                                                    to the party against whom the verdict was
        development rights failed to preserve for appeal
                                                                    rendered, disregarding all contrary evidence and
        its claim that the liaison, by virtue of having
                                                                    inferences.
        stated in pretrial proceedings that it would
        not seek to recover for services rendered,                  1 Cases that cite this headnote
        was precluded from recovering attorney fees
        on that basis; without complaint from the oil
                                                             [24]   Trial
        company, the trial court submitted the issue
                                                                         Speculation or conjecture; choice of
        of compensation for services rendered to the
                                                                    probabilities or theories
        jury and the jury awarded compensation, thus
                                                                    Trial


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            4
Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002)
157 Oil & Gas Rep. 785

             Sufficiency to present issue of fact                      certain fashion such that one party is justified in
        When no evidence of probative force on an                      expecting the other to act in its best interest, or
        ultimate fact element exists, or when the                      where influence has been acquired and abused,
        probative force of the evidence is so weak that                in which confidence has been reposed and
        only mere surmise or suspicion is raised as to the             betrayed; however, to give full force to contracts,
        existence of essential facts, the trial court has the          courts do not recognize such relationships
        duty to instruct the verdict.                                  lightly.

        1 Cases that cite this headnote                                4 Cases that cite this headnote


 [25]   Appeal and Error                                        [28]   Fraud
           Direction of verdict, dismissal, or nonsuit                     Fiduciary or confidential relations
        Reviewing court may affirm directed verdict                    To impose confidential relationship in business
        even if the trial court's rationale for granting               transaction and thus impose fiduciary obligations
        the directed verdict is erroneous, provided the                upon the parties, the relationship must exist prior
        directed verdict can be supported on another                   to, and apart from, the agreement concerning
        basis.                                                         which the parties have become involved in court
                                                                       action.
        5 Cases that cite this headnote
                                                                       1 Cases that cite this headnote

 [26]   Attorney and Client
            The relation in general                             [29]   Fraud
                                                                           Fiduciary or confidential relations
        Fraud
            Fiduciary or confidential relations                        The fact that businessmen trust each another and
                                                                       that each relies upon the other to perform the
        Joint Adventures
                                                                       contract between them does not necessarily mean
             Nature of relation in general
                                                                       that their relationship is confidential, giving rise
        Partnership                                                    to fiduciary obligations; something apart from
            Fiduciary Duty                                             the transaction between the parties is required.
        Principal and Agent
            Nature of agent's obligation                               5 Cases that cite this headnote
        The two types of fiduciary relationships
        are formal and informal; formal fiduciary               [30]   Fraud
        relationships arise in law, and include                            Questions for Jury
        relationships between attorney and client,                     Although the existence of a confidential
        principal and agent, partners, and joint venturers,            relationship is ordinarily a question of fact,
        whereas informal fiduciary relationships arise                 where there is no evidence to establish the
        from moral, social, domestic, or purely personal               relationship, it is a question of law.
        relationships of trust and confidence, generally
        referred to as confidential relationships.                     1 Cases that cite this headnote

        Cases that cite this headnote
                                                                [31]   Fraud
                                                                           Fiduciary or confidential relations
 [27]   Fraud
                                                                       Frauds, Statute Of
            Fiduciary or confidential relations
                                                                           Agreements as to mining claims
        “Confidential relationships” creating fiduciary
                                                                       Partnership
        obligations between the parties may arise when
                                                                           As between partners
        one party has dealt with another at length in



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            5
Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002)
157 Oil & Gas Rep. 785

        Evidence did not show that oil company and
        local liaison assisting the company in the           Stephen D. Susman, Susman Godfrey, L.L.P., Houston, for
        procurement of foreign oil development rights        Appellee.
        were partners, and thus there was no evidence
        of any formal fiduciary relationship existing        Before Justices BRIDGES, FITZGERALD, and FARRIS. 1
        between the parties; oral agreement under which
        the oil company had allegedly pledged to convey
        “working interest” in production and profits to                                 OPINION
        the local company violated the Texas statute of
                                                             Opinion By Justice David F. FARRIS (Retired).
        frauds, and without such an agreement, the local
        liaison was merely engaged in the provision of       Exxon Corporation (Exxon) appeals the trial court's judgment
        services for the oil company.                        following a jury verdict awarding Breezevale Limited
                                                             (Breezevale) $34.3 million as damages for breach of an
        2 Cases that cite this headnote
                                                             oral contract, $1 million for breach of a contract implied in
                                                             law, and $3.495 million in attorneys' fees. In its first three
 [32]   Fraud                                                issues, Exxon asserts (1) the evidence is legally and factually
            Fiduciary or confidential relations              insufficient to support a finding that the parties reached an
        Evidence that local liaison hired by oil company     enforceable oral agreement, (2) the claimed agreement is
        to assist the company in procuring foreign oil       not enforceable under the statute of frauds, and (3) the trial
        development rights had been involved in alleged      court incorrectly instructed the jury regarding the doctrine of
        confidential relationship with the oil company,      promissory estoppel. In its *434 final five issues, Exxon
        and that the liaison had relied upon promises        complains about the lost profits award, the attorneys' fees
        made by the oil company to convey “working           award, some of the trial court's evidentiary rulings, and the
        interest” in oil production and profits to it,       judgment being contrary to public policy.
        was insufficient to show that the oil company
        and liaison had been involved in an informal         Breezevale brings three issues in a cross appeal. Breezevale
        confidential relationship such as would have         first contends the trial court erred in its calculation of interest
        given rise to fiduciary obligations between the      on the breach of contract award. In two conditional cross-
        parties; the liaison had merely engaged in arms-     points, Breezevale complains of the trial court's dismissal of
        length relations with an affiliate of the oil        its breach of fiduciary duty claim by directed verdict and the
        company and the oil company itself.                  trial court's exclusion of evidence.

        1 Cases that cite this headnote                      For the reasons that follow, we reverse the trial court's award
                                                             of $34.3 million on Breezevale's breach of contract claim,
 [33]   Fraud                                                affirm the award of $3.495 million in attorneys' fees, and
            Fiduciary or confidential relations              affirm the trial court's directed verdict on Breezevale's breach

        Mere subjective trust does not transform arms-       of fiduciary duty claim. 2
        length dealing into fiduciary relationship.

        Cases that cite this headnote
                                                                             FACTUAL BACKGROUND

                                                             In the early 1990s, the Nigerian government opened its
                                                             deepwater offshore to oil and gas exploration, inviting bids
Attorneys and Law Firms                                      from international oil companies for deepwater blocks. Exxon
                                                             submitted a bid requesting blocks 209 and 210. In June 1993,
*433 David J. Beck, Beck Redden & Secrest, L.L.P.,           the Nigerian government formally awarded block 209 to
Houston, Nina Cortell, Haynes & Boone, L.L.P., Dallas, for   Exxon. Exxon subsequently leveraged some of its interest in
Appellant.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            6
Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002)
157 Oil & Gas Rep. 785

block 209, through trades and farm-ins, to acquire interests in   visit. On April 9, 1992, Habib contacted Gerald Mudd,
other blocks that had been awarded to other companies.            an Exxon representative, telling him to “[g]o open the
                                                                  champagne,” because Exxon had been awarded a block.
This case arises from a dispute between Exxon and                 Block 209 was formally awarded to Exxon by the Nigerian
Breezevale, a company hired by Exxon to provide local             government in June 1993.
assistance in its effort to procure exploration rights in
Nigeria. Breezevale, a London-based corporation, operated         On April 13, 1992, Exxon sent Breezevale a letter terminating
in various countries in Europe, the Middle East, and Africa,      its relationship with Breezevale and enclosing a $30,000
including Nigeria. Exxon contacted Breezevale in 1990,            check to cover Breezevale's services. According to Mudd,
requesting its assistance with services such as arranging         Exxon had begun to have concerns about Habib's actions
appointments, conducting briefings, obtaining information         in Nigeria; consequently, Exxon decided to terminate the
and technical data on available blocks of interest to             business relationship. Habib returned the check.
Exxon, and speaking with government officials on Exxon's
behalf. Breezevale provided these types of services to            Breezevale sued Exxon, claiming, among other things, that
Exxon over a period of approximately eighteen months,             Exxon breached its oral contract with Breezevale and its
with no formal agreement in place as to Breezevale's              fiduciary duty to Breezevale. The case was tried to a jury.
compensation for its services. As the business relationship       After Breezevale rested its case, Exxon moved for a directed
progressed, the parties began negotiating the terms of a          verdict on all counts. The trial court granted Exxon's motion
contract to formalize their relationship. Although Exxon          for a directed verdict with regard to Breezevale's breach
initially pursued only a short-term services agreement with       of fiduciary duty claim, but denied the remainder of the
Breezevale, Breezevale expressed an interest in a more            motion. The jury found the parties had entered into an oral
involved, long-term relationship in which Breezevale would        agreement that Breezevale would acquire a 2 ½ percent
share the risk and rewards of Exxon's Nigerian exploration.       working interest in “any deepwater blocks awarded to Exxon
Representatives of Exxon and Breezevale met several times         by the government of Nigeria” and “any deepwater blocks
to discuss their business relationship.                           in which Exxon obtains a farm-in from a private company
                                                                  by trading any interest awarded to Exxon by the government
The last of these meetings occurred on April 3, 1992. In          of Nigeria.” The jury valued the working interest at $34.3
this and previous meetings, the parties discussed both a          million and additionally awarded Breezevale $1 million for
services contract and a participation agreement. The parties      services on an implied contract in law, and $3.495 million for
discussed different options that would provide Breezevale         attorneys' fees. The trial court entered judgment on the jury
with a participation interest in Exxon's Nigerian exploration     verdict. Exxon appealed.
and production, including a 2 ½ percent paid working interest,
whereby Breezevale would pay 2 ½ percent of the costs of
production and receive 2 ½ percent of the production profits.
                                                                                      EXXON'S APPEAL
The parties' dispute as to whether an oral working interest
agreement was reached at the April 3rd meeting became             In its first three issues, Exxon attacks the jury's findings
the basis for Breezevale's lawsuit against Exxon. Breezevale      that an enforceable contract existed between the parties.
claimed Exxon offered, and it accepted, a 2 ½ percent working     Specifically, Exxon claims there is no or insufficient evidence
interest in all of Exxon's Nigerian oil operations. Exxon         to support the jury's finding that the parties reached an
 *435 claimed an agreement on essential terms was never           agreement on all the material terms necessary to the formation
reached and it terminated negotiations with Breezevale before     of an enforceable agreement. Additionally, Exxon contends
a contract was formed. Neither party disputes an agreement        that, as a matter of law, the claimed oral agreement is
on the services contract was never reached.                       unenforceable under the statute of frauds. Finally, Exxon
                                                                  argues the trial court erred in its submission of the jury
The day after the April 3, 1992 meeting, Exxon's main             question on promissory estoppel. Because we agree with
contact at Breezevale, Habib Bou–Habib, traveled to Nigeria       Exxon that the statute of frauds applies, we assume without
to speak with the Ministry of Petroleum on Exxon's behalf.        deciding the parties reached an oral agreement, and address
Breezevale contends the trip was made at the request of           Exxon's second issue regarding the applicability of the statute
Exxon; Exxon asserts it never requested nor authorized the        of frauds.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            7
Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002)
157 Oil & Gas Rep. 785

                                                                     [2] 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
                      Statute of Frauds
                                                                    conveyed an interest in real estate. Under Texas law, a
[1] The statute of frauds, in section 26.01 of the Texas            conveyance of a working interest in oil and gas is a real
Business and Commerce Code, provides in pertinent part:             property interest that subjects the agreement conveying the
                                                                    interest to the statute of frauds. Hill v. Heritage Res., Inc.,
  (a) A promise or agreement described in subsection (b)            964 S.W.2d 89, 134 (Tex.App.-El Paso 1997, pet. denied);
     of this section is not enforceable unless the promise or       EP Operating Co. v. MJC Energy Co., 883 S.W.2d 263,
     agreement, or a memorandum of it, is                           267 (Tex.App.-Corpus Christi 1994, writ denied); see also
                                                                    Procom Energy, L.L.A. v. Roach, 16 S.W.3d 377, 381
     (1) in writing; and                                            (Tex.App.-Tyler 2000, pet. denied) (working interest and
                                                                    overriding royalty interest in oil and gas lease come within
     (2) signed by the person to be charged with the promise
                                                                    ambit of statute of frauds).
        or agreement or by someone lawfully authorized to
        sign for him.
                                                                    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
                            *436 ...                                its agreement with Exxon conveyed an interest in Nigerian
                                                                    Production Sharing Contracts (PSC), not a working interest in
  (b) Subsection (a) of this section applies to:
                                                                    mineral production. According to Breezevale, a PSC differs
          (4) a contract for the sale of real estate;               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.
      (6) an agreement which is not to be performed within
         one year from the date of making of the agreement.
                                                                     [3] [4] Even if the conveyed interest were an interest in a
      TEX. BUS. & COM.CODE ANN. § 26.01 (Vernon
                                                                    PSC, the relevant issue in determining whether the contract
         1987). Whether a contract falls within the statute of
                                                                    involves real estate is not whether title to the minerals passes,
         frauds is a question of law to be decided by the
                                                                    but whether the interest is derived from rights to oil and gas
         court. Gerstacker v. Blum Consulting Eng'rs, Inc.,
                                                                    in the ground, making the interest a realty interest subject
         884 S.W.2d 845, 849 (Tex.App.-Dallas 1994, writ
                                                                    to the statute of frauds. As the Texas Supreme Court has
         denied).
                                                                    stated, “a right to land essentially implies a right to profits
In its second issue, Exxon contends the claimed agreement
                                                                    accruing from it, since, without the latter, the former can be
is not enforceable under the statute of frauds because it was
                                                                    of no value ... [t]hus a devise of the profits of land, or even
not in writing, and (1) the agreement involved the transfer of
                                                                    a grant of them, will pass a right to land itself.” Sheffield v.
working interests in oil and gas properties, which are interests
                                                                    Hogg, 124 Tex. 290, 77 S.W.2d 1021, 1028 (1934) (quoting
in real estate, and (2) the agreement could not possibly
                                                                    Green v. Biddle, 21 U.S. 1, 76, 5 L.Ed. 547 (8 Wheat. 1823));
have been performed within one year. Breezevale responds
                                                                    see also *437 United States Pipeline Corp. v. Kinder, 609
that the agreement does not involve real estate and could
                                                                    S.W.2d 837, 839 (Tex.Civ.App.-Fort Worth 1980, writ ref'd
possibly have been performed within one year. Breezevale
                                                                    n.r.e.). Thus, a conveyance of an interest in the minerals
alternatively contends that, if this Court determines the statute
                                                                    that are produced from land, such as a working interest or a
of frauds applies, Breezevale avoids the application of the
                                                                    royalty interest, passes a right to the land itself. Pecos Dev.
statute of frauds on the ground of either promissory estoppel
                                                                    Corp. v. Hydrocarbon Horizons, Inc., 803 S.W.2d 266, 267
or partial performance.
                                                                    (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).
                    Interest in Real Estate



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                8
Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002)
157 Oil & Gas Rep. 785

