Affirmed and Memorandum Opinion filed November 17, 2015.

In The 

Fourteenth Court of Appeals 

NO. 14-14-00202-CV

GEORGE FLEMING AND FLEMING & ASSOCIATES, LLP, Appellants 

and Cross-Appellees 

V.

THE KIRKLIN LAW FIRM, P.C., CHARLES KIRKLIN, AND STEPHEN 

KIRKLIN, Appellees and Cross-Appellants 

On Appeal from the 164th District Court 

Harris County, Texas 

Trial Court Cause No. 2008-02102 

M E M O R A N D U M O P I N I O N 

This case concerns agreements to refer Fen-Phen cases to Fleming & 

Associates, L.L.P. (the Fleming Firm) in exchange for a fee and the Fleming 

Firm’s payment of certain expenses. Appellees/cross-appellants The Kirklin Law 

Firm, P.C., Charles Kirklin, and Stephen Kirklin (collectively the Kirklins) sued 

appellants/cross-appellees the Fleming Firm and George Fleming, alleging that the 
2

Fleming parties breached the agreements and committed fraud by deducting a 

share of other expenses from the Kirklins’ referral fees. After granting a directed 

verdict against the Kirklins’ fraud claim, the trial court submitted the Kirklins’ 

claims for breach of contract against the Fleming Firm to the jury, which returned a 

verdict in favor of the Kirklins. The trial court signed a judgment on the verdict, 

and both sides appealed. 

In its appeal, the Fleming Firm initially asserts that the trial court erred when 

it determined that the referral agreements underlying the Kirklins’ lawsuit were 

ambiguous. The Fleming Firm goes on to argue that because the referral 

agreements are not ambiguous, parol evidence should not have been admitted , and 

once that evidence is disregarded, the evidence is legally insufficient to support the 

final judgment. Because the referral agreements are susceptible of more than one 

reasonable interpretation, we conclude that the trial court did not err when it held 

them ambiguous. Further, because the referral agreements are ambiguous, the trial 

court did not abuse its discretion when it admitted parol evidence to prove the 

parties’ intent. Finally, because we have determined that parol evidence was 

admissible, we need not reach the Fleming Firm’s sufficiency challenge. 

In their cross-appeal, the Kirklins argue that the trial court erred when it 

refused to hold Fleming individually liable for the Fleming Firm’s contractual 

obligations. We disagree because the Kirklins failed to establish, as a matter of 

law, that the Fleming Firm did not meet the statutory requirements to qualify as a 

limited liability partnership. The Kirklins also assert that the trial court erred in 

refusing to include an award of attorneys’ fees in the final judgment. Under this 

Court’s precedent, however, section 38.001 of the Civil Practices and Remedies 

Code does not authorize an award of attorneys’ fees against a limited liability 

partnership. We therefore affirm the trial court’s judgment. 
3

BACKGROUND

In the mid-1990s, American Home Products (now known as Wyeth, and 

referred to by that name) began selling a weight-loss drug known as Fen-Phen. 

The Food and Drug Administration eventually ordered a mandatory recall of FenPhen as a result of the drug being linked to serious and often fatal medical sideeffects. Thousands of Fen-Phen users filed suit against Wyeth in the first phase of 

Fen-Phen litigation. The Fleming Firm settled several hundred cases on behalf of 

plaintiffs it represented during that first phase. 

 Soon after the first phase of Fen-Phen litigation ended, the Fleming Firm 

decided to seek out more Fen-Phen clients. During the second phase of Fen-Phen 

litigation, the Fleming Firm sought additional Fen-Phen clients through referrals 

from other attorneys. George Fleming, the managing partner of the Fleming Firm, 

authorized Jim Doyle, an attorney employed by the Fleming Firm, to negotiate 

referral agreements with attorneys interested in referring their Fen-Phen clients. 

The Kirklins were among the attorneys interested in referring Fen-Phen 

clients to the Fleming Firm. At first, they referred a small number of clients to the 

Fleming Firm in cooperation with another attorney, Mike Pohl, who had reached a 

referral agreement with the Fleming Firm in May 2001. Prior to these referrals,

Stephen and Charles Kirklin went to the Fleming Firm’s office, where they met 

with Doyle and discussed how the referrals would work.

