Affirmed and Memorandum Opinion filed November 29, 2012.

In The

Fourteenth Court of Appeals

NO. 14-11-00940-CV

ROBERT PARKER, OSCAR MACIAS, AND PARKER MAC, LLC, Appellants

V.

HTR, INC., Appellee

On Appeal from the County Court at Law No. 3

Harris County, Texas

Trial Court Cause No. 947736

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

Appellants Robert Parker, Oscar Macias, and Parker Mac, LLC assert that the trial 

court erred in concluding that they breached an oral commission agreement with appellee 

HTR, Inc. In four issues, they assert that (a) the agreement at issue is unenforceable 

because it violates the statute of frauds provision of the Texas Uniform Commercial 

Code—Sales (the ―Texas UCC‖);

1

(b) because the agreement is unenforceable, attorney’s 

 

1

See Tex. Bus. & Com. Code § 2.101 (short title), § 2.201 (statute of frauds).
2

fees were not appropriate; and (c) the evidence is legally and factually insufficient to 

support part of the trial court’s damages award. We affirm.

BACKGROUND

This suit arose because Mike Starling, president of HTC, Inc., discovered that 

Robert Parker and Oscar Macias sold industrial equipment directly to two customers 

Starling had referred to them: Morris Industries and Ellison Technologies. HTC sued 

Parker, Macias, and the company they formed, Parker Mac LLC, in September 2009, 

seeking a ten-percent commission on the proceeds from these sales. The case was tried to 

the bench on June 8, 2011. The following evidence was presented.

Parker and Macias began building industrial equipment together in 2005 in the 

Midland, Texas area, apparently working under the name of ―Parker Mac Fabrication.‖2 

Parker primarily managed the financial side of the business, while Macias was tasked 

with fabrication and some bidding of projects. Macias had been acquainted with Starling 

since the mid-1980s. Starling’s company, HTR, is located in the Houston area. Starling 

had referred business to Macias over the course of their acquaintance. Starling continued 

to refer customers to Parker and Macias once the two went into business together. HTR

generally received a commission from the sales Starling referred to Parker Mac 

Fabrication, although the parties never had any formal, written agreement. 

Parker testified that, customarily, when Starling referred sales to Parker Mac 

Fabrication, he and Macias would submit quotes to HTR based on specifications 

provided by Starling. HTR would mark up the equipment prices and provide quotes to

customers for the equipment. When the bid was accepted by the end customer, HTR 

would pay Parker Mac Fabrication half for the equipment up-front and the other half 

when the job was completed. Parker would not see the final invoice provided to the 

customer, so he was not aware of the exact amount of HTR’s commission on these sales. 

 

2 On January 13, 2009, Parker and Macias completed a certificate of formation of Parker Mac, 

LLC. This certificate of formation, by its terms, became effective when the document was filed by the 

Texas Secretary of State on March 27, 2009. The certificate of formation was admitted into evidence. 

The sales that form the basis of this suit, however, occurred prior to the formation of Parker Mac, LLC.
3

Parker testified that he, Macias, and Starling/HTR had successfully completed about 

seven or eight jobs working in this manner. Parker agreed that a ten percent commission 

would not be unreasonable for providing this type of referral service. 

Starling described their business together as follows: ―Sometimes they [Parker, 

Macias, and Parker Mac Fabrication] would send me a quote that was my cost. 

Sometimes [Macias] would send me a quote and say that your commission of ten percent 

is built into this price.‖ He stated that they ―had the same terms on almost every deal. It 

was either 50 percent down and 50 percent upon shipment or 50 percent down and 40 

percent upon shipment, 10 percent upon installation.‖ Starling testified that generally, he 

had been paid a ten percent commission by other industrial manufacturers when he sold 

their equipment, that he built a ten percent commission into the ―deals‖ he worked with 

Parker Mac Fabrication, and that he works on a ten percent commission at the present 

time. He acknowledged on cross examination that he had no records to show that he had 

ever billed Parker, Macias, or Parker Mac Fabrication directly for his commissions; 

rather, he testified that he was paid by invoicing the ―end customer.‖ He stated that if he 

was sent a ―net figure‖ from Macias, he would mark the price up before he sent it to the 

customer, but that if he was sent a ―gross figure,‖ he would not. 