 [5] Here, Breezevale argues Exxon offered it a 2 ½                 claim the conveyed interest was not an interest in real estate.
percent working interest in its Nigerian production. One of         See Garcia–Chapa, 33 S.W.3d at 863; Pellow, 990 S.W.2d
Breezevale's experts, Patrick Rooney, testified the parties' use    at 313.
of the term “working interest” connoted agreement in part to
share in the risks, losses, production, and profit of Exxon's       Because the interest is an interest in real estate, we conclude
mineral development. The PSC gave Exxon unrestricted right          the oral agreement is subject to the statute of frauds.
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
                                                                                Exceptions to the Statute of Frauds
ground and is a property interest subject 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
 [6] Breezevale nonetheless contends the characterization a         partial performance. The jury answered “yes” to questions
working interest carries under Texas law is irrelevant because      on both of these exceptions. Exxon contends the evidence
the Texas statute of frauds does not apply to an agreement           *438 is legally and factually insufficient to support the jury's
involving property located in a foreign country. According to       answers to both questions.
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                            Standard of Review
Nigerian law should apply to determine the nature of the
                                                                     [8] [9] [10] When considering the legal sufficiency of
interest conveyed, Breezevale failed to give notice and prove
                                                                    the evidence, we consider only the evidence and inferences
Nigerian law in the trial court.
                                                                    tending to support the jury's finding, disregarding all evidence
                                                                    to the contrary. Weirich v. Weirich, 833 S.W.2d 942, 945
 [7] A party who intends to raise an issue about foreign law
                                                                    (Tex.1992). If the record contains any evidence of probative
shall give notice and, at least thirty days before trial, furnish
                                                                    force to support the jury's finding, the finding will be upheld.
all parties copies of any written materials or sources the party
                                                                    ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430
intends to use as proof of foreign law. TEX.R. EVID. 203;
                                                                    (Tex.1997). When considering the factual sufficiency of the
Long Distance Int'l, Inc. v. Telefonos de Mexico, S.A. de C.V.,
                                                                    evidence, we assess all the evidence and reverse for a new trial
49 S.W.3d 347, 350 (Tex.2001). If a party fails to give notice
                                                                    only if the challenged finding is so against the great weight
and prove foreign law as provided by the rule, the foreign law
                                                                    and preponderance of the evidence as to be manifestly unjust.
may not be applied. In re Garcia–Chapa, 33 S.W.3d 859, 863
                                                                    Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986).
(Tex.App.-Corpus Christi 2000, no pet.); see also Pellow v.
                                                                    When both legal and factual sufficiency points are raised,
Cade, 990 S.W.2d 307, 313 (Tex.App.-Texarkana 1999, no
                                                                    we first review legal sufficiency to determine if there is any
pet.) (absent proper invocation of foreign law by pleading and
                                                                    evidence of probative value to support the jury's findings.
proof, Texas courts must presume foreign law to be same as
                                                                    Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401
that of Texas).
                                                                    (Tex.1981); In re King's Estate, 150 Tex. 662, 244 S.W.2d
                                                                    660, 661 (1951).
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                             Promissory Estoppel
control the nature of the interest. In Hunt, the parties properly
                                                                    In its third issue, Exxon complains the trial court erred in
proved up Libyan law in a pretrial hearing that included
                                                                    its submission of the jury question on promissory estoppel
testimony of international and foreign law experts. Id. at 327
                                                                    because it was an incorrect statement of the law. Exxon
(Steakley, J., dissenting). Conversely, in this case, Breezevale
                                                                    also attacks the sufficiency of the evidence to support the
told the court there was “no need to invoke Nigerian law” and,
                                                                    jury's answer. Jury question No. 3 asked, “Did Breezevale
consistent with that statement, did not submit any evidence of
                                                                    reasonably rely upon the oral promise of Exxon, if any, to
Nigerian law. Breezevale cannot now rely on Nigerian law to
                                                                    reduce its oral agreement to writing?”


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               9
Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002)
157 Oil & Gas Rep. 785

                                                                 support one or more of the elements of the doctrine, it
 [11]     [12]     Promissory estoppel applies to bar the is irrelevant whether Exxon submitted a proper question.
application of the statute of frauds and allow the enforcement   See TEX.R. CIV. P. 279 (“A claim that the evidence was
of an otherwise unenforceable oral agreement when (1) the        legally or factually insufficient to warrant the submission
promisor makes a promise that he should have expected            of any question may be made for the first time after the
would lead the promisee to some definite and substantial         verdict, regardless of whether the submission of such question
injury; (2) such an injury occurred; and (3) the court must      was requested by the complainant.”) Rather, the issue is
enforce the promise to avoid the injury. Nagle v. Nagle,         whether the evidence supports the finding, including any
633 S.W.2d 796, 800 (Tex.1982); “Moore” Burger, Inc. v.          deemed findings on elements not included in the question.
Phillips Petroleum Co., 492 S.W.2d 934, 936 (Tex.1972). To       See Crosbyton Seed Co. v. Mechura Farms, 875 S.W.2d 353,
invoke the application of promissory estoppel where there        363–64 (Tex.App.-Corpus Christi 1994, no writ); see also
is an oral promise to sign an agreement, as in this case, the    Auto. Ins. Co. v. Davila, 805 S.W.2d 897, 902 (Tex.App.-
agreement that is the subject of the promise must comply with    Corpus Christi 1991, writ denied) (element may not be
the statute of frauds. “Moore” Burger, 492 S.W.2d at 940         deemed found by court if no evidence supports it).
(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.,  [14] We conclude that, because there is no evidence there
47 S.W.3d 122, 126 (Tex.App.-Waco 2001, no pet.); Mann           was a written working interest agreement in existence on
v. NCNB Tex. Nat'l Bank, 854 S.W.2d 664, 668 (Tex.App.-          April 3, 1992, there is no evidence to support the jury finding
Dallas 1992, no writ); Beta Drilling, Inc. v. Durkee, 821        of promissory estoppel. We therefore overturn the jury's
S.W.2d 739, 741 (Tex.App.-Houston [14th Dist.] 1992, writ        finding on Question No. 3. 3
denied).

 [13] Breezevale first contends the law is unclear as to
whether the doctrine of promissory estoppel may be applied                             Partial Performance
in the absence of a written contract in existence at the time of
                                                                   Breezevale also relies on the jury's affirmative answer to the
the promise. However, we agree with the court in Sonnichsen
                                                                   question, “Did Breezevale partially perform the agreement,
that “the holding from “Moore” Burger is clear” that the
                                                                   if any?” in arguing the doctrine of partial performance bars
agreement must be in writing at the time the promise is made.
                                                                   application of the statute of frauds in this case. Exxon
Sonnichsen, 47 S.W.3d at 126; see also Mann, 854 S.W.2d
                                                                   contends there is no or insufficient evidence to support a
at 668 (where this Court held an agreement in writing at
                                                                   finding of partial performance.
time of promise is required element of promissory estoppel).
According to Breezevale, because Mudd told Habib at the
                                                                    [15] [16] [17] Under the partial performance exception
April 3rd meeting that Exxon was going to memorialize the
                                                                   to the statute of frauds, contracts that have been partly
working interest agreement into an attachment to the draft
                                                                   performed, but do not meet the requirements of the statute of
service agreement, “there was every reason for Mr. Habib to
                                                                   frauds, may be enforced in equity if denial of enforcement
believe this either had been done or could be done and [would
                                                                   would amount to a virtual fraud. Carmack v. Beltway Dev.
be] ready to sign during their next meeting.” Irrespective of
                                                                   Co., 701 S.W.2d 37, 40 (Tex.App.-Dallas 1985, no writ). The
what Habib believed, there is no evidence *439 either that
                                                                   fraud arises when there is strong evidence establishing the
(1) the attachment was ever prepared or (2) Mudd or any
                                                                   existence of an agreement and its terms, the party acting in
other Exxon representative told Habib the working interest
                                                                   reliance on the contract has suffered a substantial detriment
agreement had already been prepared. Thus, there is no
                                                                   for which he has no adequate remedy, and the other party,
probative evidence in the record that the working interest
                                                                   if permitted to plead the statute, would reap an unearned
agreement was in writing on April 3, 1992.
                                                                   benefit. Id.; see also Hooks v. Bridgewater, 111 Tex. 122,
                                                                   229 S.W. 1114, 1116 (1921). The partial performance must be
Pointing out that the promissory estoppel question submitted
                                                                   “unequivocally referable to the agreement and corroborative
to the jury did not include the requirement that a writing
                                                                   of the fact that a contract actually was made.” Wiley v.
exist when the promise was made, Breezevale argues Exxon
                                                                   Bertelsen, 770 S.W.2d 878, 882 (Tex.App.-Texarkana 1989,
waived any charge error by not submitting a substantially
                                                                   no writ) (citing Chevalier v. Lane's, Inc., 147 Tex. 106, 213
correct jury question. However, if there is no evidence to
                                                                   S.W.2d 530, 533–34 (1948)). The acts of performance relied


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           10
Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002)
157 Oil & Gas Rep. 785

upon to take a parol contract out of the statute of frauds           to enforce; rather, it is whether there is evidence that the
must be such as could have been done with no other design            performance is solely referable to the contract. See Teague,
than *440 to fulfill the particular agreement sought to be           526 S.W.2d at 293; Rodriguez, 960 S.W.2d at 186.
enforced; otherwise, they do not tend to prove the existence
of the parol agreement relied upon by the plaintiff. Teague v.       Habib's actions in traveling to Nigeria and speaking with
Roper, 526 S.W.2d 291, 293 (Tex.Civ.App.-Amarillo, 1975              the government officials on Exxon's behalf were consistent
writ ref'd n.r.e.) (citing Francis v. Thomas, 129 Tex. 579, 106      with the services Breezevale had performed in the previous
S.W.2d 257, 260 (1937)).                                             eighteen months and could be referable to the services
                                                                     agreement. Further, nothing in Habib's trip to Nigeria, even
 [18]     Exxon contends Breezevale's claim of partial               if made at the request of Exxon, showed “strong evidence
performance is not “unequivocally referable” to the working          establishing the existence of the [working interest] agreement
interest contract because Breezevale's actions could be              and its terms.” See Carmack, 701 S.W.2d at 40. We conclude
referable to the services contract. Breezevale does not dispute      there is no evidence that Breezevale's performance was
that it never paid Exxon any of the costs associated with            unequivocally referable to the working interest agreement.
a working interest in Exxon's blocks. The action on which
Breezevale relies as evidence of its partial performance              *441 [19] Moreover, even assuming there was evidence
                                                   4                 that Breezevale's actions were unequivocally referable to
is Habib's trip to Nigeria on April 4, 1992. Breezevale
contends Habib's trip to Nigeria during this time period             the working interest agreement, the doctrine of partial
constituted sufficient partial performance to take the contract      performance also requires that the party acting in reliance
out of the statute of frauds because Habib went to Nigeria in        on the agreement suffer a substantial detriment for which
reliance on Exxon's promise of a working interest in any block       there is no adequate remedy. See Hooks, 229 S.W. at 1116;
awarded. Exxon argues that such performance does not “show           Carmack, 701 S.W.2d at 40. If Breezevale were successful
strong evidence establishing the existence of the [working           in removing the oral agreement from the statute of frauds
interest] agreement and its terms,” see Carmack, 701 S.W.2d          because of partial performance, Breezevale would be entitled
at 40, and is more referable to the services agreement the           to only reliance damages. See Magcobar N. Am. v. Grasso
parties were negotiating than the working interest agreement.        Oilfield Servs., Inc., 736 S.W.2d 787 (Tex.App.-Corpus
                                                                     Christi 1987) (court's holding that party may recover reliance
Applying the no-evidence standard of review, and viewing             damages and not breach of contract damages in case where
the evidence in the light most favorable to Breezevale, we           promissory estoppel takes case out of statute of frauds is
find there is no evidence that Habib's actions in going to           consistent with equity, the principle underlying all exceptions
Nigeria were unequivocally referable to the working interest         to statute of frauds), writ dism'd by agr., 754 S.W.2d 646
contract, because even Breezevale admits there was a services        (Tex.1988); see also Adams v. Petrade Int'l, Inc., 754 S.W.2d
contract being negotiated between the parties and that it            696, 708 (Tex.App.-Houston [1st Dist.] 1988, writ denied)
had been providing Exxon with liaison services similar to            (relying on “settled law” that party's damages based on
those provided during the trip throughout the eighteen-month         promissory estoppel as exception to statute of frauds are
period. See Teague, 526 S.W.2d at 293 (performance must be           not measured by profits that reliance led him to expect,
such as could have been done with no other design than to            but limited to amount necessary to compensate party for
fulfill particular agreement sought to be enforced); see also        loss already suffered). Breezevale's reliance damages would
Rodriguez v. Klein, 960 S.W.2d 179, 186 (Tex.App.-Corpus             encompass only the services Habib performed during his
Christi 1997, no pet.) (because party's performance was              April trip to Nigeria. See Fretz Constr. Co. v. Southern Nat'l
required under one or more of three agreements, including bill       Bank, 626 S.W.2d 478, 483 (Tex.1981) (reliance damages
of sale, it could not be unequivocally referable to bill of sale);   are amount necessary to restore plaintiff to position he would
Beta Drilling, 821 S.W.2d at 741 (overturning jury finding on        have been in had he not acted in reliance on promise). We
partial performance because appellee's employment services           conclude that because Breezevale received $1 million on its
were not unequivocally referable to oral agreement for               contract implied in law claim, it had an adequate remedy as a
sale of securities). In a no-evidence review of whether              matter of law. Cf. Carmack, 701 S.W.2d at 40 (in analyzing
the performance was “unequivocally referable,” the relevant          partial performance of Beltway, court noted Beltway had
issue is not whether there is evidence that the performance          no other adequate remedy because broker could not recover
could be referable to the contract which the party is trying         for same services on implied contract, quasi contract, or



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            11
Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002)
157 Oil & Gas Rep. 785

quantum meruit theory); Wiley, 770 S.W.2d 878, 882 (if              The record shows that, after receiving the letter from Exxon
person receives payment for services, those services will           terminating the relationship, Breezevale communicated with
not constitute partial performance as exception to statute of       Exxon regarding its belief that it had a valid contract with
frauds).                                                            Exxon, that Exxon should fulfill the contract, and that it
                                                                    had performed valuable services for Exxon. We conclude
Because there is no evidence that Breezevale's partial              this is sufficient evidence of presentment. See Jones v.
performance was unequivocally referable to the working              Kelley, 614 S.W.2d 95, 100 (Tex.1981) (no particular form
interest agreement, and because Breezevale did not suffer a         of presentment required); see also Criton Corp. v. Highlands
substantial detriment for which it had no adequate remedy,          Ins. Co., 809 S.W.2d 355, 358 (Tex.App.-Houston [14th
there is no evidence to support the jury's finding on partial       Dist.] 1991, writ denied) (holding oral request to tender full
performance. We overturn the jury's finding to Jury Question        performance under contract, which was refused, sufficient to
No. 4.                                                              establish presentment).