The Kirklins later decided to stop working with Pohl and instead refer 

additional Fen-Phen clients to the Fleming Firm directly. The Kirklins prepared a

proposed agreement to document the referral deal and went a second time to the 

Fleming Firm’s office. The Kirklins’ proposed agreement resembled the Pohl 

agreement signed in May 2001. During the October 2001 meeting, the Kirklins 

presented Doyle with the proposed referral agreement. They also discussed the 
4

terms again with Doyle. According to Stephen Kirklin, they “wanted to confirm –

make sure everybody was straight on exactly what was going to happen, how this 

was going to work.” After discussing every clause with Doyle, both sides “were in 

full agreement.” Both Stephen Kirklin and Doyle signed the proposed agreement 

during the second meeting.1

The October referral agreement provides, in its entirety: 

The purpose of this letter is to confirm our new agreement regarding 

the joint prosecution of Fen-Phen claims. As agreed, we will refer the 

Fen-Phen clients that we have to the Fleming law firm in exchange for 

a forty percent (40%) referral fee and the Fleming firm’s payment of 

the cost of echocardiograms. The Fleming firm will have the right to 

accept or reject any tendered cases and will have the right to select the 

medical personnel to perform echocardiograms. 

After signing the October referral agreement, the Kirklins referred about 500 

Fen-Phen clients to the Fleming Firm. The Fleming Firm then prosecuted its FenPhen cases for five years until Wyeth agreed to pay an aggregate of $339 million to 

settle all of the Fleming Firm’s approximately 8,000 cases. Wyeth began funding 

the settlements and the Fleming Firm began distributing funds to the clients. The 

Fleming Firm also began distributing attorneys’ fees to the referring attorneys, 

including the Kirklins. The Fleming Firm paid the Kirklins over $2 million as their 

net share of attorneys’ fees.

Soon thereafter the Kirklins contested the amount of attorneys’ fees they had 

received under the May and October referral agreements. The Kirklins alleged that 

the Fleming Firm calculated the payments incorrectly and the payments were 

significantly less than required by the terms of the referral agreements. The 

 

1

The two referral agreements are nearly identical. On appeal, the parties focus on the

language of the October referral agreement but include both the October and May agreements 

within their arguments. We follow the parties’ lead and address the agreements together while 

focusing on the specific language found in the October referral agreement.
5

dispute arose out of the Fleming Firm’s handling of litigation expenses it incurred 

prosecuting the second-phase Fen-Phen cases. The Fleming Firm based its 

calculation of attorneys’ fees owed to the Kirklins on its belief that the referral 

agreements created a joint venture and the Kirklins were therefore responsible for a 

portion of all litigation expenses incurred during the second phase of Fen-Phen 

litigation. The Kirklins, on the other hand, argued that the Fleming Firm was 

responsible for paying not only the echocardiogram expenses but also for all 

litigation expenses incurred after the clients had been referred to, and accepted by,

the Fleming Firm.

When efforts to resolve the dispute failed, the Kirklins filed suit, alleging 

causes of action against the Fleming Firm and Fleming for breach of contract and 

fraud. The Kirklins also sought to hold Fleming individually liable for the Fleming 

Firm’s contractual debt. During the ensuing litigation, the trial court denied the 

parties’ cross-motions for summary judgment on breach of contract, ruling that the 

October referral agreement was ambiguous. The trial judge who made that ruling 

later recused himself, and the case was transferred to the 164th Judicial District 

Court. The Kirklins filed another motion for summary judgment on breach of 

contract, to which the Fleming parties responded by taking the position that the 

referral agreements were ambiguous. The new trial judge declined to revisit the 

ruling that the referral agreements were ambiguous. As a result, parol evidence 

concerning the parties’ intentions was admitted during the trial.

