Richard Sewing v. Steven Wayne Bowman as Personal Representative of the Estate of William C. Bowman

Opinion issued March 29, 2012.

In The

Court

of Appeals

For The

First

District of Texas

————————————

NO. 01-10-00230-CV

———————————

Richard Sewing , Appellant

V.

Steven Wayne

Bowman , AS

PERSONAL REPRESENTATIVE OF THE ESTATE OF WILLIAM C. BOWMAN, Appellee

On Appeal from the 270th Judicial

District Court

Harris County, Texas

Trial Court Case No. 2008-32360

O P I N I O N

Appellant, Richard Sewing,

challenges the trial court’s judgment, entered after a jury trial, in favor of

appellee, Steven Wayne Bowman, as Personal Representative of the Estate of

William C. Bowman (“Bowman”), in Bowman’s suit against Sewing for redemption of

partnership interest [1] , breach of

contract, unjust enrichment, and breach of fiduciary duty. [2] In thirteen issues, Sewing contends that the

statute of frauds [3] precludes Bowman’s claim for

recovering a redemption of partnership interest; the trial court erred in

considering Sewing’s previously-owned property as partnership assets; the

evidence is legally and factually insufficient to support the jury’s finding

that the parties formed a partnership; the evidence is insufficient to

establish the necessary elements of an enforceable contract or agreement; Bowman

failed to present competent evidence of the market value of the partnership;

the evidence is insufficient to support the jury’s damage award; the jury’s

damage award is excessive and against the great weight of the competent

evidence presented at trial; and the trial court erred in not providing set-offs

to the jury’s calculation of Bowman’s partnership redemption interest, awarding

Bowman attorney’s fees, and not submitting Sewing’s requested jury

instructions.

We affirm.

Background

Bowman sued Sewing,

seeking redemption of a partnership interest and damages for breach of

contract, unjust enrichment, and breach of fiduciary duty. In his petition, Bowman alleged that he and

Sewing “entered into [a]n agreement in or around 2003 wherein Bowman provided

in excess of $260,000 to [Sewing] between 2003 and 2005 as capital for the

purpose of acquiring and rehabilitating real property located at 1718 Wentworth

. . . and 4810 Chenevert ” in Houston, Texas. Bowman and Sewing were to each own 50 percent

of the two properties, which were held in the name of Sewing and his wife,

Patricia Sewing, and the money sent from Bowman was deposited into the Sewings ’ checking account.

Bowman asserted that the goal “was to create a partnership and combine

their resources and make a profit on the appreciation in the value of the

properties and share in rental income until the properties were later

sold.” Although Bowman died on June 8,

2005, Sewing did not contact Bowman’s estate regarding the property or “make an

offer to redeem Bowman’s interest.”

In regard to Bowman’s

claim for “Redemption of [Partnership] Interest,” Bowman asserted that the

parties had formed a partnership “to carry on a business for profit,” Sewing is

the “only remaining partner of the Partnership,” Bowman, “[u] pon his death[,] . . . became a withdrawn partner and is

entitled to . . . buyout rights and remedies,” and, because “Sewing has not

offered to the Estate to purchase Bowman’s interest nor tendered any payment to

the Estate,” the Estate is entitled to the “fair market value of the

partnership as of the date of Bowman’s death.”

In regard to Bowman’s

separate breach-of-contract claim, Bowman asserted that the parties “had an

agreement that they would each contribute to the purchase of [certain]

properties and in turn, would each own 50% of the properties and share in the

rents and profits generated,” Bowman “provided over $260,000 to [Sewing] to be

used for the purchase and rehabilitation of the properties,” Sewing “kept that

money” and “refused to share with Bowman the revenues from the rental and sale

of the properties,” and “[s] uch conduct is a breach

of the agreement between the parties, causing damage to Bowman in an amount in

excess of $500,000.00.”

In regard to Bowman’s

unjust-enrichment claim, Bowman asserted that “the parties understood and

agreed that they would each own 50% of the properties and would share equally

in the rents and profits,” Sewing’s “receipt of over $260,000.00 from Bowman”

and his “retention of all rents and revenues from the properties is unjust and

immoral,” Sewing has been unjustly enriched “by keeping the more than

$260,000.00 provided by Bowman and in keeping the revenues from Bowman,” and

Bowman “is entitled the reasonable value of the benefit conferred . . . which is in excess of $500,000.00.”

Sewing testified by

deposition that he had met Bowman in the early 1950’s and, in October 2003, he

and Bowman each invested $50,000 in “Rescue Properties.” On February 6, 2004, Sewing received on their

investment from Rescue Properties a payment of $136,550, which included the

$50,000 that each had invested and a profit of $18,275 each for Bowman and Sewing. Sewing explained that he and Bowman wanted to

continue to invest in Rescue Properties, and Bowman sent Sewing

another $50,000 to invest; however, Rescue Properties stated that it did not

“need [their] money.” Sewing and Bowman

then decided to reinvest the money into a similar endeavor, so Sewing held

Bowman’s $118,275. Sewing later

“proposed” that Bowman “might be interested in” developing two properties owned

by Sewing. The purpose of the

development, according to Sewing, was to build townhouses and sell them for a

profit. Sewing and Bowman had a

“conversation” about developing the two properties, and Sewing “put [a]

document together per [their] conversation.”

Sewing explained that the agreement required Bowman

to first pay Sewing $300,000 to receive “50 percent”

of the two properties. Sewing, in

explaining his valuation of the properties, stated, “[Bowman was] buying into

something that’s worth $600,000. And so

if you’ve got half interest in it — it’s worth $600,000 from what I’m seeing here

— then we entered equally.” Sewing

further explained, “I’m selling him half of something I already own. That $300,000 goes in my pocket. . . . Now we’re equal partners. . . . If I sell him half interest . . . in

something I own, that belongs to me.” Sewing

was then asked, “So you were going to take this $300,000, put it in your

pocket; is that right?” To which he responded, “If he had accepted it.”

Sewing stated that he and Bowman were to develop

townhomes on the two pieces of property, which were to be investment properties. He noted that although the Chenevert property was to be strictly an investment

property, Bowman, in February 2004, told Sewing that he might want to live on

the property. Sewing explained that at

that time, he still held $118,275 of Bowman’s money for investment

purposes.

Sewing kept the $68,275

owing to Bowman from the Rescue Properties investment in his checking account. Two weeks before Sewing purchased the Chenevert property, he had received the additional $50,000

from Bowman, but he explained that none of this money was used toward the down

payment on the Chenevert property. Bowman continued to contribute additional

funds, and, at the time of his death, he had paid Sewing $223,275, leaving a

remaining balance of $76,725 to reach his $300,000 total contribution. Sewing prepared two documents, which Bowman

introduced into evidence at trial, recording the payments. The first document, entitled, “BOWMAN-SEWING

TRANSACTIONS,” and the second document, entitled, “BOWMAN-SEWING PROPERTY

TRANSACTIONS As of 12/2/2004,” tracked the various payments that Bowman had made

to Sewing in connection with their investment in Rescue Properties and the

subsequent investment plan.

