betty-domingo-v-cindy-skidmore-donna-walker-estella-barron-brenda ( 2011 )


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  •                                         NO. 07-09-0392-CV
    IN THE COURT OF APPEALS
    FOR THE SEVENTH DISTRICT OF TEXAS
    AT AMARILLO
    PANEL C
    AUGUST 31, 2011
    ______________________________
    BETTY DOMINGO, APPELLANT
    V.
    CINDY SKIDMORE, DONNA WALKER, ESTELLA BARRON,
    BRENDA MITCHELL, GINA SCHULTZ, SHARLA PIERCE, AND
    LGROUP, A TEXAS GENERAL PARTNERSHIP, APPELLEES
    _________________________________
    FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;
    NO. 2006-535,854; HONORABLE LES HATCH, JUDGE
    _______________________________
    Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
    MEMORANDUM OPINION
    Appellant, Betty Domingo, challenges the trial court's judgment rendered in favor
    of Appellees, Cindy Skidmore, Donna Walker, Estella Barron, Brenda Mitchell, Gina
    Schultz, Sharla Pierce and LGroup, a Texas General Partnership1 in Domingo's suit for
    breach of contract. Presenting four issues, Domingo maintains the trial court erred
    1
    Where necessary to the discussion, Skidmore, Walker, Barron, Mitchell, Schultz, Pierce, and LGroup will
    be identified by name; otherwise, they will be collectively referred to as Appellees.
    when it failed to grant (1) her request for a jury instruction that numbers were not an
    essential element of the contract and such error probably caused the rendition of an
    improper judgment; (2) a directed verdict and judgment on the evidence and on the
    issue of the existence of a partnership between the individual Appellees because such
    was established as a matter of law; (3) a directed verdict and judgment on the evidence
    on the issue of damages since such was established by the trial evidence as a matter of
    law; and (4) a directed verdict and judgment on the evidence on the issue of attorney's
    fees since such was established by the evidence as a matter of law. By her reply brief,
    she emphasizes reversible error in the trial court's refusal to instruct the jury that
    numbers were not an essential element in forming a contract, arguing that this Court's
    decision in Domingo v. Mitchell, 
    257 S.W.3d 34
    , 41 (Tex.App.--Amarillo 2008, pet.
    denied) (Domingo I) is law of the case. We affirm.
    Background Facts
    Beginning in 2004, Domingo and Mitchell, friends for thirty years and also co-
    workers, played the Texas Lottery on numerous occasions. Their arrangement included
    an agreement to pool their money to purchase Quick Pick tickets and split all winnings
    equally.   Regardless of who purchased the tickets, it was not unusual for one to
    advance payment for the other and reimburse that person, win or lose.
    On March 9, 2006, Skidmore sent an e-mail to Mitchell asking if she was
    interested in joining a lottery group. Skidmore added that they would have "better odds"
    with a "group of people."   After enlisting a select group of friends and co-workers,
    including Mitchell, on March 23rd, Skidmore sent an e-mail inviting them to meet on
    2
    March 30th at a local restaurant to socialize, pool their money, and pick numbers to play
    the lottery in April.2 That e-mail also provided, A[i]f there is someone else you want to
    invite (& you feel pretty sure they won=t drop out) let me know.@
    According to Domingo, after Skidmore's March 23rd e-mail, Mitchell invited her
    and Cindy Ruff, another co-worker, to participate in the lottery group for April 2006,
    specifically, Lotto Texas and Mega Millions. Ruff declined the offer due to insufficient
    funds. Domingo, however, inquired how much her contribution would be, and Mitchell
    was uncertain but offered to cover for her and be reimbursed at a later time.
    During the March 30th gathering of the LGroup,3 Skidmore, Mitchell, and the
    remaining four members of the group agreed to enter seventeen separate drawings for
    April 2006 at one dollar each per drawing, i.e., seventeen dollars per person. Each of
    them contributed six "unique"4 numbers. Mitchell paid her contribution and submitted
    her numbers, and according to the testimony presented at trial, did not mention
    Domingo's name to the group or contribute for Domingo to participate in the April
    drawings.5
    2
    Donna Walker did not attend due to a previous engagement, but she did send money and numbers via
    Gina Schultz.