Three witnesses testified during the trial: (1) Stephen Kirklin, (2) Jim Doyle,

and (3) George Fleming. Stephen Kirklin testified that during their initial meeting

at the Fleming Firm, Doyle told them: “you guys go and find the clients. You’re 

going to have to expend everything necessary to find the clients. We’re not going 

to pay your expenses . . . to find these clients.” Doyle explained that the Kirklins 
6

should also get proof that a client took Fen-Phen and get an echocardiogram to see 

whether the client had been injured, but that the Fleming Firm would “pay for that” 

echocardiogram. According to Kirklin, Doyle told them that once the Kirklins 

brought the Fleming Firm an injured client’s case, the Fleming Firm would “do 

everything necessary to handle the case, take care of any litigation, and we will pay 

any expenses that we incur from that point forward, until the conclusion of the 

case.”

Doyle testified that he signed the October referral agreement on behalf of the 

Fleming Firm while still employed at the firm. Doyle agreed almost entirely with

Kirklin’s account of the conversations leading up to the signing of the October 

referral agreement. Doyle testified that he believed the Fleming Firm had assumed 

the contractual responsibility to pay all costs and expenses starting at the point 

when the Kirklins referred a Fen-Phen client to the Fleming Firm. Doyle admitted 

that the October referral agreement did not speak expressly about the Fleming 

Firm’s payment of any expenses other than echocardiograms, but testified that he 

and the Kirklins had discussed that issue before he signed the agreement. 

Doyle also testified about a Fleming Firm meeting that occurred around the 

time Wyeth agreed to settle the firm’s second-phase Fen-Phen cases. According to 

the minutes of that meeting, Fleming “said that he would discuss expense splits 

with the referring attorneys and allow them to experience the price of litigating 

with 60 million in expenses.” Doyle admitted that Fleming later terminated him, 

and Doyle testified that Fleming did so because Doyle would not go along with 

Fleming’s decision to charge litigation expenses to the referring firms. 

Fleming was the final witness. He testified that Doyle was authorized to 

make the agreement with the Kirklins. Fleming admitted that he was not present 

during the meetings between Doyle and the Kirklins and therefore could not testify 
7

about the discussions that occurred during those meetings. According to Fleming, 

he received the October referral agreement after it was signed and he read it at that 

point. Fleming testified that the referral agreement speaks for itself. When asked 

if the October referral agreement obligated the Fleming Firm to pay the Kirklins a 

40-percent referral fee, Fleming responded that was what the agreement said.

At the conclusion of the Kirklins’ case, the trial court granted the Fleming 

Firm’s motion for directed verdict on the Kirklins’ fraud claim. The Fleming Firm 

then rested and the case was submitted to the jury. The jury found that the Fleming 

Firm had failed to comply with the October referral agreement and determined that 

the Kirklins’ damages were $633,000. The jury also found that the Fleming Firm 

failed to comply with the May referral agreement, resulting in damages of $27,000. 

The jury was asked whether the Fleming Firm and the Kirklins formed a joint 

venture, and it failed to find a joint venture. Finally, the jury awarded the Kirklins 

attorneys’ fees of $150,000 for trial and $75,000 in the event of an appeal. 

The court signed a judgment in favor of the Kirklins based on the jury’s 

verdict. The judgment did not hold Fleming individually liable for the contract 

debt. The trial court later signed a modified final judgment deleting the award of 

attorneys’ fees because section 38.001 of the Civil Practice and Remedies Code 

makes fees available only when the defendant is an “individual or corporation,” not 

when it is a limited liability partnership. See Tex. Civ. Prac. & Rem. Code Ann. 

§ 38.001.

ANALYSIS

 Both sides have appealed the judgment. We address the Fleming Firm’s 

issues first and then turn to the issues raised by the Kirklins in their cross-appeal.

The Fleming Firm’s Issues 
8

I. The trial court did not err when it determined that the referral 

agreements were ambiguous and admitted parol evidence. 

 The Fleming Firm raises two issues on appeal, which we address together. It 

argues that the trial court erred when it determined that the referral agreements 

were ambiguous and then admitted parol evidence of intent during the trial based 

on that decision. The Fleming Firm goes on to assert that when the improperly 

admitted parol evidence is disregarded, the evidence is legally insufficient to 

support the full amount awarded in the modified final judgment.2 

A. Standard of review and contract interpretation

Whether a contract is ambiguous is a question of law for the court to decide 

by examining the agreement as a whole in light of the circumstances present when 

the contract was entered. Lane-Valente Indus. (Nat’l), Inc. v. J.P. Morgan Chase 

Bank, N.A., 468 S.W.3d 200, 205 (Tex. App.—Houston [14th Dist.] 2015, no pet.) 