                                                                    Exxon does not dispute that attorneys' fees may be awarded
                                                                    for claims arising out of quantum meruit, or that the quantum
                       Attorneys' Fees
                                                                    meruit claim is not so interrelated with the contract claim as
 [20] Exxon contends if the award for breach of contract            to be more or less inseparable. See Weitzul Constr., Inc. v.
is reversed, this Court must likewise reverse the trial court's     Outdoor Environs, 849 S.W.2d 359, 366 (Tex.App.-Dallas
award of $3.495 million in attorneys' fees. Breezevale              1993, writ denied). Therefore, because attorneys' fees are
responds that even if this Court reverses the breach of contract    authorized on the quantum meruit cause of action, Breezevale
claim, it is still entitled to attorneys' fees on its $1 million    may recover the total amount of attorneys' fees the trial court
award for the contract implied in law, or quantum meruit,           awarded. See id.
claim. We agree with Breezevale.

Exxon does not appeal the jury's finding that Breezevale                                      Conclusion
performed compensable services in the amount of $1 million,
nor does it argue attorneys' fees are not recoverable for the       Because we conclude the statute of frauds applies to render
cause of action underlying the $1 million award. Rather,            the oral agreement unenforceable, we need not reach Exxon's
Exxon asserts Breezevale cannot recover attorneys' fees based       other issues. We reverse the jury's finding to Question No.
on the award because Breezevale claimed, in a pretrial              1 and its award of $34.3 million. We render judgment that
hearing, that it was not seeking compensation for services          Breezevale take nothing on its claim for breach of an oral
rendered. According to Exxon, because Breezevale could not          contract. We affirm the $3.495 million award of attorneys'
have expended attorney time and expenses on a claim it              fees.
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
                                                                                BREEZEVALE'S CROSS APPEAL
it was seeking.
                                                                    Breezevale brings three issues in a cross appeal. Because of
 *442 [21] The fact that Breezevale stated in a pretrial            our disposition of Exxon's appeal, we address only one of
hearing it was not seeking compensation for services rendered       Breezevale's issues.
is irrelevant in light of the fact that the trial court submitted
a jury question on the issue, which Exxon does not                  In its second issue, Breezevale contends the trial court erred in
appeal. Because Exxon did not complain of the trial court's         granting a directed verdict on Breezevale's breach of fiduciary
submission of the question and the jury's affirmative answer        duty claim based on a two-year statute of limitations. In a
to it, it cannot now complain the issue was not raised and
                                                                    “reply point and conditional cross point,” 5 Exxon contends
litigated at trial. Further, because the issues involved in
                                                                    that even if the trial court erred in granting the directed verdict
the quantum meruit claim are necessarily interrelated with
                                                                    based on the statute of limitations, the breach of fiduciary
Breezevale's breach of contract claim, we also decline to
                                                                    duty claim was still properly dismissed because there was no
find there was no presentment of the attorneys' fees claim.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               12
Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002)
157 Oil & Gas Rep. 785

evidence of a fiduciary relationship. We agree with Exxon's           relies on another to perform a contract does not give rise to
conditional cross point.                                              a confidential relationship, because something apart from the
                                                                      transaction between the parties is required. Crim, 823 S.W.2d
 [22] [23] [24] [25] A court may direct a verdict if                noat 594. Although the existence of a confidential relationship
evidence of probative force raises a fact issue on the material       is ordinarily a question of fact, where there is no evidence to
issue. Szczepanik v. First S. Trust Co., 883 S.W.2d 648,              establish the relationship, it is a question of law. Seymour v.
649 (Tex.1994). On review, we examine the evidence in the             Am. Engine & Grinding Co., 956 S.W.2d 49, 60 (Tex.App.-
light most favorable to the party against whom the verdict            Houston [14th Dis.] 1996, writ denied); Kline v. O'Quinn, 874
was rendered, *443 disregarding all contrary evidence and             S.W.2d 776, 786 (Tex.App.-Houston [14th Dist.] 1994, writ
inferences. Id.; Rodriguez v. United Van Lines, Inc., 21              denied).
S.W.3d 382, 383 (Tex.App.-San Antonio 2000, pet. denied).
When no evidence of probative force on an ultimate fact           [31]     Breezevale first asserts that a formal fiduciary
element exists, or when the probative force of the evidence      relationship existed because it was partners with Exxon.
is so weak that only mere surmise or suspicion is raised as      However, we have held there was no working interest
to the existence of essential facts, the trial court has the dutyagreement between the parties because any oral agreement
to instruct the verdict. Villarreal v. Art Inst. of Houston, Inc.violated the statute of frauds. Therefore, there is no evidence
20 S.W.3d 792, 796 (Tex.App.-Corpus Christi 2000, no pet.).      the parties were working interest partners. See Schlumberger,
The reviewing court may affirm a directed verdict even if        959 S.W.2d at 176 (partnership consists of express or implied
the trial court's rationale for granting the directed verdict is agreement containing four required elements: (1) community
erroneous, provided the directed verdict can be supported on     of interest in venture, (2) agreement to share profits, (3)
another basis. Id.                                               agreement to share losses, and mutual right of control or
                                                                 management of enterprise). Without an agreement, there is no
 [26]     [27]    [28]     [29]    [30] There are two types of   evidence the parties were partners and no evidence to support
fiduciary relationships-formal and informal. Crim Truck &        Breezevale's argument that a formal fiduciary relationship
Tractor Co. v. Navistar Int'l Transp. Corp., 823 S.W.2d          existed arising from the partnership.
591, 593–94 (Tex.1992). Formal fiduciary relationships arise
as a matter of law, and include the relationships between         [32] Breezevale also argues it submitted evidence that
attorney and client, principal and agent, partners, and joint    Breezevale and Exxon *444 had developed a relationship
venturers. Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674     of trust and confidence and there was some evidence of
(Tex.1998). Informal fiduciary relationships arise from “a       an informal fiduciary relationship between the parties. It
moral, social, domestic or purely personal relationship of trust relies on evidence that before Exxon and Breezevale began
and confidence, generally called a confidential relationship.”   the dealings at issue in this suit, Breezevale had a ten-year
Associated Indem. Corp. v. CAT Contracting, Inc., 964            distributorship relationship with Exxon Chemical in Nigeria.
S.W.2d 276, 287 (Tex.1998). Confidential relationships may       However, the evidence shows Exxon Chemical is a separate
arise when one party has dealt with another in a certain         Exxon affiliate, and nothing in the record indicates this
manner for a long period of time such that one party is          relationship was anything more than an arms-length business
justified in expecting the other to act in its best interest,    relationship. See Gillum v. Republic Health Corp., 778
Morris, 981 S.W.2d at 674, and in cases where “influence         S.W.2d 558, 568 (Tex.App.-Dallas 1989, no writ) (plaintiff
has been acquired and abused, in which confidence has            could not bootstrap prior relationship with two separate
been reposed and betrayed.” Associated Indem. Corp., 964         entities to claim twenty-six year confidential relationship with
S.W.2d at 287. However, to give full force to contracts,         defendant hospital).
we do not recognize such a relationship lightly. Burleson
State Bank v. Plunkett, 27 S.W.3d 605, 611 (Tex.App.-Waco         [33]     Breezevale also relies on evidence it “trusted
2000, pet. denied) (citing Thigpen v. Locke, 363 S.W.2d          Exxon's numerous promises that an agreement ... would
247, 253 (Tex.1962)). To impose such a relationship in a         be forthcoming;” it clearly informed Exxon it wanted a
business transaction, the relationship must exist prior to,      long-term relationship; it shared with Exxon confidential
and apart from, the agreement made the basis of the suit.        information it learned from the Nigerian officials regarding
Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 177         the bidding process; and Exxon requested that Breezevale
(Tex.1997). The fact that one businessman trusts another and     work exclusively for Exxon. Even if true, these facts are not



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               13
Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (2002)
157 Oil & Gas Rep. 785

                                                                     relationship between the parties, the trial court did not erred in
evidence of an informal fiduciary relationship. Breezevale's
                                                                     granting Exxon's motion for directed verdict on Breezevale's
claim that it subjectively trusted Exxon to provide it a
                                                                     breach of fiduciary duty claim. Furthermore, the trial court
working interest agreement is insufficient to impose fiduciary
                                                                     erred in denying Exxon's motion for directed verdict on
obligations on Exxon as a matter of law. Mere subjective
                                                                     Breezevale's claim that it had a “special relationship of trust
trust does not transform arms-length dealing into a fiduciary
                                                                     and confidence” with Exxon. Consequently, we find no merit
relationship. Schlumberger, 959 S.W.2d at 177; Crim, 823
                                                                     in Breezevale's second issue in its cross appeal.
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
                                                                     We reverse the trial court's award of $34.3 million against
another, and relies upon his promise to carry out a contract,
                                                                     Exxon for breach of contract and affirm the remaining
does not create a constructive trust ... [t]o hold otherwise
                                                                     portions of the trial court's judgment that are the subject of
would render the Statute of Frauds meaningless.”) The record
                                                                     this appeal.
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'
                                                                     All Citations
negotiations for the services contract and working interest
agreement. See Crim, 823 S.W.2d at 594. We conclude                  82 S.W.3d 429, 157 Oil & Gas Rep. 785
that, because the record contains no evidence of a fiduciary


Footnotes
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.


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.                                                14
15
National Property Holdings, L.P. v. Westergren, 453 S.W.3d 419 (2015)
58 Tex. Sup. Ct. J. 204




   KeyCite Yellow Flag - Negative Treatment                    [1]
Distinguished by Orca Assets, G.P., L.L.C. v. JPMorgan Chase            Release
Bank, N.A., Tex.App.-Dallas, August 11, 2015                              Fraud and Misrepresentation
                     453 S.W.3d 419
                 Supreme Court of Texas.                                Plaintiff did not justifiably rely, as element of
                                                                        fraudulent     inducement,      on     defendant’s
      National Property Holdings, L.P., Michael Plank                   representations as to contents of release, in
              and Russell Plank, Petitioners,                           signing release of rights to real property and
                            v.                                          rights under oral contract; defendant’s
             Gordon Westergren, Respondent                              representations that release was just a “receipt”
                                                                        for $500,000 check and that plaintiff did not
 NO. 13–0801 | Opinion Delivered: January 9, 2015
                                                                        need to worry about the release, directly
                                                                        contradicted the contents of the release, and
                                                                        plaintiff had ample opportunity to read the
Synopsis                                                                release but chose not to read it before signing
Background: Seller of option to purchase 190 acres                      because he was “in a hurry” and did not have his
brought action against buyer and consultant, alleging                   reading glasses with him. Restatement (Second)
breach of contract, breach of partnership duties,                       of Torts, § 541.
common-law fraud, and statutory fraud. Buyer and
consultant counterclaimed for breach of settlement
agreement and release. The 269th District Court, Harris                 1 Cases that cite this headnote
County, No. 2008-36847, Dan T. Hinde, J., granted
judgment notwithstanding the verdict (JNOV) to buyer
and consultant on seller’s claims, but entered judgment on
special jury verdict for seller on buyer’s and consultant’s    [2]
                                                                        Fraud
claims. Seller, buyer, and consultant appealed. The
                                                                          Acts induced by fraud
Houston Court of Appeals, 14th District, affirmed in part
and reversed in part. Buyer and consultant petitioned for
                                                                        Fraudulent inducement is a particular species of
review.
                                                                        fraud that arises only in the context of a
                                                                        contract.

Holdings: The Supreme Court held that:
                                                                        1 Cases that cite this headnote
[1]
    seller did not justifiably rely on consultant’s
representations as to contents of release;
[2]
   partial performance exception to statute of frauds did      [3]
                                                                        Fraud
not apply to allow enforcement of oral contract;                          Elements of Actual Fraud
[3]
  seller did not breach mediated agreement settling prior               To prove a claim of fraudulent inducement, a
lawsuit by bringing action; and                                         plaintiff must establish that: (1) defendant made
[4]                                                                     a material representation; (2) defendant’s
   seller did not breach release agreement by bringing                  representation was false and was either known
action.                                                                 to be false when made or made without
                                                                        knowledge of its truth; (3) defendant’s
                                                                        representation was intended to be and was relied
Affirmed in part and reversed in part.
                                                                        upon by the injured party; and (4) plaintiff’s
                                                                        injury complained of was caused by the reliance.


                                                                        2 Cases that cite this headnote
  West Headnotes (12)
                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    1
National Property Holdings, L.P. v. Westergren, 453 S.W.3d 419 (2015)
58 Tex. Sup. Ct. J. 204

                                                                        $500,000 was not unequivocally referable to the
                                                                        oral agreement, but instead was made to avoid
                                                                        performance of the oral contract. Tex. Bus. & C.
                                                                        Code § 26.01.
[4]
        Fraud
           Reliance on Representations and Inducement
        to Act                                                          1 Cases that cite this headnote

        A party to a written contract cannot justifiably
        rely, as element of fraudulent inducement, on
        oral misrepresentations regarding the contract’s       [8]
        unambiguous terms.                                              Appeal and Error
                                                                          Cases Triable in Appellate Court

        2 Cases that cite this headnote                                 Whether a contract comes within the statute of
                                                                        frauds is a question of law, which an appellate
                                                                        court reviews de novo.

[5]                                                                     2 Cases that cite this headnote
        Contracts
          Presumptions and burden of proof

        Instead of excusing a party’s failure to read a
        contract when the party has an opportunity to do       [9]
        so, the law presumes that the party knows and                   Frauds, Statute of
        accepts the contract terms.                                        Necessity that part performance relied on be
                                                                        referable to contract

        4 Cases that cite this headnote                                 One of the requirements of the partial
                                                                        performance exception to the statute of frauds is
                                                                        that the performance on which the party relies
                                                                        must be unequivocally referable to the
                                                                        agreement, in other words, the purpose of the
[6]
        Contracts                                                       alleged acts of performance must be to fulfill a
          Effect in general; enforcement in general                     specific agreement; if the evidence establishes
                                                                        that the party who performed the act that is
        It is not the courts’ role to protect parties from              alleged to be partial performance could have
        their own agreements.                                           done so for some reason other than to fulfill
                                                                        obligations under the oral contract, the exception
                                                                        is unavailable. Tex. Bus. & C. Code § 26.01.
        1 Cases that cite this headnote

                                                                        1 Cases that cite this headnote

[7]
        Frauds, Statute of
           Necessity that part performance relied on be
        referable to contract                                  [10]
                                                                        Frauds, Statute of
                                                                           Necessity that part performance relied on be
        Partial performance exception to statute of                     referable to contract
        frauds did not apply to allow enforcement of
        oral contract requiring defendant to pay plaintiff              A party cannot rely upon oral representations to
        $1 million from development and future sale of                  satisfy the partial performance exception to the
        real property, where defendant paid plaintiff                   statute of frauds; rather, the kind of performance
        $500,000 and had plaintiff sign release of his                  that justifies the exception to the statute of
        claims to the property; defendant’s payment of                  frauds is performance which alone and without
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        2
National Property Holdings, L.P. v. Westergren, 453 S.W.3d 419 (2015)
58 Tex. Sup. Ct. J. 204

        the aid of words of promise is unintelligible or at   DISTRICT OF TEXAS
        least extraordinary unless as an incident of
        ownership, assured, if not existing. Tex. Bus. &      Attorneys and Law Firms
        C. Code § 26.01.
                                                              Mark Ryan Trachtenberg, Michael J. Mazzone, Polly
                                                              Benton Graham, Haynes and Boone LLP, Houston, for
        1 Cases that cite this headnote                       Petitioner