Approximately one year

after Bowman’s death, Sewing put the Chenevert

property, which was appraised for $700,000, on the market. Sewing originally had purchased the Chenevert property for $170,000. Although the Wentworth property at one time

had had an abandoned building on it, Sewing tore it

down and left the property vacant.

Sewing eventually sold both of the properties, and townhomes are now

built on the properties.

At trial, Sewing testified

that after he and Bowman had received the money back from their investment with

Rescue Properties, Bowman came to visit him in Houston in February 2004. Although Bowman had sent more money to Sewing

to reinvest in Rescue Properties, Bowman did not want Sewing

to return the money once they found out that Rescue Properties did not want

their investment. While Bowman was in

Houston, he visited the properties and saw “the potential” for developing townhouses

on them. Sewing drafted a proposal for

Bowman “to buy half of [his] land . . . but he never took the proposal.” Sewing then drafted a letter to Bowman,

stating that Bowman, pursuant to their discussion, would buy 50 percent of the

properties and own half of the land, and Sewing was having the legal documents

prepared. Sewing noted that he informed Bowman

of the legal documents because in “real estate dealings, any time you’re

selling land you go to a title company.”

Sewing explained that

after they were unable to reinvest in Rescue Properties, Bowman wanted to make

a similar investment. Then, Sewing

offered to let Bowman buy one-half of his properties. Sewing “needed [Bowman’s] financial

statement” because they would need to borrow “probably $3 million for interim

financing.” According to their plan, the

men were to build nine condominiums on the two pieces of property. However, they did not “go forward with that

plan” because Bowman “just sat on the letter” as he was “looking for something

fast, where you double your money.”

After Bowman left Houston and returned to Minnesota,

he began “talking about” moving to Houston, and he recommended that the two repair

the “old tear-down house” located on the Chenevert

property. Bowman wanted to “fix it up”

and live in it, and he offered to “put the money in it.” Sewing then began to remodel the house with

the money from Bowman and the $200,000 he had contributed. He explained that the changes made to the

property were not to increase its value, but for Bowman to live in it. Sewing stated that the men considered the

development to be “on hold,” but Sewing was “comfortable” doing that because he

wanted Bowman to move to Houston. Sewing

noted that the total amount of money he had received from Bowman was used to renovate

the Chenevert property.

Sewing explained that he

knew that Bowman’s health was “bad,” but he was not aware of how bad it was

until Bowman’s cousin alerted him that Bowman was very ill. Sewing then went to Minnesota, where he found

Bowman in very bad condition, and Sewing had to call for emergency assistance

to take Bowman to the hospital. Sewing

then returned to Houston to discuss plans to “airlift” Bowman to Houston, but Bowman

died before he could be transported.

At the time of Bowman’s death in June 2005, the

renovations on the Chenevert house were approximately

90 percent complete, and Sewing then had them completed. In July 2005, Sewing had the property

appraised for a value of $390,000.

However, Sewing engaged some realtors, who estimated its value at

$600,000 to $700,000. Sewing ultimately

sold it for $450,000. He owed

approximately $130,000 on a mortgage on the property, and he explained that he

“lost a large amount of money” on it.

Sewing noted that he did not go to Steven Bowman, Bowman’s son, for the

losses that he had incurred on the property because “this wasn’t business. This was for [his] friend.”

Sewing explained that his deposition testimony about

the sharing of profits and losses was in regard to what “would have been if we

had developed the property and made the townhouses but we never did.” He knew that “there was no way [he] could

make any money out of” the renovated property, but he renovated the property

because that is what Bowman wanted.

On cross-examination,

Sewing stated that he did not document any of the costs of remodeling the Chenevert property “because that was friendship.” Sewing also explained his deposition

testimony about Bowman’s contribution of $300,000 and their being “equal

partners,” stating, “I didn’t say if he gave me $300,000 we would be equal

partners. If he . . . bought the land of

these two properties for $300,000 then that would consummate. He never agreed to that.” Sewing asserted that Bowman had paid him only

$211,000 and explained that the two men would have been partners if Bowman had

agreed to his proposal to buy one-half of the properties, but the partnership

never formed because Bowman became ill and all of his money “went into

developing that house for him to live in.”

Craig LeVesseur ,

a certified financial planner, testified by deposition that he had provided

financial planning services to Bowman since 2000. He explained that he would meet with Bowman

approximately once every six months to discuss Bowman’s goals, priorities, and

current financial situation. LeVesseur also noted that during his meetings and telephone

conversations with all of his clients, including Bowman, he would take notes

that he would later use to create an annual written report. He explained that Bowman would keep him

“abreast of his investments on a regular basis.” In their first meeting, LeVesseur

made the following notes of his conversation with Bowman: “Invest in Houston

land/homes,” “$145k invested so far,” “will be adding another one $155k to this

project,” “Expected to mature in two to three years,” and “[Bowman] is

expecting 2 to 3 million out of it.”

At a later meeting with Bowman on June 3, 2004, LeVesseur took notes that he used to compile a follow-up

letter on June 7, 2004. In the follow-up

letter, LeVesseur noted that Bowman “intend[ ed ] to add to [his] real estate investment opportunity with

[Sewing] in Houston.” LeVesseur did not recall if Bowman mentioned Sewing’s name

in this specific meeting, but he noted that “every other conversation”

concerned “Richard.”

LeVesseur

again met with Bowman on December 30, 2004, and, pursuant to his ordinary

practice, he took notes regarding the meeting.

LeVesseur noted that, at this time, Bowman had

to return to a hospital due to over-radiation from his cancer treatment, but

Bowman “mentioned once he got his health back he wanted to go down to Houston

and visit his friend.” LeVesseur also noted, “In 2005/06, [Bowman] will need

$76,000 for his obligation in the Texas land investment project.” LeVesseur explained

that Bowman considered the project an “investment opportunity” and never

informed LeVesseur of any plans to move to

Houston. He explained that his note of

“2005-Alone Thirty to $40k needed for Texas project”

was in reference to Bowman needing $30,000 to $40,000 in 2005 to invest in the

project. Subsequently, on February 15,

2005, LeVesseur had a telephone conversation with

Bowman, and he made a note that Bowman “told me he will need 38,526 on April

15; 38,526 August 15” for the project in Texas.

On cross-examination, LeVesseur admitted that he did not have any personal

knowledge that Bowman had filed any tax forms related to a partnership with

Sewing. He had never seen any written

agreements between Sewing and Bowman about their project, and he did not know

exactly what the project entailed or involved.

LeVesseur also did not know if Bowman had ever

shared in any profits or had had a right to receive profits; he knew only that

Bowman “expected to get 2 to 3 million back in a relatively short period of

time.” LeVesseur

did not know if the endeavor “was going to be a partnership,” but he knew that

Bowman intended “to invest $300,000.” He

could not remember whether Bowman had “ever specifically said” that Bowman and

Sewing were partners, but he knew that Bowman had “never showed [him] anything

legally that suggested a partnership.

