### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00447- CV

Appellan t, Austin Capital Colli sion, L LC//Cross-Appellant, Barbara Pam palon e

v. Appellee, Barbara P am palon e//Cross-A ppellees, Austin Cap ital Collision , LLC and E ric Hinojosa

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 419 TH JUDICI AL DISTRICT NO. D-1 -GN-1 4-0 0320 7, H ONO RAB LE TO DD T. WO NG, JUDGE P RESIDING

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

This appea l arises from a suit to enfor ce an oral loan ag ree ment. Ba rbar a Pampalone sued Eric Hinojosa and Austin Capital Colli sion, L L C (ACC) for brea ch of contra ct, seeking to

rec over amounts Pampalone alleg ed rema ined due under an unwritten $80,000 loan ag ree ment and seeking to hold Hinojosa individually liable by pierc ing the corpor ate veil. The trial court, finding that the unwritt en loan ag ree ment was enforc eable beca use ACC had partially perf ormed, entered judgme nt ag ainst ACC but declined to hold Hinojosa individually liable. ACC appea ls from the trial
court’s judgme nt ag ainst it, and Pampalone cross-a p p ea l s t he trial court’s judgme nt in favor of Hinojosa. For

the re asons that follow, we aff irm the trial cour

t’s judgme nt.BACK GR OUND 1 Hinojosa and Erik Pampalone, Barb ar a Pampalone’s son (Erik), wer e childhood friends who went into business toge ther. In 2002 or 2003, they formed two corpor ations, Hinojosa
Auto Body

and Paint, I nc. (Te x as) a

nd Hinojosa Auto Body and Paint, Inc. (Ne vada) , eac h having

a 50% owner ship in eac h corpor ation. Hi n o j o sa contributed $90,000 and beca me president while Erik, who was n am ed vice- president, contributed acc ess to his cre dit and testified that he made a $2,000 contrib ution monthly

. The corpor ations formed a g ener al partne rship, Capital Colli sion, GP (GP). GP operated in the Austin are a und er t he assumed name Capital Colli sion. Erik continued to live in California, wher e he and Hinojosa had met, but testified that he ca me to Texas once or

twice a y ear to he lp w ith the company books and set up prac tices to run the business more eff ectively

. Pampalone alleg ed that in 2005, Erik approa ched her about loaning GP $80,000 and that she did so in pay

ments of $50,000 and $30,000. I t is undisputed that there was no written loan
agre ement. GP beg an making pay ments on the loan by automatic deposits into P am p al o n e’ s

acc ount, which Erik testified he helped set up. T h e p ay ments came from an acc ount held in the

names “Capital Co llisi on” and “Eric A Hinojosa.” In ear ly 2007, Erik left GP, and afte r his depar ture, GP continued to make payments to Pampalone. I n J une 2009, Hinojosa formed a new entity called ACC. Hinojosa owns 99% of ACC and is its sole manag ing member, and his wife owns 1%. On the same day it was formed, ACC obtained an assumed name cer tificate for—a

nd beg an to

The fac t u al and proce dural backg round is taken from the rec ord. Much of the fac tual 1 backg round is disputed. 2operate under—the same assumed name as GP (i.e., Capital Colli sion). I t also employ ed the same

employ ees, use d the same e mail addre ss, used the same e mail signature block indicating the sa me phy sical addre ss, a

nd conducte d the same business. The parties dispute whe ther GP’s assets wer e transfe rre d to ACC; Hinoj osa testified that ther e we re no a ssets to transfer

.

Be g inning in April 2010, the pay ments to Pampalone beg an to be m ad e fr o m a differ ent account held in the nam es “Capital C ollisi on GP” and “Eric A Hinoj osa.” In J uly 2010, Hinojosa dissolved the Texas and Neva da corpor ations and, in turn, GP. After ACC was formed and
GP was dissolved, reg

ular automatic pay

ments to Pampalone continued from the acc ount held in the

names “Capital Colli sion GP” and “Eric A Hinojosa” throug h April 2013. Be tween 2007, when Erik left GP, and 2013, there wer e email communications conce rning the loan betwee n Erik and GP/ACC employ ees at the GP/ACC em ai l addre ss and betwee n Erik and GP/ACC’s acc ountant. Erik also addre ssed a number of emails to Hinojosa, but any response s came from GP/ACC employ ees. Many of the emails included an attache d amortization schedule that reflected the terms of the loan, and