(citing Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983)). A court may conclude 

that a contract is ambiguous even though the parties did not plead ambiguity or 

argue on appeal that it is ambiguous. See id. (citing Sage St. Assocs. v. Northdale 

Constr. Co., 863 S.W.2d 438, 445 (Tex. 1993); see also Phil Watkins, P.C. v. The 

Krist Law Firm, No. 14-02-00291-CV, 2003 WL 21786173, at *3 (Tex. App.—

Houston [14th Dist.] Aug. 5, 2003, pet. dism’d) (mem. op.) (stating that agreement 

between parties that contract at issue was not ambiguous does not prevent appellate 

court from concluding that it is ambiguous). 

A contract is unambiguous if it can be given one certain or definite legal 

interpretation. Lane-Valente Indus. (Nat’l), Inc., 468 S.W.3d at 205 (citing Coker, 

650 S.W.2d at 393). A contract is ambiguous if it is susceptible of more than one 

 

2

The Fleming Firm concedes on appeal that it owes the Kirklins $100,000 for 

unreimbursed echocardiogram charges. 
9

reasonable interpretation. Id. (citing National Union Fire Ins. Co. of Pittsburgh, 

PA v. CBI, 907 S.W.2d 517, 520 (Tex. 1995)). The fact that the parties disagree 

about a contract’s meaning does not necessarily show that it is ambiguous. Id.

(citing Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex. 

2000)). In addition, parol evidence is not admissible for the purpose of creating an 

ambiguity. Material Partnerships, Inc. v. Ventura, 102 S.W.3d 252, 258 (Tex. 

App.—Houston [14th Dist.] 2003, pet. denied) (citing Columbia Gas Transmission 

Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 592 n. 2 (Tex. 1996)). A court need 

not, however, embrace strained rules of construction that would avoid ambiguity at 

all costs. Lenape Res. Corp. v. Tenn. Gas Pipeline Co., 925 S.W.2d 565, 574 (Tex. 

1996). Once a court determines that a contract is ambiguous, the parties’ 

interpretations and extraneous evidence are admissible to enable the factfinder to 

determine the true meaning of the contract. Id.

B. The referral agreements are ambiguous and parol evidence was 

admissible to prove the parties’ intent. 

The Fleming Firm’s argument that the referral agreements are unambiguous 

begins with the first sentence of each: “[t]he purpose of this letter is to confirm our 

new agreement regarding the joint prosecution of Fen-Phen claims.” The Fleming 

Firm then points out: (1) the phrase obligating it to pay the cost of the referred 

clients’ echocardiograms; (2) the fact that no other litigation expenses are 

specifically apportioned by the referral agreements to the Fleming Firm; and (3) 

the lack of any language expressly excusing the Kirklins from paying litigation 

expenses other than the cost of the echocardiograms. In the Fleming Firm’s view, 

the referral agreements created a joint venture wherein the only expense falling

exclusively on the Fleming Firm was the cost of the echocardiograms. All other 

litigation expenses incurred in the case were a joint-venture burden to be shared 

proportionately by all participating law firms, including the Kirklins.
10

The Kirklins also contend that the referral agreements are not ambiguous. 

Their interpretation varies dramatically from that of the Fleming Firm, however. 

The Kirklins assert that the referral agreements are unambiguous because they: (1) 

specifically obligated the Fleming Firm to pay a forty percent referral fee with no 

mention of any deductions from that amount; and (2) did not specifically obligate 

the Kirklins to pay or reimburse the Fleming Firm for anything. The Kirklins also 

contend that the first sentence of the referral agreements is a recital with no 

operative effect that should, in essence, be disregarded when construing the referral 

agreements. 

