Opinion
No. 14-02-00461-CV.
Filed January 29, 2004.
On Appeal from the County Civil Court at Law No. 2, Harris County, Texas Trial Court Cause No. 753,025.
Motion for Rehearing Overruled, Affirmed.
Panel consists of Justices ANDERSON, SEYMORE, and GUZMAN.
MEMORANDUM OPINION ON REHEARING
Appellant's Motion For Rehearing is overruled. We withdraw our opinion of May 1, 2003, and issue this opinion on rehearing. We affirm.
BACKGROUND
This appeal involves a dispute over percentage of ownership in a family business. Following a jury trial, Phuong Truong-Tu (Phuong), appellant, and Kim Loan Nguyen (Nguyen) and Lien Trinh (Trinh), the appellees, were all found to be owners of the Alpha Bakery Deli. The business was put into receivership after disagreements arose around the time that George Nguyen (not a party to this suit) filed for divorce from his wife, Nguyen, one of the appellees. The appellees are sisters; appellant is George's cousin.
Nguyen and Trinh sued Phuong for a declaratory judgment, breach of partnership agreement, breach of a fiduciary duty, and dissolution of the partnership. Phuong counterclaimed for fraud, breach of contract, and conspiracy in connection with the handling of partnership funds.
After a two day trial, the jury answered four questions favorable to appellees' position. It allocated ownership percentage as follows: Nguyen, 50%; Trinh, 20%; and Phuong, 30%. In addition, the jury found that Phuong had breached her fiduciary duty to Nguyen and awarded $10,000 in damages. The jury also found that Nguyen did not breach a fiduciary duty to Phuong. In its final judgment, the trial court awarded $75,000 attorney's fees to Nguyen and Trinh. The court also awarded Nguyen and Trinh appellate attorney's fees in the amount of $15,000 contingent on their success in the court of appeals and the same amount if they prevail in a petition for review to the Texas Supreme Court.
APPELLANT'S ISSUES
Phuong raises four issues in her brief: (1) the evidence is legally and factually insufficient to show Trinh is a partner in the Bakery; (2) the evidence conclusively establishes that Nguyen and Phuong were equal partners; (3) the evidence is legally and factually insufficient to show Phuong caused Nguyen damages for breach of fiduciary duty; and (4) the evidence is legally and factually insufficient to support the award of attorney's fees to Nguyen and Trinh.
After briefs were submitted, the parties agreed to limit this appeal to ownership allocation of the business. Accordingly, they agreed (contingent on this court's disposition of the issues) that the least percentage ownership for Phuong is thirty percent, and the highest she will receive is fifty percent. The least allocation to Nguyen and Trinh is fifty percent, and the most they will receive is seventy percent. Therefore, we have limited our review to address legal and factual sufficiency of the evidence supporting the jury's allocation of ownership in answer to jury question number one.
STANDARD OF REVIEW
The appellant challenges the legal and factual sufficiency of the evidence to support the jury's findings. In conducting a legal-sufficiency analysis, we review the evidence in a light that tends to support the disputed findings and disregard all evidence and inferences to the contrary. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). If the evidence at least furnishes a basis for reasonable minds to differ about the existence of the disputed fact, then more than a scintilla of evidence exists, and the evidence is legally sufficient. Id. at 782-83.
When reviewing a challenge to factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615-16 (Tex. App.-Houston [14th Dist.] 2001, pet. denied). The amount of evidence necessary to affirm a judgment is far less than the amount necessary to reverse a judgment. Id. at 616. After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). Because we are not the fact finder, we may not substitute our own judgment for that of the trier of fact, even if we would reach a different answer on the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).
PRESERVATION OF ERROR
Appellees argue that Phuong waived any appellate complaint about the existence of the partnership and the jury's percentage findings of ownership. They assert that Phuong's failure to object to the first jury question, and failure to submit a properly worded jury instruction resulted in waiver of her legal and factual sufficiency issues. This argument is without merit. Phuong filed a motion to disregard the jury findings, a motion for judgment non obstante verdicto, and a motion to modify judgment. A no evidence issue is preserved through one of the following: (1) a motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict; (3) an objection to the submission of the issue to the jury; (4) a motion to disregard the jury's answer to a vital fact issue; or (5) a motion for new trial. T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992). A motion for new trial is a prerequisite to complain on appeal that the evidence is factually insufficient to support a jury finding. TEX. R. CIV. P. 324(b)(1); Fredonia State Bank v. General Am. Life Ins. Co., 881 S.W.2d 279, 281 (Tex. 1994); Cecil v. Smith, 804 S.W.2d 509, 512 (Tex. 1991).