sever al of the emails contained discussions of the amount of interest paid eac h y ear for income tax

re p o rt i ng purposes. I n October 2013, Pampalone rec eived one final pay ment of $6,000. After 2
pay ments stopped, Hinojosa did not respond to Pampalone’s email inquiry about further pay ments. Pampalone filed suit ag ainst ACC and Hinojosa for brea ch of contra ct and attorney ’s fee s pursuant to chapte r 38 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. &
Rem. Code § 38.001(8) (providing for rec overy of attorney ’s fee s in s u i t b as ed on oral or written
contra ct). Pampalone alleg ed that she had fully perf ormed on the unwritten ag ree ment, that GP had

The amortiz ation schedule ref lected a n interest rate of 7% a

nd a ter m of 20 y ear s. 2 3partially

perf ormed by beg inning to make monthly pay ments, and that ACC had assumed the loan and continued partial perf ormanc e by continuing to make pay ments in acc ordanc e with i t s t er m s. Pampalone also alleg ed brea ch of contr act ag ainst Hinojosa and soug ht to hold him individually liable by pierc ing the corpor ate v ei l

. P ri o r to trial, the parties stipulated that if Pampalone wer e

en t i t l ed t o damag es, the amount of damag es was $56,758.68, an amount calc ulated based on t h e amortization schedule and an ag ree d Summary of Pay ments to Plaintiff, which ref lected 94 regular
pay ments over approximately eig ht y ear s, plus the final pay ment of $6,000. They also stipulated as
to the amount of attorney ’s fee s Pampalone had incurre d prior to trial, that Pampalone’s attorney was qualified to testify , and that the hourly rate s wer e rea sonable. Following a bench trial, the trial court rende red judgme nt ag ainst ACC only for actua l damag es in the stipulated amount and attorney ’s fee s in the amount of $43, 241.32. This appea l and cr oss-appe al followed. 3

STANDARD OF REVIEW ACC challeng es the trial court’s deter mination that Pampalon e e s ta blished the partial perf ormanc e exception to the statute of fra uds. This deter

mination is found in both the trial court’s 4 Finding of Fa ct No. 17 (“T]he statute of fra uds does not bar the ag ree ment, even though it is not in writing , beca

use Plaintiff fully perf

ormed under the ag ree ment, and Def endant Austin Capital
Pampalone filed this suit as an expedited action under Rule 169. See Tex. R. Civ. P. 169 3 (providing expedited proce ss for suits in which plaintiff seeks only monetary re l i ef aggre g ating $100,000 or less); see also id. R. 190.2 (providing discovery control plan for expe d i t ed actions). Consequently , her total rec overy was limit ed to $100,000, and the amount awa rded in attorney ’s fee s was less than the stipulated amount. The parties do not dispute that in the absenc e of an exception, the statute of fra uds would 4 bar enfor cem en t o f t h e o ral loan ag ree ment. See Tex. Bus. & Com. Code § 26.01(a) , (b)( 6) (re quiring ag ree ment that is not to be perfor med within one y ear

to be in writing ). 4Colli sion, L L C, partially perf ormed.” ) and its Conclusion of L aw No. 51, which is virtually identical
to Finding of Fa ct No. 17. Howeve r, while the question of whether the statute of fra ud applies is a question of law subject to de novo revie w, see Bratcher v. Dozier , 346 S.W .2d 795, 796 (Tex. 1961); Stovall & Assocs. v. Hibbs Fin. Ctr., Ltd. , 409 S.W .3d 790, 798 (Tex. App.—Dallas 2013, no pet.), the question of whether an exception applies is g ener ally a question of fac t, see Stovall , 409 S.W .3d at 798; Adams v. Petrade Int’l, Inc. , 754 S.W .2d 696, 705 (Tex. App.—Houston [1st Dist. ] 1988, writ denied)

. W e t h u s co n s t rue both Finding of Fa ct No. 17 and Conclusion of L aw No. 51— deter mining that the partial perf ormanc e exception applied—as finding s of fac t, see Stovall , 409 S

