Betty Rathbun Ligon v. Judith D. Casey ( 2023 )

Opinion issued July 27, 2023
In The
Court of Appeals
For The
First District of Texas
———————————
NO. 01-22-00247-CV
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BETTY RATHBUN LIGON, Appellant/Cross-Appellee
V.
JUDITH D. CASEY, Appellee/Cross-Appellant
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Case No. 2014-67737
MEMORANDUM OPINION
Appellant/cross-appellee, Betty Rathbun Ligon, challenges the trial court’s
judgment, entered after a jury trial, in the suit of appellee/cross-appellant, Judith D.
Casey, against Ligon for breach of contract, breach of partnership agreement, breach
of duty of care, quantum meruit, promissory estoppel, breach of fiduciary duty,
fraud, fraud by nondisclosure, and money had and received. In three issues, Ligon
contends that the trial court erred in concluding that the statute of limitations did not
bar Casey’s damages claims.
In her sole issue on cross-appeal, Casey contends that the trial court erred in
denying her motion to disregard certain jury findings.
We affirm.
Background
Casey filed suit against Ligon on November 19, 2014. In her fourth amended
petition, Casey alleged that “[f]rom around July of 2005 to August of 2013, [she]
and Ligon were partners” in a company called MedPerm Permanent Placement, Inc.,
doing business as Therapy Consultants (“MedPerm”).1 According to Casey,
MedPerm was a “medical placement firm” that recruited and placed speech
therapists with various school districts. Because of school scheduling and contract
needs, Casey and Ligon performed “[e]ssentially all” of their work in the spring and
summer prior to the school year in which the speech pathologists began working
under their contracts. Casey alleged that she and Ligon would “make their profits
based on what they billed to the school districts for the hours worked” by the speech
therapists. They “agreed to” a fifty-fifty “split” of MedPerm’s net profits, which
1
MedPerm was a defendant in Casey’s suit but Casey’s claims against MedPerm
were dismissed before trial, and it is not a party to this appeal.
2
“were calculated by adding up the amount billed to the school districts for each
therapist they placed and subtracting business expenses.”
In August 2013, “without Casey’s knowledge,” Ligon sold MedPerm under a
“Stock Purchase Agreement” to Robert and Rebecca Strobel (collectively, “the
Strobels”). Before Ligon and the Strobels entered into the Stock Purchase
Agreement, Ligon informed the Strobels “that her agreement with Casey was that
most everything was split down the middle.” (Internal quotations omitted.) The
Strobels and Ligon then “spent two months” negotiating the sale to address the
Strobels’ “insistence on protection” from any possible claims by Casey “after the
sale [of MedPerm] became final.”
Casey further alleged that Ligon refused the Strobels’ request to obtain a
release from Casey or meet with her. When the Strobels were about to “walk[] away
from the sale,” Ligon offered to “warrant that Casey [wa]s not a partner and [wa]s
not entitled to a percentage of” MedPerm’s profits and “indemnify the Strobels if
the warranty [wa]s breached.” According to an email written by Ligon to the
Strobels, Ligon believed that Casey would not “pursu[e] any partnership claims”
because Casey “was 72 years old” and had “an ill husband.”
The Strobels accepted Ligon’s warranty and indemnification and paid Ligon
$875,000.00 for MedPerm under the Stock Purchase Agreement. Ligon also
received “the cash in MedPerm’s accounts and the accounts receivable.” According
3
to Casey, based on her partnership with Ligon, “as established through the[ir] course
of dealings” for the previous eight years, she was “entitled to [fifty percent] of the
proceeds from the sale, the cash, and the accounts receivable.”
Further, Casey alleged that “[a]fter the sale” of MedPerm to the Strobels,
MedPerm earned “at least $2,178,221 in revenue” during the “2013-2014 school
year based on contracts secured by Casey”2 in spring 2013. Yet, “MedPerm did not
pay Casey” the share of “profits [that] she was entitled to.”
Casey brought claims against Ligon for breach of common-law partnership
and statutory partnership under the Texas Business Organizations Code. She alleged
that she and Ligon had agreed that both “would work together in MedPerm and
would split the profits equally.” Further, they “had a community of interest in
MedPerm” and “a mutual right to manage MedPerm.” But Ligon “breached the
partnership agreement by selling MedPerm without Casey’s consent and retaining
Casey’s agreed share of [the] profits, cash[,] and accounts receivable [that] Ligon
obtained through th[e] sale.” And because “Ligon’s calculation of anticipated
expenses of MedPerm were not always accurate,” Casey paid “more into MedPerm’s
operating account than was necessary.” Because of Ligon’s accounting errors,
Casey did not receive her full share of net profits.
2
See TEX. BUS. ORGS. CODE ANN. § 152.052.
4
Casey also brought a claim against Ligon for breach of her fiduciary duty and
a statutorily imposed duty of care3 because Ligon “misrepresented the amount due
to [MedPerm’s] operating account each month”; “sold MedPerm without [her]
permission”; “wound up the partnership without notifying [her]”; and “failed to
split” MedPerm’s “profits, . . . cash, and . . . accounts receivable” with her “after the
sale.” And Casey asserted a claim for fraud against Ligon, alleging that Ligon had
falsely “represented to Casey that they were partners” in MedPerm and Casey was
entitled to receive fifty percent “of the net profits.” Further, during the eight years
that Ligon and Casey had worked together, Ligon had falsely “represented to Casey”
that she was receiving fifty percent of MedPerm’s net profits. According to Casey,
these misrepresentations were material because MedPerm “was Casey’s livelihood
for eight years, and she worked very hard toward growing MedPerm in order to
receive her share of the profits.” And Casey relied on Ligon’s misrepresentations
“by contributing to the business in the [s]pring and [s]ummer of 2013 to secure
contracts on behalf of MedPerm.”
Casey further alleged that Ligon’s breach of their partnership, breaches of her
duties of care and loyalty, and fraud “caused injury to Casey of between at least
3
See id. § 152.206.
