IN THE
TENTH COURT OF APPEALS
No. 10-96-253-CV
PAUL CLARKE,
Appellant
v.
ALFRED LEHTONEN,
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court # 31,301-361
O P I N I O N
Appellant Paul Clarke brought suit against Appellee Alfred Lehtonen for dissolution and accounting of an alleged joint venture founded on an unwritten agreement. Clarke also asserted claims of breach of the alleged joint venture agreement, breach of fiduciary duty, breach of contract, promissory estoppel, and quantum meruit. The parties tried the matter before the court, which originally rendered judgment in favor of Clarke. The court subsequently set that judgment aside and rendered judgment that Clarke take nothing.
Clarke presents sixteen points of error for our consideration in this appeal. One point challenges the propriety of the trial court’s decision to set aside its original judgment and render a take-nothing judgment. A second questions the adequacy of the court’s findings of fact and conclusions of law. Two points address the question of whether Clarke and Lehtonen had agreed to form a joint venture. Twelve of the points concern the application of the Real Estate License Act (“RELA”) to the parties’ agreement. Lehtonen has responded to Clarke’s points and presents one cross-point in which he argues that the parties’ agreement is too vague and indefinite to be enforceable. We will affirm the judgment.
I. FACTUAL BACKGROUND
Clarke became a licensed real estate broker in 1986 and worked with Brazosland Properties as an agent and broker. Clarke and Lehtonen first became associated that same year when Clarke brokered Lehtonen’s purchase of two office buildings in College Station which had been foreclosed by a savings and loan association. Lehtonen signed a management agreement with Brazosland for these properties effective January 1, 1987. Clarke signed this agreement on behalf of Brazosland and managed the properties for Brazosland. Lehtonen advised Clarke that he would be interested in other real estate investments and asked Clarke to keep him advised of other investment opportunities.
In April 1987, Rostell Chapman, another broker with Brazosland, contacted Lehtonen to discuss a potential investment opportunity with Emanuel Glockzin, Jr. These three met on April 12 to discuss the purchase of the Barcelona Apartments in College Station which Metropolitan Life Insurance Company owned pursuant to foreclosure. Glockzin proposed that Lehtonen join him in a joint venture to purchase and renovate the apartments for leasing in September in conjunction with the beginning of the fall semester at Texas A&M University. Glockzin required Lehtonen to sign a handwritten agreement in which Lehtonen agreed that he would not “attempt to circumvent Glockzin or attempt to negotiate with [Met Life] directly prior to a contract for sale submittal.”
One or two days after this meeting, Chapman advised Clarke of the proposed venture. Glockzin, Lehtonen, Chapman, and Clarke met frequently in the following weeks as they sought to bring about the proposed venture. The Glockzin-Lehtonen venture never materialized, however. According to Lehtonen, Glockzin did not provide his financial share in the deal. Glockzin claims that the parties originally agreed that Lehtonen would provide all financing and that Glockzin would supervise the renovation of the property and manage the refurbished complex.
After Glockzin and Lehtonen reached their impasse, Lehtonen determined to pursue the development himself and asked Clarke to assist him. Pursuant to Lehtonen’s request for assistance, Clarke obtained information from Met Life about the company’s requirements for the sale. He prepared pro forma documents for potential lenders which forecast the timetable and costs of renovation and which projected future revenues for the renovated apartments. He arranged for the required appraisal of the property.
According to Clarke, Lehtonen offered him five percent of the net revenues from the project if Clarke would oversee the renovation and leasing of the apartments. Clarke interpreted this to mean that Lehtonen was offering “a five percent partnership interest” in the project in exchange for his “sweat equity.” Lehtonen testified that he offered to pay Clarke’s costs during the renovation project and then pay five percent of gross rentals for management of the renovated complex. Lehtonen denied that he ever offered Clarke any interest in a partnership or joint venture.
Lehtonen ultimately secured financing without Glockzin’s assistance and closed on the property. Met Life sold the complex to Lehtonen and his wife on June 10. At the closing, Lehtonen and his wife also executed a note and deed of trust in connection with their purchase.
Clarke assisted Lehtonen in the renovation of the apartment complex. He coined the name they would give the renovated apartments: The Polo Club Apartments. He used his local business contacts to recruit general contractors and sub-contractors for the project and assisted Lehtonen in selecting contractors. Clarke opened checking accounts for the apartments and used his own credit with local vendors to obtain many of the supplies used by the contractors. He provided monthly financial reports on the status of the renovation effort and on leasing activities. Clarke and Lehtonen regularly discussed the progress of the project and walked the property reviewing the work.
For reasons disputed, Clarke left the project in September 1987. The contractors completed the renovations in a timely fashion, and the Polo Club began showing profitable revenues soon after. Clarke brought suit against Lehtonen in June of the next year.
The parties tried the case before the court in January and February 1996. Two weeks after the conclusion of the trial, the court informed the parties in a letter that it would render judgment for Clarke. The court signed its judgment on June 11. The judgment awarded Clarke $168,000 for breach of an oral contract and awarded attorney’s fees to Clarke. On July 9, Lehtonen filed a “Motion to Correct, Modify or Reform Judgment or Alternatively Motion for New Trial.” The court signed an “Order Setting Aside Prior Judgment and Entering Final Judgment” on August 23. In this decree, the court ordered that Clarke take nothing by his suit.
II. SETTING-ASIDE OF PRIOR JUDGMENT
Clarke claims in his first point that the court abused its discretion by setting aside its original judgment and the findings of fact and conclusions of law made in support of that judgment. Clarke specifically argues that the court abused its discretion by changing the original findings and making new findings because our procedural rules do not “condone the wholesale substitution of findings of fact and conclusions of law on the same record.”
A. The Pertinent Facts
The court signed the original judgment on June 11. Pursuant to Lehtonen’s request, the court filed written findings of fact and conclusions of law supporting the June 11 judgment. In pertinent part, the court found that Clarke and Lehtonen had an oral agreement whereby Clarke would provide services to Lehtonen “incident to the renovation, rehabilitation, leasing and interim management of the [apartments] in return for five percent of net profits which would be realized from [the project].” The court found that Lehtonen breached the agreement by refusing to pay Clarke his share of the net profits, which share amounted to $168,000 for the period from 1987 through 1995. The court also found that Clarke’s suit does not seek recovery of a commission for the sale or purchase of real property.
In its original conclusions of law, the court determined in pertinent part that Clarke and Lehtonen had a valid and enforceable contract and that Lehtonen owed Clarke $168,000 on the basis of that contract. The court also concluded that the RELA statute of frauds did not apply to the parties’ contract and that the contract was not barred by any other applicable statute of frauds.