Starling testified that he and Parker Mac Fabrication had an agreement that ―[a]ny 

deal [he] brought to the table, [he] was entitled to a commission upon.‖ Starling further 

testified that he had had a conversation with both Parker and Macias in which Parker had 

assured him that any customer Starling brought to Parker and Macias would ―always‖ be 

Starling’s. Starling testified that a ten percent commission is ―a common commission 

paid on machinery sales.‖

Regarding the specific sales in question, the parties testified as follows. Starling 

testified that in September 2007, he was contacted by Mike Stern of Morris Industries. 

Morris Industries is located in New Jersey. Morris Industries was looking to purchase 

pipe feed and turning tables. Starling explained that HTC initially provided the quotes to 

Morris Industries and that he worked with Macias in preparing several quotes regarding 
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these tables, communicating ―back and forth‖ with Mike Stern. According to Starling, 

Stern wanted to visit the location where the tables were built. Starling informed Stern 

that the tables were built in Midland, Texas and told Parker that Stern wanted to visit 

their site. Stern visited the site where the tables were fabricated.

On November 25, 2008, Gregg Edwards, the office manager for Parker Mac 

Fabrication, provided an equipment price quote directly to Stern at Morris Industries. 

This quote was for fabrication and installation of three equipment tables, for a total price 

of $156,000.00. This quote was sent via email, and a copy of the email was sent to 

Starling at HTR.3 Morris Industries accepted the quotation, ordered the tables from 

Parker Mac Fabrication, and paid for them. HTR did not receive any commission on the 

sale of this equipment. On January 29, 2009, HTR invoiced Parker Mac Fabrication for 

one-half of ―commission due for Morris Pipe & Supply Co.‖ HTR invoiced Parker Mac 

Fabrication for $7,800, a ten percent commission on half of the total sale to Morris. HTR 

invoiced Parker Mac Fabrication for the remaining half of the ten percent commission on 

March 11, 2009. Both invoices were admitted as evidence.

Parker testified that Starling was not owed any commission for this sale because 

he had not referred this job to Parker Mac Fabrication. Instead, according to Parker, 

another individual had referred this job to Parker Mac Fabrication. Parker did not dispute 

the equipment price reflected in the invoice.

Starling testified that Ellison Technologies was the ―very first customer‖ he 

brought to Parker Mac Fabrication in 2004 or 2005. Starling received commissions for 

the Ellison Technologies sales he referred to them. Parker and Macias sold additional 

equipment directly to Ellison Technologies in 2007 and again in 2008. Starling was not 

paid a commission on these later sales to Ellison Technologies. The record contains an 

undated invoice from HTR to Parker Mac Fabrications reflecting commissions due on 

―work performed on or about: 03/01-06/01/2007 & 11/24/2008‖ for equipment sold to 

 

3 This email and quote were admitted into evidence.
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Ellison Technologies. This invoice also reflects a ten percent commission owed on 

equipment sold to Ellison; the total amount invoiced was $6,525. 

Parker testified that the jobs reflected in this invoice were not jobs that Starling or 

HTR brought to Parker Mac Fabrication. Parker explained that, although HTR initially

referred Ellison Technologies to Parker Mac Fabrication, the equipment sales in the 

invoice were obtained through Parker Mac Fabrication’s employee’s ―own efforts.‖ 

Parker did not dispute the sales price of the equipment reflected in the invoice. Starling 

admitted that he had not directly referred the sales at issue in this invoice to Parker Mac 

Fabrication. According to Starling, Parker acknowledged that he owed HTC the 

commissions on the sales to Morris Industries and Ellison Technologies, but Parker was 

unable to pay these commissions because he was ―in financial distress.‖ 

Starling’s attorneys testified regarding their fees, and the trial court took the matter 

under advisement. On July 26, 2011, the trial court signed a judgment in favor of HTR, 

awarding it $22,125.00 in damages and $18,000 in attorney’s fees. The trial court signed 

findings of fact and conclusions of law on September 20, 2011. This appeal timely 

ensued thereafter.