In regard to Bowman’s

claim for “Redemption of [Partnership] Interest,” the trial court instructed

the jury as follows:

A partnership is an association of two or more people to carry on a business,

as owners, for profit. You may consider

the following factors in finding a partnership between the parties (not all

factors are necessary to form a partnership):

1) the right to receive a share of the

profits;

2) expression of intent to be partners in

the business;

3) participation

or the right to participate in the control of the business;

4) sharing

or agreeing to share in the losses of the business;

5) contribution

or agreeing to contribute money or property to the business.

The jury found that Sewing and Bowman had “form[ ed ]

a partnership regarding the

properties located at 1718 Wentworth and 4810 Chenevert

in Houston, Texas” and the value of Bowman’s interest in the partnership at the

time of his death was $231,743.61.

(Emphasis added.)

In regard to Bowman’s separate breach-of-contract

claim, the trial court submitted the following question to the jury:

Did William C. Bowman and Richard Sewing bind themselves to a contract

that included the following terms:

1) William C. Bowman’s purchase

of an one half interest or 50% ownership in the properties located at 4810 Chenevert and 1718 Wentworth for $300,000; and

2) The development of townhomes

on both properties to make a profit.

The jury found that the parties had bound themselves

to such a contract. However, the jury

further found that neither Bowman nor Sewing had failed to comply with the

contract, and it found that Sewing was not unjustly enriched. Thus, the jury did not award Bowman damages

on his breach-of-contract or unjust-enrichment claims.

Based on the jury’s findings, the trial court

entered judgment in favor of Bowman for actual damages of $231,743.61 on his

claim for “Redemption of [ Partnership] Interest.”

Statute of Frauds

In

his first issue, Sewing argues that the trial court erred in denying his

request for a directed verdict because Bowman’s partnership claim is “wholly

derivative” of an agreement for the transfer in the interest of land and, thus,

whether or not the partnership agreement technically included a transfer in the

interest of land, enforcing the agreement would still be barred by the statute

of frauds. In his second and third

issues, Sewing argues that “[ i ]n order for [Bowman]

to have prevailed at trial, the evidence had to conclusively establish as a

matter of law that” the properties in question were “owned by the partnership”

and, if purchased by individuals, any “oral transfer to the partnership is

barred by the statute of frauds.”

The statute of frauds requires that a

promise, agreement, or contract for the sale of real property be in writing and

signed by the party to be charged with the promise or agreement . Tex.

Bus. & Com. Code Ann. § 26.01(a), (b )( 4)

(Vernon 2009). To satisfy the statute of

frauds, a contract “must furnish within itself, or by reference to some other

existing writing, the means or data by which the [property] to be conveyed may

be identified with reasonable certainty.”

Morrow v. Shotwell , 477 S.W.2d 538, 539 (Tex. 1972). Whether a contract

falls within the statute of frauds is a question of law .

Iacono v. Lyons , 16 S.W.3d 92, 94 (Tex. App.—Houston [1st Dist.] 2000, no

pet.).

Sewing argues that, “though couched in

terms of a partnership agreement,” Bowman’s partnership redemption claim is

“nothing more than a claim for [a] one-half interest in the Chenevert

and Wentworth properties.” In support of

this argument, he cites Trammel Crow Co.

No. 60 v. Harkinson , 944 S.W.2d 631 (Tex.

1997). In Trammel Crow , the plaintiff, a real estate broker, brought an

action for tortious interference of a written contract, which provided him the

exclusive right to sell a property. Id. at 632 . Underlying the written exclusivity contract

was an oral agreement stating the terms of his commission. Id. Although the plaintiff argued that his claims

were “not for the recovery of a commission, but for tort damages,” his

requested amount of damages was equal to the commission he would have received

under the oral commission agreement. Id. at 633–34. He alleged that the defendants had tortiously interfered with his ability to act as the

exclusive representative; however, this agreement included no terms for the

amount of commission, so any damages would still hinge on the unenforceable

oral commission agreement. Id. at 634 . The court ruled that such a result was

directly contrary to the statutory mandate that “[a]n action may not be brought

in a court in this state for the recovery of a commission for the sale or

purchase of real estate unless the promise . . . is in writing and signed by

the party to be charged.” Id. (citing Tex. Rev. Civ. Stat. Ann. art. 6573a, § 20(b) (Vernon Supp.

1997)). Thus, because the

plaintiff, through the tortious interference claim, was ultimately seeking

“recovery of a commission for the sale or purchase of real estate,” the statute

of frauds barred recovery despite the fact that it was not brought as a breach-of-contract

claim. Id.

Here, Bowman is not seeking to

recover a commission for the sale or purchase of real estate, and the reasoning

of Trammel Crow applies to Bowman’s

suit only if his claim for redemption of a partnership interest was an attempt

to enforce an otherwise unenforceable contract for the sale of real

estate. However, merely because the

value of the properties is relevant to the value of Bowman’s partnership

interest does not compel the conclusion that he is attempting to enforce a

contract for the sale of real estate.

Bowman did not make a claim for a transfer of title in the two

properties, and the jury was presented with evidence that he sought only the value

of his partnership interest in a “partnership regarding the properties,” i.e.,

one that involved the development of townhomes on the properties and then the

sale of the two properties.

“[A]n agreement to share in the

profits of contemplated speculative deals in real estate simply does not

involve the transfer of real estate, or an interest in real estate, within the

meaning of the Statute of Frauds.” Berne v. Keith , 361 S.W.2d 592, 597 (Tex.

Civ. App. — Houston

1962, writ ref’d n.r.e .); see also Wiley v. Bertelsen ,

770 S.W.2d 878, 881 (Tex. App. — Texarkana 1989, no pet.) (“The statute of frauds does

not apply to an agreement to pay a certain sum of money out of the proceeds of

a future sale of land.”). Thus, Bowman’s

claim for redemption of his partnership interest may include an interest in the

proceeds from the sale of the two properties without resulting in a transfer of

interest in the two properties. Merely

because a partnership agreement contemplates transactions in real estate does

not transform the partnership itself into a transaction for the sale of real

estate, bringing it under the statute of frauds. See

Berne , 361 S.W.2d at 597 . Thus, Sewing has not

established, as a matter of law, that the statute of

frauds applies to the partnership agreement.

Accordingly, we hold that the trial court did not err in denying his

motion for directed verdict.

In his second and third issues,

Sewing argues that the Wentworth and Chenevert properties

cannot be considered as “partnership assets” because “any oral transfer to the

partnership” was “barred by the statute of frauds.” However, the jury could consider the market

value of the property to determine the “fair value” of Bowman’s partnership interest,

i.e., Bowman’s entitlement to the proceeds of any future sale, without

considering the properties themselves to be assets of the partnership. See id .

We overrule Sewing’s first, second,

and third issues. [4]

Partnership Agreement

In his

fourth issue, Sewing argues that the evidence is legally and factually

insufficient to establish an enforceable agreement or contract between him and

Bowman because Bowman failed to pay $300,000 for a one-half interest in the Chenevert and Wentworth properties. In his fifth issue, Sewing argues that the

evidence is legally and factually insufficient to establish the necessary

elements of a contract between the parties because Bowman failed to present

“evidence of acceptance,” a “meeting of the minds,” the terms of any agreement,

and delivery or performance of any agreement.