One week after the court signed these findings and conclusions, Lehtonen filed a motion for the court to modify, correct or reform the judgment or to grant a new trial. Lehtonen asserted in this motion that the parties’ agreement was too uncertain and indefinite to be enforced and reurged his trial position that the agreement is barred by the RELA statute of frauds. He asked the court to either “modify” its judgment by decreeing that Clarke take nothing or set aside the judgment and grant a new trial.
On August 23, the court signed an order setting aside the June 11 judgment “and the findings of fact and conclusions of law associated with it” and rendering judgment that Clarke take nothing from Lehtonen. At Clarke’s request, the court made findings of fact and conclusions of law on September 5 to support the August 23 judgment. The findings and conclusions are as follows:
FINDINGS OF FACT
(1) The parties entered into an oral contract whereby Clarke was to provide services to Lehtonen.
(2) The services that were to be provided by Clarke to Lehtonen under the oral contract included, among other things, the sale or purchase of real estate.
(3) Clarke’s compensation under the oral contract was to be five per cent (5%) of the net profit to Lehtonen.
(4) At the time of all his dealings with Lehtonen, Clarke was a licensed real estate agent or real estate broker subject to the Texas Real Estate Licensing Act.
CONCLUSIONS OF LAW
(1) The oral contract to compensate Clarke from the net profit to Lehtonen was calculated as a percentage on the amount of the profit to Lehtonen and thereby was a commission.
(2) The oral contract for services by Clarke included other services in addition to services for the sale or purchase of real estate but the oral contract was indivisible and inseparable.
(3) Clarke is not entitled to any recovery because his suit for compensation is a suit for a commission based on an indivisible oral contract involving in part the sale or purchase of real estate.
(4) The Texas Real Estate Licensing Act §20(b) bars Clarke from filing this suit in the courts of this state to recover a commission for the sale or purchase of real estate because the promise or agreement on which this action was brought, or some memorandum thereof, was not in writing and signed by the person to be charged.
B. The Applicable Law
“A trial court has plenary power over its judgment until it becomes final.” Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993) (citing Transamerican Leasing Co. v. Three Bears, Inc., 567 S.W.2d 799, 800 (Tex. 1978)). During the pendency of the court’s plenary authority, the court may vacate, modify, correct, or reform the judgment, or grant a new trial. Transamerican Leasing, 567 S.W.2d at 800; Tex. R. Civ. P. 329b(e). Because this appeal concerns the authority of a trial court to vacate its judgment, we focus on that specific aspect of the court’s plenary power.
Once a judgment has been vacated, it is superceded. Ferguson v. Naylor, 860 S.W.2d 123, 127 (Tex. App.—Amarillo 1993, writ denied). When a previously rendered judgment is set aside or vacated, “the matter stands precisely as if there had been no judgment.” Id. If another judgment is substituted for the one vacated, the subsequent judgment becomes the judgment of the court. See id. at 127-28; see also, e.g., Board of Trustees v. Toungate, 958 S.W.2d 365, 367 (Tex. 1997) (trial court originally rendered judgment that plaintiff take nothing but then rendered judgment in plaintiff’s favor during pendency of motion to modify judgment); Transamerican Leasing, 567 S.W.2d at 800 (judgment vacated while motion for new trial pending); Imperial Ins. Co. v. Ellington, 498 S.W.2d 368, 370 (Tex. Civ. App.—San Antonio 1973, no writ) (trial court originally rendered judgment on jury verdict but then set aside judgment and rendered JNOV during pendency of motion for new trial).
Clarke argues that a trial court abuses its discretion when modifying a judgment if the court changes findings of fact made at the time of the original judgment. He cites two cases in support of this proposition. Bryan v. Resolution Trust Corp., 823 S.W.2d 433, 434 (Tex. App.—Houston [1st Dist.] 1992, writ dism’d w.o.j.); First Nat’l Bank v. Walker, 544 S.W.2d 778, 782 (Tex. Civ. App.—Dallas 1976, no writ). Clarke’s reliance on these authorities is misplaced.
In Walker, the trial court rendered judgment in accordance with a jury verdict. Thereafter, Walker brought certain erroneous recitals in the judgment to the court’s attention. Less than a week after signing the original judgment, the court signed an order setting aside the judgment due to the erroneous recitals. On the same day, the court signed a new judgment in substantially the same form as the original judgment but with three minor modifications. First National argued before the appellate court that the trial court’s order setting aside the former judgment “meant that a new trial was granted automatically.” Walker, 544 S.W.2d at 781.
Citing rule 329b and a number of cases addressing the plenary power of a trial court, the Dallas court concluded “that a trial court is not prohibited from correcting its judgment so long as it does not attempt to make new findings of fact or usurp the authority of the jury.” Id. at 782. The court rejected First National’s argument, holding that because the court merely modified its original judgment and did not “change the fact findings made at the time of the first judgment” the modified judgment was valid. Id.
Walker is distinguishable for two reasons: (1) it was an appeal from a jury trial; and (2) it did not address the authority of a court to render judgment notwithstanding the jury’s verdict. See, e.g., P.V. Int’l Corp. v. Turner, Mason, & Solomon, 700 S.W.2d 21, 22-23 (Tex. App.—Dallas 1985, no writ).
In Bryan, the trial court rendered judgment in accordance with the parties’ settlement agreement. Neither the settlement agreement nor the judgment addressed Bryan’s counterclaims against RTC. On RTC’s motion, the court thereafter signed a modified judgment decreeing that Bryan take nothing by his counterclaims.
The First Court of Appeals concluded that the trial court did not abuse its discretion in modifying the judgment because the modification served as “a mere clarification” of the court’s original judgment. Bryan, 823 S.W.2d at 435. The court cited Walker for the proposition that “[a] trial court does not abuse its discretion in modifying a judgment so long as it does not review or change the fact finding made at the time of its first judgment.” Id. at 434.
In a dissenting opinion, Justice Dunn explained why Walker did not apply in that case:
The Walker holding is not applicable in this case. In Walker, a trial on the merits was held and the jury made fact findings. Because this was an agreed judgment, the trial court did not make any fact findings. There was not a trial on the merits; and therefore, no facts to find.
Id. at 435 (Dunn, J., dissenting) (citation omitted). Walker (and Bryan) do not apply to the present case because the trial court did not change any jury findings when it set aside its former judgment and rendered a new judgment.
Clarke next cites the principle that a court’s findings of fact “have the same force and dignity as a jury’s verdict.” Tucker v. Tucker, 908 S.W.2d 530, 532 (Tex. App.—San Antonio 1995, writ denied). On this basis, Clarke argues that the trial court cannot subsequently change its original fact findings under the rule announced in Walker. We have already distinguished Walker as applying only to jury trials.