5
$576,685.00 and up to $1,000,000.00.” Casey also requested attorney’s fees,
pre-judgment and post-judgment interest, and court costs.
Ligon answered, generally denying the allegations in Casey’s petition. She
also asserted that she and Casey had no partnership agreement, and Casey’s claims
were barred by the statute of limitations and the statute of frauds. And Ligon filed
a counterclaim against Casey.
In her second amended original counterclaim, Ligon alleged that beginning in
April 2005, she “was in the business of placing speech therapists . . . with various
school districts.” The speech therapists “were employees of Ligon,” and the school
districts paid her a “flat fee for each therapist [who was] placed with them.”
Ligon operated her business “under the assumed name of Therapy
Consultants.” She “hired Casey as an independent contractor . . . to assist with
Ligon’s work and business.” According to Ligon, “Casey’s duties required her to
identify and recruit” speech therapists and “obtain the necessary paperwork,”
including work visas, if needed, for those speech therapists. Casey also
“perform[ed] general secretarial duties[] and sometimes monitor[ed] the working
relationship between the school districts and [the] speech therapists.” But “Casey
was not allowed to sign any documents binding the company to any agreement” or
“incur any obligations for the company.”
6
In July 2005, Ligon formed MedPerm. Casey then “became an independent
contractor for MedPerm, continuing [the] same work as before and being paid the
same compensation by MedPerm.”
According to Ligon, she sold one hundred percent of MedPerm’s stock to the
Strobels in August 2015. Under the Stock Purchase Agreement, Ligon agreed “to
indemnify [the Strobels] for any third-party claim” involving MedPerm, “which
accrued or occurred” before the closing date and which would have “include[ed] the
[suit] brought by Casey.”
Ligon alleged that beginning in January 2015, she “received communications”
from the United States Department of Labor (“DOL”) informing her that MedPerm
owed the DOL funds due to a violation of work visa regulations involving
MedPerm’s former employees. “Casey had been handling correspondence” with the
DOL and United States Citizenship and Immigration Services (“CIS”) about those
employees, “but she had no authority to bind MedPerm to any agreement or
obligations.” To “comply with her indemnity obligation” to the Strobels, Ligon paid
DOL the funds due.
Ligon asserted that “Casey [had] breached her employment agreement with
MedPerm by making decisions concerning” the employees who were working for
MedPerm under MedPerm-sponsored work visas, representing to the DOL and CIS
“that she was the owner of MedPerm” despite having “no ownership interest in
7
MedPerm,” engaging in conduct “which resulted in MedPerm owing [the DOL]
$16,000 or more,” and concealing such conduct from Ligon.
Ligon also raised the affirmative defense of offset, asserting that if it was
“determined that Casey and Ligon were partners in MedPerm,” in order “to achieve
a balance of partners’ interests, she [was] entitled to receive from Casey”
$321,963.00, which “represent[ed] the amount which Casey was paid in excess of
monies paid to Ligon (excluding any distribution of profit during the time of Casey’s
employment)”; $33,229.00, which “represent[ed] one-half of the broker’s
commission incurred in the sale of the business”; about $137,420.00, which
“represent[ed] 50% of the payments of principal on the Green Bank and Bank of
America loans”; “the amount necessary to equalize the payment of federal income
taxes on profit distributed to the parties”; about $2,500.00, which “represent[ed]
[fifty percent] of the attorney’s fees incurred by Ligon in negotiating and
consummating the Stock Purchase Agreement”; “50% of all monies paid by Ligon
under her indemnity obligation under the Stock Purchase Agreement, past and
future”; “two-thirds (2/3) of the monies paid Casey as an independent contractor
during 2011, 2012, and 2013 because Casey did not devote all of her working time
to her duties for the business” despite receiving full compensation; “50% of all other
expenses incurred in connection with the alleged partnership, including . . . interest
paid to banks” and funds paid to certified public accountants and attorneys; and
8
about $121,834.00, which “represent[ed] 50% of the operating losses incurred by
MedPerm in 2005, 2006, 2007 and 2008.” Ligon also requested attorney’s fees,
pre-judgment and post-judgment interest, and court costs.
At trial, Casey testified that she met Ligon in the early 1990s. At the time,
Casey worked for “a physical therapy company in Sugar Land,” Texas, where she
recruited speech therapists, physical therapists, and occupational therapists “for their
clinics throughout Houston.” Ligon spoke to Casey about a therapist who needed a
short-term placement. After that, Casey and Ligon had “lunch together once or
twice[] and kept up with each other.”
Casey then went to work at another company at which she placed contract
therapists in Houston-area clinics and hospitals. Those therapists included speech
therapists, physical therapists, and occupational therapists. That company lost
funding and went out of business in about 2000.
Following that job, Casey, at Ligon’s suggestion, worked out of an office
space that Ligon had rented with a former colleague to provide contract services with
nurses. While there, Casey and Ligon worked together to place an occupational
therapist with a school district in Alaska. Making that placement led them to realize
that placing contract therapists with school districts presented a good business
opportunity.
9
Ligon then suggested that they begin placing speech therapists in school
districts because it was a “critical need” that they could meet. Casey and Ligon had
conversations and exchanged numerous emails about what their business model
would look like. They discussed a financial forecast of what the business could earn
that Ligon had prepared. They also “talked about” the “rates to ask for in school
districts,” and Casey “had input” on the rates. And Casey negotiated the pay rate
“with the first therapist” that she hired.
When Casey and Ligon “started out,” Casey was “the lead recruiter,” “getting
people into [the] jobs.” Casey had the authority to hire and did not need to consult
with or get permission from Ligon before doing so. Casey also dealt “with the
foreign-trained therapists,” who required assistance in securing and maintaining the
proper immigration status and finding temporary housing. Ligon was “the
marketer,” “out getting the school districts.” They “both knew how to” recruit and
market, and when necessary, Casey and Ligon “both did each job” and “work[ed]
together.” Ligon also kept “the books and records” for the business.