In his seventh issue, Sewing argues that the evidence is legally and

factually insufficient to establish the formation of a partnership because

there is no evidence of a partnership contract, no testimony that Bowman had

expressed an intent to enter a partnership, no evidence to show an agreement to

share profits and losses, and Bowman’s payment of $300,000 was a required

condition of any partnership agreement.

Standard of Review

We will sustain a legal sufficiency or

“no-evidence” challenge if the record shows one of the following: (1) a

complete absence of evidence of a vital fact, (2) rules of law or evidence bar

the court from giving weight to the only evidence offered to prove a vital

fact, (3) the evidence offered to prove a vital fact is no more than a

scintilla, or (4) the evidence conclusively establishes the opposite of the

vital fact. City of

Keller v. Wilson , 168

S.W.3d 802, 810 (Tex. 2005). In

conducting a legal sufficiency review, a court must consider the evidence in

the light most favorable to the verdict and indulge every reasonable inference

that would support it. Id. at 822 . If

the evidence allows only one inference, neither jurors nor the reviewing court

may disregard it. Id. However, if the evidence at trial would

enable reasonable and fair-minded people to differ in their conclusions, then

jurors must be allowed to do so. Id. A reviewing court cannot substitute its

judgment for that of the fact finder, so long as the evidence falls within this

zone of reasonable disagreement. Id.

In

reviewing a factual - sufficiency

challenge, we consider and weigh all of the evidence supporting and

contradicting the challenged finding and set aside the finding only if the

evidence is so weak as to make the finding clearly wrong and manifestly unjust.

Cain v. Bain , 709 S.W.2d

175, 176 (Tex. 1986); see Plas –Tex, Inc. v. U.S.

Steel Corp. ,

772 S.W.2d 442, 445 (Tex. 1989). When a party attacks the factual - sufficiency of an

adverse finding on an issue on which it did not have the burden of proof at

trial, it must show that there is insufficient evidence to support the adverse

finding. Vongontard v. Tippit , 137 S.W.3d 109, 112 (Tex. App.—Houston [1st Dist.] 2004,

no pet.). The jury is the sole judge of the witnesses’

credibility and the weight to be given to their testimony. Golden Eagle Archery, Inc.

v. Jackson , 116

S.W.3d 757, 761 (Tex. 2003).

Evidence of Contract

In his fifth issue, Sewing argues that Bowman

cannot recover on his partnership claim without also proving the existence of a

contract because “to sustain a cause of action for redemption of a partnership

interest, the alleged partnership must be based on a valid, enforceable

agreement like any other contract.”

In support

of his assertion, Sewing relies on Volpe

v. Schlobohm , 614 S.W.2d 615 (Tex. App.—Texarkana

1981, no writ) and Ferch v. Baschnagel ,

No. 03-04-00605-CV, 2009 WL 349149 (Tex. App.—Austin Feb. 13, 2009, no pet.) ( mem . op.). In Volpe ,

the court applied the contractual concept of rescission to a partnership,

stating that a “partnership agreement, like any other agreement or

relationship, may be rescinded when proper grounds exist.” Volpe ,

614 S.W.2d at 617 .

The existence of a

partnership agreement was not in dispute, and the elements of contract

formation were not discussed. Id. at 617 . Rather, the court only applied the concept of

rescission to a written partnership agreement in determining whether rescission

was a proper remedy in the parties’ dispute.

Id.

In Ferch , a party

brought suit for breach of a partnership agreement, and the court discussed the

evidence supporting the finding of such an agreement. Ferch ,

2009 WL 349149 , at *1. The court stated, “ It is well established that, ‘even if

an offer and acceptance are not recorded on paper, dealings between parties may

result in an implied contract where the facts show that the minds of the

parties met on the terms of the contract without any legally expressed

agreement.’” Id . at *9. ( citing

Ishin Speed Sport, Inc. v. Rutherford , 933 S.W.2d 343, 348 (Tex. App.—Fort

Worth 1996, no writ); City of Houston v. First City , 827 S.W.2d 462, 473 (Tex. App.—Houston [1st Dist.]

1992, writ denied)).

The court went on to state that “because the jury was required to

determine if there was a ‘meeting of the minds’” for the plaintiff to recover

on his breach-of-contract claim, “it was necessary for the jury to

determine” whether the plaintiff and defendant had agreed to form a

partnership. Id. ; see also Prime Products, Inc. v. S.S.I. Plastics,

Inc. , 97 S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet.

denied) (holding that dispositive issue in determining whether contract exists

is intent of parties to be bound, without which there can be no contract upon

which to base breach-of-contract action); Oakrock

Exploration Co. v. Killam , 87 S.W.3d 685, 689 (Tex. App.—San Antonio 2002, pet. denied). Although the court in Ferch did reference the elements

of contract formation, it did not state that a plaintiff must provide evidence on

each of the elements of a contract claim to establish the formation of a

partnership. Id . at *9–10. Rather, the

court looked at the factors indicating existence of a partnership

agreement. Id.

Partnership formation may be implied

from the facts and circumstances of a case.

Elhamad v. Quality Oil Trucking

Service, Inc. , No. 2-02-412-CV, 2003 WL 22211543 , at *3, (Tex. App.—Fort

Worth Sep. 25, 2003, no pet.) ( mem .

op.) ( citing Cavazos

v. Cavazos , 339 S.W.2d 224, 226 (Tex. Civ. App.—San Antonio 1960, writ ref’d n.r.e .)); see also Shindler v. Marr & Assocs. , 695 S.W.2d 699, 703 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e .). In Ingram

v. Deere , the Texas Supreme Court, in deciding whether the parties had

formed a partnership, did not apply the elements of a contract claim to the

oral partnership agreement; rather, it looked at the totality of the

circumstances and the elements of partnership formation. 288 S.W.3d

886, 891 (Tex. 2009) .

Accordingly, we conclude that, in regard to Bowman’s partnership claim, Bowman

need not prove each element establishing the existence of a contract. [5]

We overrule Sewing’s fifth issue.

Existence of a

Partnership Formation

Under the

Texas Revised Partnership Act (“TRPA”), [6] factors indicating the

formation of a partnership include: (1) receipt or right to receive a share of

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

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

(4) sharing or agreeing to share losses and liabilities of the business; and

(5) contributing or agreeing to contribute money or property to the

business. Act of May

31, 1993, 73d Leg., R.S., ch. 917, § 1, 1993 Tex. Gen. Laws

3890 (expired Jan. 1, 2010) (former article 6132b-2.02(a)). Unlike at common law, the TRPA “does not

require proof of all of the listed

factors in order for a partnership to exist.”

Ingram 288

S.W.3d at 896 . Rather, whether a

partnership exists is to be determined by looking at the “totality of the

circumstances” and considering “all of the evidence bearing on the TRPA

partnership factors.” Id.