After reviewing the record, we find that Phuong preserved error in her motion for new trial by raising factual insufficiency of the evidence to support jury questions one and two. Therefore, we will consider the issues challenging the legal and the factual sufficiency of the evidence to support the jury's percentage allocation of ownership in the business.
ALLOCATION OF OWNERSHIP PERCENTAGES
In Phuong's first two issues, she addresses the legal and factual sufficiency of the evidence supporting the jury's determination of business ownership. In the first issue, Phuong argues that the evidence is legally and factually insufficient to show Trinh is a partner in the bakery. In the second issue, Phuong contends the evidence showed that Nguyen and she were equal partners as a matter of law.
At trial, all parties agreed that the bakery was a business owned by a partnership. However, there is no written partnership agreement. The parties disagreed about important details, including the identity of partners, and their percentage ownership. Nguyen testified that she was a partner with Phuong and Trinh. In contrast, Phuong testified that she was an equal partner with Nguyen. She proffered federal partnership tax documents indicating that she and Nguyen were the only partners in the business. During cross-examination, Phuong admitted to previous testimony that she was in a partnership with Kim Loan Nguyen and George Nguyen. She denied knowing that Trinh was a partner, but her testimony was unclear when counsel inquired about the source for one-third of initially invested capital. Trinh testified that she contributed one-third of the start-up capital and was a silent partner in the business with Nguyen and Phuong, thus corroborating Nguyen's testimony. Nguyen's estranged husband, George, did not give trial testimony.
At trial, counsel implied that George previously testified he was not a partner in the bakery. A transcript of George's testimony in his divorce case was attached to the Appellees' brief. It was not included in the record before the trial court; therefore, we cannot consider counsel's statement or the transcript. See, e.g., Nguyen v. Intertex Inc., 93 S.W.3d 288, 292-93 (Tex. App.-Houston [14th Dist.] 2002, no pet.) (stating that the attachment of documents as exhibits or appendices to briefs is not formal inclusion in the record on appeal; therefore, the documents cannot be considered). They are not evidence in the record. Id.
In light of the conflicting testimony about the identity of the business owners and what percentage they owned, we must defer to the jury's decision. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988). It is the jury's job to resolve evidentiary conflicts. E.g., White v. Southwestern Bell Telephone Co., Inc., 651 S.W.2d 260, 262 (Tex. 1983); Wal-Mart Stores, Inc. v. Garcia, 30 S.W.3d 19, 21-23 (Tex. App.-San Antonio 2000, no pet.); Greenway Bank Trust v. Smith, 679 S.W.2d 592, 597-98 (Tex. App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.). The jury is able to observe the demeanor of the witnesses and judge their credibility. See Maritime Overseas Corp., 971 S.W.2d at 407 (citing Pool, 715 S.W.2d at 634 (holding appellate court cannot pass on the credibility of witnesses, or substitute its findings for those of the jury); Burchfield v. Tanner, 142 Tex. 404, 409, 178 S.W.2d 681, 683 (1944) (same). In this case, by virtue of its answers to jury question number one, it is apparent that the jury believed the testimony of Nguyen and Trinh. It found there were three owners of the bakery and their ownership interests were as follows: Nguyen 50%, Phuong 30%, and Trinh 20%. Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. See El Paso Healthcare Sys., Ltd. v. Piping Rock Corp., 939 S.W.2d 695, 698 (Tex. App.-El Paso 1997, writ denied) (citing Clark v. Nat'l Life Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820, 821 (1947); Oechsner v. Ameritrust Texas, N.A., 840 S.W.2d 131, 136 (Tex. App.-El Paso 1992, writ denied)). We hold that the evidence was legally and factually sufficient to support the jury's findings. Accordingly, issues one and two are overruled.
In light of the parties' stipulation, we will not address the third and fourth issues. Because we overrule the two stipulated issues, the judgment is affirmed.