Ligon sought Casey’s input on one of her first draft proposals for services to
a school district, and in an email to a third party, Ligon referred to Casey as her
“partner.” Casey also would refer to herself as a “partner” in “fliers” that she sent
“to school systems or to [job] candidates.” Ligon would get a copy of the fliers and
she never commented on the fact that Casey had called herself a partner. Further,
10
Casey signed contracts on behalf of MedPerm and “signed [Ligon’s] name” with
Ligon’s “knowledge and permission.” And Ligon told Casey to “[j]ust let [potential
new employees] know” that Casey was “a partner” in the business.
According to Casey, her agreement with Ligon to split profits of MedPerm
fifty-fifty was not in writing, but she considered the monthly reports that showed the
revenues, billing, payroll, and profit and loss as proof of their agreement to do so.
Casey understood that she would be receiving fifty percent of the profits of the
business because of Ligon’s “math on the reports.”
Casey testified that she first learned that Ligon sold MedPerm when Ligon
called her and told her, “well, I’ve sold the company.” (Internal quotations omitted.)
Ligon told her that “the new owners [would] want to work with [Casey].” Casey
“was in shock.” She was concerned that she “wasn’t going to have any income”
because she had “only a few months of reserve.”
When Ligon sold MedPerm, Casey and Ligon “were having one of [their]
largest years as far as starting with the large[st] number of speech therapists [placed]
in school districts.” At the time, they had about thirty speech therapists in schools
around Houston and San Antonio.
After the sale, Casey hired a certified public accountant to review Ligon’s
accounts for MedPerm and found “that there w[ere] some discrepanc[ies]” between
her agreement with Ligon to split profits evenly and what was in the accounts.
11
Susan Powell, a forensic accountant, testified that Casey asked her “to look
at” MedPerm’s financial records “in order to determine the loss of profits” for
Casey’s damages. She “looked at [the] tax returns for MedPerm from 2005 through
2012” and the 2013 tax return for the successor company after its sale. Powell also
looked at the tax returns that Ligon had prepared for MedPerm, “the W-2s that
MedPerm [had] provided” to Ligon, “the 1099 forms that MedPerm [had] provided”
to Casey, Casey’s tax returns, the monthly reports for MedPerm, and MedPerm’s
“profit and loss statements.” In her opinion, “the business was operated as a
partnership and for over eight years the profits of the business were shared 50-50.”
Powell noted that there were many emails between Casey and Ligon “where
[they] referred to each other as partners” and otherwise showed “that Casey
participat[ed] in the business.” From her review, she understood that “at the very
beginning,” Casey “looked at the business plan.” Ligon asked Casey “a lot of
questions,” and Casey had “input in regard[] [to] who they would hire, what they
would pay, how they would handle the expenses.” Casey also discussed “insurance
matters” and advertising with Ligon. And Casey entered “contracts with some of
the school districts” and contracts with “marketing or trade show organizations in
order to promote the business.” According to Powell, Casey also
“contributed . . . intellectual property, [consisting of] her skills and her experience”
to MedPerm.
12
Powell further testified that in reviewing the documents that Casey had
obtained from Ligon, she determined that Ligon had failed to adequately pay Casey
for her share of the net profits before the sale of MedPerm. Powell determined that
Ligon owed Casey $98,184.00 for underpayment of Casey’s fifty-percent share of
the profits before the sale of MedPerm.
Robert Strobel testified that he and his wife purchased MedPerm’s stock from
Ligon “at the beginning of the 2013-2014 school year.” He paid Ligon $875,000.00
for MedPerm’s stock. The stock purchase closing date was August 27, 2013. As
part of the acquisition, Strobel was assigned the contracts that had been awarded by
school districts for MedPerm to provide speech therapists for the 2013-2014 school
year. Strobel did not pay Casey for her work in acquiring those contracts.
Ligon testified that in late 2004, she began discussions with Casey about how
to create a staffing agency to place speech therapists in school districts. She “started
asking Casey questions about things that she had done” previously in her career,
“trying to get [Casey’s] opinion about whether” such a staffing agency would have
“a good profit margin” and “learn from [Casey] what she [knew] about” business
“costs and expenses” because she knew Casey had experience with those things.
Ligon also asked Casey “to go over” some “raw numbers” for the amount of pay that
Ligon planned to offer to speech therapists and to give Ligon her thoughts about
whether the numbers Ligon had proposed were realistic.
13
Ligon eventually drafted a proposed business plan and sent a copy to Casey
along with an email in which she suggested that Casey should “feel free to tweak it.”
Ligon “valued [Casey’s] opinion.” But she did not discuss with Casey “a plan to
form a business,” just “a plan for [Casey] to work for the business.”
In early 2005, Ligon asked Casey “if she would come to work for MedPerm
and she said she wanted to.” Casey “asked for” fifty percent of net profits, which
was the same amount that Ligon “had been paying . . . other recruiters” she worked
with at the time. Ligon confirmed that Casey did not need to submit an invoice or
timesheet to Ligon to get paid, and there was no requirement that Casey generate a
certain percentage of profits.
Casey told Ligon that “she wanted to come as an independent” contractor and
asked “to be paid on [an IRS Form] 1099.” “[Casey] had her own company, Milagro
Staffing,” and used her own email, telephone, desk, and office equipment. Ligon
did not withhold any money for Casey’s taxes, and Casey set her own work hours.
Ligon incorporated MedPerm in July 2005. She was listed as the sole
shareholder on the articles of incorporation and was MedPerm’s sole director. Ligon
paid at least $1,000.00 for MedPerm’s shares and paid money into MedPerm to be
used as operating capital. When MedPerm did not have “enough money for payroll,”
she would withdraw her own savings to subsidize the company.