    3
    Skidmore testified that prior to that evening, "LGroup" was merely a "Broadcast Message ID" for
    grouping e-mail contacts to save from typing individual names in the "To" line. According to Skidmore,
    the LGroup subsequently became a registered general partnership but, at the time, was more akin to a
    trust.
    4
    This term was used frequently throughout trial; basically, it refers to tickets other than Quick Picks.
    5
    During her deposition taken on July 25, 2006, Mitchell testified that Domingo asked her on March 31st if
    she had paid her share to enter the April drawings. Mitchell told Domingo she did not pay her part
    because she did not have enough money. Notwithstanding Appellees' defensive theory that Domingo
    was not invited to participate in the April drawings, at no time did Mitchell tell Domingo that she was not
    invited to play in April.
    3
    Schultz offered to buy the tickets for the LGroup and on March 31st at 2:51 p.m.,
    sent the following e-mail to the other Appellees:
    Here are the numbers we're playing in APRIL. I decided to pick different
    numbers for Mega and Lotto. I'm going to wait until tomorrow to actually
    buy the tickets, so if anyone decided to pick different numbers from the
    ones listed below or if you'd like to use different numbers for Mega and
    Lotto, just email me by noon tomorrow.
    On April 29, 2006, one of the tickets purchased by the group won.                         After
    choosing the cash value option, the winnings totaled $20,925,315.23.6                     Domingo=s
    exclusion from a share of the winnings eventually prompted her to consult an attorney
    because, according to her theory, but for Mitchell's broken promise, she would have
    been entitled to a share. She filed suit on July 18, 2006, and subsequently amended
    her allegations to assert a breach of contract cause of action against Mitchell, as well as
    joint and several liability against the LGroup and its members, contending that Mitchell
    acted with full authority of the LGroup under sections 3.02 and/or 3.03 of the Texas
    Revised Partnership Act. See Tex. Bus. Orgs. Code Ann. §§ 152.302, 152.303 (West
    Pamph. 2010).7 Domingo also sought recovery of attorney's fees.
    Mitchell filed a combination traditional and no-evidence motion for summary
    judgment, which the trial court granted. After a severance from the causes of action
    against the remaining Appellees, Domingo appealed and this Court found the existence
    of a genuine issue of material fact as to whether Domingo and Mitchell had entered into
    6
    According to pretrial hearings, pursuant to a Rule 11 agreement, Skidmore, Walker, Barron, Mitchell,
    Schultz, and Pierce each received a one-seventh share or $2,989,333.75. The remaining one-seventh
    was deposited in trust pending the outcome of this case.
    7
    Effective January 1, 2006, statutes related to general partnerships appear in chapter 152 of the Texas
    Business Organizations Code (West Pamph. 2010)
    4
    a valid oral contract and whether Mitchell had breached that contract. 
    Domingo, 257 S.W.3d at 41
    . Summary judgment was reversed and the cause was remanded to the
    trial court for further proceedings. 
    Id. at 42.
    The trial court then consolidated the severed claims with the underlying cause of
    action and the case was called for jury trial on October 26, 2009. After presentation of
    the evidence, the case was submitted to the jury with five questions. The jury answered
    "No" to Question No. 1 which asked whether Domingo and Mitchell intended to bind
    themselves to an agreement with specific terms which were listed in the question. The
    jury's negative finding to Question No. 1 pretermitted consideration of the remaining
    questions.   Based on the jury's answer, the trial court signed a judgment granting
    Appellees' motion for judgment on the verdict, denied Domingo's judgment
    notwithstanding the verdict and ordered that Domingo take nothing by her suit.
    Domingo appealed and presents four issues for consideration.