ANALYSIS

A. Statute of Frauds

In their first issue, Parker, Macias, and Parker Mac, LLC assert that their oral 

agreement with HTC is barred by the statute of frauds provision contained in the Texas 

UCC. This provision provides, in pertinent part, as follows:

Except as otherwise provided in this section a contract for the sale of goods 

for the price of $500 or more is not enforceable by way of action or defense 

unless there is some writing sufficient to indicate that a contract for sale has 

been made between the parties and signed by the party against whom 

enforcement is sought or by his authorized agent or broker.

Tex. Bus. & Com. Code § 2.201(a). 
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The statute of frauds is an affirmative defense that must be pleaded or it is waived. 

See Tex. R. Civ. P. 94. However, appellants never raised the Texas UCC statute of 

frauds in the underlying proceedings. Rather, they raised the general statute of frauds 

codified in Texas Business & Commerce Code section 26.01(b)(3).

4

 The general statute 

of frauds provides, in pertinent part, that an agreement that is not to be performed within 

one year is not enforceable unless the agreement is in writing and signed by the person to 

be charged with the agreement. Id. § 26.01. 

Regardless of its applicability to the facts of this case, appellants have abandoned 

their general statute of frauds argument on appeal. And because they did not raise the 

Texas UCC statute of frauds below, they have waived that affirmative defense.5 See Tex. 

R. Civ. P. 94; see also Adams v. H & H Meat Prods., Inc., 41 S.W.3d 762, 776 (Tex. 

App.—Corpus Christi 2001, no pet.) (holding that because appellant pleaded affirmative 

 

4 Appellants pleaded the statute of frauds as a bar to HTC’s recovery in their answer, asserting 

that ―claims arising from an oral contract within the statute of frauds are fatally flawed and may be 

dismissed without opportunity to amend‖ and citing to Zaremba v. Cliburn, 949 S.W.2d 822 (Tex. 

App.—Fort Worth 1997, writ denied). This case involved an oral contract subject to the general statute of 

frauds. See id. at 826–27 (citing section 26.01 of the Texas Business & Commerce Code). Appellants 

make no mention of a contract for the sale of goods in their answer.

5 Appellants have not claimed that this issue was tried by consent. See Tex. R. Civ. P. 67. 

Further, no mention of the UCC is made anywhere in the reporter’s record. In fact, the only reference to 

the sale of goods or products during the bench trial is the following exchange between appellants’ 

attorney and Starling, which has no bearing on the Texas UCC statute of frauds:

Q. Now, sir, your role in all of this is to, I take it, distribute products for the defendant --

is that correct -- or the defendants; is that correct?

A. Distribute products --

Q. Sell products?

A. No, I am selling products.

Q. Okay. The focus is to sell their goods; is that correct?

A. Yes.

Q. And no money ever is given to you unless a sale occurs; is that right?

A. That’s correct.

Q. And you would agree the dominant factor in a sale would be the sale of the products 

of the defendants as far as this whole transaction you’ve sued over; is that correct?

A. That’s correct.
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defense only under Texas UCC statute of frauds and failed to plead affirmative defense 

under general statute of frauds, he had waived general statute of frauds defense on 

appeal). Accordingly, we overrule appellants’ first issue.