14
In the early years of the business, Ligon got an $80,000.00 home equity loan
from Bank of America for MedPerm’s benefit. To the extent that she did not
withdraw profits from the business, those funds were kept “to cover payroll.” Ligon
never discussed MedPerm’s cash flow problems with Casey because she was “the
one” who Ligon was “trying to get money to pay.” In September 2009, Ligon took
out an additional loan of $185,000.00 for MedPerm. As with the first loan, Ligon
repaid that loan with the profits earned by MedPerm.
In 2005, the first year of MedPerm’s existence, the company had losses of
$12,890.00. In 2006, it had losses of $113,100.45; in 2007, it had losses of
$84,910.00; and in 2008, it had losses of $32,767.00. MedPerm then began to turn
a profit. In 2009, it earned $116,366.00 in profits; in 2010, it earned $86,851 in
profits; in 2011, it earned $120,307.00 in profits; and in 2012, the last full year before
it was sold, MedPerm earned $34,058.00 in profits.
In 2007, Ligon “took a salary” from MedPerm but “didn’t take any money as
an officer” of MedPerm. Ligon took some money out of MedPerm as an officer in
2008. But in 2009 and 2010, Ligon did not take out much money because she “didn’t
have to pay [her]self,” but she “had to pay” Casey, and she “was trying to have
money in the bank to make payroll,” make loan payments, and “grow the business.”
According to Ligon, she and Casey never discussed having “any partnership,”
“[e]xcept” for a “working partnership.” Ligon stated that she and Casey “talked
15
about being good working partners, getting the work out, doing that kind of thing.”
Ligon was okay with Casey telling people that she was Ligon’s partner because
Casey “said it was so much better with her recruiting when she said she was a partner
rather than [a] recruiting specialist.” Ligon acknowledged that she had sent an email
referring to Casey as her “partner” and she had used “we” and “us” in discussing the
business in emails to Casey.
When Ligon made accounting mistakes that affected the profit, she deducted
the cost of the error before splitting the profit with Casey; they each still received
the same portion of profit. While they were working together, Ligon “offered to
show” Casey “the time sheets and the invoices so that she could look at them.”
Casey never asked to review those records. Ligon “never offered” Casey the
opportunity to review “the profit and loss or balance sheets” or other “business
records.”
Additionally, Ligon explained that she had “hired [Casey] as a recruiter, but
over time she did a lot more than recruiting, a lot more, such as getting quotes for
advertising, or getting quotes for health insurance, or setting up the website.” Ligon
“would have [Casey] get quotes” for “advertising, insurances, convention booths,
web hosting, that kind of thing.” When MedPerm hired a speech therapist, Ligon
had Casey take care of the paperwork, including “drug testing,” “TB testing,” and
“fingerprinting.”
16
Ligon also asked Casey to take care of the immigration issues for the foreign
speech therapists. Ligon agreed that Casey did about ninety percent of the
immigration work necessary for the noncitizen speech therapists. But she denied
having seen documents filed with CIS and signed by Casey that listed both Casey
and Ligon as owners. Ligon acknowledged that she had given Casey “permission to
sign [Ligon’s] name” on immigration applications “at least three times” in order “to
expedite” them.
Ligon further explained that she was the only person authorized to sign checks
on MedPerm’s bank account. And over the eight years, Ligon gave Casey
permission to sign “two or three or four checks.” Most of them were for immigration
matters. Ligon also gave Casey MedPerm’s credit card number so she could enter
contracts with marketing companies.
Ligon decided to sell MedPerm because Casey’s “husband was ill and she had
some problems,” and Ligon “was working a lot” even though she was almost seventy
years old. Her “children insisted” that she sell the business. As part of the sale, the
Strobels wanted Ligon to guarantee that Casey would not take any of the speech
therapists to work for her business. Ligon made that guarantee in the Stock Purchase
Agreement.
Ligon told Casey about the sale of MedPerm to the Strobels “[t]he afternoon
that it was completed.” Ligon did not tell Casey about it beforehand because she
17
was afraid that Casey would tell the speech therapists that MedPerm employed, and
Ligon did not want the therapists to know about the sale “because they [we]re what”
Ligon was “selling.” Ligon also considered the fact that Casey “had her own
business” and “that some recruiters or people might try and steal [MedPerm’s]
employees to go to work for” another company. Ligon “wanted the new owner[s]
to have a clean slate,” and she “thought [they] would hire [Casey] part-time.”
After Casey rested, Ligon moved for a directed verdict. Among other things,
Ligon argued that the statute of limitations barred Casey’s damages claim for fifty
percent of MedPerm’s profits because, in the exercise of “reasonable diligence,”
Casey “should have discovered” the “mistakes in the profit split going all the way
back to 2005” before November 2010—four years before Casey filed suit. Casey
responded, among other things, that because Ligon was “making an affirmative
claim going back to [2005],” the statute of limitations did not apply. The trial court
denied Ligon’s motion for a directed verdict.
Peter Wilson, a certified public accountant, then testified that he had done
“some work” for MedPerm in 2008, namely, preparing its “2007 tax return,”
“payroll tax forms,” “end-of-year tax forms, W-2s, 1099s, and the corporate tax
return.” Wilson confirmed that MedPerm was a “Subchapter S” Texas corporation
and Ligon was its sole owner. Casey “show[ed] up nowhere” on MedPerm’s tax
18
returns. Wilson opined that Casey was not entitled to any portion of the proceeds
from the sale of MedPerm because “[s]he wasn’t an owner” of the business.
Wilson also testified that Ligon had to “maintain some cash in the business”
to be able to pay MedPerm’s employees and “continue to operate.” And “Ligon had
to pay tax on all [MedPerm’s] income,” even when “she saw no cash.” MedPerm
“made money,” but “it never distributed anything to [Ligon].” There was “some
cash in the business . . . at the end of 2010 or 2011” “[b]ecause [Ligon] had paid a
whole slew of taxes on money that she had never seen.” “[L]oan payments” also
“need[ed] to come out of revenue.”