In regard

to the factors indicating partnership formation, we note, first, that Sewing

asserts that there are no documents or testimony establishing that Bowman had a

right to sharing any profits from a partnership regarding the Wentworth and Chenevert properties.

He argues that although he testified that he and Bowman would have

shared in any profits if a partnership had been formed, his “answer was

conjecture and clearly conditioned on a circumstance that never occurred — the men’s joint ownership of the

properties.” He asserts that he “was

indulging counsel in his questions and guessing what the terms would have been,

assuming co-ownership of the property occurred.”

Bowman points to the following testimony at trial as evidence of profit

sharing:

[Bowman’s Counsel]: And you and Bill were going to share in the

profits of it?

[Sewing]: The —

[Bowman’s Counsel]: The

investment?

[Sewing]: The development, yes.

Sewing’s

testimony constitutes some evidence that he and Bowman had an agreement to

share profits in regard to the development of the Wentworth and Chenevert properties.

See Hoss

v. Alardin , 338 S.W.3d 635, 643 (Tex. App. — Dallas 2011, no pet.) ( holding

testimony that parties “were going to split profits” was sufficient to uphold

finding of right to receive profits even though it “could be interpreted [as]

an agreement to agree”). Sewing’s own

admission that the parties were to share profits constitutes evidence of the

“receipt or right to receive a share of profits of the business.” See TRPA art. 6132b-2.03(a )( 1).

In regard to whether Sewing and Bowman had expressed an intent to be

partners, Sewing argues that Bowman presented no evidence because there is no

testimony or documents created by Bowing that refer to Sewing as his “partner”

in business, LeVesseur “admitted that he could offer

no competent testimony that Sewing was Bowman’s business partner,” and

“Sewing’s testimony that if Bowman [had] purchased half ownership interest in

the two properties, then Sewing would have considered them [to] be equal

partners is no evidence at all of an actual expressed intent by the men to be

partners.”

The expression-of-intent factor requires “an inquiry separate and apart

from the other factors,” and courts should “only consider evidence not

specifically probative of the other factors.”

Ingram , 288

S.W.3d at 900 . Courts should

review the “putative partners’ speech, writings, and conduct” in determining

whether the parties had expressed an intent to be partners. Id. at 899 .

Additionally, “there must be evidence that both parties expressed their

intent to be partners.” Id. at 900 .

In support

of this factor, Bowman points to Sewing’s testimony that the men would be

“equal partners.” Here, Sewing testified

as follows:

[Sewing]: I’m

selling him half of something I already own.

That $300,000 goes in my pocket. That’s mine. Now we’re equal partners , and we move

forward. But I’m not — his money

is not in for me to do that with. If I

sell him half interest in my — in something I own, that belongs to me.

[Bowman’s Counsel]: So

you were going to take this $300,000, put it in your pocket; is that right?

[Sewing]: If he had accepted it.

(Emphasis added.) Although Sewing’s testimony is that Bowman

did not pay him $300,000, which he asserts was a required condition of any

partnership, the jury could have reasonably inferred from this testimony that

the two men had expressed an intent to be partners. See id.

at 901 . Thus,

Bowman, through Sewing himself, presented some

evidence that the men expressed an intent to be partners.

In regard

to an agreement to share in the losses of any partnership, Sewing argues that

there is no evidence of such an agreement because there is no document

reflecting such an agreement nor is there any credible testimony that either

party agreed to share in any losses. The

absence of an agreement to share losses is not dispositive of the existence of

a partnership; however, the existence of such an agreement could support

Bowman’s argument that a partnership existed between him and Sewing. TRPA art.

6132b-2.03(a )( 4)(A).

Sewing asserts that the “only testimony on the issue is Sewing’s

affirmative response to a hypothetical: ‘And if the development took a bath,

you would share in the losses?’” Sewing

clearly stated that if the development had failed, both parties “would share in

the losses.” Moreover, the evidence is

undisputed that Sewing was in possession of $223,275 that Bowman had provided

to Sewing — money that Sewing had not

returned. Thus, the record contains

evidence from which the jury could have inferred an agreement to share

losses.

Regarding

any right to participate in the control of any partnership, Sewing asserts that

there is no evidence that Bowman ever participated or had such a right. He asserts that it is “uncontroverted that

Sewing owned both properties and controlled the maintenance, renovations and

other operation on the properties.”

Further, Sewing asserts that his “testimony that if Bowman had purchased

the half interest and agreed to develop the townhomes, Bowman would have ‘some

input in developing it’ is not evidence that an agreement was in place

concerning the properties.’”

“The right

to control a business” involves “the right to make executive decisions.” Ingram ,

288 S.W.3d at 901 .

Courts have considered various facts in deciding whether an individual

had such a right to control, including the exercise of authority over a

business’s operations, the right to write checks on a business’s checking

account, control over and access to a business’s books, and receiving and

managing all of a business’s assets and monies.

Id. at 901 – 02. Sewing’s testimony that Bowman would have had

“some input in developing” the properties does not constitute evidence of a

right to make executive decisions. Such

“input” does not necessarily include control over a business. See id.

at 903 (“[O] wners talk with consultants,

employees, accountants, attorneys, spouses, and many others about their

businesses, and these conversations do not establish that these people have

control of the business.”); see also

Knowles v. Wright , 288 S.W.3d 136, 147 (Tex. App. — Houston [1st Dist.] 2009, pet. denied) (holding

that testimony that parties “made decisions together” did not constitute

evidence of control where one party “retained ultimate control over business

decisions”). Here, Bowman submitted no evidence that he

made executive decisions or had the right to make such decisions.

In regard

to any contribution or agreement to contribute property or funds to an alleged

partnership, Sewing asserts that there is no evidence that Bowman made any such

contribution or entered any such agreement.

He further asserts that the “only funds mentioned in the testimony and

documents were sent from Bowman to [Sewing] for the purchase of an ownership

interest in the properties.” He asserts

that Bowman’s contributions “would have been monies owed directly to Sewing to

gain an interest in the properties personally owned by Sewing, and no funds

were to be contributed to an alleged partnership.”

In regard

to the TRPA factors concerning partnership formation, Bowman asserts that

“adequate evidence supports the jury’s finding that the parties created a

partnership and that Bowman was paying down an interest in their venture, not

buying real estate.” The evidence shows

that Bowman made several payments over the course of the parties’ dealings:

$50,000 to invest in Rescue Properties, the $68,275 that Sewing retained from

the investment in Rescue Properties, two additional payments of $50,000 to

Sewing, and a $5,000 payment to Sewing.

The jury could have reasonably concluded that Bowman contributed the

money to form a partnership with Sewing and he made the continuous payments to

pay down on his partnership contribution.

In regard

to Sewing’s fourth issue, we note that the jury was not required to believe

Sewing’s testimony that Bowman was to first buy an interest in the Wentworth

and Chenevert properties before the partnership would

be formed. Because the jury could have

disbelieved his testimony on this point, we overrule Sewing’s fourth issue.