Because findings of fact after a bench trial have the same dignity as a jury’s findings, a compelling argument can be made that, once the judge has made findings of fact, he or she should not be free to change those findings but should grant a new trial if the findings are not supported by the evidence. However, because findings only occur in a bench trial in which the judge heard the evidence, a more compelling argument is that judicial economy will be served by a rule that allows a judge to correct a finding of fact which he or she later determines to be erroneous, without necessitating another trial. Unlike a jury which has been discharged and is no longer available, the judge remains with the case after serving as the factfinder. A party who believes that a later finding is not supported by the evidence is free to attack the later findings on legal and factual sufficiency grounds. Thus, we see no reason to unnecessarily restrict the judge’s ability to modify, correct, or withdraw findings of fact after they are made.
C. Application of the Law to the Facts
The court signed its original judgment on June 11. Within thirty days after judgment, Lehtonen filed a motion asking the court to modify, correct or reform the judgment or alternatively to grant a new trial. Lehtonen’s motion operated to extend the court’s plenary power until such time as the court expressly overruled the motion or the motion was overruled by operation of law (seventy-five days after judgment). Tex. R. Civ. P.329b(c), (e), (g).
The court vacated its original judgment on August 23, seventy-three days after the original judgment and while still within the court’s plenary power. See Toungate, 958 S.W.2d at 367; Transamerican Leasing, 567 S.W.2d at 800. Accordingly, we overrule Clarke’s first point.
III. ADEQUACY OF THE COURT’S FINDINGS
OF FACT AND CONCLUSIONS OF LAW
Clarke contends in his second point that the court erred by not making additional findings of fact and conclusions of law pursuant to his request. Clarke claims that the court’s failure to make such findings has prejudiced his ability to present the issues of partnership and the RELA statute of frauds because the court’s findings do not directly or indirectly dispose of these issues. Lehtonen responds that the court’s findings sufficiently address the RELA issue and that Clarke failed to properly preserve his claim regarding partnership because he did not request an additional finding on the “ultimate issue [of] whether the parties’ agreements were sufficient to constitute a partnership.” We first address Lehtonen’s waiver argument.
A. Preservation of Error
Upon a party’s request, a trial court must make additional findings if the requested findings relate to an ultimate issue. Levine v. Maverick County Water Control & Improvement Dist. No 1, 884 S.W.2d 790, 796 (Tex. App.—San Antonio 1994, writ denied); Dura-Stilts Co. v. Zachry, 697 S.W.2d 658, 661 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.). In order to properly preserve a complaint that the trial court failed to make required additional findings, a party must have timely requested the additional findings and must have objected or excepted to the court’s refusal to grant the requested findings. See Levine, 884 S.W.2d at 796; Tex. R. App. P. 52(a), 49 Tex. B.J. 573 (Tex. 1986, repealed 1997). If the opposing party does not dispute the allegation that the trial court failed to make the requested findings, then error is preserved regardless of whether the party seeking the findings objected to the court’s refusal. Levine, 884 S.W.2d at 796 (citing Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989)).
Clarke timely requested findings of fact on each element of the partnership which he alleges the parties formed. The issue of whether the parties had formed a partnership was an ultimate issue in the case. The trial court failed to act on Clarke’s request for additional findings, and Lehtonen does not dispute that the court failed to grant the additional findings. Accordingly, Clarke has properly preserved any error arising from the court’s failure to make additional findings relating to the parties’ alleged partnership. Id.
B. The Law Applicable to the Trial Court’s
Failure to Make Additional Findings
The trial court has a mandatory duty to file findings of fact and conclusions of law if they are properly requested. Cherne Indus., Inc. v. Magallanes, 763 S.W.2d at 772; Zieba v. Martin, 928 S.W.2d 782, 786 (Tex. App.—Houston [14th Dist.] 1996, no writ). If the trial court fails to respond, harmful error is presumed, “unless ‘the record before [the] appellate court affirmatively shows that the complaining party has suffered no injury.’” Cherne Indus., 763 S.W.2d at 772 (quoting Wagner v. Riske, 142 Tex. 337, 343, 178 S.W.2d 117, 120 (1944)). Conversely, “[e]rror is harmful if it prevents an appellant from properly presenting a case to the appellate court.” Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996).
C. Application of the Law to the Facts
Under the record before us, we conclude that Clarke has not been harmed by the court’s failure to make the additional findings. See Tenery, 932 S.W.2d at 30; Cherne, 763 S.W.2d at 772. Clarke has effectively presented his appeal to this Court. See Tenery, 932 S.W.2d at 30. Accordingly, we overrule his second point.
IV. PARTNERSHIP (OR JOINT VENTURE)
Clarke contends in his eighth point that the court’s failure to find a partnership agreement is so contrary to the overwhelming weight of the evidence as to be manifestly unjust. He urges in his ninth point that the court’s finding that the parties had an agreement to share profits raised a presumption of partnership which Lehtonen failed to rebut.
A. The Pertinent Facts
Clarke testified that Lehtonen asked Clarke on May 12 “to continue on” with him in the project to acquire, renovate and lease the apartments. According to Clarke, Lehtonen wanted him to continue in a joint venture between themselves without their former joint venturers, Chapman and Glockzin. In exchange, Clarke would receive five percent of the net profits from the apartments and five percent of the proceeds if the project were sold or refinanced.
Clarke testified that Lehtonen sometimes referred to him as a “partner” in the presence of others. Two witnesses specifically corroborated this. One stated that she recalled Clarke and Lehtonen referring to each other as partners on four or five occasions. The other recalled that Lehtonen described their relationship as “a joint venture.” Two testified that Clarke introduced Lehtonen to them as his “partner.” In a letter to the appraiser, Clarke referred to Lehtonen as the “principal” and “lead partner” in the project to develop the apartments. He sent a copy of this letter to Lehtonen.
Clarke equivocated somewhat when discussing whether the parties had an agreement to share any losses from the project. In essence, he testified that the parties never really projected any losses from their project. The following is a portion of Clarke’s testimony on this issue:
Counsel: From the standpoint of losses up until the date of closing, had you-all even discussed the possibility that you would have losses sustained in your partnership?
Clarke: No, sir. Our pro formas reflected that we would never sustain losses.
He explained that the agreement was that his share of losses from any operating period would be carried over and accounted for in a later period when the project was again realizing profits:
Counsel: Okay. And if there were losses in any particular year, would that be accounted for in later years with regard to any profits that might be made?