    Issue One. The trial court erred when it failed to grant her request for a jury
    instruction that numbers were not an essential element of the contract and such
    error probably caused the rendition of an improper judgment.
    As submitted to the jury, Question No. 1 asked:
    Did Betty Domingo and Brenda Mitchell intend to bind themselves to an
    agreement that included the following terms:
    1. Betty Domingo would participate in the LGroup Lottery Pool for April
    2006;
    2. Brenda Mitchell would pay for Betty Domingo's costs to participate in
    the LGroup Lottery Pool for April 2006;
    3. Betty Domingo would repay Brenda Mitchell for Betty Domingo's cost to
    participate in the LGroup Lottery Pool for April 2006; and
    5
    To form an agreement, the parties must have the same understanding of
    the subject matter of an agreement and all its essential terms.
    You are instructed that if Betty Domingo and Brenda Mitchell agreed to
    other essential terms but failed to specify price, it is presumed a
    reasonable price was intended.
    You are instructed that, in deciding whether Betty Domingo and Brenda
    Mitchell reached an agreement, you may consider what they said and did
    in light of the surrounding circumstances, including any earlier course of
    dealing. You may not consider the parties' unexpressed thoughts or
    intentions.
    You are instructed that a fact may be established by direct evidence or by
    circumstantial evidence or both. A fact is established by direct evidence
    when proved by documentary evidence or by witnesses who saw the act
    done or heard the words spoken. A fact is established by circumstantial
    evidence when it may be fairly or reasonably inferred from other facts
    proved.
    Answer "Yes" or "No."
    Domingo submitted a proposed charge that was essentially the same as the one
    submitted to the jury with the exception of two additional paragraphs:
    You are instructed that providing numbers for the lottery drawing was not
    an essential term of the agreement, if any, between Betty Domingo and
    Brenda Mitchell.
    You are instructed that consideration is essential to a contract and the
    Court has found that sufficient consideration to create a binding contract is
    present by the exchange of promises wherein Brenda Mitchell agreed to
    advance Betty Domingo's share of the lottery tickets and Betty Domingo
    agreed to reimburse Brenda Mitchell, if you find that conversation to have
    occurred.
    During the charge conference, Domingo's request for inclusion of those paragraphs was
    refused.
    We review an alleged error in the jury charge for abuse of discretion. Louisiana-
    Pacific Corp. v. Knighten, 
    976 S.W.2d 674
    , 676 (Tex. 1998). "The court shall submit
    6
    such instructions and definitions as shall be proper to enable the jury to render a
    verdict." See Tex. R. Civ. P. 277. See also Transcontinental Ins. Co. v. Crump, 
    330 S.W.3d 211
    , 221 (Tex. 2010). An instruction is proper if it (1) assists the jury, (2)
    accurately states the law, and (3) finds support in the pleadings and evidence. 
    Crump, 330 S.W.3d at 221
    . Failure to submit a question shall not be deemed a ground for
    reversal of the judgment, unless its submission, in substantially correct wording has
    been requested in writing and tendered by the party complaining of the judgment . . . .
    Tex. R. Civ. P. 278. "A judgment will not be reversed for charge error unless the error
    was harmful because it probably caused the rendition of an improper verdict . . . ."
    
    Crump, 330 S.W.3d at 225
    . "Charge error is generally considered harmful if it relates to
    a contested, critical issue." 
    Id. We examine
    the entire record to determine whether the
    charge probably caused an improper judgment. 
    Id. In Domingo
    I, in the context of reversing a summary judgment in favor of Mitchell,
    this Court provided that because numbers were subject to change after the March 30th
    meeting of the LGroup, they could not have been regarded as an essential element of
    the contract, as a matter of 
    law.8 57 S.W.3d at 41
    . We found a fact issue existed as to
    whether Mitchell and Domingo had entered into a binding contract sufficient to defeat
    summary judgment.9 
    Id. 8 It
    was undisputed that Domingo did not provide unique numbers for the April drawings. Mitchell's
    defensive theory was that Domingo was not entitled to judgment, as a matter of law, because numbers
    were an essential element of any contract between Domingo and Mitchell or the LGroup.
