# Austin Capital Collision, LLC// Barbara Pampalone v. Barbara Pampalone// Cross-Appellee, Austin Capital Collision, LLC and Eric Hinojosa > Texas Court of Appeals, 3rd District (Austin) · December 18, 2015 URL: https://www.frixlaw.com/law-library/cases/4076227 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** December 18, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4076227 ## How later opinions describe it (automated extraction) - 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 ## Opinion text 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 $20,000.00, representing the anticipated reasonable and necessary fees and expenses that would be incurred by Plaintiff in defending the appeal. It is further ORDERED that Plaintiff may have all writs, orders and executions necessary for collection of this judgment, which may issue immediately. It is further ORDERED that except as specifically provided herein, all relief not expressly granted is hereby DENIED. This judgment finally disposes of all parties and all claims and is appealable. SIGNED this \nk of 1\mcrica, N.A. "··)~t' Page l or 4 I' .o. no, 2~1 IU S1a1cmcn1 rcriod hmp3, fl. lJl12~·51llS O~.'Oi:H, th: ou:;l1 u:. ~:; ,\. C!O l' 1'11 OE 48 01422()') lindosu res 0 Accoun1 1'umbc1 fl :t1U "I 11!i':'"IIl1111 •• 11,. ,1,11, u J, I u1!1Ii:11!11111!1! 01059 001 SCM999 I ~ 4 o CJ\PITAT, COJ,!.ISIOW ERIC A HINOJOSA 4304 BURCH DR DEL VALLE Ticposits nnd Credits nle Ull Po~ted Amount ($) 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 Poste56387 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 $10 for a day and we transfer funds rrorn your linked savings account or line of credit to cover it. we will not charge an Overdraft Protection Transfer Fee. Overdraft Protection lets you link your checking account to another account to help avoid overdrafts. If you haven't already signed up. call the number on your statement or visit your nearby banking center and an associate can help you. Stay ahead or your bills · such as rent, mortgage. credit card or utility payments • by setting up automatic reminders to be sent right to your e·mail or smart phone. With Payment Reminders from Bank of America®, lt's easy to know when a payment is due. Get started at bankofamerica.com/solutions today. H !'age 2 of 4 St;. lcmen l I' er iod CAPITAL COLLISION GP 02101110 throuuh 02/2:VIO ERIC A HINOJOSA f:ll I' PU OU 44 Account Number - ,. ::· '·"· I :· .- ::·. Business f.1.dvc.1n!age Cl•~cl~ing CAPITAL COLLISION GP ER.IC A HINOJOSA Your Account at n Gkn~c Account Number - - Statement Beginning Balnncc S2,524.SO Statcmcn. ~-L 33622·5118 03101!10 through 03131/10 f.0 P PE OE 43 013Ui56 l!nclasurcs 0 - /\ccuunt Number ll111Il11l11It11mIII111I11II111I1l l1ul11II1l 1lnl1lu l11 l1 I 01099 001 SCM999 11 0 CJ\.l?ITAI, COLLISION ERIC A HINOJOSA 4304 BURCH DR DF.L VALLE TX 78617-3273 Our free Online Bankini; service nllows you lo chc"k l>olanccs, tr:1ck occuunt activity, pay bills nnd mot'c, Wllh Online llnnldng you can olsP •·Jew up to 18 innntlu uf !Ills •lattincnl onllnc. Enroll Ot www.b:\nkofamcrica.com/smallbu$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 $922.81 Please note that the balances in your account(!>) are below the minimum required to avoid the monthly malntemmce fee. We have waived the monthly maintenance fee for an additional cycle in case you need time to make balance adjustments. If your balances are below the minimums next month you'll still enjoy all the many benems that come with your Business Ad11antage account, but the monthly maintenance fee will apply. Please call us at the number listed above If you have questions about your account. Deposits nncl Creillts ate an Posted Amount (S) Description Reference 03/04 2,658.42 Sf Mutual Des:A25Sf0001 ID:xxxxx6250Ka0301 902562006583464 lndn:Capitnl Collision Co ID:9A25Sf'OOOI Ced Pmt lnfo:Nte"zzz*xxxxx6250Ka030l !370533100 \ 03/17 2,797.16 Sf Mutunl Dcs:A25Sf0001 ID:xxxxx1236Ka0312 902575003591285 lndn:Cnpital Collision Co ID:9A25Sf0001 Ced Pmt lnfo:Nte'"zzz•xxxxx 1236Ka0312l370533100 \ 18 7,316.73 Sf Mutual Des:A25Sf0001 ID:xxxxxl784Ka0315 902576008234102 lndn:Capital Collision Co ID:9A25Sf0001 Ced Pmt lnfo:Nte=t29 H "' " CAPITAi. COl.LlSION ERIC A HINOJOSA Page 3 of4 S101cmcn1 Period 03/01110 1hrough 03131/10 F.O I' PE OE 48 l!nclosurcs () Account Number Withdrawals and Debits - Continued Oilier Debits Date Bank Posted Amount (S} Description Reference Suhtolul 590.85 Daily Ledger Balances Date Balance (S) Date Hnlnnce ($) 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 bcscripl 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 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, 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 oay5 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 ;,_ ~ ·:·--= ~:~: ,. ;·/~ - ~· -· . " .. . \: 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 33ll 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 $2,809.84, your Business Advanlng~ occount hits nntl CretlHs l.>atc Bank l'ostecl Amount ($) 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 90250501015392utomatic 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"'"' S1a1cm~ Fowlirg B.,lancc ''"'ft ... ··-··· ....... $ _ _ _ __ SUBTOTAL 3. Ust nnd 1010.1 all cutt.t:ule 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 ~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 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~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 Statice allows you to ch·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 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 \' .. ~;···_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 . {:.:: .,_;~ ·. ·: :·.. ;·: .':~': _,.,_ :~:,;:, '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 [1 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4076227. Public record. Not legal advice.