. W

. 3 d at 7 98, and apply a leg al sufficie ncy standard of revie w, see Hightower, Russo, & Capella n v. Ireson, W

eizel & Hightower, P.C. , 420 S.W .3d 315, 319–20 (Tex. App.—Houston [14t h Dist.] 2013, no pet.) (construing as finding s of fac t writing issued by tri al court entitled
“F indings of Fa ct and Conclusions of L aw” that did not separ ate finding s and conclusions and that related to fac tual bases f

or trial cour

t’s ruling ). 5
When the appellant challeng es the leg al sufficie ncy of the ev i d en ce supporting an adver se finding on which he did not have the burden of proof at trial, he must demonstrate that there is no evidence to support the adver se finding

. City of Keller v. W ilson , 168 S.W .3d 802, 807–08

Although in its briefing ACC appea red to urg e that we apply a de novo standard of revie w, 5 in oral argument, ACC stated that while the standard of revie w for the question of whether the statute of fra ud applies is de novo, the standard of revie w for deter mining the partial perf

ormanc e exception to the s tatute of fra

uds is leg al sufficie ncy . Fur ther, ACC argues that there is “no evidenc e” to establish partial perf

ormanc e, which constitutes a challeng e to the leg al sufficie ncy of the evidenc e. See In r e K.M.L. , 443 S.W .3d 101, 112 (Tex. 2014) (re fer ring to Texas’s “tra ditional leg al sufficie ncy

—or ‘no evidenc e’—standa rd of revie w”) ; City of Keller v. W ilson , 1 6 8 S

. W

. 3d 802, 807–08 (Tex. 2005). 5(Tex. 2005); Croucher v. Croucher , 660 S.W .2d 55, 58 (Tex. 1983); T ex a s De p ’t of Pub. Safety

v. Alexande r , 300 S.W .3d 62, 72 (Tex. A pp.—Austin 2009, pet. denied)

. We r eview the evidenc e in the light most fa v o rable to the verdic t, cre diting favor able evidenc e if a rea sonable fac t finder could, and disreg arding contra ry evidenc e unless a rea sonable fac t finder could not. City ofKeller , 168 S.W .3d at 807. “Our traditional leg al suffici en cy

— o r ‘no evidenc e’—standa rd of revie w

u p holds a finding supported by ‘[a]ny thing more than a scintilla of evidenc e.’” In re K

. M. L

. , 443 S.W .3d 10 1 , 1 1 2 (T ex . 2014) (quoting Formosa Plastics Corp. U.S.A. v. Presidio Eng’rs
& Contractors, Inc. , 960 S.W .2d 41, 48 (Tex. 1998)). More than a scintilla exis ts when the evidenc e would enable rea sonable and fair- minded people to rea ch differ ent conclusions. Burbage

v. Burbage , 447 S.W .3d 249, 259 (Tex. 2014). “Howe ver, i f t h e evidenc e is so weak that it only

cre ates a mere surmise or suspicion of its exis tence , it is reg arde d as no evidenc e.” W aste Mgmt. of Tex., Inc. v. Texas Disposal Sys. Landfil l, Inc. , 434 S.W .3d 142, 156 (Tex. 2014). Wit h this standard of re view in mind, we turn to ACC’s issues on appea l.

DISCUSSIO N ACC’ s Appeal

I n its first issue, AC C ar gu es that the trial court err ed in g ranting judgme nt for Pampalone beca

use enfor ceme nt of the oral loan ag ree ment is barr ed by the statute of fra uds and there is no evidenc e of partial perf ormanc e by GP or ACC. Under the partial perf ormanc e exception 6

As Pampalone asser

ts on appea l, there is authority that full perf ormanc e by one party takes 6 an oral ag ree ment out of the statute of fra uds. See Estate of