    9
    We did not decide, as a matter of law, that numbers were not an essential element of the disputed
    contract. We merely decided that Mitchell did not establish, as a matter of law, that they were. Whether
    they were or were not was a fact issue to be decided.
    7
    At trial, Appellees' defensive theory was that Domingo was never invited to
    participate in the April drawings.    Mitchell testified she never invited Domingo to
    participate in April because it was not her group and she did not have authority to invite
    anyone. Skidmore explained that her March 9th e-mail in which she stated, A[i]f there is
    someone else you want to invite (& you feel pretty sure they won=t drop out) let me
    know,@ meant the group would talk about others to determine whether they should be
    invited.    Skidmore unequivocally testified that even if another member had invited
    Domingo to participate in the April 2006 drawings and Domingo had paid her money
    and submitted numbers, she would still have refused to allow Domingo to participate
    because she had not personally invited her.
    By her own testimony, Domingo admitted she had no expectation of being
    involved in the April 2006 drawings. She testified as follows:
    Q.     Well, did you have any expectation after [Mitchell] told you she
    didn't put you in the lottery, did you have any expectation of being in the
    group after that for the April drawing?
    A.      No.
    Q.     Okay. So when they announced the April results, did you expect to
    be involved?
    A.      No.
    ***
    Q.      Did you get angry at [Mitchell], and in between the time that she
    didn't pay your money and the time that you finally got in the May lottery,
    did you complain at all?
    A.      No.
    Q.      Why didn't you?
    
    8 A. I
    just didn't have a reason to complain, because I had gotten over it.
    There was no reason for me to keep -- we were friends. I wasn't going to
    keep harping on it because she didn't pay my money . . . .
    Because the question of whether or not numbers were an essential element of
    the disputed contract was a disputed fact issue, Appellant's requested instructions
    would have constituted an impermissible comment on the weight of the evidence and
    the trial court would have erred in giving those instructions.            Furthermore, even
    assuming arguendo that the trial court erred in refusing Domingo's requested
    instructions, based on the evidence presented, any alleged error did not result in the
    rendition of an improper judgment. Issue one is overruled.
    Standard of Review for Directed Verdict in Favor of Plaintiff
    Essentially, a challenge to the denial of a directed verdict is a challenge to the
    legal sufficiency of the evidence. See Haynes & Boone, L.L.P. v. Chason, 
    81 S.W.3d 307
    , 309 (Tex.App.--Tyler 2001, pet. denied). A directed verdict in favor of a plaintiff on
    their cause of action is proper under Rule 26810 only when the evidence conclusively
    establishes a party's right to judgment as a matter of law. See Kline v. O'Quinn, 
    874 S.W.2d 776
    , 785 (Tex.App.--Houston [14th Dist.] 1994, writ denied). It is a rare case
    where a trial court errs in failing to grant a directed verdict in favor of a plaintiff because
    if there is any evidence of probative value raising an issue of fact on any material
    question presented, a directed verdict is improper. Qantel Business Sys. v. Custom
    Controls, 
    761 S.W.2d 302
    , 304 (Tex. 1988).
    10
    Tex. R. Civ. P. 268.
    9
    Issue Two. The trial court erred when it failed to grant a directed verdict and
    judgment on the evidence and on the issue of the existence of a partnership
    between the individual Appellees because such was established as a matter of
    law.
    Domingo argues that notwithstanding Mitchell's denial that she entered into an
    oral contract with Domingo, Mitchell had the authority to do so under a general
    partnership.      We disagree.       The Texas Business Organizations Code governs
    partnerships formed on or after January 1, 1996. See Tex. Bus. Orgs. Code Ann. §
    402.001 (West Pamph. 2010). See Ingram v. Deere, 
    288 S.W.3d 886
    , 894 n.4 (Tex.