Sewing asserts that his testimony regarding

the right to receive profits, the intent to be partners, and the obligation to

share in losses constitutes no evidence of these factors because his testimony

was “conjecture and clearly conditioned on a circumstance that never occurred — the men’s joint ownership of the properties.” Again, however, the jury was free to

disbelieve his assertion that co-ownership of the properties was a prerequisite

to the formation of the partnership while taking into account his testimony

regarding the terms of such a partnership. See,

e.g., Golden Eagle Archery , 116 S.W.3d at 774–75 (stating that jury may

“believe all or any part of the testimony of any witness and disregard all or

any part of the testimony of any witness”); Travelers Pers. Sec. Ins. Co. v.

McClelland , 189 S.W.3d 846, 852 (Tex. App.—Houston [1st Dist.] 2006, no

pet.) ( stating that jury could have disbelieved part

of witness’s testimony where he “appeared to backtrack” on his prior testimony).

Accordingly, we conclude that Bowman presented

sufficient evidence on four of the five TRPA factors indicating the existence

of a partnership agreement. See TRPA art.

6132-2.03(b).

Viewing the evidence in the light most favorable to the verdict, we

further conclude that a reasonable and fair-minded fact-finder

could find the existence of a partnership . See City of Keller , 168 S.W.3d at 810 . Moreover, we conclude that the evidence

supporting the jury’s finding is not so weak as to make the finding clearly

wrong and manifestly unjust. Cain , 709 S.W.2d at 176 . Accordingly, we hold that the evidence is

legally and factually sufficient to support the jury’s finding of the existence

of a partnership. [7]

We overrule

Sewing’s seventh issue.

Damages

In his sixth issue, Sewing argues that

Bowman presented no competent evidence of the fair market value of his

partnership interest because Bowman presented no expert testimony as to the

value of his partnership interest and Sewing’s testimony cannot serve as

evidence of the partnership interest. In

his eighth issue, Sewing argues that the evidence is legally insufficient in

regard to the redemption price of Bowman’s partnership interest, if any,

because he submitted no evidence of the value of the Wentworth property. In his ninth and tenth issues, Sewing argues

that the awarded damages are excessive and against the great weight of the

evidence because “the value of [Bowman’s] interest, if any, was less than zero

[as] he owed the alleged partnership for his capital contribution and losses .

. . related to the properties” and the trial court erred in not providing

set-offs to the jury’s calculation of the redemption price.

The TRPA provides that “the redemption

price of a withdrawn partner’s partnership interest is the fair value of the

interest as of the date of withdrawal.” TRPA art. 6132b-7.01(b )( 1). The death of a partner constitutes an event

of withdrawal. Id. art. 6132-6.01(b )( 7)(A). And the

redemption price has been referred to as a “buyout” of the withdrawing

partner’s interest. Coleman v. Coleman , 170 S.W.3d 231, 237 (Tex. App.—Dallas 2005,

pet. denied). Interest is payable on the

amount owed. TRPA art.

6132b-7.01(b )( 2).

At trial, Sewing testified that, at the

time of Bowman’s death, Bowman had contributed approximately $211,000 to the

development plan. He noted that the

value of the Chenevert property had been appraised at

approximately $700,000, when Sewing “put it on the

market” in June 2006, and, in August 2005, “shortly after Bowman’s death,” it

was valued at approximately $750,000.

Sewing also interpreted his valuations in the document entitled, “ BOWMAN-SEWING TRANSACTIONS, ” which listed the price for the

Wentworth and Chenevert properties at $300,000

each. Sewing explained that he arrived

at this number by taking the combined square footage of both properties and

valuing them at $35 per square foot, giving a total value of $600,000, which he

divided by two. Because the Wentworth

property was larger, Sewing noted that his $300,000 valuation of that property

was “underpriced.” With 9,500 square

feet, at $35 per square feet, Sewing would have valued the Wentworth property

at $332,500. In explaining his

valuations, Sewing testified, “I know those property values. I’ve been there 45 years.” In June 2006, the Wentworth property sold for

$390,000.

Sewing argues that the above evidence

is not competent to establish the redemption price of Bowman’s partnership

interest because “[n]o one testified as to how to account for the partners’

capital contributions or expenses” and “expert testimony by an accountant or

other professional was necessary to properly guide the jury as to the proper

partnership value.” He asserts that

Bowman “presented no expert evidence, or any other

credible evidence at all, of [his] partnership interest, as required by Texas

law.” However, Sewing cites to no

authority which would have required Bowman to provide expert testimony on the

“fair value” of his partnership interest.

See TRPA

art. 6132b-7.01(b )( 1). Instead, for the proposition that section

8.06 of the TRPA requires “the profits and losses that result from the

liquidation of the partnership property [to] be credited and charged to the

partners’ capital accounts,” he cites Coleman ,

170 S.W.3d at 237 . However, as explained

in Coleman , section 8.06 applies only

to the disposition of the partnership assets upon a winding up of the

partnership. Id. at 238 . In Coleman ,

the court held that section 8.06 did not apply where the redeeming partner had

died, and, thus, withdrawn from the partnership, and there was no winding up of

the partnership. Id. Here, the partnership’s

only “assets” at the time of Bowman’s death were Bowman’s capital contribution

and, arguably, the two properties as valued by Sewing. We conclude that, under these circumstances,

Bowman was not required to provide expert testimony on the value of his

partnership interest.

Sewing further argues that his own

testimony is not competent evidence of the value of the Wentworth and Chenevert properties because “a property owner cannot offer

testimony with respect to anyone else’s property,” citing Redman Homes, Inc. v. Ivy , 920 S.W.2d 664, 669 (Tex. 1996). In Redman

Homes , both parties conceded that a homeowner’s statements regarding the

price that he paid for his home were not admissible to show its market value at

the time that the home was destroyed by fire ten months later. Id. at 668 . However,

the court held that the homeowner was qualified to testify as to the market

value of the home and his personal property as their owner. Id. at 669 . Here, it

is undisputed that Sewing owned both properties at the time of Bowman’s

death. “A property owner is qualified to

testify to the market value of his property.”

Id. (citing Porras v. Craig , 675 S.W.2d 503, 504 (Tex.

1984)). “This evidence is probative if

it is based on the owner’s estimate of the market value and not some intrinsic

or other value such as replacement cost.”

Id. Thus, the jury could have reasonably relied

on Sewing’s testimony regarding the value of his properties.

Sewing next argues that there is no

competent testimony specifically regarding the value of the Wentworth property

at the time of Bowman’s death because the only evidence that Bowman offered

concerning it was “a settlement statement from the sale of the property more

than a year later on June 2006.”

However, the evidence also included Sewing’s own valuation of the

property in the “BOWMAN-SEWING TRANSACTIONS” document prepared in December

2004. The jury was not required to

determine the exact market value of the property at the time of Bowman’s death

but only the “fair value” of his partnership interest. See TRPA art. 6132b-7.01(b )( 1). We conclude that the above evidence would

have enabled the jury to reasonably determine the fair value of Bowman’s

partnership interest.

Accordingly, we overrule Sewing’s sixth

and eighth issues.