We turn to the Kirklins’ last contention first. A contract recital is a 

preliminary statement explaining the background of the transaction or the reasons 

for entering into the contract.3

 Recitals generally are not part of a contract unless 

the parties intend them to be, and they will not control a contract’s operative 

clauses unless those clauses are ambiguous. All Metals Fabricating, Inc. v. Ramer 

Concrete, Inc., 338 S.W.3d 557, 561 (Tex. App.—El Paso 2009, no pet.). Recitals 

may be considered, however, in determining the proper construction of a contract 

and the parties’ intent. Id. We need not decide whether the first sentence of each 

referral agreement is a recital because even if it is, we may consider that sentence 

in construing the referral agreements and should, if at all possible, reconcile it with 

the operative clauses and give it effect. Id. 

Examining the complete text of the referral agreements, we conclude that 

they are ambiguous because, when viewed from a utilitarian standpoint and 

bearing in mind the particular business activity sought to be served, their meaning 

 

3

Furmanite Worldwide, Inc. v. NextCorp, Ltd., 339 S.W.3d 326, 336 (Tex. App.—Dallas 

2011, no pet.); see also McMahan v. Greenwood, 108 S.W.3d 467, 484 (Tex. App.—Houston 

[14th Dist.] 2003, pet. denied) (stating that a recital is a formal statement or setting forth of some 

matter of fact that explains the reasons behind the contract or writing). 
11

is uncertain and each side’s proposed construction is reasonable. Although a 

reference to joint prosecution alone could imply sharing of expenses in some 

fashion, the Kirklins’ forty percent contingent fee mentions no deductions.4 In 

addition, joint prosecution is not an unambiguous indication that the parties agreed 

to share expenses because it leaves many questions necessary to calculate the 

Kirklins’ fee unanswered, including what percentage of expenses would be borne 

by each party, whether any shared expenses would be limited to a particular time 

frame (e.g., pre- or post-referral), how client-chargeable versus non-chargeable 

expenses would be treated, and how expenses that also benefitted clients not 

referred by the Kirklins would be apportioned. Finally, the agreement’s specific 

provision that the Fleming Firm will pay the echocardiogram costs (which were 

incurred by the Kirklins) leaves the agreement’s silence regarding other expenses 

ambiguous as to whether those expenses would be shared or borne by the firm 

incurring them. We therefore hold the trial court did not err when it concluded that 

the referral agreements are ambiguous. See generally Phil Watkins, P.C., 2003 

WL 21786173, at *5 (concluding agreement between two law firms dividing 

contingent fee was ambiguous); A.W. Wright & Assoc., P.C. v. Glover, Anderson, 

Chandler & Uzick, L.L.P., 993 S.W.2d 466, 470 (Tex. App.—Houston [14th Dist.] 

1999, pet. denied) (holding referral contracts between two law firms ambiguous

because meaning of phrase “day-to-day handling” was uncertain); Great Nat’l 

 

4 We note that the 2001 referral agreements’ reference to joint prosecution could have 

been intended to satisfy the disciplinary rule regarding fee division in effect at the time, which 

was silent regarding the division of expenses. See Tex. Disciplinary Rules Prof’l Conduct R. 

1.04(f), reprinted in 777-778 S.W.2d (Texas Cases) xxxi, xlv (adopted Oct. 17, 1989, effective 

Jan. 1, 1990, superseded 2005) (providing that one type of “agreement for division of a fee 

between lawyers who are not in the same firm” that may be made is an agreement in which “the 

division is . . . made, by written agreement with the client, with a lawyer who assumes joint 

responsibility for the representation . . . .” (emphasis added)). Whether client-chargeable 

expenses are deducted before or after a contingent fee is calculated must be stated in the 

agreement between the lawyer and the client. See id. R. 1.04(d). Those agreements are not in 

our record.
12

Corp. v. Campbell, 687 S.W.2d 450, 452 (Tex. App.—Dallas 1982, writ ref’d 

n.r.e.) (concluding joint venture agreement was ambiguous due to use of word 

“including”); Gibson v. Bentley, 605 S.W.2d 337, 338–39 (Tex. App.—Houston 

[14th Dist.] 1980, writ ref’d n.r.e.) (holding condition in contract triggering 

provision for sharing amounts to be recovered in lawsuit was susceptible of two 

irreconcilable interpretations and was ambiguous). 