                                                              Mark C. Sparks, John Andrew Cowan, Provost Umphrey
                                                              Law Firm L.L.P., Beaumont, for Respondent.
[11]                                                          Opinion
        Compromise and Settlement
          Persons concluded
        Compromise and Settlement                             PER CURIAM
          Performance or Breach of Agreement

        Plaintiff did not breach mediated agreement           This dispute involves a mediated settlement agreement, an
        settling prior lawsuit by bringing action against     oral side agreement, and a subsequent written release. A
        defendant for fraudulent inducement and breach        pivotal issue is whether Gordon Westergren released his
        of oral contract; although defendant had been         claims for breach of the oral side agreement or whether,
        involved in negotiating settlement and although       as he insists and the jury found, he was fraudulently
        oral contract involved same real property as the      induced into signing the release. On that issue, we
        prior lawsuit, defendant had not been a party to      conclude that Westergren’s fraudulent inducement
        prior lawsuit, and settlement agreement did not       defense must fail as a matter of law because the record
        contain any language in which plaintiff agreed        conclusively establishes that he had a reasonable
        not to sue defendant.                                 opportunity to read the release before he signed it and
                                                              elected not to do so. We also conclude that the oral side
                                                              agreement did not satisfy the statute of frauds and that
        Cases that cite this headnote                         Westergren did not breach the mediated settlement
                                                              agreement or the release by filing this suit. For these
                                                              reasons, we reverse in part and affirm in part the court of
                                                              appeals’ judgment and reinstate in part the trial court’s
                                                              take-nothing judgment and award of costs.
[12]
        Release
          Covenant not to sue or execute                      The facts giving rise to the parties’ claims relate to a
                                                              190–acre tract of land in La Porte, Texas. The parties
        Plaintiff did not breach release agreement by         hotly dispute the facts, but because we are reviewing the
        bringing action against defendant for fraudulent      reversal of a judgment notwithstanding a jury verdict in
        inducement and breach of oral contract;               favor of Westergren, we “credit evidence favoring the
        although release required plaintiff to relinquish     jury verdict if reasonable jurors could, and disregard
        his rights under oral contract and provided an        contrary evidence unless reasonable jurors could not.”
        affirmative defense to future lawsuits, release       Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d
        could not be construed as a covenant not to sue,      828, 830 (Tex. 2009) (quoting Cent. Ready Mix Concrete
        since it contained no language barring plaintiff      Co., Inc. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007)). The
        from bringing suit or stating that he would           evidence favoring the jury verdict establishes that
        breach the release by doing so.                       Westergren was the first to enter into an option contract to
                                                              purchase the highly desired property. When he discovered
                                                              that the owner had later entered into similar option
        1 Cases that cite this headnote                       contracts with two other interested buyers, he sued all
                                                              three and filed a lis pendens against the *422 property,
                                                              preventing any further development or sale (the
                                                              Haynsworth litigation). The three defendants appeared
                                                              and filed counterclaims. Meanwhile, several developers,
                                                              including National Property Holdings, L.P. (NPH), were
*421 ON PETITION FOR REVIEW FROM THE
                                                              also interested in acquiring the property but could not
COURT OF APPEALS FOR THE FOURTEENTH
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     3
National Property Holdings, L.P. v. Westergren, 453 S.W.3d 419 (2015)
58 Tex. Sup. Ct. J. 204

pursue it while the Haynsworth litigation remained             against them, asserting claims for breach of the oral
pending. In an apparent attempt to overcome that               contract, breach of partnership duties, common law and
obstacle, Russell Plank, who was NPH’s consultant,             statutory fraud, and attorney’s fees. The Plank parties
contacted Westergren’s attorney and offered to help pay        asserted that Westergren had released all claims by
Westergren’s attorney’s fees in the Haynsworth litigation.     signing the release and that the oral contract was
When asked why NPH would do that, Plank replied:               unenforceable under the statute of frauds. They also filed
“[because] we’re going to be partners.” Consistent with        counterclaims for breach of contract, asserting that
Plank’s call, NPH and Plank each sent Westergren’s             Westergren breached the MSA and the release by filing
attorney a $5,000 check.                                       this suit against them.

When the lawsuit later went to mediation, Plank attended       The jury found in Westergren’s favor on all claims,
on behalf of NPH, although NPH was not a party to the          although it also found that the Plank parties’ statutory and
suit. The mediation was successful: NPH agreed to              common law fraud caused Westergren “$0.00” damages.
purchase the property, and all defendants agreed to            On the Plank parties’ motion, however, the *423 trial
release their rights to the property and their counterclaims   court granted a judgment notwithstanding the verdict and
against Westergren. All of the parties later memorialized      entered a take-nothing judgment as to all parties,
the settlement in a written Mediated Settlement                assessing costs against Westergren. Westergren appealed
Agreement (MSA), in which Westergren and the                   and the Plank parties filed cross-appeals. With one justice
defendants agreed to release any lis pendens and all           dissenting, the court of appeals concluded, inter alia, that
claims asserted by and between the parties, including any      there was more than a scintilla of evidence to support the
cross-claims and counterclaims, and NPH agreed to              jury’s findings that (1) an oral contract existed between
purchase the property. Separately, in exchange for             Westergren and Plank, (2) Plank breached the oral
Westergren’s agreement to settle the lawsuit, release the      contract, (3) NPH paid the $500,000 pursuant to the oral
lis pendens, and allow NPH to purchase the property,           contract (not as consideration for the release), (4) this
Plank orally promised Westergren that he would become          partial performance excepted the oral contract from the
a partner with Plank and his brother Michael, who was          statute of frauds, (5) Plank fraudulently induced
president of NPH’s corporate general partner, and would        Westergren to sign the release, and (6) Westergren did not
receive $1 million plus an interest in the profits from        breach the MSA or the release by suing the Plank parties.
NPH’s development and future sale of the property (the         Having found in Westergren’s favor on his breach of
oral contract). The MSA did not memorialize the oral           contract claim, the court concluded that it did not need to
promises that Plank made to Westergren. After                  address his claims for common law and statutory fraud
Westergren released the lis pendens and the parties            and for breach of partnership duties. The court awarded
dismissed the suit, NPH and an affiliated company              costs to Westergren and remanded the case for a new trial
purchased the property. A few months later NPH sold 20         on Westergren’s claim for attorney’s fees.
of the 190 acres. When Westergren asked for the
                                                               [1]
promised $1 million and a share of the profits, Plank            Before this Court, the Plank parties contend that the
replied that they could only pay Westergren $500,000           evidence was legally insufficient to support the jury’s
“right now.”                                                   finding that Plank fraudulently induced Westergren to
                                                               sign the release, the release was therefore valid and
When Plank and Westergren later met, Plank presented a         extinguished all claims under the oral contract, and the
$500,000 check from NPH, and in return, Westergren             jury’s related findings are thus irrelevant and cannot
signed a release. The title of the document, stated in bold    support the judgment. To overcome the jury’s verdict, the
and underlined capital letters, read “AGREEMENT AND            Plank parties must show that there was no evidence to
RELEASE.” The release stated that Westergren agreed to         support the jury’s finding of fraudulent inducement, no
relinquish any and all interest in the property and all        reasonable jury could conclude otherwise, and thus the
claims against NPH, Michael Plank, and other listed            release was valid as a matter of law. Tanner, 289 S.W.3d
parties in exchange for the total payment of $500,000.         at 830.
Without reading the release, Westergren signed it in front
                                                               [2] [3]
of a notary and accepted the check. Several months later,           Fraudulent inducement “is a particular species of
after Westergren had not received any additional               fraud that arises only in the context of a contract.” Haase
payments, he reviewed the release and discovered what he       v. Glazner, 62 S.W.3d 795, 798 (Tex. 2001). To prove
had signed. When NPH, Plank, and Plank’s brother               that Plank fraudulently induced him to sign the release,
Michael (collectively, the Plank parties) refused to make      Westergren had to establish that (1) Plank “made a
any additional payments, Westergren filed this suit            material representation”; (2) Plank’s “representation was

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     4
National Property Holdings, L.P. v. Westergren, 453 S.W.3d 419 (2015)
58 Tex. Sup. Ct. J. 204

false and was either known to be false when made or            its face, the release’s intent and effect is obvious and
made without knowledge of its truth”; (3) Plank’s              unambiguous. Consistent with its large, bolded,
“representation was intended to be and was relied upon by      capitalized, and underlined title (“ AGREEMENT AND
the injured party”; and (4) Westergren’s “injury               RELEASE ”), and utilizing bolded and capitalized key
complained of was caused by the reliance.” In re Int’l         words within its text, the release provided that
Profit Assocs., Inc., 274 S.W.3d 672, 678 (Tex. 2009)
(citing Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 436             WESTERGREN ... in consideration of the sum of
(Tex. 1997)); Schlumberger Tech. Corp. v. Swanson, 959               FIVE HUNDRED THOUSAND AND NO/100ths
S.W.2d 171, 181 (Tex. 1997). The Plank parties argue                 DOLLARS ($500,000.00), and other good and
that there is no evidence to establish the fourth element in         valuable consideration, the receipt of which of
this case. Specifically, they contend that no evidence               considerations being hereby acknowledged and the
supports a finding that Westergren’s reliance on Plank’s             adequacy of which considerations being hereby
representations was “justifiable,” because the release’s             confessed, ... does hereby fully and unconditionally
plain language conflicted with Plank’s representations,              RELEASE AND FOREVER RELINQUISH any and
and Westergren had ample opportunity to read the release             all right, title, and/or interest ... in or to (i) ... the
and chose not to do so.                                              “Subject Property;” ... (ii) [NPH and certain affiliated
                                                                     companies] (collectively, the “Owning Entities”); and
At trial, Westergren admitted that he did not read the               (iii) any income, rent, profits, or other proceeds related
release before he signed it and accepted the $500,000                to [the property or the Owning Entities] ... (collectively,
check. Specifically, he explained that:                              the “Income and Proceeds”) ....

     — In a telephone conversation before the meeting at             In addition, and for the same consideration, the receipt
     which Plank delivered the $500,000 check, Plank                 of which considerations being hereby acknowledged
     told Westergren that the check would be payment of              and the adequacy of which consideration being hereby
     the first half of the $1 million that Plank had                 confessed, Westergren ... does hereby fully and
     promised in the oral contract;                                  unconditionally      REMISE,         RELEASE         AND
                                                                     FOREVER DISCHARGE ... MICHAEL J. PLANK,
     — At the meeting, Plank never mentioned that the                THE PLANK COMPANIES, INC., the Owning
     document was a release, and instead told Westergren             Entities, and [others] ... of and from any and all manner
     that the release “was a receipt. It’s nothing. You              of action and actions, cause and causes of action, and
     don’t have to worry about it”;                                  all claims and demands whatsoever, ... which
                                                                     [Westergren] ... can, shall or may have for, upon or by
     — Plank also told Westergren he would get “the                  reason of any matter, cause [or] occurrence ...
     other half” of the $1 *424 million when “we get                 proximately or remotely, from the beginning of the
     another building coming out of the ground”;                     world to and through the day of the date of this release
                                                                     arising out of, relating to, or pertaining in any way,
     — Westergren did not read the release because he                directly or indirectly, to: (i) the Subject Property; (ii)
     was “in a hurry” and did not have his reading glasses           the Owning Entities; and (iii) the Income and
     with him;                                                       Proceeds. This release is intended to release all liability
                                                                     described above of any character for damages of any
     — Although he wore a watch that had a magnifying                type or nature ... with respect to the matters released
     glass, which he could have used to read the release,            above.
     he did not use it;
                                                               Westergren chose not to read this release before he signed
     — He did not ask Plank or the notary to read the          it in the presence of a notary and instead relied on Plank’s
     release to him; and                                       representations regarding its contents. We hold that, as a
                                                               matter of law, that reliance was not justifiable.
     — Instead, he relied on Plank’s statements and
     representations and signed the release without            [4]
                                                                  It is well-established that “[t]he recipient of a fraudulent
     reading it first.
                                                               misrepresentation is not justified in relying upon its truth
                                                               if he knows that it is false or its falsity is obvious to him.”
Under the facts of this case, we agree with the Plank
                                                               RESTATEMENT (SECOND) OF TORTS § 541 (1977).
parties that Westergren could not justifiably rely on
                                                               Thus, as Texas courts have repeatedly held, a party to a
Plank’s statements about the content of the release, which
                                                               written contract cannot justifiably rely on oral
directly conflict with the content of the release itself. On
                                                               misrepresentations regarding the contract’s unambiguous
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          5
National Property Holdings, L.P. v. Westergren, 453 S.W.3d 419 (2015)
58 Tex. Sup. Ct. J. 204

terms. See, e.g., *425 Thigpen v. Locke, 363 S.W.2d 247,                  Plank related to the property, and there is no basis to
251 (Tex. 1962) (“In an arm’s-length transaction the                      conclude that he was incapable of understanding that.
defrauded party must exercise ordinary care for the                       In fact, Westergren’s ability to understand the Release
protection of his own interests.... [A] failure to exercise               is not disputed, and his own testimony establishes that
reasonable diligence is not excused by mere confidence in                 he was a sophisticated businessman who had personally
the honesty and integrity of the other party.”) (citation                 participated in many contractual transactions. Any issue
omitted). This is particularly true when the party had a                  over whether he needed help to understand it would be
reasonable opportunity to review the written agreement                    irrelevant when, by his own admission, he made no
                                                                          effort to read it.
but failed to exercise ordinary care to do so. See Tex. &
Pac. Ry. Co. v. Poe, 131 Tex. 337, 115 S.W.2d 591, 592
(1938) (holding that evidence was legally insufficient to       [6]
support a finding of fraud where party who relied on oral         As we have recently observed, it is not the courts’ role
statement that release was receipt had an opportunity to        “to protect parties from their own agreements.” El Paso
read the document which plainly identified itself as a          Field Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d
release); see also Thigpen, 363 S.W.2d at 251.                  802, 810–11 (Tex. 2012). Thus, as the United States
                                                                Supreme Court explained long ago:
[5]
  The court of appeals concluded that Westergren did not
have an adequate opportunity to review the release. Under                      It will not do for a man to enter into
these facts, we disagree. Westergren’s testimony                               a contract, and, when called upon
conclusively established that he had ample opportunity to                      to respond to its obligations, to say
read the release but instead chose to rely solely on Plank’s                   that he did not read it when he
representations because he was “in a hurry” and did not                        signed it, or did not know what it
have his reading glasses with him.1 Yet he acknowledged                        contained. If this were permitted,
that he could have used the magnifier on his watch or had                      contracts would not be worth the
someone read the document to him, and no evidence                              paper on which they are written.
indicates that anyone prevented him from doing so. See                         *426 But such is not the law. A
409 S.W.3d 110, 151 (Frost, J., dissenting) (finding “no                       contractor must stand by the words
legal basis for the majority’s conclusion” that Plank used                     of his contract; and, if he will not
“trickery or artifice” to prevent Westergren from reading                      read what he signs, he alone is
the release). Instead of excusing a party’s failure to read a                  responsible for his omission.
contract when the party has an opportunity to do so, the
law presumes that the party knows and accepts the               Upton v. Tribilcock, 91 U.S. 45, 50, 23 L.Ed. 203 (1875);
contract terms. See, e.g., Poe, 115 S.W.2d at 592; Indem.       see also Indem. Ins., 101 S.W.2d at 556 (“One is
Ins. Co. of N. Am. v. W.L. Macatee & Sons, 129 Tex. 166,        presumed to intend what he does or undertakes to do by
101 S.W.2d 553, 556 (1937); cf. In re Lyon Fin. Servs.,         the terms of a written instrument voluntarily signed by
Inc., 257 S.W.3d 228, 232 (Tex. 2008); In re Prudential         him.”). We conclude that Westergren’s evidence was
Ins. Co. of Am., 148 S.W.3d 124, 133–34 (Tex. 2004);            legally insufficient to support the jury’s finding that he
Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d        justifiably relied on Plank’s representations, and thus
505 (Tex. 1993). Here, Westergren’s decision not to read        constitutes no evidence of fraudulent inducement to
the release and instead to rely on Plank’s representations      negate the release’s validity.
because he did not have his glasses and was “in a hurry”
                                                                [7] [8]
was not justifiable.                                                 However, the parties also dispute the scope of the
                                                                release. In particular, the jury found that the oral contract
1
       The court of appeals thought it relevant that Plank      was an agreement only between Westergren and Plank, in
       knew that Westergren had an attorney and had             Plank’s individual capacity, and Westergren argues that
       communicated with him but did not involve him in the     the release did not release any claims against Plank. We
       drafting of the Release or send him a copy. 409 S.W.3d   need not resolve this issue, however, because we agree
       at 126–28. While these facts might be relevant to the    with Plank’s alternative argument that the oral contract is
       issue of whether Westergren could understand the         unenforceable under the statute of frauds. Under the
       Release had he read it, we disagree that they could      statute of frauds, “a contract for the sale of real estate” is
       support a conclusion that he had no reasonable           unenforceable unless it is in writing and signed by the
       opportunity to read it. At a minimum, the language of
                                                                person to be charged. TEX. BUS. & COM. CODE §
       the Release unambiguously made it clear that it was a
       “RELEASE,” and that Westergren was releasing all         26.01. Whether a contract comes within the statute of
       claims to the property and against NPH and Michael       frauds is a question of law, which we review de novo.
                                                                Dynegy, Inc. v. Yates, 422 S.W.3d 638, 642 (Tex. 2013).
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            6
National Property Holdings, L.P. v. Westergren, 453 S.W.3d 419 (2015)
58 Tex. Sup. Ct. J. 204