Kaiser v. Gifford , 692 S.W .2d 525, 525 (Tex. App.—Houston [1st Dist.] 1985, writ ref ’d n.r.e.) (holding that oral insta ll me n t lo a n ag ree ment was not barr ed by statute of fra uds beca use lender had made fu ll perf ormanc e under ag ree ment). 6to the statute of fra uds, contra cts that have been partly perf ormed but do not meet the require ments of the statute of fra

uds may be enfor ced in equity if denial of enfor ceme nt would amount to a virtual fra ud. Berrym an’s S. Fork, Inc. v. J. Baxter Brinkmann Int’l Corp. , 418 S.W .3d 172, 192 (Tex. App.—Dallas 2013, pet. denied) ; Exx on Cor p
. v. Breeze vale Ltd. , 82 S.W .3d 429, 439 (Tex. App.—Dallas 2002, pet. denied)

. “The fra ud arises when there is strong evidenc e establishing the exis tence of an ag ree ment and its terms, t he party acting in relianc e on the contract has suffe red a substantial detriment for which he has no adequate reme dy , and the other party , if permitted to plead the statute, would rea

p an unear

ned benef

it.” Breeze vale , 82 S.W .3d at 4 3 9

. T h e partial perf ormanc e must be “unequivoc ally ref era ble” to the ag ree ment and corr oborative of the fac t that

a contra ct actua lly was made. National Prop. Holdings, L.P. v. W estergren , 453 S.W .3d 419, 426 7

Howeve r, m any of t he cases invol ving full perf ormanc e also ap p ea r t o re ly on evidenc e of partial perf ormanc e. See, e.g. , Davis v. Insurtek, Inc. , No. 05-09-01029- CV, 2010 Tex. App. L EXI S 10292, at * 1 2 n . 3 (T ex . App.—Dallas Dec

. 30, 2010, no pet.) (mem. op.) (noting that Texas courts have used terms “full perf

ormanc e” and “par

tial perf ormanc e” intercha

ng eably when one party has fully p er fo rm ed and other party has partly perf ormed); 626 Joint Venture v. Spinks , 873 S.W .2d 73, 76 (Tex. App.—Austin 1993, no writ) (“[W] here one party to a contra ct has fully per fo rm ed his obligations under it, the statute of fra uds is unavailable to the other who knowing ly acc epts benef its and partly performs .”) (emphasis adde d). In any event, because Pampalone allege d both her own full perf ormanc e and ACC’s partial perf ormanc e, and beca

use there is sufficie nt evidenc e to support the trial court’s conclusions that Pampalone fully perf ormed and ACC partially perf ormed, we need not decide whether full perf ormanc e by Pampalone alone would have taken the oral loan ag ree ment out of the statute of fra

uds. See Tex. R. App. P. 47.1; cf. Hawkins v. Mye rs , No. 02-14-00123- CV, 2015 Tex. App. L EXI S 3473, at *17 n.7 (Tex. A pp.—For t Worth Apr. 9, 2015, no pet.) (mem. op. on reh’ g ) (dec lining to addre ss partial perf ormanc e wher e appellant raised only full perf ormanc e in trial court)

. I n oral argument, Pampalone asser ted for the first time that the “unequivoc ally ref era ble” 7 require ment does not apply here beca use it applies only in case s involving other contra cts to which pay ment could have ref

err ed. We do not rea d the case s so narr owly

. See National Prop. Holdings, L.P. v. W estergren , 453 S.W .3d 419, 426 (Tex. 2015) (stating without qualification that “one of the [ p ar t i al perf

ormanc e] exception’s require ments is that the perf ormanc e on which the party relies must be ‘unequivoc ally ref era ble to th e a g r e e me n

t’ ” a n d e xp la ining that “[i] f the evidenc e establishes 7(Tex. 2015) (per curiam); Berrym an’s , 418 S.W .3d at 192; Holloway v. Dek kers , 380 S.W .3d 315,
324 (Tex. App.—Dallas 2012, no pet.). “The p erformanc e a party relies on to remove a parol
ag ree ment from th e s t at u t e o f frauds ‘must be such as could have been done with no other design than to fulfill the particula r ag ree ment s o u gh t t o b e enfor ced.’ ” Berrym an’s , 418 S.W .3d at 193 (quoting Breeze vale , 82 S.W .3d at 439–40); accord Dek kers , 380 S.W .3d at 324. Otherw ise, the acts of perf ormanc e do not tend to prove the exis tence of the paro l agr ee ment the plaintiff seeks to enfor ce. Berrym an’s , 418 S.W .3d at 193; Dek kers , 380 S.W .3d at 324.
AC C d o es not dispute that 94 regular pay ments wer e made to Pampalone but contends that there is no evidenc e that any perf ormanc e was “unequivoc al l y refera ble” or “solely ref era ble” to the purported loan ag ree ment. ACC first as s er t s this argument as to GP’s partial perf ormanc e. ACC cites a lawsuit filed in California prior to this suit in which Erik sued Hinojosa alleg ing that the unwritten transac tion was a persona l loan from Erik to Hinojosa and that pay ments