Once a contract is determined to be ambiguous, parol evidence is admissible 

to establish the parties’ intent. Lenape Res. Corp., 925 S.W.2d at 574. Because 

the referral agreements are ambiguous, we hold that the trial court did not abuse its 

discretion when it admitted parol evidence during the ensuing trial. See id. We 

need not address the Fleming Firm’s legal sufficiency challenge because it is based 

entirely on the premise that the referral agreements are unambiguous and that parol 

evidence was thus not admissible during trial. We therefore overrule the Fleming 

Firm’s issues on appeal.

The Kirklins’ Issues on Appeal 

II. The trial court did not err when it refused to hold Fleming individually 

liable in the Modified Final Judgment.

In the second issue of their cross-appeal, the Kirklins argue that the trial 

court erred when it refused to hold Fleming individually liable for the Fleming 

Firm’s contractual obligations.5 According to the Kirklins, Fleming should be 

individually liable for the contract debt because the Fleming Firm failed to comply 

with the Texas Revised Partnership Act’s (TRPA) requirements for maintaining its 

status as a limited liability partnership. See Act of May 31, 1993, 73rd Leg., R.S., 

 

5

The Kirklins’ first issue challenged the trial court’s directed verdict on their fraud claim. 

During oral argument, the Kirklins waived consideration of this issue in the event we affirmed 

the judgment against the Fleming Firm on a breach-of-contract theory. Because we affirm the 

judgment on that theory, we do not address the Kirklins’ fraud issue. See Tex. R. App. P. 47.1.
13

ch. 917, § 1, sec. 3.08, 1993 Tex. Gen. Laws 3887, 3894 (expired Jan. 1, 2010). 

Fleming responds that: (1) TRPA does not apply; and (2) even if it does, the 

Fleming Firm met all statutory requirements to qualify as a limited liability 

partnership, thereby precluding his individual liability. 

 Assuming without deciding that TRPA applies to this dispute,6it requires 

partners seeking the protection afforded by a limited liability partnership to meet 

specified requirements, including establishing financial responsibility. See id. The 

statute provides alternative methods of establishing financial responsibility, 

including carrying at least $100,000 of liability insurance, or maintaining $100,000 

of funds specifically designated and segregated for the satisfaction of judgments 

against the partnership through a bank letter of credit. Id. Although the statute 

provides that the burden of proving compliance with the statute is on the person 

seeking the protection of limited liability, individual partner liability is not 

automatically imposed once a limited liability partnership is found liable for a 

contract debt. See id. (placing burden of proof on person seeking limitation of 

liability); see also Am. Star Energy & Minerals Corp. v. Stowers, 457 S.W.3d 427, 

429 (Tex. 2015) (stating that judgment against partnership is not by itself a 

judgment against partner); Kao Holdings, L.P. v. Young, 261 S.W.3d 60, 64 (Tex. 

2008) (stating that judgment against limited partnership is not automatically a 

 

6

TRPA expired January 1, 2010. See Ingram v. Deere, 288 S.W.3d 886, 894 n. 4 (Tex. 

2009) (noting statutes governing Texas partnerships). On January 1, 2006, the Texas Business

Organizations Code replaced TRPA. Id. The parties dispute which law controls this longrunning litigation. Compare Tex. Bus. Orgs. Code Ann. § 402.006 (West 2012) (“The prior law 

governs the acts, contracts, or transactions of the entity or its managerial officials, owners, or 

members that occur before the mandatory application date [of January 1, 2010].”) with Knight v. 

Int’l Harvester Credit Corp., 627 S.W.2d 382, 384 (Tex. 1982) (stating that if a statute is 

repealed or amended without a savings clause for pending suits, the repeal is given immediate 

effect).
14

judgment against the general partner).7 

 The trial court separated the question of Fleming’s individual liability from 

the initial question whether the Fleming Firm breached the referral agreements.8 

After the jury returned its verdict in favor of the Kirklins, the Kirklins filed a 

motion seeking a determination of whether the Fleming Firm had complied with 

the financial responsibility provisions of the TRPA. 