Westergren concedes that the contract at issue was for the          constitutes partial performance of the oral contract in
sale of real estate and was not in writing or signed, but he        which Plank agreed to pay $1 million, and that the
relies on the “partial performance exception” to the statute        payment is “unequivocally referable” only to that
of frauds. Under this exception, he contends, an otherwise          contract.3 This is so, he contends, “because the release
unenforceable oral contract becomes enforceable in equity           itself makes sense only in the context of an attempt to
if one party partially performs its obligations and “denial         settle Westergren’s claims based on the [oral contract],”
of enforcement would amount to a virtual fraud.”                    and “the jury was free to conclude that the only thing the
Westergren contends that Plank partially performed his              release might plausibly have sought to compromise was
obligations under the oral contract by paying half of the           the [oral contract] itself.” We disagree. The fact that the
promised $1 million payment, and thus the oral contract is          payment was made to “settle” and “compromise”
enforceable in equity despite the statute of frauds.                Westergren’s “claims based on the [oral contract]” does
                                                                    not mean it was made in performance of obligations under
[9]
  Without adopting Westergren’s description of the                  that contract. To the contrary, it establishes that the
“partial performance exception,”2 we conclude that, even            payment was made to avoid performance of the oral
under his theory, the exception does not apply here. As             contract. On its face, the release states that Westergren’s
argued by Westergren, one of the exception’s                        agreement to release all claims against the property, the
requirements is that the performance on which the party             “Owning Entities,” and all “Income and Proceeds” was
relies must be “unequivocally referable to the agreement.”          made “in consideration of the sum of FIVE HUNDRED
Chevalier, 213 S.W.2d at 533 (emphasis added). In other             THOUSAND            AND        NO/100ths        DOLLARS
words, the purpose of the alleged acts of performance               ($500,000.00), and other good and valuable consideration,
must be to fulfill a specific agreement. If *427 the                the receipt of which of considerations being hereby
evidence establishes that the party who performed the act           acknowledged and the adequacy of which considerations
that is alleged to be partial performance could have done           being hereby confessed.” Contrary to Westergren’s
so for some reason other than to fulfill obligations under          arguments, the payment cannot be unequivocally
the oral contract, the exception is unavailable.                    referable to the oral contract, because the release that
                                                                    Westergren signed expressly states that it was made in
2
       On the few occasions that this Court has discussed this      exchange for Westergren’s agreement to the release.
       equitable exception to the statute of frauds, we have        Furthermore, the payment could not be performance of
       made it clear that it requires more than just one party’s    the oral contract because it was made by NPH, which was
       performance of some obligation under the alleged oral        not a party to the oral contract–but was a party to the
       contract. See, e.g., Chevalier v. Lane’s, Inc., 147 Tex.     release.
       106, 213 S.W.2d 530, 533 (1948) (noting that even “
       ‘full performance,’ in the sense of full payment of the      3
       consideration by the purchaser, is held not to make the             Westergren also contends that he fully performed the
       contract enforceable unless accompanied by other                    agreement by releasing the lis pendens and giving up
       circumstances, such as change of possession and                     his contractual right to the property. Like the $500,000
       erection of valuable improvements”). For example, we                payment, these actions are not unequivocally referable
       explained that “to relieve a parol sale of land from the            to the oral contract where the MSA explicitly requires
       operation of the statute of frauds, three things were               these acts by Westergren.
       necessary: 1. Payment of the consideration, whether it
       be in money or services. 2. Possession by the vendee.
       And 3. The making by the vendee of valuable and              [10]
                                                                       To find partial performance of the oral contract, the
       permanent improvements upon the land with the                court of appeals relied upon Plank’s oral representation
       consent of the vendor; or, without such improvements,
                                                                    that the payment was the first half of the $1 million owed
       the presence of such facts as would make the
       transaction a fraud upon the purchaser if it were not        under the oral contract. A party cannot rely upon oral
       enforced. Payment of the consideration, though it be a       representations to satisfy the partial performance
       payment in full, is not sufficient.” Hooks v.                exception, however. Rather, the kind of performance that
       Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116               justifies the exception to the statute of frauds is
       (1921). In light of Westergren’s failure to establish that   “performance which alone and without the aid of words of
       Plank’s $500,000 payment was “unequivocally                  promise is unintelligible or at least extraordinary unless as
       referable” to the oral contract, we need not and do not      an incident of ownership, assured, if not existing.”
       provide a complete explanation of all of the partial         Chevalier, 213 S.W.2d at 533 (emphasis added). The
       performance exception’s requirements here.
                                                                    statute of frauds “unmistakably declares a policy that
                                                                    parol testimony is too unreliable for proof of certain types
                                                                    of agreement, and courts must give heed to that policy as
Westergren contends that Plank’s payment of $500,000
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             7
National Property Holdings, L.P. v. Westergren, 453 S.W.3d 419 (2015)
58 Tex. Sup. Ct. J. 204

well as to considerations of an equitable character.” Id.      who are not before the Court in this case. We find no
Therefore, Westergren cannot rely on Plank’s oral              language in the MSA in which Westergren agreed not to
representations to support a finding that the payment was      sue the Plank parties. In fact, the agreement contemplates
unequivocally referable to the oral contract. We hold that     that the parties may bring suit by providing that the
there is nothing in the nature of these acts that supports a   parties “may not recover attorney’s fees or costs in any
jury finding of partial performance to except the oral         litigation brought to construe or enforce this agreement.
contract from the statute of frauds.                           Otherwise, if unsuccessful, the prevailing party or parties
                                                               shall be entitled to recover reasonable attorney’s fees and
In summary, we conclude that there is no evidence to           expenses.” This provision indicates that a suit may be
support the jury’s findings that Plank fraudulently            brought, even though the agreement is in effect, and in no
induced Westergren to sign the release, or that the oral       way suggests that filing a suit concerning the MSA’s
contract is excepted from the statute of frauds.               released claims results in a breach. Therefore,
                                                               Westergren’s claims did not breach the MSA.
*428 We now turn to Westergren’s tort claims for
                                                               [12]
common law fraud, statutory fraud, and breach of                   We also find that the release is unambiguous as to this
partnership duties. Although the jury found in favor of        point. The parties intended the release “to release all
Westergren on the liability questions for his common law       liability described” within the agreement. Like the MSA,
and statutory fraud claims, the jury awarded him no            it includes no language barring Westergren from bringing
damages for either claim. Westergren did not appeal those      suit or stating that he would breach the release by doing
findings. He therefore cannot recover damages on his           so. To the contrary, this agreement has a provision stating
fraud claims. With respect to his partnership claim, we        essentially that should a future suit be brought, the release
have held that the oral contract in which Plank promised       may be pleaded as an absolute bar to the suit–in other
to make Westergren a partner with him and his brother is       words, it provides the parties with an affirmative defense.4
unenforceable under the statute of frauds. Westergren’s        See TEX. R. CIV. P. 94 (listing affirmative defenses,
claim for breach of partnership duties therefore must fail     including release). Although the release provides an
as well.                                                       affirmative defense to future suits, we cannot construe it
                                                               as including a *429 covenant not to sue where, in fact, the
[11]
   Finally, we turn to the Plank parties’ argument that the    plain language does not bar future suits. Just as
court of appeals erred in affirming the trial court’s          Westergren is bound to the actual language of the release,
take-nothing judgment on their counterclaims against           so are the Plank parties. The court of appeals, therefore,
Westergren for breach of the release and the MSA. The          did not err in affirming the trial court’s judgment based on
Plank parties contend that a party who releases a claim        the jury verdict in favor of Westergren on the Plank
and later files suit on that claim necessarily breaches the    parties’ claims for breach of the MSA and release.
release agreement. We disagree. Although the Plank
parties rely on a number of cases to support their             4
                                                                        The release states that it “may be pleaded as an absolute
argument, none of those cases reads a covenant not to sue               and final bar to any or all suit or suits pending or which
into a release that does not include such a promise. They               may hereafter be filed or prosecuted.”
also rely on one case in which a court stated that a
covenant not to sue can be construed as a release, arguing
that the reverse must also be true. See Dicker v. Lomas &      We grant the Plank parties’ petition for review, and
Nettleton Fin. Corp., 576 S.W.2d 672, 675                      without hearing oral argument, we (1) reverse the court of
(Tex.Civ.App.–Texarkana 1978, writ ref’d n.r.e.) (noting       appeals’ judgment as to Westergren’s claim for breach of
that “an agreement not to sue can be construed as a            the oral contract, Westergren’s claim for attorney’s fees,
release”). Westergren, in turn, argues that the release        and the trial court’s allocation of court costs, (2) reinstate
provides only an affirmative defense because it provides       the trial court’s judgment that Westergren take nothing on
only that it “may be pleaded as an absolute and final bar      his claims for breach of the oral contract and for
to any or all suit” and does not include an express or         attorney’s fees and the trial court’s taxing of court costs
implied covenant not to sue or to indemnify the released       against Westergren, and (3) affirm the court of appeals’
parties. We must review the MSA and release language to        take-nothing judgment on Westergren’s partnership and
determine whether either agreement includes a contractual      fraud claims and on the Plank parties’ counterclaims for
obligation not to sue.                                         breach of contract and attorney’s fees against Westergren.
                                                               TEX. R. APP. P. 59.1.
The intent of the MSA was to settle the suit between
Westergren and the other parties to the initial litigation,

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            8
National Property Holdings, L.P. v. Westergren, 453 S.W.3d 419 (2015)
58 Tex. Sup. Ct. J. 204

All Citations

453 S.W.3d 419, 58 Tex. Sup. Ct. J. 204
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.                                      9
16
Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)




                                                                         Defects and objections
                      409 S.W.3d 790                                   Judgment
                  Court of Appeals of Texas,                             Defects and objections
                            Dallas.
                                                                       Inadmissible hearsay summary judgment
        STOVALL & ASSOCIATES, P.C., Appellant                          evidence admitted without objection shall not be
                        v.                                             denied probative value merely because it is
       HIBBS FINANCIAL CENTER, LTD., Appellee.                         hearsay. Vernon’s Ann.Texas Rules Civ.Proc.,
                                                                       Rule 166a(f).
          No. 05–12–00303–CV. | Aug. 13, 2013.

                                                                       Cases that cite this headnote
Synopsis
Background: Landlord brought action against former
tenant of office suites, seeking to recover unpaid rent and
attorney fees. The 101st Judicial District Court, Dallas        [3]
                                                                       Judgment
County, Martin Lowy, J., entered summary judgment in                     Defects and objections
favor of landlord, and tenant appealed.
                                                                       An objection that a summary judgment affidavit
                                                                       contains hearsay is an objection to a defect in
Holdings: The Court of Appeals, Lewis, J., held that:                  the form of the affidavit. Vernon’s Ann.Texas
                                                                       Rules Civ.Proc., Rule 166a(f).
[1]
   statute of frauds did not bar enforcement of unsigned
lease agreements, and                                                  Cases that cite this headnote
[2]
      landlord could be awarded $35,000 in attorney fees.


Affirmed.                                                       [4]
                                                                       Appeal and Error
                                                                         Nature of evidence in general
                                                                       Judgment
                                                                         Defects and objections
                                                                       Judgment
 West Headnotes (22)
                                                                         Defects and objections

 [1]                                                                   If any part of a piece of summary judgment
           Judgment
                                                                       evidence is admissible, a blanket hearsay
             Personal knowledge or belief of affiant
                                                                       objection that does not identify which parts
           Judgment
                                                                       contain hearsay is not enough; rather, the
             Defects and objections
                                                                       objecting party must make specific objections to
                                                                       each component part of a particular piece of
           An affidavit containing hearsay is objectionable
                                                                       evidence to preserve error on appeal. Vernon’s
           and does not support a summary judgment
                                                                       Ann.Texas Rules Civ.Proc., Rule 166a(f).
           motion if proper objection is made. Vernon’s
           Ann.Texas Rules Civ.Proc., Rule 166a(f).
                                                                       1 Cases that cite this headnote
           1 Cases that cite this headnote


                                                                [5]
                                                                       Appeal and Error
 [2]                                                                     Objections to evidence in general
           Judgment

                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                1
Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)



                                                                       signed by the parties. V.T.C.A., Bus. & C. §
       Absent a specific objection to admissibility of a               26.01.
       piece of summary judgment evidence, the
       complaining party waives any argument on
       appeal to challenge the improper admission or                   Cases that cite this headnote
       consideration of the evidence. Vernon’s
       Ann.Texas Rules Civ.Proc., Rule 166a(f).