    2009).     Hence, we apply chapter 152 of the Code.             The rules for determining the
    existence of a partnership include:
    (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
    (B) liability for claims by third parties against the business; and
    (5) agreement to contribute or contributing money or property to the
    business.
    Tex. Bus. Orgs. Code Ann. § 152.052 (West Supp. 2010).
    The only members of LGroup to testify at trial were Skidmore and Mitchell.
    When asked whether LGroup was a general partnership, Skidmore testified over
    objection that it was a trust. After the group won the lottery in April 2006, an attorney
    set up LGroup Managed Trust. Skidmore testified that her intent for the March 30th
    10
    meeting was to gather with friends and co-workers of her choosing for the purpose of
    socializing, pooling their money to play the lottery, sharing in winnings and establishing
    LGroup. According to her, there was no official LGroup prior to that meeting. Mitchell
    did not offer any testimony regarding LGroup as a partnership.                 Additionally, no
    evidence was presented that all Appellees expressed an intent to be partners,
    participate in control of LGroup or be liable for claims by third parties.
    Although the common law required proof of all five factors enumerated above to
    establish the existence of a partnership, Coastal Plains Dev. Corp. v. Micrea, Inc., 
    572 S.W.2d 285
    , 287 (Tex. 1978); the statutory scheme contemplates a less formalistic
    approach to recognizing formation of a partnership. 
    Ingram, 288 S.W.3d at 895
    . In
    Ingram, the Court was presented with a case of first impression on how many factors
    were required to form a partnership.11 In applying a totality of the circumstances test,
    the Court concluded that conclusive evidence of all five factors established a
    partnership as a matter of law. 
    Id. at 903-04.
    In the underlying case, there was not conclusive evidence establishing any of
    those factors. Consequently, a partnership was not established as a matter of law and
    the trial court did not err in refusing to grant a directed verdict on the issue of
    partnership. Issue two is overruled.
    11
    The Ingram Court was reviewing the existence of a partnership under the Texas Revised Partnershp
    Act (TRPA), the predecessor to the Texas Business Organizations Code. 
    See 288 S.W.3d at 894
    n.4.
    11
    Issue Three. The trial court erred when it failed to grant a directed verdict and
    judgment on the evidence on the issue of damages since such was established
    by the trial evidence as a matter of law.
    Domingo urges that she was entitled to one-seventh, $2,989,330, of the lottery
    winnings because it would have placed her in the economic position she would have
    occupied if Mitchell had not breached their oral contract. We disagree. The universal
    rule for measuring damages for breach of a contract is just compensation for the loss or
    damage actually sustained. Qaddura v. Indo-European Foods, Inc., 
    141 S.W.3d 882
    ,
    888 (Tex.App.--Dallas 2004, pet. denied) (citing Stewart v. Basey, 
    150 Tex. 666
    , 
    245 S.W.2d 484
    , 486 (1952)). Damages for breach of contract protect three interests: a
    restitution interest, a reliance interest, and an expectation interest.   
    Qaddura, 141 S.W.3d at 888
    . The most common interest protected in a breach of contract case is the
    expectation or benefit of the bargain interest. 
    Id. In the
    underlying case, it is undisputed among the parties that one-seventh of the
    total lottery winnings would have been a proper measure of damages.            However,
    recovery of those damages was contingent upon the jury finding the existence of a valid
    contract. As discussed earlier, the evidence did not conclusively establish a contract
    between Domingo and Mitchell. Hence, the trial court did not err in refusing to grant a
    directed verdict on the issue of damages. Issue three is overruled.
    Issue Four. The trial court erred when it failed to grant a directed verdict and
    judgment on the evidence on the issue of attorney's fees since such was
    established by the trial evidence as a matter of law.
    A party is entitled to recover reasonable attorney's fees in a breach of contract
    case if the claim is for an oral or written contract. Tex. Civ. Prac. & Rem. Code Ann. §
    12
    38.001(8) (West 2008). To recover under the statute, a litigant must (1) prevail on the
    breach of contract claim and (2) recover damages.                    MBM Financial v. Woodlands
    Operating Co., 
    292 S.W.3d 660
    , 666 (Tex. 2009).