Clarke: That’s correct.
Clarke stated that Lehtonen and he did not have an agreement that he would not share in losses from the apartments. Clarke ended his rebuttal testimony with the following description of his agreement with Lehtonen concerning losses from the project:
Clarke: That—our discussions along losses dealt with we were looking at the performance. We had no projected negative cash flows starting once school started. Again, there were soft costs borrowed from the bank to offset anything during the summer. That was the philosophy of the program. When we did discuss it, we made a decision that debt services would be treated just like a normal operating expense before my five percent profit participation in the venture would be paid out.
Other evidence adduced at trial tended to show that the parties did not have a joint venture. Lehtonen unequivocally denied that he had ever offered Clarke an interest in a partnership or joint venture and did not recall ever referring to the project as a joint venture between Clarke and himself. Rather, he testified that he offered Clarke a management contract. A roofing subcontractor testified that Lehtonen told him Clarke was not a partner in the project. A bank officer stated that Clarke claimed that his only involvement in the project was “in management.” A leasing agent stated that she understood Clarke to be “the broker in the purchase.” The manager of the Polo Club testified that Clarke was “basically [Lehtonen’s] manager” for the renovation of the apartments. Clarke reported a theft of materials from the Polo Club on September 10, 1987. He identified himself in the report as the manager of the Polo Club. Lehtonen testified that he had no agreement with Clarke to share any losses arising from the operation of the Polo Club.
Documentary evidence also tends to disprove Clarke’s claim. Mr. and Mrs. Lehtonen were personally liable on the note by which they financed the purchase and renovation of the apartments. Clarke did not sign the note. In his pleadings Clarke alleged that Lehtonen and he had agreed that Clarke “would not be responsible for the indebtedness on the property.” When questioned about this allegation Clarke explained, “[T]he partnership would be responsible for the repayment of the loan, but not the loan is what this means.”
Lehtonen executed an assumed name certificate in Clarke’s presence which designates the ownership of the Polo Club as a sole proprietorship. The checking account signature cards for the Polo Club designate ownership to be a sole proprietorship. Reports filed with the Texas Employment Commission refer to the Polo Club as a sole proprietorship. The Polo Club application for a federal tax identification number indicates individual ownership.
B. The Applicable Law
1. Partnership or Joint Venture?
Clarke argues in his petition and his brief that the parties’ agreement created a partnership under the Texas Uniform Partnership Act. See Tex. Rev. Civ. Stat. Ann. art. 6132b (Vernon 1970 & Supp. 1998). The witnesses and attorneys used the terms “partnership” and “joint venture” interchangeably at trial to describe the agreement. Texas courts have discussed the similarities and distinctions between partnerships and joint ventures for decades.
In 1935 our Supreme Court stated that a joint venture “is constituted by a special combination of persons in the nature of a partnership—more particularly, a limited or special partnership—engaged in the joint prosecution of a particular transaction for mutual benefit or profit.” Holcombe v. Lorino, 124 Tex. 446, 455, 79 S.W.2d 307, 310-11 (1935); accord Brown v. Cole, 155 Tex. 624, 631, 291 S.W.2d 704, 709 (1956); Ben Fitzgerald Realty Co. v. Muller, 846 S.W.2d 110, 120 (Tex. App.—Tyler 1993, writ denied); Austin v. Truly, 721 S.W.2d 913, 923 (Tex. App.—Beaumont 1986), aff’d, 744 S.W.2d 934 (Tex. 1988); Woodrum v. Cowan, 468 S.W.2d 592, 599 (Tex. Civ. App.—Austin), rev’d on other grounds, 472 S.W.2d 749 (Tex. 1971). Joint ventures and partnerships “are so similar and closely kin” that they are governed “by rules which are closely analogous to and substantially the same, if not exactly the same, as those which govern partnerships.” Woodrum, 468 S.W.2d at 599 (quoting 46 Am. Jur. 2d Joint Ventures § 4 (1938)); accord Thompson v. Duncan, 44 S.W.2d 904, 907 (Tex. Comm’n App. 1932, judgm’t adopted); Muller, 846 S.W.2d at 120; Austin, 721 S.W.2d at 923.
Apparently Clarke urges that we examine whether his agreement with Lehtonen created a partnership to take advantage of section 7(4) of the Texas Uniform Partnership Act which provides in pertinent part that “[t]he receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business.” Tex. Rev. Civ. Stat. Ann. art. 6132b, § 7(4) (Vernon 19xx). However, the sharing of profits by itself does not establish a partnership. Id. art. 6132b, § 7(3); Adams v. Petrade Int’l, Inc., 754 S.W.2d 696, 713 (Tex. App.—Houston [1st Dist.] 1988, writ denied); Gutierrez v. Yancey, 650 S.W.2d 169, 172 (Tex. App.—San Antonio 1983, no writ); Tex-Co Grain Co. v. Happy Wheat Growers, Inc., 542 S.W.2d 934, 937 (Tex. Civ. App.—Amarillo 1976, no writ). Rather, it creates a fact issue for the finder of fact on the question of the existence of a partnership. Tex-Co, 542 S.W.2d at 937; accord Adams, 754 S.W.2d at 713; Gutierrez, 650 S.W.2d at 172.
Texas courts have historically applied the same principles when determining whether a joint venture or a partnership has been formed. See Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171, 175-76 (Tex. 1997); Thompson, 44 S.W.2d at 907; Adams, 754 S.W.2d at 713; Austin, 721 S.W.2d at 923. Thus, the label we attach to the parties’ alleged relationship makes no significant difference in terms of our analysis. If the parties’ relationship is as Clarke alleges, it is more accurately designated a joint venture because the alleged agreement is limited to a single enterprise: the acquisition, renovation, and operation of the apartment complex. See Brown, 155 Tex. at 631, 291 S.W.2d at 709; Muller, 846 S.W.2d at 120.
The elements for determining whether a joint venture exists are:
(1) a community of interest in the venture;
(2) an agreement to share profits;
(3) an agreement to share losses; and
(4) a mutual right of control or management of the enterprise.
Ayco Development Corp. v. G.E.T. Serv. Co., 616 S.W.2d 184, 186 (Tex. 1981); Smith v. L.D. Burns Drilling Co., 852 S.W.2d 40, 41 (Tex. App.—Waco 1993, writ denied). The existence of a joint venture depends on the parties’ intentions and each case must be evaluated on its own circumstances. Adams, 754 S.W.2d at 713.