                                                                [9]
       2 Cases that cite this headnote                                 Frauds, Statute Of
                                                                         Validity and Enforcement of Contracts in
                                                                       General
                                                                       Frauds, Statute Of
                                                                         Necessity
[6]
       Appeal and Error
         Nature of evidence in general                                 The statute of frauds is an affirmative defense in
                                                                       a breach of contract suit and renders a contract
       Tenant waived argument on appeal that                           that falls within its purview unenforceable.
       landlord’s summary judgment affidavits                          V.T.C.A., Bus. & C. § 26.01.
       contained inadmissible hearsay, in landlord’s
       action to recover unpaid rent for suites of office
       building, although tenant generally objected to                 Cases that cite this headnote
       the affidavits as containing hearsay, tenant failed
       to direct trial court’s attention to any specific
       statements or explain why any of the statements
       were hearsay. Vernon’s Ann.Texas Rules                   [10]
       Civ.Proc., Rule 166a(f).                                        Frauds, Statute Of
                                                                         Questions for jury

       Cases that cite this headnote                                   The question of whether an agreement falls
                                                                       within the statute of frauds is one of law.
                                                                       V.T.C.A., Bus. & C. § 26.01.


[7]
       Contracts                                                       Cases that cite this headnote
         Grounds of action

       To prevail on a claim for breach of contract, a
       plaintiff must prove (1) the existence of a valid        [11]
       contract; (2) its performance or tendered                       Frauds, Statute Of
       performance; (3) defendant’s breach of the                        Questions for jury
       contract; and (4) damages as a result of the
       breach.                                                         The question of whether an exception to the
                                                                       statute of frauds applies is generally a question
                                                                       of fact. V.T.C.A., Bus. & C. § 26.01.
       1 Cases that cite this headnote
                                                                       Cases that cite this headnote


[8]
       Frauds, Statute Of
         Purpose                                                [12]
                                                                       Frauds, Statute Of
       The statute of frauds exists to prevent fraud and                 Possibility of Performance
       perjury in certain kinds of transactions by                     Frauds, Statute Of
       requiring agreements to be set out in writing and                 Extensions and renewals

              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      2
Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)



                                                                       referable to contract
       Statute of frauds did not bar enforcement of
       unsigned agreements to lease suites in office                   In order for partial performance to apply as an
       building, since agreements either did not involve               exception to the statute of frauds, the actions
       the lease of real estate for more than one year or              asserted to constitute partial performance must
       could be performed within one year of being                     be unequivocally referable to the alleged oral
       made; unsigned agreements, entered into after                   agreement and corroborate the existence of that
       tenant executed lease for single suite, covered                 agreement; they must be such as could have
       tenant’s expansion into additional suites and                   been done with no other design than to fulfill the
       contained start and finish dates covering less                  particular agreement sought to be enforced.
       than one year. V.T.C.A., Bus. & C. §                            V.T.C.A., Bus. & C. § 26.01.
       26.01(b)(5), (6).

                                                                       Cases that cite this headnote
       Cases that cite this headnote



                                                                [16]
                                                                       Frauds, Statute Of
[13]
       Frauds, Statute Of                                                Possession and payment
         Statutory provisions
                                                                       Statute of frauds did not bar enforcement of
       To measure a contract’s duration for statute of                 unsigned agreement to lease suite in office
       frauds purposes, a court simply compares the                    building, since tenant had rendered partial
       date of the agreement to the date when the                      performance of the agreement; tenant occupied
       performance under the agreement is to be                        suite for over a year and a half and paid full rent
       completed; if there is a year or more between                   on the suite on a monthly basis, landlord
       those two reference points, then a writing is                   accepted tenant’s possession of the suite and
       required to render the agreement enforceable.                   accepted the rent payments, and landlord’s
       V.T.C.A., Bus. & C. § 26.01.                                    officer testified that a written lease agreement
                                                                       was prepared at one point to cover the suite but
                                                                       that execution of the lease was delayed.
       Cases that cite this headnote                                   V.T.C.A., Bus. & C. § 26.01.


                                                                       Cases that cite this headnote
[14]
       Frauds, Statute Of
         Part Performance in General
                                                                [17]
       Under partial performance, as an equity-based                   Appeal and Error
       exception to the statute of frauds, an oral                       Reply briefs
       agreement that does not satisfy the traditional
       statute of frauds but that has been partially                   An issue raised for the first time in a reply brief
       performed may be enforced if denying                            is ordinarily waived and may not be considered
       enforcement would itself amount to a fraud.                     by an appellate court.
       V.T.C.A., Bus. & C. § 26.01.

                                                                       4 Cases that cite this headnote
       Cases that cite this headnote



                                                                [18]
                                                                       Appeal and Error
[15]
       Frauds, Statute Of                                                Attorney fees
         Necessity that part performance relied on be
              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       3
Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)



       An appellate court generally reviews a trial
       court’s decision to award attorney fees for an                   Landlord could be awarded $35,000 in attorney
       abuse of discretion.                                             fees after entry of summary judgment awarding
                                                                        $25,000 in unpaid rent, in action against tenant
                                                                        of suites in office building; landlord’s attorney
       1 Cases that cite this headnote                                  submitted records and testimony showing time
                                                                        and labor involved, skill required, and
                                                                        customary fee charged, and trial court found that
                                                                        fee award exceeding the amount of landlord’s
[19]                                                                    damages was warranted due to matter being
       Costs                                                            seriously contested and tenant’s dilatory and
         Contracts                                                      obstructive behavior. V.T.C.A., Civil Practice &
                                                                        Remedies Code § 38.001.
       To recover attorney fees in a suit based on a
       contract, a party must prevail on the cause of
       action and recover damages. V.T.C.A., Civil                      Cases that cite this headnote
       Practice & Remedies Code § 38.001.


       Cases that cite this headnote

                                                                Attorneys and Law Firms

                                                                *792 David R. Weiner, Weiner Law Firm, Dallas, for
[20]
       Costs                                                    Appellant.
         Discretion of court
                                                                Roger Anderson, Gillen & Anderson, Tyler, for Appellee.
       While the trial court has the discretion to set the      Before Justices FITZGERALD and LEWIS.1
       amount of an award of attorney fees, it has no           1
                                                                       The Honorable Mary L. Murphy was on the panel and
       discretion to deny the award if it is proper under              participated at the submission of this case. Due to her
       the statute governing recovery of attorney fees.                resignation from this Court on June 7, 2013, she did not
       V.T.C.A., Civil Practice & Remedies Code §                      participate in the issuance of this Opinion. See
       38.001.                                                         TEX.R.APP. P. 41.1(a), (b).


       1 Cases that cite this headnote




[21]                                                                                 *793 OPINION
       Costs
         Evidence as to items
                                                                Opinion by Justice LEWIS.
       It is presumed that usual and customary
       attorney’s fees are reasonable, but this                 This is a dispute between landlord, Hibbs Financial
       presumption may be rebutted. V.T.C.A., Civil             Center, Ltd. (HFC), and its tenant, Stovall and Associates,
       Practice & Remedies Code § 38.001.                       P.C. In two issues, we must determine whether HFC is
                                                                entitled to (1) summary judgment on its claim for breach
                                                                of a lease agreement as a result of Stovall’s alleged failure
       Cases that cite this headnote                            to pay rent and (2) reasonable attorney’s fees. Stovall
                                                                challenges HFC’s summary-judgment evidence and the
                                                                trial court’s rejection of its statute-of-frauds defense and
                                                                claimed issues of fact. Stovall also contends the trial court
[22]
                                                                erred in awarding attorney’s fees to HFC. We affirm the
       Landlord and Tenant                                      trial court’s judgment.
         Costs and attorney fees

              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           4
Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)



                                                                not respond to a September 14, 2010 letter HFC sent to
                                                                Kimberly Stovall demanding payment for the unpaid rent.

                    BACKGROUND                                  *794 Two months later, HFC filed this lawsuit to recover
                                                                unpaid rent in the amount of $37,943.77 and reasonable
Stovall is a law firm that leased office space from HFC in      attorney’s fees. HFC alleged Stovall breached the
a building located at 6750 Hillcrest Plaza Drive in Dallas.     agreements to pay rent for all the suites Stovall occupied.
Pursuant to the lease agreement signed by the parties,          Stovall generally denied the allegations and asserted
Stovall leased suite 201, which measured approximately          various affirmative defenses, including the statute of
1,680 square feet, and agreed to pay HFC $2,135 per             frauds. Stovall also filed a counterclaim against HFC,
month (or $15.25 per square foot) to lease the suite. The       alleging violations of the Deceptive Trade Practices and
lease agreement was for a period of twenty-four months,         Consumer Protection Act (DTPA).
beginning October 1, 2008 and ending on September 30,
2010.                                                           Stovall moved for summary judgment on HFC’s claim for
                                                                unpaid rent, arguing it was entitled to summary judgment
During the term of the lease, Stovall also expanded into        because it paid all rents owed under the only signed
and occupied seven additional suites within the premises.       written lease agreement. Stovall also argued that the
Stovall first expanded into suite 217 beginning December        unsigned lease agreement for the additional suites was
15, 2008 and then suites 307 and 309 beginning                  unenforceable under the statute of frauds. It further
November 15, 2009. Although a written lease agreement           claimed that the amounts paid in May, June, and July of
that covered suites 201, 217, 307, and 309 was prepared,        2010, did not represent payment of rent for the additional
it was not signed by the parties. Stovall also moved into       suites; rather, the payments were monies owed for a
suites 311 and 312 beginning February 1, 2010 and suites        security deposit. Stovall supported its summary-judgment
305 and 300 beginning March 1, 2010. It is undisputed           motion with the signed lease agreement for suite 201 and
that the parties did not sign any other lease agreement         the unsigned lease agreement. Stovall also attached the
pertaining to the additional suites Stovall occupied.           affidavit of its business manager, Lesa Jewell, in which
                                                                she testified that only one executed lease agreement
The base rental amounts listed for each suite in the            existed between the parties (for suite 201) and no signed
unsigned lease agreement reflected that rent for suites         lease agreement existed for any of the additional suites.
217, 307, and 309 was to be calculated by using the same        She further stated that Stovall had paid “all rents due and
price of $15.25 per square foot as in the original signed       owing for its occupancy of [the] suites.”
lease agreement. In addition, according to letters of intent
signed by firm owner Kimberly Stovall (or on her behalf         HFC responded and also filed a motion for partial
by her representative), the firm sought to lease suites 311,    summary judgment and amended motion on its claim for
312, 305, and 300 for that same price.                          unpaid rent. HFC argued (1) the undisputed facts
                                                                established that an agreement existed between the parties
After Stovall began using suite 217 in December 2008,           showing Stovall agreed to lease all suites at issue through
Stovall paid HFC monthly rent of $3,442.69 from                 September 30, 2010 for $15.25 per square foot and (2)
December 2008 through April 2010, which was the total           Stovall breached the agreement by failing to pay the rent
monthly rent for suites 201 and 217. The memo line on           due. HFC also maintained the statute of frauds did not
the checks submitted by Stovall for payment during that         operate to preclude HFC’s recovery of the unpaid rent.
time indicated the payment was for “Sts 201 & 217.” And         HFC supported its motion with the signed lease
in May, June, and July of 2010, Stovall made three              agreement, the letters of intent to lease suites 311, 312,
payments of $9,224.57, which was the approximate                305, and 300 signed by Kimberly Stovall, and excerpts
monthly amount for leasing all of the suites. According to      from the depositions of Kimberly Stovall, Jewell, and Kay
HFC, however, additional rent was due from December             Wilbanks, who was Kimberly’s assistant. HFC also relied
2009 through April 2010 based on the timing of Stovall’s        on three affidavits it attached as summary-judgment
use of suites 307, 309, 311, 312, 305, and 300.                 evidence—the affidavits of Kenny Barnes, the facilities
                                                                manager for the property, Glenda Liegman, a Vice
Stovall vacated the premises without notice to HFC in           President and Senior Accountant for HFC, and Bill
early August 2010, nearly two months before the                 Lamkin, the commercial property manager for the
expiration of the lease agreement. Stovall did not pay any      property. The affidavits included various attachments,
amount to cover the rent for August and September 2010          including e-mail communications with Stovall
or the additional amounts HFC requested for unpaid rent         representatives and copies of checks paid by Stovall.
from December 2009 through April 2010. Stovall also did
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     5
Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)



Attached to Lamkin’s affidavit was a June 11, 2010 letter       real property and HFC did not establish its entitlement to
from Lamkin to Kimberly Stovall, notifying her of               summary judgment on its claim as a matter of law.
delinquent rent for June in the amount of $9,224.57, and
copy of a Stovall check dated June 18, 2010 for that
amount, referencing a June 1, 2010 “Bill.” He testified
that the requested amount was for rental of all the suites
the firm occupied.                                                                  Standard of Review

Stovall objected to the affidavits of Barnes, Liegman, and      We review de novo the trial court’s summary judgment.
Lamkin in its response to HFC’s motion and amended              Marsh USA Inc. v. Cook, 354 S.W.3d 764, 768
motion. Two of the grounds were that “[t]he Affidavits          (Tex.2011); Mid–Century Ins. Co. of Tex. v. Ademaj, 243
contain inadmissible hearsay” and the “Affidavits are           S.W.3d 618, 621 (Tex.2007). When we review a
from interested fact witnesses.” Stovall also objected to       summary judgment granted in favor of a plaintiff, we
the “exhibits attached to each of the said Affidavits and to    determine whether the plaintiff established every element
[HFC’s] Motions” because the exhibits are “irrelevant,          of its claim as a matter of law. Ohio Cas. Ins. Co. v. Time
contain hearsay, are unauthenticated documents and are          Warner Entm’t Co., L.P., 244 S.W.3d 885, 888
not competent summary judgment proof.” Stovall                  (Tex.App.-Dallas 2008, pet. denied). To defeat a
responded to HFC’s motion by arguing that other than            plaintiff’s cause of action on a traditional motion for
“mere conclusions, speculation, and hearsay, [HFC] has          summary judgment, the defendant must either
offered no proper, admissible summary judgment                  “conclusively negate an element of the plaintiff’s claim or
evidence to support its alleged claim.”                         conclusively establish every element of an affirmative
                                                                defense.” Id. A matter is conclusively established if
*795 The trial court denied Stovall’s motion for summary        ordinary minds cannot differ as to the conclusion to be
judgment and granted HFC’s motion and amended motion            drawn from the evidence. Holloway v. Dekkers, 380
with an award of $25,136.83 for unpaid rent. The trial          S.W.3d 315, 320 (Tex.App.-Dallas 2012, no pet.). The
court also overruled Stovall’s objections to HFC’s              defendant, however, is not required to respond with
summary-judgment evidence. The trial court signed an            evidence if deficiencies in the plaintiff’s own proof or
order on October 28, 2011, which stated that the case           legal theories will defeat the movant’s right to judgment
would proceed on Stovall’s DTPA counterclaim and                as a matter of law. See City of Houston v. Clear Creek
HFC’s claim for attorney’s fees. The trial court later          Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).
granted summary judgment in favor of HFC on Stovall’s
counterclaim. After a bench trial on the issue of attorney’s    The movant has the burden of showing that no genuine
fees, the trial court awarded HFC $35,000 in attorney’s         issue of material fact exists and that it is entitled to
fees for representation in the trial court plus additional      judgment as a matter of law. TEX.R. CIV. P. 166a(c);
fees for successful representation on appeal. The trial         Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800
court incorporated its rulings in a final judgment signed       (Tex.1994). In deciding whether a disputed material fact
February 16, 2012.                                              issue exists precluding summary judgment, we must take
                                                                evidence favorable to the nonmovant as true, and we must
Stovall appeals that judgment, challenging the trial court’s    indulge every reasonable inference and resolve any
summary judgment rendered on HFC’s claim for unpaid             doubts in favor of the nonmovant. Sysco Food Servs., 890
rent (Issue One) and award of attorney’s fees (Issue Two).      S.W.2d at 800. When, as here, the trial court’s order
Stovall does not challenge the trial court’s denial of its      granting summary judgment does not specify the basis for
summary-judgment motion or the decisions related to its         the ruling, we will affirm the summary judgment if any of
DTPA counterclaim.                                              the theories presented to the trial court are meritorious.
                                                                Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d
                                                                211, 216 (Tex.2003).