Fleming and the Fleming Firm filed a response in which they argued that 

Fleming was not individually liable because the Fleming Firm had always 

complied with the financial responsibility requirements set forth in the TRPA. In 

an affidavit attached to the response, Fleming testified that since its formation in 

1999, the Fleming Firm: (1) “had carried general liability insurance with policy 

limits of between $1,000,000 and $2,000,000;” and (2) “had access to a 

multimillion dollar line of credit. . . .” Fleming also included in the response a 

request for a jury trial to resolve any fact issues related to the Fleming Firm’s 

compliance with the financial responsibility requirements set forth in the TRPA. 

The Kirklins did not file any evidence disputing Fleming’s affidavit. The Kirklins 

also did not file a motion for summary judgment,9 nor was there a jury trial on the 

 

7 Article 6132b-3.08(d)(3) of TRPA provides:

If compliance with Subdivision (1) is disputed: 

(A) compliance must be determined separately from the trial or proceeding to 

determine the partnership debt or obligation in question, its amount, or 

partner liability for the debt or obligation; and

(B) the burden of proof of compliance is on the person claiming limitation of 

liability under Subsection (a)(2). 

Act of May 31, 1993, 73rd Leg., R.S., ch. 917, § 1, sec. 3.08(d)(3), 1993 Tex. Gen. Laws 3887, 

3896 (expired Jan. 1, 2010). 

8

The Kirklins do not complain about this ruling on appeal.

9

The Kirklins assert in their cross-appellant’s brief that their motion was actually a noevidence motion for summary judgment on their cause of action seeking a declaratory judgment
15

issue of Fleming’s individual liability. The trial court’s modified final judgment 

ultimately did not hold Fleming individually liable. 

We conclude that Fleming and the Fleming Firm presented evidence 

conclusively demonstrating compliance with TRPA’s financial responsibility 

provisions. Faced with Fleming’s evidence of compliance, the burden passed to 

the Kirklins to either (1) file a motion for summary judgment seeking to prove as a 

matter of law that the Fleming Firm failed to comply with the financial 

responsibility requirements of the limited liability partnership statute; or (2) submit 

the issue to a jury for resolution. See Evanston Ins. Co. v. Dillard Dept. Stores, 

Inc., 602 F.3d 610, 612 (5th Cir. 2010) (resolving issue of individual liability of 

former partners in dissolved limited liability partnership through a motion for 

summary judgment); see also Dynegy, Inc. v. Yates, 422 S.W.3d 638, 642–43 (Tex. 

2013) (stating that burden shifted to plaintiff to establish an exception once 

 

on Fleming’s individual liability. Even if we assume that the Kirklins sought a declaratory 

judgment on the issue of Fleming’s individual liability, we disagree that their motion was a noevidence motion for summary judgment. First, the motion was not identified as a no-evidence 

motion for summary judgment in its title or in the notice of hearing. See Grimes v. Reynolds, 252 

S.W.3d 554, 558 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (stating that a motion that 

does not clearly state that it is a motion for no-evidence summary judgment does not give the 

nonmovant notice that the movant is seeking a no-evidence motion for summary judgment); 

Lesikar v. Moon, 237 S.W.3d 361, 369 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) 

(stating that Rule 166a’s notice requirements must be strictly construed). Second, the Kirklins’ 

motion did not specifically state the elements on which Fleming had the burden of proof and as 

to which there was no evidence. See Jose Fuentes Co., Inc. v. Alfaro, 418 S.W.3d 280, 288 (Tex. 