“A failure by the parties to agree to share losses precludes the existence of the joint venture.” Gutierrez, 650 S.W.2d at 172. If some evidence exists that a party incurred expenses pursuant to an alleged joint venture agreement, a fact issue is created on this issue. See McCulley Fine Arts Gallery, Inc. v. X Partners, 860 S.W.2d 473, 479 (Tex. App.—El Paso 1993, no writ). An agreement to share losses will not be implied from an agreement to share profits, however. See Brazosport Bank v. Oak Park Townhouses, 889 S.W.2d 676, 683 (Tex. App.—Houston [14th Dist.] 1994, writ denied).
2. Factual Sufficiency of the Evidence
We review the sufficiency of the evidence to support a trial court’s findings under the same standards employed in reviewing a jury’s verdict. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). A factual sufficiency challenge requires us to consider and weigh all the evidence. Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985); In re King’s Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951). We will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Dyson, 692 S.W.2d at 457.
C. Application of the Law to the Facts
Clarke’s eighth point challenges the factual sufficiency of the evidence to support the court’s failure to find a partnership agreement. The evidence is largely undisputed that Clarke and Lehtonen had an agreement on some issues when they began the project. Although the testimony varied in degree, the evidence consistently reflected that they had a shared interest in seeing the project through; that they made some decisions jointly; and that Clarke would be compensated from the profits or rents from the apartments.
Clarke’s version of events sharply diverges from Lehtonen in the area of how they would deal with losses. Clarke testified in essence that the agreement concerning losses was that his share of losses would be carried over to future periods when profits were realized and accounted for prior to the distribution of his share of the profits. He conceded that the parties did not discuss losses at length because they did not project any losses from the project.
Lehtonen, on the other hand, denied any agreement regarding losses. The evidence reflects that his wife and he were personally liable on the debt which they had incurred to renovate the apartments and which was secured by the apartments. Clarke agrees that he is not personally liable on the note, explaining that their joint venture was “responsible for the repayment of the loan, but not the loan.”
This evidence presented the court with a fact issue. See Tex-Co, 542 S.W.2d at 937. From our review of the record, we cannot say that the court’s determination of this issue is clearly wrong or unjust. See Dyson, 692 S.W.2d at 457. Accordingly, we overrule Clarke’s eighth point.
Clarke’s ninth point avers that Lehtonen failed to rebut the presumption created by section 7(4) of the Texas Uniform Partnership Act that evidence of profit sharing is prima facie evidence of a partnership. Tex. Rev. Civ. Stat. Ann. art. 6132b, § 7(4). This argument fails for two reasons. First, the parties do not dispute that Clarke never received any profits from the Polo Club. To make the prima facie showing of section 7(4), a party must establish that he received a share of the profits. Id. Clarke received nothing. Thus, he failed to make this prima facie showing. Moreover, Lehtonen offered ample evidence by way of testimony and documents to rebut Clarke’s evidence that the parties had a partnership or joint venture agreement. Thus, we overrule Clarke’s ninth point.
V. THE REAL ESTATE LICENSE ACT
Clarke’s third and fourth points respectively aver that the record contains neither legally nor factually sufficient evidence to support the court’s finding that enforcement of the parties’ oral agreement is barred by the RELA statute of frauds. See Tex. Rev. Civ. Stat. Ann. art. 6573a, § 20(b) (Vernon Supp. 1998) (“section 20(b)”). His thirteenth and fourteenth points respectively challenge the factual and legal sufficiency of the evidence to support the court’s conclusion that the parties’ agreement is indivisible. Clark contends in his sixteenth point that the court erred in reaching this conclusion because “the issue of the intent of the parties with respect to the contract is a factual issue which was not fully developed in the trial of the case.”
Clarke argues in his fifth through seventh points that the court erred in finding and concluding that section 20(b) has no exceptions. His twelfth and fifteenth points claim that the court’s allegedly erroneous application of section 20(b) barred his recovery under the quantum meruit theory. His tenth and eleventh points challenge the court’s “implied finding” that section 20(b) bars enforcement of an oral partnership agreement.
A. The Pertinent Facts
In a section of Clarke’s third amended petition designated “Factual Allegations,” Clarke alleges that he performed the following tasks “in accordance with the agreement to form a partnership”:
∙ accompanied Lehtonen to several financial institutions to meet with and assist in securing of financing by preparing the necessary documentation to present to the financial institution to secure the financing for the purchase and rehabilitation of the property;
∙ on at least two occasions accompanied Lehtonen to the offices of Met Life in Houston, Texas, for the purpose of negotiating an earnest money contract for the purchase of the property and was actively involved in the negotiation of the earnest money contract with Met Life, the owner of the property in 1987;
∙ prepared construction estimates and proformas [sic] for presentation to financial institutions, including Huntsville National Bank, the ultimate lender for the acquisition of the property;
∙ secured bids and negotiated contracts with all subcontractors for the rehabilitation of the property;
∙ provided all construction bookkeeping services during the rehabilitation of the property;
∙ used Plaintiff’s construction accounts at Furrow’s, U-Rent-M, Acme Glass, Butler Building, Brazos Valley Lumber, Central Electric, and other suppliers for the rehabilitation of the property;
∙ created and assisted in the filing of the partnership assume name [sic] of Polo Club Apartments;
∙ opened and maintained a partnership operating and escrow account at First Bank & Trust of Bryan, Texas;
∙ supervised construction by all subcontractors on the rehabilitation of the Polo Club;
∙ hired and trained leasing agents and all employees of the Polo Club;
∙ supervised the construction of the leasing office and hired and trained the employees necessary to operate the leasing office;
∙ developed a marketing program to insure maximum occupancy of the Polo Club after construction; and
∙ managed the operation of the Polo Club after completion of construction until Defendant wrongfully removed him.
Clarke alleges that he performed all these services in reliance upon Lehtonen’s representation that he would receive five percent of the net profits from the project in exchange for his services.
Clarke testified that Lehtonen asked Clarke on May 12, 1987 “to continue on” with him in the project to acquire, renovate and lease the apartments. According to Clarke, Lehtonen wanted him to continue in a joint venture between themselves without their former joint venturers, Chapman and Glockzin. In exchange, Clarke would receive five percent of the net profits from the apartments and five percent of the proceeds if the project were sold or refinanced. From May 12 forward, Clarke continued to work on the project because of his agreement with Lehtonen.