From Wilson’s perspective, “Casey was an independent contractor for
MedPerm.” He viewed Casey’s own federal income tax return filings as supporting
the conclusion that Casey was an independent contractor. Ligon would issue Casey
an IRS Form 1099, “which would be appropriate for a person who was not an
employee” or “an owner of the company.” Casey filed forms showing that she was
“paid a commission for her sales work” and “signed her tax return saying she was a
sole proprietor” of her own company. If Casey were found to be Ligon’s partner,
Wilson believed that she “way underpaid her taxes.” Casey “should have paid taxes
on all of her income instead of deducting . . . expenses against what MedPerm paid
her.” She also “would have had to pay taxes” on MedPerm’s net income “even
though that wasn’t part of her compensation.”
19
After deliberating, relevant to this appeal, the jury found that:
• In response to Question No. 1, that Casey and Ligon had
“agree[d] to create a partnership for the purpose of placing
speech therapists in school districts” (the “agreement”).
• In response to Question No. 2a, that Ligon had “fail[ed] to
comply with” the agreement by failing to split MedPerm’s profits
“[fifty-fifty] [b]efore the [s]ale.”
• In response to Question No. 2b, that Ligon did not fail to comply
with the agreement by failing to split the proceeds from the sale
of MedPerm.
• In response to Question No. 5, that Casey, in the exercise of
reasonable diligence, should have discovered Ligon’s breach of
the agreement by not splitting MedPerm’s profits fifty-fifty
before the sale by August 1, 2007.
• In response to Question No. 6, that Casey and Ligon did not
create a statutory partnership.
• In response to Question No. 8a, that $98,184.00 would be fair
and reasonable compensation to Casey for Ligon’s breach of the
portion of the agreement that Casey receive a fifty percent share
of profits before the sale of MedPerm.
• In response to Question No. 8b, that Casey was not entitled to
fifty percent of the proceeds from the sale of MedPerm.
The jury also made findings as to the reasonableness and necessity of each party’s
attorney’s fees.
Following trial, Ligon filed a motion for entry of judgment. Based on the
jury’s finding in response to Question No. 5 related to the statute of limitations, she
proposed that the trial court render judgment for her and order that Casey take
20
nothing on her claims against Ligon. Casey filed a motion for judgment
notwithstanding the verdict or in the alternative a motion to disregard certain jury
findings, requesting that the trial court disregard the jury’s limitations finding in
response to Question No. 5 because her agreement with Ligon “called for periodic
payments” and “a split of profits each month,” and thus, she was entitled to damages
for the four-year period preceding the date she filed suit. Casey also requested that
the trial court disregard the jury’s finding in response to Question No. 2b, in which
the jury failed to find a breach in the failure to split proceeds from the sale of
MedPerm, and the jury’s finding in response to Question No. 8b, in which it failed
to find any damages for a breach arising from the failure to split the sale proceeds.
Casey asserted that there was no evidence that her and Ligon’s agreement to split
profits “was modified to exclude sales proceeds of the partnership assets.”
In its final judgment, the trial court incorporated by reference “the questions
submitted to the jury and the jury’s findings.” The trial court ordered that Casey
recover from Ligon $98,184.00 in damages. The trial court also awarded Casey
$185,000.00 in attorney’s fees for representation in the trial court; $40,000.00 in
attorney’s fees for representation in the court of appeals; $17,500.00 in attorney’s
fees for representation at the petition for review stage in the Texas Supreme Court;
$35,000.00 in attorney’s fees for representation at the merits briefing stage in the
Texas Supreme Court; and $7,500.00 in attorney’s fees for representation through
21
oral argument and the completion of proceedings in the Texas Supreme Court. The
trial court ordered that Ligon take nothing on her claims against Casey.
Jury Findings
As an initial matter, we note that the parties’ issues on appeal are premised on
conflicting interpretations of the jury’s findings. When we encounter a judgment
that contains apparently conflicting provisions, we must resolve the conflict, if
possible, and then review the parties’ contentions about the judgment under the
appropriate standard of review. Point Lookout W., Inc. v. Whorton, 742 S.W.2d 277,
278 (Tex. 1987). When reconciling jury findings, we apply a de novo standard of
review. Adams v. Allstate Cnty. Mut. Ins. Co., 199 S.W.3d 509, 512 (Tex. App.—
Houston [1st Dist.] 2006, pet. denied); see also Bender v. S. Pac. Transp. Co., 600
S.W.2d 257, 260 (Tex. 1980). The threshold question is whether the jury findings
address the same material fact. Bender, 600 S.W.2d at 260. We presume that the
jurors did not intentionally make conflicting findings. Trans-Am. Van Serv., Inc. v.
Shirzad, 596 S.W.2d 587, 593 (Tex. App.—Houston [1st Dist.] 1980, no writ). We
must reconcile apparent conflicts in the jury’s findings if reasonably possible in light
of the pleadings and evidence, the manner of submission, and the other findings
considered as a whole. Bender, 600 S.W.2d at 260; Indian Beach Prop. Owners’
Ass’n v. Linden, 222 S.W.3d 682, 695 (Tex. App.—Houston [1st Dist.] 2007, no
pet.).
22
The parties dispute the legal significance of the jury’s findings about whether
they had a partnership. In her fourth amended petition, Casey asserted claims for
breach of both a common-law partnership and a statutory partnership under the
Texas Business Organizations Code. In response to Questions Nos. 1 and 2, the jury
found that Casey and Ligon agreed to create a partnership “for the purpose of placing
speech therapists in school districts” and that Ligon failed to comply with the
agreement by failing to split MedPerm’s profits fifty-fifty before the sale but not by
failing to split the proceeds from the sale of MedPerm. In response to Question No.
6, the jury found that Casey and Ligon did not create a statutory partnership.