In regard to his ninth issue, Sewing

argues that the evidence is insufficient to support the jury’s damage award and

the damages are excessive and against the great weight of the evidence

presented at trial because Bowman “owed the alleged partnership for his capital

contribution and losses/expenses related to the properties.” However, as noted above, the jury was free to

disbelieve Sewing’s testimony that Bowman’s payment of $300,000 for receipt of

a one-half interest in the two properties was a condition precedent to the

formation of the partnership, and it was free to disbelieve some or all of

Sewing’s testimony regarding the expenses paid on the Chenevert

property and whether they were expended pursuant to the partnership agreement

and before Bowman’s death. See Golden Eagle Archery , 116 S.W.3d at 774–75 . Accordingly, we hold that the damages were

not excessive and the evidence that supports the award is not so weak as to

render the jury’s award clearly wrong and manifestly unjust.

We overrule Sewing’s ninth issue.

In his tenth issue, Sewing asserts that the trial

court erred in not applying set-offs to the jury’s partnership award. See TRPA art.

6132b-7.01(l).

The TRPA provides that a “withdrawn partner . . . may maintain an action

. . . to determine the terms of redemption of that partner’s interest,

including a contribution obligation or setoff under Subsection (c) or (d) or

other terms of the redemption obligations of either party.” Id.

However, subsection (c) only states that a wrongfully- withdrawn partner

is liable for contributions he “would have been liable to make,” while subsection

(d) states that the partnership may set off damages for “wrongful

withdrawal.” Id.

art. 6132b-7.01(c) ,( d). As Bowman was not a wrongfully- withdrawing

partner, the provisions in subsections (c) and (d) would not apply to him, and

the jury was entitled to disbelieve Sewing’s testimony that there were any

expenses incurred in furtherance of the partnership that Bowman was liable

for. See Golden

Eagle Archery , 116 S.W.3d at 774–75 .

Accordingly, we overrule Sewing’s tenth issue.

Attorney’s

Fees

In his eleventh issue, Sewing argues that the trial

court erred in awarding Bowman attorney’s fees because he “failed to plead and

present evidence to sustain a judgment for such fees on his partnership

claim.” See TRPA

art. 6132b-7.01(l). Sewing asserts that Bowman’s plea for

attorney’s fees applied only to his breach-of-contract claim, on which he was

unsuccessful, and an award of attorney’s fees in an action to recover on a

partnership interest requires a showing of “vexatious conduct.” See id.

A

trial court’s award of attorney’s fees will not be disturbed on appeal absent

an abuse of discretion. Bocquet

v. Herring ,

972 S.W.2d 19, 21 (Tex. 1998). Absent

contrary evidence, we must presume that a trial court’s judgment is valid. Vickery v. Comm’n

for Lawyer Discipline , 5 S.W.3d 241, 251 (Tex. App.—Houston [14th Dist.] 1999,

pet. denied) (stating court would uphold award of attorney’s fees “if it can be

upheld on any legal theory supported by the evidence”).

A party “may recover reasonable attorney’s fees

from an individual or corporation, in addition to the amount of a valid claim

and costs, if the claim is for . . . an oral or written contract.” Tex.

Civ. Prac . & Rem. Code Ann. § 38.001(8)

(Vernon 2008). Bowman pleaded for

attorney’s fees under section 38.001(8), but Sewing argues that because Bowman

did not recover on his breach-of-contract claim, he cannot recover attorney’s

fees. Sewing asserts that Bowman was

required to plead for attorney’s fees under the TRPA, which states that “[ i ]f the court finds that a party acted arbitrarily, vexatiously , or not in good faith . . . the court may

assess . . . reasonable attorney’s fees” against that party. TRPA art. 6132b-7.01(l).

However, “[s] ection 38.001(8) does not narrow

its scope to claims of breach of contract, nor differentiate between types of

contracts. . . .” ½ Price Checks

Cashed v. United Auto. Ins. Co. , 344 S.W.3d 378, 388 (Tex. 2011) (holding

that section 38.001(8) applied to claim for breach of obligation owed by drawer

of check); see also Med. City Dallas, Ltd. v. Carlisle Corp. , 251

S.W.3d 55, 61 (Tex. 2008) (upholding award of attorney’s fees under section

38.001(8) in claim for breach of express warranty because claim, while not

breach of contract, was “contract-based”).

Although Bowman did not recover on his breach-of-contract

claim, his partnership-redemption claim was still based on an oral agreement. Accordingly, we hold that the trial court did

not abuse its discretion in awarding him attorney’s fees. See Tex.

Civ. Prac . & Rem. Code Ann. § 38.001(8); see

also Atterbury v. Brison ,

871 S.W.2d 824, 828 (Tex. App.—Texarkana 1994, writ denied) (holding that

because plaintiff’s claim was “founded on an oral or written partnership

agreement,” attorney’s fees were recoverable under Chapter 38 in action for

accounting of partnership interest).

We overrule Sewing’s eleventh issue.

Jury Questions and

Instructions

In his twelfth and thirteenth issues,

Sewing asserts that the trial court erred in not submitting his proposed jury

questions and instructions regarding formation of the partnership, “the

existence of a condition precedent to the parties’ agreement or partnership,”

and the application of the statute of frauds.

We review a trial court’s decision to

submit or refuse a particular question or instruction under an abuse of

discretion standard. See

La.-Pac. Corp. v. Knighten , 976 S.W.2d 674, 676 (Tex. 1998). When a trial court refuses to submit a

requested question or instruction on an issue raised by the pleadings and

evidence, the question on appeal is whether the request was reasonably

necessary to enable the jury to render a proper verdict. Tex. Workers’ Comp. Ins. Fund v. Mandlbauer ,

34 S.W.3d 909, 912 (Tex. 2000) (referring to Texas Rules of Civil Procedure 277

and 278). The omission of a question or

instruction constitutes reversible error only if the omission probably caused

the rendition of an improper judgment. Tex. R. App. P. 44.1(a); see

Wal-Mart Stores, Inc. v. Johnson ,

106 S.W.3d 718, 723 (Tex. 2003). Error

in the omission of an issue is harmless “when the findings of the jury in

answer to other issues are sufficient to support the judgment.” See Shupe v. Lingafelter , 192 S.W.3d 577 , 579–80 (Tex. 2006); Boatland of Houston, Inc. v. Bailey , 609 S.W.2d 743, 750 (Tex. 1980).

A trial court must submit questions,

instructions, and definitions that the pleadings and evidence raise. See Tex.

R. Civ. P. 278; Elbaor v. Smith , 845 S.W.2d 240, 243 (Tex. 1992). A trial court may refuse to submit a jury

question only if no evidence exists to warrant its submission. See Elbaor , 845 S.W.2d at 243 ; Brown v.

Goldstein , 685

S.W.2d 640, 641 (Tex.1985) (citing Garza v. Alviar , 395 S.W.2d 821, 824 (Tex. 1965)). Conflicting evidence presents a fact question

for the jury to decide. Gunn Infiniti, Inc. v. O’Byrne , 996 S.W.2d 854, 862 (Tex.