Clarke stated in his testimony that after May 12 he did the following in furtherance of his agreement with Lehtonen:
∙ on May 19, he delivered pro forma documents to Robert McCann, a bank officer in Huntsville who was considering Lehtonen’s request for financing;
∙ on May 20, Lehtonen and he met again with Met Life representatives to finalize the earnest money contract and to review the asbestos reports;
∙ on May 21, he advised the appraiser by letter about the details of the project for purposes of the appraisal and informed him that the appraisal needed to be completed “A.S.A.P.”;
∙ that night he prepared the final drafts of the renovation estimates and delivered them the following morning to McCann in Huntsville;
∙ on May 27, he delivered additional pro forma documents to McCann in Huntsville;
∙ on May 28, Clarke drove to Huntsville, met with Lehtonen and the lenders, and returned to College Station with them to inspect the premises of the apartment complex;
∙ on May 29, he spoke with the Met Life representative by phone regarding the status of the loan (Lehtonen and Met Life executed the earnest money contract on the same date);
∙ on June 10, the parties closed the deal in two separate meetings: Lehtonen and his wife executed the note and deed of trust at the bank in Huntsville, and Met Life executed a special warranty deed to Lehtonen and his wife in College Station. According to Lehtonen, Clarke attended the closing in College Station only.
Clarke consistently reiterated that he performed all these tasks because of his agreement with Lehtonen and that he expected to be compensated for his work with five percent of the net profits from the venture.
Clarke testified that he had contact with representatives of Met Life on about fifty occasions prior to the closing to discuss the purchase of the property or to gain access to the property to personally view the property or to allow contractors on the premises to make bids or construction estimates. According to Clarke, Met Life representatives also contacted him to inquire about the status of the plan to purchase the property and whether they “were going to move forward with it.” Met Life also sent Clarke a packet containing several documents relating to the sale of the property including among other items: a proposed earnest money contract; a title policy from a previous sale of the property; a survey; and an information sheet containing pertinent data about the size, value, and current occupancy of the apartment complex.
Clarke testified that Lehtonen and he reviewed the proposed earnest money contract and that he arranged a meeting with Met Life representatives to discuss their concerns and to review reports concerning an “asbestos problem relating to the apartments.” Clarke stated that he “participated in the entire meeting” during which the parties negotiated the terms of the earnest money contract, including the sales price. At Lehtonen’s request, Clarke hired an appraiser to prepare a letter opinion for a bank which was considering lending Lehtonen the money necessary to purchase the complex.
According to Clarke, the appraiser relied in part on the construction estimates Clarke had drafted in preparing the letter opinion. He testified that he arranged a second meeting with Met Life for the parties to reach a consensus on the terms of the earnest money contract and for Lehtonen to review the asbestos reports. Clarke stated that he delivered several pro forma documents the next day to Robert McCann, a bank officer in Huntsville who was considering Lehtonen’s request for financing. He testified that he met with bank officers on three occasions concerning the loan.
Lehtonen disputed Clarke’s testimony in several respects. He testified that he asked Clarke to continue with him on the apartment project as a manager. Lehtonen explained that he promised to pay Clarke his costs during the renovation and five percent of gross rentals if Clarke’s management company managed the apartments. He stated that Clarke’s authority over the project was consistent with that of a project manager.
Lehtonen discounted the extent of Clarke’s participation in dealing with Met Life or the bank which financed the project. He testified that the extent of Clarke’s involvement in dealing with Met Life was his attendance at the first meeting with Met Life representatives. He agreed that Clarke had prepared the pro forma estimates and hired the appraiser. He stated that Clarke never met with any bankers regarding the project.
McCann confirmed Lehtonen’s recollection that he never met with Clarke or accepted delivery of any loan documents from Clarke. However, his bank did not ultimately finance the project, and he did not participate in the meeting at the bank which did finance the project, where Clarke testified he reviewed the loan with Lehtonen and the bank officers.
The trial court concluded that Clarke and Lehtonen had an oral contract which was indivisible and which included in part services for the sale or purchase of real property. The court determined that Clarke filed his suit to recover a commission for the services he rendered in connection with Lehtonen’s purchase of the apartments. For these reasons, the court concluded that enforcement of the entire contract is barred by the RELA statute of frauds. See Tex. Rev. Civ. Stat. Ann. art. 6573a, § 20(b) (Vernon Supp. 1998) (“section 20(b)”).
B. The Applicable Law
1. Judicial Admissions
Lehtonen argues that the factual allegations of Clarke’s petition set forth above constitute judicial admissions which support the court’s judgment. Factual allegations set forth in a party’s live pleadings are considered judicial admissions. Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 769 (Tex. 1983); Huff v. Harrell, 941 S.W.2d 230, 235 (Tex. App.—Corpus Christi 1996, writ denied). Generally, such pleadings are binding on the party who makes them and cannot be controverted. Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989); Musick, 650 S.W.2d at 769. Judicial admissions conclusively establish the facts pleaded and thus relieve the opposing party of the necessity of proving the admitted facts. Chilton Ins. Co. v. Pate & Pate Enter., Inc., 930 S.W.2d 877, 884 (Tex. App.—San Antonio 1996, writ denied). In order to preserve the binding effect of such admissions however, the party relying on them must object to the admission of any evidence which contradicts the pleaded facts and in a jury trial must object to the submission of any question related to the fact admitted. Marshall, 767 S.W.2d at 700; Musick, 650 S.W.2d at 769; Huff, 941 S.W.2d at 235.
A party’s factual pleadings are also admissible under the rules of evidence as statements of a party opponent. Westchester Fire Ins. Co. v. Lowe, 888 S.W.2d 243, 251-52 (Tex. App.—Beaumont 1994, no writ) (on rehearing); Tex. R. Civ. Evid. 801(e)(2), 46 Tex. B.J. 209 (Tex. 1982, repealed 1998). If a party testifies in a manner contrary to the factual allegations of his pleadings, that party can be impeached with the pleadings as prior inconsistent statements. Huff, 941 S.W.2d at 239; Lowe, 888 S.W.2d at 251-52; Tex. R. Civ. Evid. 613(a), 46 Tex. B.J. 208 (Tex. 1982, repealed 1998).
2. Legal Sufficiency of the Evidence
When we decide a legal sufficiency or “no evidence” point, we consider only the evidence and inferences which tend to support the contested issue and disregard all evidence and inferences to the contrary. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex. 1992). We must uphold the verdict if we find any probative evidence supporting the issue. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex. 1989).
3. Divisibility of Contracts
A contract which involves in part a commission for the sale or purchase of real property and which is indivisible is subject to the requirements of section 20(b). Stroble v. Tearl, 148 Tex. 146, 152, 221 S.W.2d 556, 559 (1949); Anderson v. Republic Life Ins. Co., 623 S.W.2d 162, 165 (Tex. App.—Fort Worth 1981, no writ); Manering v. North Tex. Producers Ass’n, 370 S.W.2d 939, 940-41 (Tex. Civ. App.—Fort Worth 1963, writ ref’d n.r.e.). The divisibility of a contract rests primarily on the parties’ intentions, the subject matter of the contract, and the parties conduct. Johnson v. Walker, 824 S.W.2d 184, 187 (Tex. App.—Fort Worth 1991, writ denied).