                      DISCUSSION

In its first issue, Stovall contends the trial court erred in     *796 Admissibility of HFC’s Summary–Judgment
granting HFC’s motion for summary judgment, which                                     Affidavits
resulted in HFC’s recovery of unpaid rent. Stovall claims
the trial court relied upon inadmissible affidavits as          We begin with Stovall’s contentions related to HFC’s
evidence of an unenforceable oral contract for the lease of     summary-judgment evidence. Stovall argues the affidavits

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     6
Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)



HFC attached as summary-judgment evidence should not            knowledge and set forth facts as would be admissible in
have been considered as a basis for granting summary            evidence. TEX.R. CIV. P. 166a(f). Thus, an affidavit
judgment in favor of HFC because the affidavits are             containing hearsay is objectionable and does not support a
inadmissible as hearsay for which there is no exception.        summary-judgment motion if proper objection is made.
Although Stovall lodged objections to three affidavits and      See Querner Truck Lines, Inc. v. Alta Verde Indus., Inc.,
various attachments submitted by HFC in the trial court,        747 S.W.2d 464, 468 (Tex.App.-San Antonio 1988, no
the hearsay contention Stovall raises on appeal relates         writ); see also TEX.R. EVID. 801(d) (defining hearsay).
only to the affidavits of Barnes and Liegman and does not       Inadmissible hearsay evidence admitted without
appear to extend to any of the documents attached to the        objection, however, shall not be denied probative value
affidavits.                                                     merely because it is hearsay. See Pickens v. Pickens, 62
                                                                S.W.3d 212, 216 n. 2 (Tex.App.-Dallas 2001, pet. denied)
Both Barnes and Liegman testified to their personal             (citing TEX.R. EVID. 802); Dolenz v. A.B., 742 S.W.2d
dealings with Stovall, which included communications            82, 83–84 n. 2 (Tex.App.-Dallas 1987, writ denied); see
related to the firm’s desire to occupy additional suites in     also Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d
the building because the firm needed extra space and the        230, 234 (Tex.1962) (unchallenged *797 deficiencies can
timing of the firm’s possession of the additional suites        support affirmance of summary judgment).
within the building. They testified to the dates Stovall
                                                                [3] [4] [5]
took possession of each suite and the square footage of                  An objection that an affidavit contains hearsay is
the suite. Both also made statements that as Stovall            an objection to a defect in the form of the affidavit. S & I
expanded into the other suites, the firm agreed to pay rent     Mgmt., Inc. v. Choi, 331 S.W.3d 849, 855
for that suite at a certain price, which was based on a         (Tex.App.-Dallas 2011, no pet.). Defects in the form of
price of $15.25 per square foot, and that Stovall agreed to     affidavits are not grounds for reversal unless specifically
lease each additional suite through September 30, 2010.         objected to by the opposing party with the opportunity but
Liegman testified that at the time she left her employment      refusal to amend. TEX.R. CIV. P. 166a(f). An objection is
with HFC in February 2010, there was an agreement               sufficiently specific if it makes the trial court aware of the
between HFC and Stovall that “upon renewal of their             precise nature of the complaint such that it can make an
lease at the end of September, 2010, a new lease would be       informed ruling. TEX.R.APP. P. 33.1(a)(1)(A); TEX.R.
prepared to incorporate all the Suites which they intended      EVID. 103(a)(1). If any part of a piece of evidence is
to occupy.” She further stated that Stovall “agreed to pay      admissible, a blanket hearsay objection that does not
rent for the Suites which it had occupied.”                     identify which parts contain hearsay is not enough; rather,
                                                                the objecting party must make specific objections to each
Stovall complains that “the declarants mention several          component part of a particular piece of evidence to
times that ‘Stovall and Associates agreed to pay rent ...’      preserve error on appeal. See Flores v. City of Liberty,
for a specific suite or amount of time.” Stovall also           318 S.W.3d 551, 560 (Tex.App.-Beaumont 2010, no pet.);
complains about this statement in Barnes’s affidavit: “Bill     see also Speier v. Webster College, 616 S.W.2d 617, 619
Lamkin ... notified Stovall & Associates, P.C. that             (Tex.1981) (“ ‘A general objection to a unit of evidence
effective May, 2010, HFC would accept $9,224.57 per             as a whole, ... which does not point out specifically the
month as their monthly rent for Suites 201, 217, 300, 305,      portion objected to, is properly overruled if any part of it
307, 309, 311 and 312.” Stovall claims these statements         is admissible.’ ”) (quoting Brown & Root, Inc. v. Haddad,
constitute hearsay because they are being offered to prove      142 Tex. 624, 180 S.W.2d 339, 341 (1944)). Absent a
that it “did indeed orally agree to pay rent on suites that     specific objection, the complaining party waives any
were not included in the original lease.” It further            argument to the improper admission or consideration of
maintains that statements regarding Stovall’s agreement         the evidence. Speier, 616 S.W.2d at 619.
to pay rent do not constitute admissions by a party
                                                                [6]
opponent.                                                          As part of its response to HFC’s motion and amended
                                                                motion, Stovall generally objected to the three affidavits
HFC argues that Stovall waived these complaints to     the      (“as well as the exhibits attached thereto”) as a whole
Barnes and Liegman affidavits by failing to present    the      because: “[t]he Affidavits contain inadmissible hearsay”
trial court with specific objections identifying       the      and “[t]hese Affidavit[s] contain nothing but hearsay on
particular statements, which were the subject of        its     top of hearsay ....” Stovall did not direct the trial court’s
hearsay objection. We agree with HFC.                           attention to any specific statements contained in the
                                                                affidavits that it considered problematic, such as the
[1]   [2]
        To constitute competent summary-judgment                statements it complains about on appeal, or explain why
evidence, an affidavit must be based on personal                any of the statements were hearsay. Without greater

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         7
Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)



specificity, the trial court was not given sufficient           contract; (2) its performance or tendered performance; (3)
information to make an informed ruling nor did HFC have         Stovall’s breach of the contract; and (4) damages as a
an opportunity to correct the defect.                           result of the breach. Paragon Gen. Contractors, Inc. v.
                                                                Larco Constr., Inc., 227 S.W.3d 876, 882
Our examination of the affidavits also shows that some          (Tex.App.-Dallas 2007, no pet.); see also Esty v. Beal
portions of the affidavits certainly were admissible. For       Bank S.S.B., 298 S.W.3d 280, 299 (Tex.App.-Dallas
example, both Barnes and Liegman testified to the dates         2009, no pet.) (“A breach of contract occurs when a party
Stovall took possession of each additional suite, which         fails to perform an act that it has expressly or impliedly
were facts stipulated to by the parties. Thus, even             promised to perform.”).
assuming Stovall is correct that the complained-of
statements are inadmissible as hearsay and no exception         Stovall argues the trial court erred in granting summary
applies, because portions of the affidavits were                judgment on HFC’s claim for unpaid rent. It attacks the
admissible, Stovall was required to specifically object to      first element of HFC’s claim—the existence of a valid
the statements that were allegedly inadmissible. See id.        contract—and argues any oral contract(s) to lease and pay
Because Stovall failed to do so, we conclude Stovall’s          rent on the additional suites as alleged by HFC are
hearsay complaints are waived and the trial court properly      unenforceable under the statute of frauds. Stovall also
considered these affidavits.                                    maintains there are issues of fact related to the
                                                                interpretation of any agreements on the rental of
                                                                additional suites not listed in the signed lease agreement.


      HFC’s Entitlement to Summary Judgment As A
                     Matter of Law                              Statute of Frauds
                                                                [8] [9]
                                                                        The statute of frauds concerns problems of proof and
Before we address whether HFC is entitled to summary            exists to prevent fraud and perjury in certain kinds of
judgment, we note that the complaints Stovall raises on         transactions by requiring agreements to be set out in
appeal relate solely to the unpaid rent awarded to HFC for      writing and signed by the parties. Haase v. Glazner, 62
the additional suites Stovall occupied that were beyond         S.W.3d 795, 799 (Tex.2001); RESTATEMENT
what was in the original lease agreement. It is undisputed      (SECOND) OF CONTRACTS § 131 cmt. c (1981). The
that the parties signed one lease agreement, in which           statute of frauds is an affirmative defense in a breach of
Stovall agreed to lease suite 201 for $2,135 per month          contract suit and renders a contract that falls within its
through September 30, 2010. Stovall vacated the property        purview unenforceable. See TEX.R. CIV. P. 94; TEX.
in early August 2010 and did not pay the rent owed for          BUS. & COM.CODE ANN. § 26.01(a) (West 2009); see
that suite for the remaining two months. The record shows       also S & I Mgmt., 331 S.W.3d at 854.
that the trial court awarded HFC the “[r]ent due for Suite
201” for August and *798 September 2010, which was              [10] [11]
                                                                        The statute of frauds encompasses leases of real
$4,270 ($2,135 + $2,135). Stovall does not appear to            estate for a term longer than one year and agreements that
challenge this portion of HFC’s award.                          are not to be performed within one year from the date of
                                                                making the agreement. TEX. BUS. & COM.CODE ANN.
It also is undisputed that Stovall expanded into and            § 26.01(b)(5), (6). The statute of frauds renders these
occupied seven additional suites at various times               types of agreements unenforceable unless the agreement
beginning in December 2008. Those suites were suites            is in writing and signed by the person to be charged. See
217, 307, 309, 311, 312, 305, and 300 (in order of when         id. § 26.01(a). The question of whether an agreement falls
Stovall took possession). HFC alleged a series of oral          within the statute of frauds is one of law. See Bratcher v.
agreements that form the basis of its request for unpaid        Dozier, 162 Tex. 319, 346 S.W.2d 795, 796 (1961); Biko
rent on those additional suites. The trial court granted        v. Siemens Corp., 246 S.W.3d 148, 159 (Tex.App.-Dallas
summary judgment for HFC on its unpaid rent claim for           2007, pet. denied). Yet the question of whether an
those seven suites and awarded HFC $19,494.63, the              exception to the statute of frauds applies is generally a
“Total rent due” for the seven suites from December 2009        question of fact. See Adams v. Petrade Int’l, Inc., 754
through April 2010. The trial court also awarded HFC a          S.W.2d 696, 705 (Tex.App.-Houston [1st Dist.] 1988,
prorated amount of $1,372.20 for rental of those suites for     writ denied).
six days in August 2010.
[7]
                                                                HFC argues that the agreements to lease the additional
  To prevail on its claim for unpaid rent for the additional    suites do not fall within the statute of frauds because they
suites, HFC must prove (1) the existence of a valid             are for lease terms of less than one year and could be
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      8
Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)



performed within one year of the dates the agreements           and 309) was from a period of November 15, 2009
were made. HFC also argues the series of documents,             through September 30, 2010, which is plainly less than
including *799 the e-mails between representatives of the       one year.
parties, HFC submitted as summary-judgment evidence
were sufficient to constitute an agreement in writing to        Stovall, as the party pleading the statute of frauds, bore
satisfy the statute of frauds and support enforcement of        the burden of establishing its applicability; that is, the
the agreements to pay rent on the additional suites. HFC        agreements to lease the additional suites were for more
further maintains that even if the statute of frauds applies,   than one year or could not be performed within a year of
Stovall’s partial performance rendered the defense              the date of making the agreements. See Kalmus v. Oliver,
unavailable to Stovall.                                         390 S.W.3d 586, 590 (Tex.App.-Dallas 2012, no pet.).
                                                                Stovall moved for traditional summary judgment on its
[12]
    We agree with HFC that the agreements to lease and          statute-of-frauds defense. It argued that the unsigned lease
pay rent on six of the suites, specifically, suites 307, 309,   agreement was unenforceable under the statute of frauds
311, 312, 305, and 300, do not fall within the statute of       because performance was for more than one year after the
frauds because they do not involve the lease of real estate     commencement of the lease. It supported its motion with
for more than one year or could be performed within one         the unsigned lease agreement, which had been prepared
year from the date the agreements were made. HFC                by HFC, and the affidavit of Jewell in which she testified
alleged agreements with Stovall to pay rent on the              there was no signed lease agreement for any suite other
additional suites. The agreements were effective on             than suite 201. The unsigned lease agreement also was
various dates based on the timing of when Stovall took          attached to Liegman’s affidavit and submitted as part of
possession of the suites. The record shows the parties          HFC’s summary-judgment evidence.
stipulated to the dates that Stovall expanded into the
additional suites: The stipulated facts show that Stovall       *800 The unsigned lease agreement pertained to suites
began using suites 307 and 309 on November 15, 2009,            201, 217, 307, and 309. The agreement provided that the
suites 311 and 312 on February 1, 2010, and suites 305          lease term was for a period of twenty-four months and
and 300 on March 1, 2010. HFC’s claim for unpaid rent           listed three “Commencement Date(s)” corresponding to
on those suites corresponded to the dates Stovall began         when Stovall moved into suites 201, 217, 307, and 309.
using the suites. For example, HFC alleged as of                The lease term did not specify that the 24–month lease
December 2009, Stovall was occupying suites 201, 217,           term began from each commencement date; rather, it was
307, and 309 but that Stovall paid rent only for suites 201     for “a period” of twenty-four months that could only
and 217. The trial court awarded unpaid rent for suites         logically begin when Stovall first took possession of its
307 and 309 for five months, beginning in December              first suite, which was suite 201, effective October 1, 2008.
2009 and ending April 2010, plus six days in August             Further, the trial court did not treat each expansion as
2010.                                                           beginning a new 24–month term. It treated each
                                                                expansion as a month-to-month lease and awarded
Barnes and Liegman testified that the agreement to lease        damages accordingly. Liegman testified that for each suite
each suite was effective on the date Stovall took               Stovall took possession of and occupied beyond suite 201,
possession of the suite and Stovall agreed to lease the         the agreement was to lease the space through the end of
suites under the same terms and price per square foot           September 30, 2010.
through September 30, 2010. Liegman also testified that
“upon renewal of [Stovall’s] lease at the end of                Other than the documents described above, Stovall
September 2010,” a new lease would be prepared that             presented no additional summary-judgment evidence in
incorporated all the suites Stovall intended to occupy.         response to HFC’s motion and amended motion; Stovall
                                                                simply argued that because HFC did not produce “any
[13]
    To measure a contract’s duration for statute-of-frauds      proper, admissible summary judgment evidence to prove
purposes, the “court simply compares the date of the            the claimed proposition,” HFC is not entitled to summary
agreement to the date when the performance under the            judgment as a matter of law. We conclude Stovall did not
agreement is to be completed.” Young v. Ward, 917               meet its burden to show the agreements to lease additional
S.W.2d 506, 508 (Tex.App.-Waco 1996, no writ). And if           suites as alleged by HFC were unenforceable because
there is a year or more between those two reference             they were for more than one year or could not be
points, then a writing is required to render the agreement      performed within one year from the date of making the
enforceable. Id. Here, there is less than a year between the    agreement. Thus, the oral agreements to lease suites 307,
beginning dates for each expansion to the end of                309, 311, 312, 305, and 300 are not barred by the statute
September 2010. The longest agreement (for suites 307           of frauds.