    Relying on Brown v. Bank of Galveston Nat. Ass'n., 
    963 S.W.2d 511
    (Tex. 1998),
    and Board of County Com'rs v. Amarillo Hosp., 
    835 S.W.2d 115
    (Tex.App.--Amarillo
    1992, no writ), Domingo maintains she should recover her attorney's fees because clear
    and uncontradicted testimony was presented and the trier of fact was duty bound to
    award attorney's fees as a matter of law. Again, we disagree.
    Extensive testimony and evidence was presented by one of Domingo's attorneys
    in support of an award of attorney's fees for her legal team. However, any award of
    attorney's fees was contingent on proof of a valid contract and recovery of damages.
    Conflicting evidence was presented throughout trial on whether Domingo and Mitchell
    entered into an oral contract. The jury found against Domingo on that issue. Without
    prevailing on the contract claim, Domingo was not entitled to recover attorney's fees
    under section 38.001 of the Code regardless of whether uncontradicted evidence of
    those fees was presented.12 See Green Intern. v. Solis, 951 S.W.384, 390 (Tex. 1997)
    (attorney's fees not recoverable without first recovering on breach of contract claim).
    Issue four is overruled.
    12
    An important distinction in Amarillo Hospital 
    District, 835 S.W.2d at 126-128
    , was that attorney's fees
    were awarded on appeal to the prevailing party at trial. Domingo's failure to prevail on her contract claim
    prevents her from recovering attorney's fees under section 38.001(8).
    13
    Reply Issue. Law of the Case Doctrine
    By her reply brief, without citation to a single authority, Domingo reurges her
    argument that the trial court reversibly erred in refusing to instruct the jury that numbers
    were not an essential element of the contract. She maintains that our statement in
    Domingo I that "any numbers submitted at the meeting on March 30th were an
    uncertainty as they were subject to being changed . . . could not have been regarded by
    the parties as an essential element of the contract," is law of the case. We disagree.
    "The 'law of the case' doctrine is defined as that principle under which questions
    of law decided on appeal to a court of last resort will govern the case throughout its
    subsequent stages."      Hudson v. Wakefield, 
    711 S.W.2d 628
    , 630 (Tex. 1986).
    (Emphasis added). The doctrine applies to questions of law and does not apply to
    questions of fact. 
    Id. Under the
    law of the case doctrine, an appellate court is ordinarily
    bound by its initial decision if there is a subsequent appeal in the same case. Briscoe v.
    Goodmark Corp. 
    102 S.W.3d 714
    , 716 (Tex. 2003). The law of the case doctrine is
    intended to achieve uniformity of decisions as well as judicial efficiency. The doctrine is
    based on public policy and is aimed at putting an end to litigation by barring a party from
    challenging matters of law fully litigated and determined in the previous appeal.
    In Domingo I, this Court did not decide as a matter of law that numbers were not
    essential to formation of the alleged contract. We simply held that in the context of a
    summary judgment, there was more than a scintilla of evidence "to raise a genuine
    issue of material fact on whether the parties entered into a valid oral contract . . . ." In
    other words, we did not decide that numbers were not an essential element of the
    14
    contract as a matter of law; we merely decided that Mitchell, the summary judgment
    movant, did not establish, as a matter of law, that they were.          Consequently, the
    doctrine of "law of the case" is inapposite.
    Whether or not providing a set of numbers was an essential element of
    Domingo's agreement with either Mitchell or the LGroup was a fact issue to be decided
    by the jury. Therefore, not only did the trial court not err by denying the requested
    instruction, it would have erred if it had. Domingo's reply issue is overruled.
    Conclusion
    Having overruled Betty Domingo's four issues and sole reply issue, the trial
    court's judgment is affirmed.
    Patrick A. Pirtle
    Justice
    15