The courts have frequently examined whether the consideration for an agreement is apportionable to determine the divisibility of the contract. See Stroble, 148 Tex. at 152, 221 S.W.2d at 559; Lake LBJ Mun. Util. Dist. v. Coulson, 771 S.W.2d 145, 153 (Tex. App.—Austin 1988), rev’d on other grounds, 781 S.W.2d 594 (Tex. 1989); Hamilton v. Texas Oil & Gas Corp., 648 S.W.2d 316, 320 (Tex. App.—El Paso 1982, writ ref’d n.r.e.); Chapman v. Tyler Bank & Trust Co., 396 S.W.2d 143, 147 (Tex. Civ. App.—Tyler 1965, writ ref’d n.r.e.). “The essential feature of a divisible contract is that a portion of the price is set off against a portion of the performance; therefore, when a part of the performance has been rendered, a debt for that part immediately arises.” F.D. Stella Prod. Co. v. Scott, 875 S.W.2d 462, 466 (Tex. App.—Austin 1994, no writ) (citing 6 Samuel Williston & Walter H. E. Jaeger, A Treatise on the Law of Contracts § 861 (3d ed. 1962)).
4. The Sale or Purchase of Real Estate
Section 20(b) provides:
(b) An action may not be brought in a court in this state for the recovery of a commission for the sale or purchase of real estate unless the promise or agreement on which the action is brought, or some memorandum thereof, is in writing and signed by the party to be charged or signed by a person lawfully authorized by the party to sign it.
Tex. Rev. Civ. Stat. Ann. art. 6573a, § 20(b). Assuming an enforceable contract under section 20(b), a broker cannot recover a commission in a transaction involving the sale of real property unless the broker was the procuring cause of the sale. Goodwin v. Gunter, 109 Tex. 56, 63, 195 S.W. 848, 849 (1917) (on rehearing); Tower View, Inc. v. Hopkins, 679 S.W.2d 632, 635 (Tex. App.—San Antonio 1984, writ ref’d n.r.e.); Sherman v. Bruton, 497 S.W.2d 316, 320 (Tex. Civ. App.—Dallas 1973, no writ). Texas courts have identified three methods by which a broker might be considered the procuring cause of the sale:
(1) by procuring a contract from a purchaser on the terms proposed by the seller;
(2) by procuring a purchaser to whom a sale is made on terms agreeable to the seller; or
(3) by producing a purchaser who is ready, willing and able to buy on terms specified in the brokerage contract and who offers to do so.
Fuess v. Mueller, 630 S.W.2d 715, 717 (Tex. App.—Houston [1st Dist.] 1982, no writ); Anderson-Berney Bldg. Co. v. Swan, 133 S.W.2d 269, 274 (Tex. Civ. App.—Fort Worth 1939, writ dism’d judgm’t cor.).
Regarding the second of these methods, Texas courts have held:
It is not necessary that a broker should negotiate the sale when he has found, or he has introduced or given a name of, a purchaser who is able, willing and ready to purchase the property upon the terms named by the principal, and the principal has entered into negotiation with such purchaser and concluded a sale with him.
Poppe v. Camelot Properties, Inc., 711 S.W.2d 101, 106 (Tex. App.—Austin 1986, writ ref’d n.r.e.); accord Keener v. Cleveland, 250 S.W. 151, 152 (Tex. Comm’n App. 1923, judgm’t adopted); Shepard v. Wesson, 266 S.W.2d 393, 395 (Tex. Civ. App.—Amarillo 1953, no writ).
5. Action for the Recovery of a Commission
Section 20(b) applies to any action brought “for the recovery of a commission.” Tex. Rev. Civ. Stat. Ann. art. 6573a, § 20(b). The Real Estate License Act does not define the term “commission.” Thus, we will apply that term’s ordinary meaning. See Tex. Gov’t Code Ann. § 312.002(a) (Vernon 1988). Black’s Law Dictionary defines a commission in pertinent part as:
Compensation. The recompense, compensation or reward of [a] . . . broker . . . when the same is calculated as a percentage on the amount of his transactions or on the profit to the principal.
Black’s Law Dictionary 272 (6th ed. 1990). Thus, section 20(b) applies to any suit brought for the purpose of recovering a commission for the sale of real property which is calculated as a percentage of the profit to the principal resulting from the transaction.
6. Exceptions to Section 20(b)
Texas courts traditionally have strictly construed section 20(b). See Trammell Crow Co. No. 60 v. Harkinson, 944 S.W.2d 631, 637 (Tex. 1997). The courts have rejected the equitable doctrines of promissory estoppel, partial performance, and quantum meruit as exceptions to section 20(b). Id. at 636 (promissory estoppel); Boyert v. Tauber, 834 S.W.2d 60, 63-64 (Tex. 1992) (partial performance); Landis v. W.H. Fuqua, Inc., 159 S.W.2d 228, 230-31 (Tex. Civ. App.—Amarillo 1942, writ ref’d) (quoted with approval by Trammell Crow, 944 S.W.2d at 636) (quantum meruit).
The underlying purpose of section 20(b) is to prevent fraud and uncertainty in transactions involving brokers. See Hitchcock Properties, Inc. v. Levering, 776 S.W.2d 236, 238 (Tex. App.—Houston [1st Dist.] 1989, writ denied); accord Clements v. Withers, 437 S.W.2d 818, 821 (Tex. 1969). To permit court-created exceptions to the statute “would be in direct opposition to the expressed will of the Legislature and would unduly expose the public to fraudulent claims for commissions.” Trammell Crow, 944 S.W.2d at 636.
Although traditional equitable exceptions applicable to other statutes of frauds do not apply to section 20(b), the courts have excepted certain transactions from the RELA. Historically, the requirements of the RELA have not applied to transactions between parties “engaged as joint venturers.” See Kaiser Gypsum Co. v. Jordan, 399 S.W.2d 588, 591 (Tex. Civ. App—Waco 1966, writ ref’d n.r.e.); accord Mummert v. Stekoll Drilling Co., 352 S.W.2d 526, 527 (Tex. Civ. App.—Dallas 1961, writ ref’d n.r.e.); Coats v. Windham, 254 S.W.2d 530, 534 (Tex. Civ. App.—Beaumont 1953, writ ref’d n.r.e.); Gill v. Smith, 233 S.W.2d 223, 227 (Tex. Civ. App.—Galveston 1950, writ ref’d n.r.e.); see also Tex. Rev. Civ. Stat. Ann. art. 6573a, § 3(12) (Vernon Supp. 1998) (excepting partnerships from the RELA).