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      9
Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)



                                                                Carmack v. Beltway Dev. Co., 701 S.W.2d 37, 40
The oral agreement to lease suite 217, however, requires a      (Tex.App.-Dallas 1985, no writ). But the case before us
different analysis because the stipulated facts show that       involves a lessor’s attempt to enforce an oral agreement
any agreement to lease suite 217 was for more than one          for lease of real estate. In such circumstances, the partial
year and therefore is within the statute of frauds. TEX.        performance exception to the statute of frauds has been
BUS. & COM.CODE ANN. § 26.01(a), (b)(5), (6). There             applied to prevent application of the statute when the
is no dispute that Stovall occupied suite 217 and paid rent     lessor fully performs and the lessee knowingly accepts the
for the suite from December 2008 through July 2010.             benefits of the oral agreement to lease and partly
HFC’s summary-judgment evidence includes check stubs            performs. See, e.g., Carmack, 701 S.W.2d at 40
showing Stovall’s payment for rent on “Sts 201 & 217.”          (seller/lessor may be entitled to enforce oral agreement if
And Stovall admitted in its opening brief that it “had paid     it shows “performance of the contract by delivery of
rent for the additional Suite 217.” But HFC also alleged        possession to the purchaser and a detrimental change of
that Stovall owed rent for all suites, including suite 217,     position for which the [vendor/lessor] has no adequate
in August and September 2010, and the trial court               remedy.”); see also Newsom v. Newsom, 378 S.W.2d 842,
awarded recovery of unpaid rent for the suites other than       844–45 (Tex.1964) (lessor permitted to recover rent
suite 201 through August 6, 2010. We therefore must             stipulated in oral lease for more than one year); Tinsley v.
determine whether the statute of frauds precludes               Metzler, 44 S.W.2d 820, 822 (Tex.Civ.App.-El Paso
recovery of unpaid rent for suite 217 for the six days in       1931, writ dism’d w.o.j.) (“[W]here the tenant has gone
August 2010.                                                    into possession and paid rent, this is such part
                                                                performance as takes the transaction out of the operation
[14] [15]
         HFC argues that Stovall’s partial performance          of the statute [of frauds] and renders it unavailable as a
renders the statute-of-frauds defense unavailable to            defense” in an action for unpaid rent.).
Stovall. Partial performance has been recognized as an
                                                                [16]
equity-based exception to the statute of frauds. Bank of            Here, HFC permitted Stovall to occupy its property,
Tex., N.A. v. Gaubert, 286 S.W.3d 546, 553                      and Stovall paid rent for the majority of that time.
(Tex.App.-Dallas 2009, pet. dism’d w.o.j.). Under this          Specifically, the summary-judgment evidence shows
exception, “an oral agreement that does not satisfy the         Stovall occupied suite 217 for over a year and a half and
traditional statute of frauds but that has been partially       paid full rent on the suite on a monthly basis until August
performed may be enforced if denying enforcement                2010. HFC accepted Stovall’s possession of the suite (as
would itself amount to a fraud.” Id. at 554; Exxon Corp. v.     evidenced by e-mail communications attached to Barnes’s
Breezevale Ltd., 82 S.W.3d 429, 439 (Tex.App.-Dallas            affidavit showing HFC performed maintenance services,
2002, pet. denied). The actions asserted to constitute          such as temperature and pest control, related to suite 217)
partial performance must be “unequivocally referable” to        and accepted the rent payments. Liegman testified that a
the alleged oral agreement and corroborate the existence        written lease agreement was prepared at one point to
of that agreement; they “must be such as could have been        cover suite 217 (as well as suites 201, 307, and 309), but
done with no other design than to fulfill the particular        that “as a result of Stovall’s uncertainty as to when they
agreement sought to be enforced.” Breezevale, 82 S.W.3d         wished to take possession of Suites 307 and 309,
at 439–40.                                                      execution of this lease was delayed.” She also stated that
                                                                when the original lease agreement expired in September
Citing Hooks v. Bridgewater, 111 Tex. 122, 229 S.W.             2010, a new lease would be prepared to incorporate all
1114, 1116 (1921), Stovall *801 argues that to establish        suites occupied by Stovall. These acts are sufficient to
partial performance, HFC must show: (1) payment of              corroborate the existence of an agreement to lease 217
consideration by the purchaser/lessee; (2) possession of        and could not have been performed with any purpose
the property by the purchaser/lessee; and (3) permanent         except to perform an agreement to lease and pay rent for
and valuable improvements by the purchaser/lessee with          suite 217. See Wukasch v. Hoover, 247 S.W.2d 593, 595
the consent of the landlord, or without such                    (Tex.Civ.App.-Austin 1952, no writ). We therefore
improvements, the presence of other facts as would make         conclude Stovall’s partial performance with respect to an
the transaction a fraud upon the purchaser/lessee if it were    agreement to lease and pay rent for suite 217 is supported
not enforced. We agree this test applies in the context of a    by the summary-judgment record, which removes the
purchaser or lessee attempting to enforce an oral               agreement from the statute of frauds.2
agreement pertaining to the sale or lease of real property.
See id.; Swinehart v. Stubbeman, McRae, Sealy, Laughlin         2
                                                                       We note that the party successful in removing an oral
& Browder, Inc., 48 S.W.3d 865, 882–83                                 agreement from the statute of frauds because of partial
(Tex.App.-Houston [14th Dist.] 2001, pet. denied);                     performance would be entitled to only reliance

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       10
Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)



       damages. See Breezevale, 82 S.W.3d at 441. Stovall did   To defeat HFC’s claim for unpaid rent on a traditional
       not attack the measure of damages, and we therefore      motion for summary judgment, Stovall had the burden to
       decline to address whether HFC suffered reliance         come forward with evidence to negate an element of the
       damages.                                                 HFC’s claim. See Ohio Cas. Ins. Co., 244 S.W.3d at 888.
                                                                In its response to HFC’s motion and amended motion,
                                                                however, Stovall did not file any controverting evidence.
                                                                Instead, it responded by filing objections to HFC’s
                                                                summary-judgment evidence, which were overruled. And
*802 Claimed Issues of Fact                                     in this Court, Stovall does not direct our attention to any
Because the statute of frauds does not bar the oral             summary-judgment evidence to support its contention that
agreements to lease suites 307, 309, 311, 312, 305, and         any oral agreements to pay additional rent did not take
300 and the statute is unavailable due to partial               place or the purpose and origin of the increased payments
performance related to the agreement to lease suite 217,        in May, June, and July 2010. On the latter contention, it
we next consider whether fact issues remain precluding          merely cites “CR xx.”
summary judgment for HFC. Stovall argues HFC failed to
establish its entitlement to judgment as a matter of law on     In its reply brief, Stovall argues there are “fact issues as to
its claim for unpaid rent because “genuine issues of            whether Stovall agreed to lease or to pay rent for the
material fact still existed on several issues.” Stovall first   office suites for which there were no written leases”
contends that the affidavit testimony of Barnes and             because the affidavits of Barnes, Liegman, and Lamkin do
Liegman that alleged oral agreements entered into by a          not meet the requirements for affidavits from interested
Stovall employee raises a fact issue because Stovall            witnesses. Stovall clarifies that the point of its argument
disputes that any oral agreement to pay additional rent         “is not that these affidavits were not admissible, but only
took place. Stovall further maintains there is a fact issue     that they failed to establish conclusively that Stovall
on “the purpose and origin of the increased payments” by        agreed to lease or to pay rent for the additional suites.”
Stovall to HFC in May, June, and July of 2010. It claims
that although Barnes stated the increased payment was to        *803 [17] The rules of appellate procedure provide that an
pay rent on the additional suites, Stovall argues that its      appellant “may file a reply brief addressing any matter in
“pleadings [alleged] that these increased payments were         the appellee’s brief.” TEX.R.APP. P. 38.3. But an issue
intended to satisfy a security deposit.”                        raised for the first time in a reply brief is ordinarily
                                                                waived and may not be considered by this Court. See
The affidavits and other evidence HFC submitted as              Collin Cnty. v. Hixon Family P’ship, Ltd., 365 S.W.3d
summary-judgment evidence provided relevant factual             860, 877–78 (Tex.App.-Dallas 2012, pet. denied); Dallas
details underlying each element of its claim. Barnes and        Cnty. v. Gonzales, 183 S.W.3d 94, 104 (Tex.App.-Dallas
Liegman testified to the executed lease agreement and           2006, pet. denied).
identified each suite added to Stovall’s leased premises,
including the dates when Stovall took possession of each        Stovall nevertheless contends this argument is a
additional suite, the rent due for each suite based on the      subsidiary issue covered under its general assertion that
price per square footage, and the duration of the               “genuine issues of material fact still existed on several
agreements. Liegman testified to Stovall’s agreement to         issues.” (citing TEX.R.APP. P. 38.1(f)). It asserts that this
lease and pay rent as it took possession of the suites,         argument “raises this Court’s authority and obligation to
Stovall’s failure to pay the rent due, and the amount of        scrutinize the summary judgment evidence to determine
money owed in unpaid rent. Similarly, Lamkin testified to       whether [HFC] conclusively established its entitlement to
a period of unpaid rent and the amount. The e-mail              judgment as a matter of law.” Counsel for Stovall also
communications identified Kay Wilbanks as the Stovall           stated at oral argument that this issue was embraced in the
representative who requested the additional suites, and the     contention raised in Stovall’s opening brief that the trial
letters of intent signed by Kimberly Stovall (or her            court erred when it relied on inadmissible affidavits.
representative) show the terms Stovall sought to lease
certain suites. Thus, HFC established a series of oral          Although related to Stovall’s challenge of the trial court’s
agreements to lease the seven additional suites, Stovall        grant of summary judgment, the argument Stovall raises
took possession of the suites and occupied the suites until     in the reply brief is wholly different from arguments
August 2010, Stovall breached the agreements by failing         raised in its opening brief, in which Stovall only
to pay rent on the additional suites, and HFC suffered          challenged the summary-judgment evidence on hearsay
damages as a result of the nonpayment.                          grounds and asserted issues of fact remained “even if” the
                                                                affidavits are admissible. Stovall’s opening brief does not

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       11
Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)



even mention the interested-witness ground—an objection                 Constr. Co., 162 S.W.3d at 668.
it raised in the trial court—much less make any arguments
                                                                        [22]
that the affidavits raise fact issues because they are from                 By rendering summary judgment in favor of HFC, the
interested witnesses. That Stovall could have but did not               trial court rejected Stovall’s statute-of-frauds defense and
make such an argument in its opening brief does not allow               determined that in addition to the signed lease, there were
it to do so for the first time in its reply brief. See López v.         oral agreements to lease the additional suites. HFC was
Montemayor, 131 S.W.3d 54, 61 (Tex.App.-San Antonio                     awarded unpaid rent in the amount of $25,136.83 for
2003, pet. denied) (“A reply brief is not intended to allow             Stovall’s breach of those agreements. Because HFC
an appellant to raise new issues.”). This argument is not               prevailed on its claim for unpaid rent, the trial court did
properly before us.                                                     not err in awarding attorney’s fees for breach of contract.
                                                                        See Ochoa, 262 S.W.3d at 33.
After reviewing the summary-judgment record, we
conclude HFC met its summary-judgment burden                            The issue of the amount of attorney’s fees was tried to the
showing it was entitled to summary judgment as a matter                 bench. HFC’s attorney submitted his resume, the
of law on its claim for unpaid rent and that no genuine                 September 14, 2010 presentment letter to Stovall, and the
issues of material fact exist as to the elements of HFC’s               billing records for the representation. He sought $38,250
breach of contract claim. TEX.R. CIV. P. 166a(c). We                    in fees through trial and testified the fees sought were
overrule Stovall’s first issue.                                         reasonable based on the time and labor involved, the skill
                                                                        required, the customary fee charged, the amount involved
                                                                        and the results, and his experience, reputation, and ability.
                                                                        Stovall did not cross-examine HFC’s attorney; rather, it
                                                                        objected that there was no basis for attorney’s fees
       Trial Court’s Award of Attorney’s Fees to HFC                    because “there ha[d] been no contract proven.” The trial
[18]                                                                    court reduced HFC’s request “slightly” and awarded
    In its second issue, Stovall contends the trial court               $35,000 in attorney’s fees through trial plus amounts if
erred in awarding “unreasonable” attorney’s fees to HFC                 HFC prevailed on appeal. The trial court acknowledged
because no enforceable contract existed upon which HFC                  that it was “awfully loath” to award attorney’s fees in
could sue for breach. We generally review a trial court’s               excess of the actual damages, but it stated, “the record in
decision to award attorney’s fees for an abuse of                       this matter overall will reflect that it was seriously
discretion. Bocquet v. Herring, 972 S.W.2d 19, 21                       contested, [and] that there was a certain amount of
(Tex.1998).                                                             dilatory and obstructive behavior on the part of [Stovall].”
[19] [20] [21]
           Section 38.001 of the Texas Civil Practice and               Without citation to any authority, Stovall argues the
Remedies Code permits the recovery of reasonable                        award of attorney’s fees, which was “in excess of the
attorney’s fees in a suit on an oral or written contract.               actual judgment is not customary or reasonable for a
TEX. CIV. PRAC. & REM.CODE ANN. § 38.001(8)                             breach of contract case.” We disagree, and after reviewing
(West 2008). To recover attorney’s fees in a suit based on              the record, we conclude the trial court did not abuse its
a contract, a party must prevail on the cause of action and             discretion in awarding $35,000 in attorney’s fees to HFC.
recover damages. Ochoa v. Craig, 262 S.W.3d 29, 33                      We overrule Stovall’s second issue.
(Tex.App.-Dallas 2008, pet. denied). While the trial court
has the discretion to set the amount of an attorney’s fees,             Based on our resolution of Stovall’s issues, we affirm the
it has no discretion to deny the fees if they are proper                trial court’s judgment.
under section 38.001. Smith v. Patrick W.Y. Tam Trust,
296 S.W.3d 545, 547 (Tex.2009); RM Crowe Prop. Servs.
Co., L.P. v. Strategic Energy, L.L.C., 348 S.W.3d 444,
452 (Tex.App.-Dallas 2011, no pet.); *804 Hassell                       All Citations
Constr. Co. v. Stature Commercial Co., 162 S.W.3d 664,
668 (Tex.App.-Houston [14th Dist.] 2005, no pet.). It is                409 S.W.3d 790
presumed that usual and customary attorney’s fees are
reasonable, but this presumption may be rebutted. Hassell
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.                                             12
Stovall & Associates, P.C. v. Hibbs Financial Center, Ltd., 409 S.W.3d 790 (2013)




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.   13