Further, in light of our disposition of appellants’ first issue, we need not address 

their second issue in which they claim HTC was not entitled to attorney’s fees because 

HTR’s breach of contract claim was barred by the Texas UCC.6 

B. Legal and Factual Sufficiency of the Evidence

In their third and fourth issues,7appellants challenge the legal and factual 

sufficiency of the evidence to support the trial court’s findings and conclusions regarding 

the sales and commissions related to Ellison Technologies. They specifically challenge 

the following findings and conclusions:

2. Plaintiff and Defendants had an enforceable oral contract in which 

Defendants promised to pay, and/or understood regardless of how or 

to whom payment for the sales was made, that Plaintiff was entitled 

to receive a ten percent (10%) of funds received commission on 

sales from business Plaintiff referred to Defendants as is further 

detailed in Findings of Fact 3-5.

3. Plaintiff referred two clients to Defendants for which it was entitled 

to the ten percent (10%) contractual commission, Morris Industries 

and Ellison Technologies for FMC Corporation. As a direct result of 

those referrals, Defendants sold goods and services to Morris 

Industr[ies] and received payment for same of $156,000; and 

Defendants sold goods and services to Ellison Technologies for 

FMC Corporation and received payment for same of $65,250. 

4. Neither of the sales described in Finding of Fact No. 3 would have 

been possible or occurred without the efforts of HTR, Inc. Plaintiff 

identified the need of the buyers, had extensive conversations with 

them concerning the orders, and coordinated much of the 

 

6 We note that appellants did not object to attorney’s fees on this basis. The only objection 

lodged to the testimony regarding attorney’s fees at the bench trial was that HTC had not disclosed the 

amount of attorney’s fees in response to appellants’ requests for disclosures.

7 Appellants cite no legal authority whatsoever in this section of their brief. See Tex. R. App. P. 

38.1(i) (―The brief must contain a clear and concise argument for the contentions made, with appropriate 

citations to authorities and to the record.‖ (emphasis added.)).
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communication between Defendants, the manufacturers of the 

equipment, and buyers. 

5. Plaintiff, through its material and significant efforts in making the 

sales described in Finding of Fact 3, earned the ten percent (10%) 

commission, which commission is standard in the industry. 

6. Defendants breached their contract with Plaintiff by refusing to pay 

the commissions to Plaintiff, Plaintiff suffered determinable 

monetary damages as a result of the breach, and Plaintiff is entitled 

to recover its damages from Defendants. The commissions that 

remained unpaid on April 9, 2009, $22,125, are the damages. 

Findings of fact ―have the same force and dignity‖ as a jury’s verdict and are 

reviewable under the same standards of legal and factual sufficiency. BMC Software 

Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). When a legal sufficiency 

challenge concerns an issue on which the appellant does not bear the burden of proof, the 

court of appeals reviews it under a ―no evidence‖ standard:

―No evidence‖ points must, and may only, be sustained when the record 

discloses one of the following situations: (a) a complete absence of 

evidence of a vital fact; (b) the court is barred by rules of law or of 

evidence from giving weight to the only evidence offered to prove a vital 

fact; (c) the evidence offered to prove a vital fact is no more than a mere 

scintilla; (d) the evidence establishes conclusively the opposite of the vital 

fact.

City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). When a party attacks the 

factual sufficiency of a finding, we set it aside only if it is so contrary to the 

overwhelming weight and preponderance of the evidence that it is clearly wrong and 

manifestly unjust. Hartis v. Century Furniture Indus., Inc., 230 S.W.3d 723, 734 (Tex. 

App.CHouston [14th Dist.] 2007, no pet.).

Even if we were to agree with appellants that there is no support for findings four 

and five regarding the specific efforts HTC undertook in regards to the equipment sales to 

Ellison Technologies,

8 we conclude that there is ample support in the record for findings 

two, three, and six. First, as discussed above, Starling testified that he had an 

 

8 As noted above, Starling testified that he did not ―directly‖ refer these sales to appellants.
9

arrangement with Parker and Macias whereby he would refer clients to them, and HTC 

would receive a ten percent commission on sales of industrial equipment to those clients.9 

Macias testified that, near the time that he and Parker went into business together, he and 

Starling had an express conversation in which he told Starling that if Starling sent Parker 

Mac Fabrication clients, Parker Mac would pay Starling a ten percent commission. This 

testimony supports the trial court’s second finding and conclusion that the parties’ ―had 

an enforceable oral contract‖ in which Parker Mac agreed to pay Starling/HTC a ten 

percent commission on sales from business Starling/HTC referred to Parker Mac. 