The jury did not receive any instructions in either Question No. 1 or Question
No. 2 as to the elements required to form a common-law partnership. In contrast,
Question No. 6 provided the jury with the statutory definition of a general
partnership and listed the factors “indicating that persons have created a
partnership.” See TEX. BUS. ORGS. CODE ANN. §§ 152.051(b), 152.052(a). Those
factors include the person’s:
(1) receipt or right to receive a share of profits of the business;
(2) expression of an intent to be partners in the business;
(3) participation or right to participate in control of the business;
(4) agreement to share or sharing:
(A) losses of the business; or
23
(B) liability for claims by third parties against the business; and
(5) agreement to contribute or contributing money or property to the
business.
Id. § 152.052(a). Unlike a common-law partnership, the Texas Business
Organizations Code does not require proof of all five of these factors to establish the
existence of a statutory partnership. See Ingram v. Deere, 288 S.W.3d 886, 895–96
(Tex. 2009) (“The common law require[s] proof of all five factors [listed in section
152.052(a)] to establish the existence of a partnership.”). A statutory partnership
arises from “a less formalistic and more practical approach to recognizing the
formation of a partnership” than the common law. Id. at 895.
Because the jury found that Casey and Ligon did not form a statutory
partnership while considering the five factors contained in Texas Business
Organizations Code section 152.052(a), it necessarily could not have found the
existence of a common-law partnership, and in response to Question No. 2, it could
not have found that Ligon failed to comply with a common-law partnership
agreement, as this would have required an affirmative finding as to all five factors
listed in the Texas Business Organizations Code. See TEX. BUS. ORGS CODE ANN.
§ 152.052(a); Ingram, 288 S.W.3d at 895–96. Nevertheless, we conclude that the
jury’s finding in response to Question No. 6 and its findings in response to Questions
Nos. 1 and 2 do not address the same material fact. See Bender, 600 S.W.2d at 260.
According to the jury’s responses to Questions Nos. 1 and 2, Ligon and Casey had
24
an agreement to split MedPerm’s profits fifty-fifty before the sale of MedPerm and
Ligon breached that agreement by failing to do so (the “profit-sharing agreement”).
Those findings do not support the existence of a common-law partnership, but they
do support the breach-of-contract claim brought by Casey in her live pleading. See
Tex. A & M Concrete, LLC v. Brae Burn Constr. Co., Ltd., L.L.P., 651 S.W.3d 607,
617–18 (Tex. App.—Houston [1st Dist.] 2022, no pet.) (breach-of-contract claim
requires proof of (1) the existence of valid contract, (2) performance or tendered
performance by plaintiff, (3) breach of contract by defendant, and (4) damages
sustained by plaintiff as result of defendant’s breach).4
Equipped with this understanding of the jury’s findings, we consider the
parties’ issues on appeal.
4
Because the jury did not find the existence of a partnership, the jury’s findings in
response to Question Nos. 7 and 15 that Ligon failed to comply with the duties of
loyalty and care and the fiduciary duty that she would have owed Casey as a partner,
do not affect our conclusion. Those questions explicitly presume the existence of a
partnership yet were improperly predicated on either an affirmative
breach-of-contract finding or an affirmative partnership finding. Because the jury
did not find that a partnership existed, neither Ligon nor Casey owed any fiduciary
duties to each other as partners. See, e.g., Schlumberger Tech. Corp. v. Swanson,
959 S.W.2d 171, 175–77 (Tex. 1997) (no evidence of partnership or other
confidential relationship between parties that would give rise to fiduciary duty);
Brosseau v. Ranzau, 81 S.W.3d 381, 398 (Tex. App.—Beaumont 2002, pet. denied)
(plaintiff “had to prove the existence of the partnership agreement as a prerequisite
to establishing the breach of fiduciary duty owed to a partner”).
25
Ligon’s Appeal
In her first issue, Ligon argues that the trial court erred in denying her motion
for a directed verdict because the statute of limitations barred Casey’s damages claim
for failure to split the profits of MedPerm before it was sold. In her second issue,
Ligon argues that the trial court erred when it disregarded the jury’s finding in
response to Question No. 5, which asked the jury to find the date by which Casey
should have known that Ligon had breached their agreement, because “Casey failed
to plead the continuing contract rule” and “she c[ould not] rely on it as an exception
to the general rule that a breach of contract claim accrues when the breach occurs.”
In her third issue, Ligon argues that the trial court erred in awarding Casey her
attorney’s fees because Casey’s claims were time barred. Because these issues all
turn on the resolution of whether and how the statute of limitations applies to Casey’s
claim, we consider them together.
A trial court may direct a verdict in favor of a defendant when: (1) the plaintiff
fails to present evidence raising a fact issue essential to the plaintiff’s right of
recovery or (2) the plaintiff admits or the evidence conclusively establishes a defense
to the plaintiff’s cause of action. Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc.,
29 S.W.3d 74, 77 (Tex. 2000); see also TEX. R. CIV. P. 268 (using “motion for
instructed verdict” and “motion for directed verdict” interchangeably). A directed
verdict is appropriate when reasonable minds can draw only one conclusion from
26
the evidence. Smith v. Aqua–Flo, Inc., 23 S.W.3d 473, 476 (Tex. App.—Houston
[1st Dist.] 2000, pet. denied). We must “consider all of the evidence in a light most
favorable to the party against whom the verdict was instructed and disregard all
contrary evidence and inferences; we give the losing party the benefit of all
reasonable inferences created by the evidence.” Szczepanik v. First S. Tr. Co., 883
S.W.2d 648, 649 (Tex. 1994).
As the party asserting the statute of limitations as an affirmative defense,
Ligon, in her motion for directed verdict, bore the burden of conclusively
establishing that Casey’s claims were time-barred. See KPMG Peat Marwick v.
Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); Nguyen v.
Watts, 605 S.W.3d 761, 782 (Tex. App.—Houston [1st Dist.] 2020, pet. denied). A
four-year statute of limitations applies to contract actions. TEX. CIV. PRAC. & REM.
CODE ANN. § 16.004. Thus, to satisfy Ligon’s burden, the evidence must
conclusively prove that Casey’s breach-of-contract claim accrued more than four
years before she filed suit. See KPMG Peat Marwick, 988 S.W.2d at 748; see also
Nguyen, 605 S.W.3d at 782.