1999); Brown , 685 S.W.2d at 641–42; Phillips Pipeline Co. v.

Richardson , 680 S.W.2d 43,

48 (Tex. App.—El Paso 1984, no writ).

Sewing first asserts that the trial

court should have included a predicate question on the formation of a contract

before the jury could answer affirmatively on the partnership issues. However, as noted above, a party need not

prove the required elements of a contract claim in order to prove the existence

of a partnership because a partnership can be implied from the facts and

circumstances of a case. Shindler ,

695 S.W.2d at 703 ; see also Elhamad , 2003 WL 22211543 , at *3. In regard to Sewing’s assertion that the

trial court should have submitted an instruction stating that his

previously-owned properties could not be considered partnership property, the

jury heard evidence from which it could conclude that the two properties were

not partnership assets. Rather, the jury

could have considered the partnership agreement to pertain Bowman’s entitlement

to the proceeds from the development of townhomes and subsequent sale of the

properties.

Sewing next argues that the trial court’s

partnership instruction to the jury was incomplete because it “failed to

identify a specific business purpose,” only stated that the partnership was

“regarding the properties,” and failed to include proper guidance as to what

constitutes the right to participate in control of a business. Jury question number one tracked the five

factors to consider in determining the existence of a partnership and properly

defined a partnership as “an association of two or more people to carry on a

business, as owners, for profit.” See TRPA art. 6132b-2.02(a). Sewing

cites no authority indicating that a trial court must in its instructions to a

jury identify a “specific business purpose.”

Here, the trial court’s charge to the jury sufficiently tracked the

language of the TRPA, and the trial court did not abuse its discretion in not

submitting further instructions regarding a “specific business purpose” or

examples of the right to control a business.

See Spencer v. Eagle Star Ins. Co.

of Am. , 876 S.W.2d 154, 157 (Tex. 1994) (“When liability is asserted based

upon a provision of a statute or regulation, a jury charge should track the

language of the provision as closely as possible.”).

In regard to Sewing’s assertion that

the trial court should have submitted an instruction on “the existence of a

condition precedent to the parties’ agreement or partnership,” the jury found

the existence of a partnership, necessarily rejecting Sewing’s argument that

Bowman’s complete payment of $300,000 and the transfer of an interest in the

Wentworth and Chenevert properties was a condition

precedent to the formation of the partnership.

Again, we note that the jury was free to disbelieve Sewing’s assertion

of a condition precedent, and the trial court did not abuse its discretion in not

including an instruction on the issue. See, e.g.,

Golden Eagle Archery , 116 S.W.3d

at 774–75.

Finally, Sewing argues that the trial court erred

in not submitting “a Statute of Frauds fact question” to the jury asking

“whether the transfer of an interest” in either of the two properties in

question “was part of the alleged agreement in this case.” Sewing’s proposed questions are substantially

similar to jury question number three, which asked,

Did William C. Bowman and Richard Sewing bind themselves to a contract

that included the following terms: 1) William

C. Bowman’s purchase of a one-half interest or 50% ownership in the properties

located at 4810 Chenevert and 1718 Wentworth for

$300,000; and 2) The

development of townhomes on both properties to make a profit.

The jury answered, “Yes” to this question, but, in question

number four, found that neither Sewing nor Bowman had failed to comply with the

agreement. It further found in jury

question number one that Sewing and Bowman had formed a partnership regarding the

“properties,” and, in question number two, that the value of Bowman’s “interest

in the partnership” was $231,743.61.

However, as noted above, the statute of frauds did not apply to Bowman’s

claim for redemption of his partnership interest.

Accordingly, we hold that the trial

court did not abuse its discretion in not submitting to the jury Sewing’s

requested questions and instructions.

We overrule Sewing’s twelfth and

thirteenth issues.

Conclusion

We affirm the judgment of the trial

court.

Terry Jennings

Justice

Panel consists of Justices Jennings, Higley , and Brown.

Justice Brown, dissenting.

[1] See

Tex. Rev. Civ.

Stat. Ann. art. 6132b-7.01 (Vernon 2010).

[2] Bowman’s claim for breach of fiduciary

duty was not submitted to the jury.

[3] See

Tex. Bus. & Com.

Code Ann. § 26.01 (Vernon 2009).

[4]

In support of his argument that

the statute of frauds bars Bowman from recovering the value of his interest in

the partnership formed with Sewing, our dissenting colleague asserts:

The Court properly distinguishes

between (1) an oral partnership agreement to transfer an ownership interest in

land to a partner or the partnership — an

agreement that violates the statute of frauds — and (2) an oral partnership agreement to develop

land for resale and share in the sale profits without transferring an ownership

interest in the land — an

agreement that does not. . . . But,

contrary to the Court’s holding, the agreement alleged at trial and found by

the jury falls within the first category rather than the second, and the

damages Bowman recovered depend on that unenforceable oral agreement.

( citations omitted).

However, contrary to our colleague’s assertion that this case concerns

two “oral partnership agreement[s],” Bowman actually asserted against Sewing

two separate and distinct claims: (1) a claim for redemption of Bowman’s

interest in the partnership “ regarding

the properties located at 1718 Wentworth and 4810 Chenevert

in Houston, Texas” (emphasis added) and (2) an alternative breach-of-contract

claim that concerned Bowman’s “purchase of an one half interest or 50%

ownership in the properties located at 4810 Chenevert

and 1718 Wentworth for $300,000.” As

outlined above, these distinct claims appear separately in Bowman’s “Original

Petition and Request for Disclosure,” and the trial court submitted the two

different claims to the jury for separate findings and damage awards.

In order to

find that Bowman and Sewing had formed a partnership “regarding” the pertinent

properties, the jury need not have believed that Bowman had also specifically

agreed to purchase an interest in the properties. And, in order to find that Sewing had failed

to comply with a contract to sell an interest in the pertinent properties, the

jury need not have believed that Bowman and Sewing had formed a

partnership. Indeed, although the jury

found that Bowman and Sewing had formed a partnership, it separately found that

neither Bowman nor Sewing had failed to comply with an agreement for Bowman to

purchase an interest in the properties.

Thus, our dissenting colleague’s conclusion that the statute of frauds

bars Bowman’s claim for “Redemption of [Partnership] Interest” is based

entirely on a false premise and the conflation of two separate and distinct theories

of liability. And the statute of frauds

does not bar Bowman’s claim for “Redemption of [Partnership] Interest.”

[5]

We note that although the jury

did also find that Sewing and Bowman had a contract, Bowman did not recover on

his breach-of-contract claim.

[6]

Although TRPA expired on January

1, 2010, it was in effect during the events made the basis of this

lawsuit.

[7]

Sewing argues that the trial

court erred in not excluding LeVesseur’s testimony

and, as a result, it is not competent evidence to support the jury’s finding

that a partnership existed. Having held

that the evidence is legally and factually sufficient to support the jury’s

finding of a partnership agreement without relying on LeVesseur’s

testimony, we need not address this argument.