Although Parker denied the existence of an ongoing agreement with Starling/HTC, the 

trial court is the sole judge of the credibility of the witnesses. Hartis, 230 S.W.3d at 734. 

The trial court may take into consideration all the facts and surrounding circumstances in 

connection with the testimony of each witness and accept or reject all or any part of that 

testimony. Id. Thus, the trial court could have found Parker’s testimony less credible 

than that of Starling and Macias.

Second, Starling testified that he was responsible for referring Ellison 

Technologies to appellants. Macias agreed that Starling had initially referred Ellison 

Technologies to Parker Mac Fabrication. Parker testified that the first job Parker Mac 

Fabrication had done for Ellison was ―set up‖ by HTC. Thus, there is no dispute that the 

relationship between Parker Mac Fabrication and Ellison Technologies was initiated

directly by Starling’s efforts. In fact, Starling testified that ―Monty,‖ the salesman from 

Ellison Technologies, contacted Parker and Macias directly regarding the tables at issue 

in this case, and they called Starling and asked what to do. Starling stated that he told 

Parker and Macias that Monty was ―try[ing] to go around‖ him. According to Starling, 

Parker assured him that he would be paid a commission on ―the deal.‖

 

9 The existence of an oral contract is generally a question for the factfinder. See Ward v. Ladner, 

322 S.W.3d 692, 698 (Tex. App.—Tyler 2010, pet. denied); cf. Parker Drilling Co. v. Romfor Supply Co., 

316 S.W.3d 68, 73 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (―The existence of an implied 

contract involves inferences drawn from circumstantial evidence and is therefore a question of fact.‖). 
10

This testimony supports the trial court’s finding and conclusion number three 

regarding HTC’s entitlement to the ten percent commission on the sales to Ellison 

Technologies as a ―direct result‖ of Starling’s referral of this ―client‖ to Parker Mac 

Fabrication. Nothing in the record suggests that Parker Mac Fabrication had any 

connection to Ellison Technologies other than through the referral by Starling. Further, 

Starling stated that Parker told him that Parker ―had been a salesman all his life and that 

he knew how valuable and how hard it was to establish customer relationships and that 

any customer of [Starling’s] would always be [Starling’s].‖ Again, although Parker 

testified that the sales to Ellison came about through Parker Mac’s own efforts,10 the trial 

court could have found his testimony less credible than that of Starling. See id.

Finally, there is no dispute that none of the appellants paid HTC for the 

commissions on the Ellison Technologies sales. HTC invoiced Parker Mac for these 

sales, and the appellants never disputed the prices reflected in these invoices. By failing 

to pay HTC the commissions that Starling earned on these sales, the appellants breached 

their oral agreement with HTC. Accordingly, the trial court’s sixth finding and 

conclusion is supported by the record.

In sum, the evidence is legally and factually sufficient to support the trial court’s 

findings that the parties had an enforceable oral contract whereby appellants would pay 

HTC a ten percent commission for sales to clients that were referred to them by Starling, 

that Starling referred Ellison Technologies to appellants and appellants made sales of 

$65,250 to Ellison, and that appellants breached their contract by failing to pay HTC the 

ten percent commission on these sales. These findings sufficiently support the trial 

court’s judgment. We therefore overrule appellants’ fourth and fifth issues.

 

10 Parker’s testimony indicates that this ―work‖ was done during the initial project for Ellison

referred by HTC.
11

CONCLUSION

Having overruled appellants’ issues, we affirm the judgment of the trial court.

/s/ Adele Hedges

Chief Justice

Panel consists of Chief Justice Hedges and Justices Brown and Busby.