Application of the Law to the Facts
1. The Divisibility of the Parties’ Agreement
Clarke testified consistently with his trial pleadings concerning the nature of his agreement with Lehtonen, the services he performed pursuant to that agreement, and the compensation he expected to receive in exchange for the services he performed. Thus his pleadings constitute judicial admissions. See Huff, 941 S.W.2d at 230. According to Clarke’s pleadings and testimony, he agreed with Lehtonen to assist in the acquisition, renovation, and operation of the apartment complex for five percent of the net profits from the apartments. This single consideration was not apportionable among the various services Clarke undertook to perform pursuant to the parties’ agreement.
Clarke’s pleadings and testimony provided the court ample probative evidence that the parties’ agreement was indivisible. See Stroble, 148 Tex. at 152, 221 S.W.2d at 559; Scott, 875 S.W.2d at 466; Coulson, 771 S.W.2d at 153. Thus, the trial court’s conclusion on this issue is supported by legally sufficient evidence. See Southern States Transp., 774 S.W.2d at 640. Accordingly, we overrule Clarke’s fourteenth point.
As judicial admissions, Clarke’s pleadings conclusively established this issue. Thus, the trial court’s conclusion that the parties’ agreement was indivisible is supported by factually sufficient evidence. See Lancer Corp. v. Murillo, 909 S.W.2d 122, 127-28 (Tex. App.—San Antonio 1995, no writ); Dobbins v. Coruthers, 864 S.W.2d 754, 755-57 (Tex. App.—Houston [1st Dist.] 1993, no writ). Accordingly, we overrule Clarke’s thirteenth point.
Clarke contends in his sixteenth point that the court erred in concluding that the parties’ agreement was indivisible because the evidence on the parties’ intent concerning the contract was not fully developed at trial. However, Clarke never asked the trial court to permit him to reopen and present additional evidence on this issue. See C.F. v. State, 897 S.W.2d 464, 473 (Tex. App.—El Paso 1995, no writ); Guerrero v. Standard Alloys Mfg. Co., 598 S.W.2d 656, 658 (Tex. Civ. App.—Beaumont 1980, writ ref’d n.r.e.); Tex. R. Civ. P. 270. Accordingly, we conclude that he has failed to preserve this issue for our review. See Tex. R. App. P. 52(a), 49 Tex. B.J. 573 (Tex. 1986, repealed 1997). We overrule Clarke’s sixteenth point.
2. Section 20(b)
We have already determined that Clarke’s trial pleadings constitute judicial admissions. As such, the pleadings and his testimony alone provide ample probative evidence to support a finding that Clarke introduced Met Life and Lehtonen and that they subsequently negotiated a deal agreeable to Met Life. See Poppe, 711 S.W.2d at 106; Fuess, 630 S.W.2d at 717; Swan, 133 S.W.2d at 274. Thus, the evidence is legally sufficient to support the trial court’s finding that the parties’ agreement involved the sale or purchase of real property. See Southern States Transp., 774 S.W.2d at 640.
As judicial admissions, Clarke’s pleadings conclusively established this issue. Thus, the trial court’s finding is supported by factually sufficient evidence. See Murillo, 909 S.W.2d at 127-28; Dobbins, 864 S.W.2d at 755-57.
Clarke’s pleadings and testimony also establish without dispute that he seeks compensation of five percent of the net profits from the operation of the apartments. Thus, the evidence is legally and factually sufficient to support the trial court’s conclusion that Clarke instituted this action to recover a commission. See Black’s Law Dictionary at 272.
The evidence supports the trial court’s findings and conclusions that Clarke brought this suit for a commission on the basis of an oral agreement involving the sale or purchase of real property. The agreement between Clarke and Lehtonen involved more than just the sale or purchase of real property. It also involved the renovation and operation of the apartments. However, we have already determined that the evidence supports the trial court’s conclusion that the agreement is indivisible. Thus, section 20(b) bars the enforcement of the parties’ oral agreement. Stroble, 148 Tex. at 152, 221 S.W.2d at 559; Anderson, 623 S.W.2d at 165. We overrule Clarke’s third and fourth points.
3. Exceptions to Section 20(b)
Clarke argues in his fifth through seventh points that the court erred in finding and concluding that section 20(b) has no exceptions. His twelfth and fifteenth points claim that the court’s allegedly erroneous application of section 20(b) barred his recovery under the quantum meruit theory. His tenth and eleventh points challenge the court’s “implied finding” that section 20(b) bars enforcement of an oral joint venture agreement.
Clarke asserts that he sufficiently pled and proved partial performance, promissory estoppel and quantum meruit as exceptions to section 20(b). However, these equitable theories have been rejected as exceptions to the requirements of the statute. Trammell Crow, 944 S.W.2d at 636 (promissory estoppel); Boyert, 834 S.W.2d at 63 (partial performance); Landis, 159 S.W.2d at 230-31 (quantum meruit). Accordingly, we overrule Clarke’s fifth, sixth, seventh, twelfth, and fifteenth points.
Clarke also argues that Lehtonen and he had an oral joint venture agreement. Section 20(b) does not apply to transactions between joint venturers. Kaiser Gypsum, 399 S.W.2d at 591. Accordingly, the court erred by implicitly concluding that section 20(b) bars enforcement of an oral joint venture agreement. However, because Clarke failed to produce sufficient evidence to establish a joint venture, we conclude that the court’s error in reaching this implicit conclusion is harmless. See Tex. R. App. P. 81(b)(1), 49 Tex. B.J. 581 (Tex. 1986, repealed 1997). Thus, we overrule Clarke’s tenth and eleventh points.
VI. CONCLUSION
The trial court vacated its original judgment while still within its plenary power. It then rendered judgment that Clarke take nothing because his suit sought a commission on an oral contract involving the sale of real estate. We have overruled all of Clarke’s points. Because we are affirming the judgment, we need not address the cross-point raised by Lehtonen. See Gregorcyk v. Al Hogan Builder, Inc., 884 S.W.2d 523, 526 (Tex. App.—Corpus Christi 1994, writ denied); Tex. R. App. P. 90(a), 49 Tex. B.J. 583 (Tex. 1986, repealed 1997). We affirm the judgment.
REX D. DAVIS
Chief Justice
Before Chief Justice Davis
Justice Cummings and
Justice Vance
Affirmed
Opinion delivered and filed July 1, 1998
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