Opinion issued November 26, 2013.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-01057-CV
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TIM S. LEONARD, Appellant
V.
STEPHEN M. BREWER AND BW OFFICE PARTNERS I, LP, Appellees
On Appeal from the County Civil Court at Law No. 2
Harris County, Texas
Trial Court Case No. 1005431
MEMORANDUM OPINION
Tim Leonard sued Stephen Brewer and BW Office Partners I, LP for an
unpaid debt. After a bench trial, the trial court entered judgment against Brewer
and BW, apportioning damages between them. Leonard appeals, contending that
the trial court erred in apportioning damages. We agree. We thus modify the
award and affirm as modified.
Background
In August 2009, Brewer executed a promissory note on behalf of BW Office
Partners, payable to Leonard in the amount of $5000 plus interest. Brewer signed
the note as a “General Partner” of BW. The note stated that BW would repay the
loan upon BW’s sale of a piece of real property. In November 2009, BW sold the
property. Neither BW nor Brewer, however, repaid Leonard. In April 2010,
Brewer sent Leonard an email, stating that he was “personally commit[ted]” to
repaying [Leonard] for [his] contribution.” In December 2011, Leonard sued
Brewer and BW for the unpaid debt. In its final judgment, the trial court held that
both Brewer and BW were liable but apportioned damages between them rather
than imposing joint and several liability. Leonard moved to amend and modify the
judgment. The trial court never ruled on the motion; thus it was overruled by
operation of law. See TEX. R. CIV. PROC. 329b(c).
Discussion
As an initial matter, we note that Brewer and BW have not filed a brief to
contest Leonard’s challenge to the judgment.
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Standard of Review
Whether the trial court erred in applying an improper measure of damages is
a question of law subject to de novo review. C.C. Carlton Indus., Ltd. v.
Blanchard, 311 S.W.3d 654, 662 (Tex. App.—Austin 2010, no pet.). When a trial
court does not issue findings of fact and conclusions of law, all facts necessary to
support the judgment and supported by the evidence are implied. BMC Software
Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). It is the appellant’s
burden to show that the trial court’s judgment cannot be supported by any legal
theory raised by the evidence. Point Lookout W., Inc. v. Whorton, 742 S.W.2d
277, 279 (Tex. 1987); Nash v. Garden City Apts., No. 01-10-00369-CV, 2011 WL
2410205, at *2 (Tex. App.—Houston [1st Dist.] Jun. 9, 2011, no pet.) (mem. op.).
Analysis
The trial court held that both Brewer and BW were liable to Leonard for the
unpaid debt but divided the damages between them. In light of the record, the trial
court reasonably could have found that (1) Brewer was a general partner of BW,
(2) Brewer represented to Leonard that he was a general partner of BW and
Leonard relied on that representation in extending credit in good faith, or
(3) Brewer personally guaranteed BW’s loan. But the record is bereft of support
for apportioning the damages. Under any theory of recovery supported by the
record, Brewer and BW are jointly and severally liable for the unpaid debt.
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First, if the trial court found that Brewer was a general partner of BW, then
Brewer is jointly and severally liable for BW’s obligations which he undertook as a
general partner. See TEX. BUS. ORGS. CODE ANN. § 152.304(a) (West 2012).
Second, if the trial court found that Brewer represented to Leonard that he was a
general partner of BW and Leonard relied on that representation in extending
credit in good faith, then Brewer is liable as though he were a partner under the
partnership by estoppel doctrine. See Friedman v. New Westbury Vill. Assocs., 787
S.W.2d 154, 158 (Tex. App.—Houston [1st Dist.] 1990, no writ) (“[A] person is
liable as though she were an actual member of the partnership, where she
represents herself to be a partner in an existing partnership, and another party has
extended money in good faith on the basis of the representation.”). Under this
estoppel theory, Brewer would be jointly and severally liable for the unpaid debt.
See TEX. BUS. ORGS. CODE ANN. § 152.304(a) (West 2012). Finally, if the trial
court found that Brewer personally guaranteed payment of BW’s loan in his email
to Leonard, then Brewer’s liability for the unpaid debt extends as far as BW’s
liability. See W. Bank–Downtown v. Carline, 757 S.W.2d 111, 113 (Tex. App.—
Houston [1st Dist.] 1988, writ ref’d) (“A guarantor’s liability on a debt is measured
by the principal’s liability unless a more extensive or more limited liability is
expressly set forth in the guaranty agreement.”); Estate of Todd v. Int’l Bank of
Commerce, No. 01-12-00742-CV, 2013 WL 1694937, at *4 (Tex. App.—Houston
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[1st Dist.] Apr. 18, 2013, pet. filed) (mem. op.). As a guarantor, Brewer would be
jointly and severally liable for the unpaid debt. Under any of these three theories
of recovery supported by the record, Brewer and BW are jointly and severally
liable for the unpaid debt. Accordingly, we hold that the trial court erred in
apportioning the damages.
Conclusion
Because Brewer and BW are jointly and severally liable for the full amount
of the trial court’s award (principal, interest, attorney’s fees, and court costs), we
modify the judgment to include joint and several liability and affirm as modified.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
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