A cause of action accrues and the statute of limitations begins to run when
(1) the allegedly wrongful act was committed and caused an injury or (2) when the
facts come into existence that authorize a plaintiff to seek a judicial remedy. Nguyen,
605 S.W.3d at 782; see also Gauthia v. Arnold & Itkin, LLP, No. 01-19-00143-CV,
27
2020 WL 5552458, at *6 (Tex. App.—Houston [1st Dist.] Sept. 17, 2020, no pet.)
(mem. op.). Determining an accrual date is a question of law. Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003); see also Gauthia, 2020
WL 5552458, at *6.
A breach-of-contract claim accrues at the time of the breach. Stine v. Stewart,
80 S.W.3d 586, 592 (Tex. 2002). If the parties’ agreement contemplates a
continuing contract for performance, the limitations period usually does not
commence until the contract is fully performed. Intermedics, Inc. v. Grady, 683
S.W.2d 842, 845 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.).
In contrast, Texas courts treat separate unpaid invoices or bills as creating
separate breach-of-contract claims, even when they all arise out of one contract.
United Healthcare Servs., Inc. v. First St. Hosp., LP, 570 S.W.3d 323, 344–45 (Tex.
App.—Houston [1st Dist.] 2018, pet. denied). Thus, if the terms of an agreement
call for periodic payments while the agreement is in force, a cause of action for such
payments may arise at the end of each period, before the contract is completed, even
if the initial breach occurred outside the limitations period. Bierscheid v. JPMorgan
Chase Bank, 606 S.W.3d 493, 510 (Tex. App.—Houston [1st Dist.] 2020, pet.
denied); see Lyle v. Jane Guinn Revocable Tr., 365 S.W.3d 341, 355 (Tex. App.—
Houston [1st Dist.] 2010, pet. denied); Hollander v. Capon, 853 S.W.2d 723, 726–
27 (Tex. App.—Houston [1st Dist.] 1993, writ denied). Recovery of any payment
28
that was owed before the four-year limitations period, though, is barred. See
Trelltex, Inc. v. Intecx, L.L.C., 494 S.W.3d 781, 787 (Tex. App.—Houston [14th
Dist.] 2016, no pet.); see also Bierscheid, 606 S.W.3d at 510.
In Trelltex, the Fourteenth Court of Appeals considered a claim for
underpayment of commissions earned under a sales agreement which were “paid on
the last day of the following month in which the commissions were earned.” 494
S.W.3d at 787 (internal quotations omitted). The appellate court observed that
although the commission “payments varied in amount, they were fixed in that the
agreement required them to be made using a specified formula on particular dates.”
Id. at 788. Finding that the commission agreement was not a continuing contract,
our sister court concluded that the plaintiff was not entitled to recover any purported
underpayments that occurred more than four years before the date it filed suit. See
id.The profit-sharing agreement between Casey and Ligon closely resembles the
commission contract at issue in Trelltex. Like the commission payments owed in
Trelltex, the profit-sharing payments owed to Casey varied in amount but were fixed
in that the agreement required them to be made monthly according to a specified
calculation. See id. Because the profit-sharing agreement found by the jury called
for periodic payments, some of which were owed within the limitations period,
Ligon did not satisfy her burden to conclusively establish that the statute of
29
limitations wholly barred Casey’s breach-of-contract claim based on the
underpayments of profits due under the profit-sharing agreement that occurred
within the limitations period.5
Ligon next asserts that Casey waived her argument that the agreement
required periodic payments by failing to plead it. Ligon, though, cites no authority
to support her assertion that such a pleading requirement exists, and the cases cited
above make clear that the nature of the agreement itself, and not the parties’
pleadings, determines how the statute of limitations applies to a breach-of-contract
claim. See Bierscheid, 606 S.W.3d at 510; Trelltex, 494 S.W.3d at 787–88; see also
TEX. R. APP. P. 38.1(i). Accordingly, we hold that the trial court did not err in
denying Ligon’s motion for directed verdict based on her statute of limitations
defense.
5
To the extent that Ligon asserts, in her reply brief, that the damages found by the
jury do not correspond to the four-year period for which she was entitled to seek
recovery, Ligon waived any challenge to the sufficiency of the evidence supporting
the jury’s damages finding by failing to raise it as an issue in her appellant’s brief.
See TEX. R. APP. P. 38.1(f) (“The [appellant’s] brief must state concisely all issues
or points presented for review.”). The Texas Rules of Appellate Procedure control
the required contents and organization of an appellant’s brief. Walker v. Taub, No.
01-20-00580-CV, 2022 WL 2309133, at *5 (Tex. App.—Houston [1st Dist.] June
28, 2022, no pet.) (mem. op.). To comply with Texas Rule of Appellate Procedure
38.1(f), an appellant must articulate the issue she is asking the appellate court to
decide. Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 896 (Tex.
App.—Dallas 2010, no pet.). If the appellant does not, there is nothing for us to
address. See id.30
The same standard of review that applies to our review of the trial court’s
ruling on a motion for directed verdict also applies to our review of the trial court’s
ruling on a motion to disregard jury findings. See City of Keller v. Wilson, 168
S.W.3d 802, 822–23 (Tex. 2005) (setting out standard for reviewing sufficiency
challenges and holding “the test for legal sufficiency should be the same for
summary judgments, directed verdicts, judgments notwithstanding the verdict, and
appellate no-evidence review”); see also TEX. R. CIV. P. 301 (trial “court may render
[a judgment notwithstanding the verdict] if a directed verdict would have been
proper” and may “disregard any jury finding on a question that has no support in the
evidence”). A trial court may also disregard a jury finding if the issue is immaterial.
Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994); Ruff v.
