Hattie Scherback v. Jerry McMennamy and Louise McMennamy--Appeal from 202nd District Court of Bowie County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00139-CV

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HATTIE SCHERBACK, Appellant

V.

JERRY MCMENNAMY AND LOUISE MCMENNAMY, Appellees

On Appeal from the 202nd Judicial District Court

Bowie County, Texas

Trial Court No. 01C0376-202

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Evidence conflicted on whether Hattie Scherback was a partner with Jerry and Louise McMennamy in various tracts of land purchased in the names of the McMennamys. After a trial to the court, // the trial court found that while Scherback, a realtor, and Jerry McMennamy, not a realtor, had been, until 1998, partners in Scherback's real estate sales business Scherback was not a partner with the McMennamys in the parcels of real estate they had purchased. We affirm the judgment of the trial court.

Scherback contends on appeal that the trial court's finding of no partnership as to the real estate purchases is against the great weight and preponderance of the evidence. When a party attacks the factual sufficiency of an adverse finding on an issue on which that party has the burden of proof, the party must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). We must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.

A partnership is defined as an association of persons to carry on a business for profit as owners. Tex. Rev. Civ. Stat. Ann. art. 6132b-2.02 (Vernon Supp. 2005). Article 6132b-2.03 sets forth five factors to consider in determining whether a partnership has been created. Those factors include (1) the receipt or right to receive a share of profits of the business, (2) the expression of an intent to be partners of the business, (3) the participation or right to participate in control of the business, (4) the sharing of or agreement to share losses of the business or liability for claims by third parties against the business, and (5) the contribution of or an agreement to contribute money or property to the business. Tex. Rev. Civ. Stat. Ann. art. 6132b-2.03(a) (Vernon Supp. 2005).

The evidence is uncontested that Jerry and Scherback did have an agreement to split commissions on real estate sales and that Jerry did work in the Scherback real estate sales office. Such evidence does not control the question of whether there was any agreement involving Scherback to purchase properties as partners. And on this latter point, the evidence conflicts.

Jerry testified that he worked with Scherback from late 1995 until May 1998, that he did not have a partnership agreement with her to acquire land, and that the McMennamys' purchases of real estate were entirely separate from Scherback. The evidence shows that the properties were purchased in the McMennamys' names and that they personally financed their purchases and made all note payments and tax payments on the properties.

To the contrary, Scherback testified that they did have an agreement to purchase land together and that their partnership extended far beyond the real estate practice itself. She also points to testimony by two of their clients as support. That testimony reflects their understanding of the existence of a partnership, but does not explain its scope. Testimony by client Buddy Barber that he understood they had an agreement about one of the pieces of property at bar is not conclusive, even if it were unopposed by conflicting evidence. In addition, Scherback assumes that, if the real estate was purchased during the time period while the real estate agency partnership existed, then the land was a partnership purchase. That is not a necessary implication from the testimony, and it is not necessarily the case that the purchases were within the scope of the agency partnership that actually existed.

During the time the agency partnership existed, the McMennamys purchased several pieces of property in their own names and borrowed money to finance the purchases. There is evidence that Scherback received a commission from the McMennamys on those purchases and that the McMennamys made all note payments and tax payments on the property.

No findings of fact and conclusions of law were requested or filed. When findings of fact and conclusions of law are neither requested nor filed, the judgment of the trial court implies all findings necessary to support it, provided (1) the proposition is one raised by the pleadings and supported by the evidence, and (2) the trial court's decision can be sustained on any reasonable theory consistent with the evidence and the applicable law, after considering only the evidence that favors the decision. See Tex. R. Civ. P. 299; Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). Thus, the trial court's decision must be sustained on any reasonable theory consistent with the evidence and the applicable law, considering only the evidence favorable to its decision. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Martin v. Republic Land Tech., L.L.C., 63 S.W.3d 34, 35 36 (Tex. App. San Antonio 2001, pet. denied). When the implied findings of fact are supported by the evidence, we must uphold the judgment on any theory of law applicable to the case. Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986).

At the most, the evidence is in conflict. This Court is not a fact-finder and may not pass on the credibility of the witnesses or substitute its judgment for that of the trier of fact. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 07 (Tex. 1998); Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744 (Tex. 1986) (findings of fact are exclusive province of jury or trial court). It is not within the province of this Court to interfere with the fact-finder's resolution of conflicts in the evidence, or to pass on the weight or credibility of the witnesses' testimony. Sw. Airlines Co. v. Jaeger, 867 S.W.2d 824, 829 30 (Tex. App. El Paso 1993, writ denied). Where there is conflicting evidence, the fact-finder's verdict on such matters is generally regarded as conclusive. Edmunds v. Sanders, 2 S.W.3d 697, 703 (Tex. App. El Paso 1999, pet. denied); see Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986).

The evidence above is factually sufficient to support the trial court's conclusion that Scherback and the McMennamys did not agree to a partnership for the purpose of purchasing realty together, since the finding was not against the great weight and preponderance of the evidence.

We affirm the judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: October 3, 2005

Date Decided: November 14, 2005