App.—Dallas 2013, pet denied) (“A motion for no-evidence summary judgment that does not 

specify the element or elements that are being challenged does not provide any ground upon 

which the trial court can grant summary judgment.”); Specialty Retailers, Inc. v. Fuqua, 29 

S.W.3d 140, 147 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (“A motion for noevidence summary judgment must specifically ‘state the elements as to which there is no 

evidence,’ there may be no ‘conclusory motions or general no-evidence challenges to an 

opponent’s case.’”). This requirement to state the elements was particularly important here, 

because although Fleming would have the burden of proving compliance with TRPA, the 

Kirklins had the burden to prove any other elements necessary to obtain affirmative relief against 

Fleming in the form of a declaratory judgment. See Russell v. City of Bryan, 919 S.W.2d 698, 

704 (Tex. App.—Houston [14th Dist.] 1996, writ denied). The Kirklins could not establish those 

elements through a no-evidence motion for summary judgment. See Tex. R. Civ. P. 166a(i). 
16

defendant conclusively established statute of frauds affirmative defense). The 

Kirklins did neither and therefore waived the issue of Fleming’s individual liability 

for the contract debt. See Tex. R. Civ. P. 279 (“Upon appeal all independent 

grounds of recovery or defense not conclusively established under the evidence 

and no element of which is submitted or requested are waived.”); Dynegy, Inc., 422 

S.W.3d at 643 (holding plaintiff’s failure to secure favorable findings on exception 

to statute of frauds affirmative defense constituted waiver of the issue under Rule 

279); Triplex Commc’ns, Inc. v. Riley, 900 S.W.2d 716, 718 (Tex. 1995) (“If an 

issue is properly pleaded and is supported by some evidence, a litigant is entitled to 

have controlling questions submitted to the jury.”); Lane-Valente Indus. (Nat’l), 

Inc., 468 S.W.3d at 204 (observing that a party has a right to submit contested fact 

issues to a jury for resolution).

10

 We overrule the Kirklins’ second issue of their 

cross-appeal.

III. This Court’s precedent precludes the Kirklins from recovering 

attorneys’ fees from the Fleming Firm.

 In their fourth issue, the Kirklins assert that the trial court erred when it 

refused to award their attorneys’ fees against the Fleming Firm, a limited liability 

partnership.11

 This Court has held that section 38.001 of the Civil Practices and 

 

10 The Kirklins cite two cases in support of their argument that the Fleming Firm failed to 

comply with the financial responsibility provisions of TRPA. We conclude that neither case 

supports their position. In Edward B. Elmer, M.D., P.A. v. Santa Fe Prop., Inc., No. 04-05-

00821-CV, 2006 WL 3612359, at *2 (Tex. App.—San Antonio Dec. 13, 2006, no pet.) (mem. 

op.), the court of appeals held that the defendant was not a properly registered limited liability 

partnership because there was no evidence that the partnership, rather than the individual doctor, 

had any form of insurance or other form of financial responsibility designated in the statute. 

Similarly, in Apcar Inv. Partners VI, Ltd. v. Gaus, 161 S.W.3d 137, 140–42 (Tex. App.—

Eastland 2005, no pet.), the court held that the partnership was not a properly registered limited 

liability partnership because the liability at issue arose after the partnership’s registration expired 

and was not renewed. Neither of those situations is present here.

11 In their third issue, the Kirklins argue that the trial court erred when it did not order 

Fleming to pay their attorneys’ fees. We overrule this issue because we have affirmed the trial 
17

Remedies Code does not authorize an award of attorneys’ fees against a limited 

liability partnership. Fleming & Assoc., L.L.P. v. Barton, 425 S.W.3d 560, 576 

(Tex. App.—Houston [14th Dist.] 2014, pet. denied). As the Fleming Firm is a 

limited liability partnership, and section 38.001 of the Civil Practice and Remedies 

Code is the only basis upon which the Kirklins sought attorneys’ fees, we hold that 

the trial court did not err when it refused to award the Kirklins’ attorneys’ fees 

against the Fleming Firm. Id. We overrule the Kirklins’ fourth issue on appeal. 

CONCLUSION

 Having overruled the issues raised by the Fleming Firm and by the Kirklins, 

we affirm the trial court’s judgment. 

 

 /s/ J. Brett Busby

 Justice 

Panel consists of Justices Jamison, Busby, and Brown.

 

court’s refusal to hold Fleming individually liable for breach of contract. See MBM Financial 

Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 666 (Tex. 2009) (“To recover fees 

under this statute, a litigant must do two things: (1) prevail on a breach of contract claim, and (2) 

recover damages.”).