Univ. of St. Thomas, 582 S.W.3d 707, 711 (Tex. App.—Houston [1st Dist.] 2019,
pet. denied); Orr v. Broussard, 565 S.W.3d 415, 422 (Tex. App.—Houston [14th
Dist.] 2018, no pet.). An issue is immaterial if it has been rendered immaterial by
other findings or if it should not have been submitted at all. See Spencer, 876 S.W.2d
at 157; Orr, 565 S.W.3d at 422. Issues that should not be submitted include those
that ask the jury to answer a question of law or apply the law to undisputed or
conclusively established facts. See W & T Offshore, Inc. v. Fredieu, 610 S.W.3d
884, 891 (Tex. 2020); Orr, 565 S.W.3d at 422.
31
Because the jury found that Ligon had failed to comply with the agreement
with Casey, Casey was entitled to recover for any underpayment of periodic
payments owed within the limitations period, even though the initial breach, as found
by the jury in response to Question No. 5, occurred outside the limitations period.
See Bierscheid, 606 S.W.3d at 510. The jury’s answer to Question No. 5 is
immaterial because the undisputed evidence establishes that there is no basis for
deferring the date on which Casey’s breach-of-contract claims accrued. In her
testimony at trial, Casey acknowledged that Ligon sent her a “profit split report”
every month and “offered the books” to Casey so that she could review them. Under
these circumstances, the discovery rule does not apply. See, e.g., Nguyen v. Watts,
605 S.W.3d 761, 782 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (discovery
rule applies only where nature of injury is inherently undiscoverable). Further, in
her appellee’s brief, Casey does not assert that she is entitled to recover any
underpayments that occurred more than four years before she filed suit in August
2014. For these reasons, we hold that the trial court did not err in disregarding the
jury’s finding in response to Question No. 5.
As to Ligon’s assertion that the trial court erred in awarding Casey attorney’s
fees, we note that Casey sought recovery of her attorney’s fees under Texas Civil
Practice and Remedies Code chapter 38. A party is entitled to recover attorney’s
fees under Texas Civil Practice and Remedies Code section 38.001 if she (1) prevails
32
on a cause of action for which attorney’s fees are recoverable and (2) recovers
damages. See Intercont’l Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650,
653 (Tex. 2009); R3Build Constr. Servs., LLC v. Drayden, No. 01-20-00144-CV,
2022 WL 3452436, at *13 (Tex. App.—Houston [1st Dist.] Aug. 18, 2022, no pet.)
(mem. op.). A breach-of-contract claim is a cause of action for which attorney’s fees
are recoverable. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(b)(8). Because
the trial court did not err in awarding Casey damages based on her breach-of-contract
claim, Casey, as the prevailing party, was entitled to recover her reasonable and
necessary attorney’s fees. See id. Accordingly, we hold that the trial court did not
err in awarding Casey attorney’s fees.
We overrule Ligon’s first, second, and third issues.
Casey’s Cross-Appeal
In her sole issue on cross-appeal, Casey argues that the trial court erred in
denying her motion to disregard the jury’s findings in response to Questions Nos. 2b
and 8b because “[t]he jury found that there was an agreement to form a partnership
and a fiduciary duty owed by Ligon to Casey” and “there was no evidence submitted
that changed the relationship or status of the partnership between the time that they
conducted the business and when the sale of the business occurred.”6
6
Casey also asserts that the trial court erred in denying her motion to disregard the
jury’s findings in response to Question No. 16 in which the jury found that Casey
was entitled to $98,184.00 in compensation for the breach of fiduciary duty
33
In response to Question No. 2b, the jury found that Ligon did not breach the
agreement by failing to split the proceeds from the sale of MedPerm with Casey. In
response to Question No. 8b, the jury found that Casey was not entitled to
compensation from Ligon in the amount of fifty percent of the proceeds from the
sale of MedPerm.
The trial court may not disregard a jury’s negative finding and substitute an
affirmative finding unless the evidence conclusively establishes the affirmative
finding. Ginn v. NCI Bldg. Sys., Inc., 472 S.W.3d 802, 843 (Tex. App.—Houston
[1st Dist.] 2015, no pet.); Cullins v. Foster, 171 S.W.3d 521, 537 (Tex. App.—
Houston [14th Dist.] 2005, pet. denied); see also TEX. R. CIV. P. 301 (trial court may
“disregard any jury finding on a question that has no support in the evidence”).
We have already concluded that the jury’s findings, when reconciled, do not
support a finding establishing the existence of a common-law or a statutory
partnership between Casey and Ligon—only an agreement to split the profits of the
business. Further, as to whether Casey was otherwise entitled to share in the
proceeds from the sale of MedPerm, we note the evidence at trial showed that Ligon
invested in MedPerm in ways that Casey did not. Ligon purchased MedPerm’s
committed by Ligon. But, as previously explained, because the jury did not find
that a partnership existed, neither Ligon nor Casey owed any fiduciary duties to each
other as partners. See, e.g., Swanson, 959 S.W.2d at 175–77; Brosseau, 81 S.W.3d
at 398. Thus, we hold that the trial court did not err in denying Casey’s motion to
disregard the jury’s finding in response Question No. 16.
34
shares, took out personal loans to meet its financial obligations, and in order to grow
the business, went without the distribution of profits earned by MedPerm that she
could have taken as a shareholder. And Wilson testified that Ligon paid taxes “on
all [MedPerm’s] income,” even when “she saw no cash.”
Casey, on the other hand, did not invest money in MedPerm and was not
involved in ensuring that MedPerm could pay its employees when there was a
shortfall. Further, as Wilson observed, Casey’s own federal income tax return filings
supported the conclusion that Casey was an independent contractor and not a partner
of Ligon. Because the evidence does not conclusively show that Casey was entitled
to share in the proceeds from the sale of MedPerm, we hold that the trial court did
not err in denying Casey’s motion to disregard the jury’s findings in response to
Questions Nos. 2b and 8b. See Ginn, 472 S.W.3d at 843.
We overrule Casey’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Julie Countiss
Justice
Panel consists of Justices Landau, Countiss, and Guerra.
35