wer e due to Erik. ACC argues that the fac t that Erik filed the California lawsuit “def eats any

conce ivable argument that the evidenc e establishes the pay ments ref ere nced by Ba

rbar a wer e solely ref era ble to the unwritten ag ree ment she seeks to enfor ce.” We do not find this argument persua sive.

that the party who perf

ormed the act that is alleg ed to be partial perf ormanc e could have done so for some rea son other than to f ulfill oblig ations under the oral contra ct, the exception is unavailable ”) (quoting Chevalier v. Lane’s, Inc. , 213 S.W .2d 530, 533 (Tex. 1948) (apply ing require ment that perf ormanc e be unequivoca lly ref er ab l e t o oral contra ct on fac ts involving only one alleg ed oral contra ct)); Holloway v. Dek kers , 380 S.W .3d 315, 324 (Tex. App.—Dallas 2012, no pet.) (applying require ment that perf

ormanc e be une quivocally ref era ble to alleg ed oral e mploy ment contra ct and concluding that pay

ment of salary was n o t s o l ely ref era ble to alleg ed oral employ ment contra ct beca use it was re fer able to per formanc e of se rvice s). 8First, Erik testified that the California suit was nonsuited beca use he and Pampalone did not think that the claim asserted in it was the rig ht one and that the l awy er was not authorized
to asser t it. I n finding that Pampalone loaned $80,000 to “the owner s of Capital Colli sion,” the trial 8

court could have cre dited Erik’s t es t i m o n y . As fac t finder, the trial court is the sole judge of the

cre dibilit y of the witnesses and the weig ht to be g iven their testimony

. Iliff v. Iliff , 339 S.W .3d 74,
83 (Tex. 2011) (citing Montgomery Indep. Sch. Dist. v. Davis , 34 S.W .3d 559, 567 (Tex. 2 0 0 0 ))

. Fur ther, Hinojosa testified to a co ntrary theory , asser ting for the first time at trial that the loan
pay ments GP and ACC made to Pampalone we re t o re p ay Erik’s debt to Pampalone and that Hinojosa let the companies make the pay ments to help Erik. The trial court could have discredited Hinojosa’s testimony , and, in fac t, expressly stated its lack of belief in Hinojosa’s cre dibilit y . See 9

ACC emphasizes the word “owne rs” in this finding , putting it in quotation marks in eac h 8 of sever al ref

ere nces to it and adding the phrase , “including [P ampalone’ s] son.” I n oral argument, ACC argued that the re fer ence to the “owne rs” made i t unclea r who the borrower was. Howeve r, the findi ng states that the owne rs wer e the Tex as and Neva da corporations “as g ener al partners of Capital Colli sion, GP.” Fur ther, we observe that P am p al o n e alleg ed in her petition that she had enter ed into a loan ag ree ment with “Capital Colli sion.” Simi larly , she testified that the loan was for “Capital Colli sion,” the loan was for “the business,” and that she loaned the money to the company , Capital Colli sion, no t to Erik persona lly ; that she understood the money was to be used in part to purcha se l and for the bus iness; that Erik was not trying to purcha se any land for his own personal use at the time; that she g ave the first $50,000 to Erik to g ive to Capital Colli sion; and that she had previously

loaned money

to Capital Coll ision, which was re paying he r at the time of this loan. The trial c ourt enter ed the f ollowing “ Other F indings by the Court”: 9
48. Def endant Eric Hinojosa lacks cre dibilit y , espec ially in light of the fac t that Eric Hinojosa was wholly unprepa red for his corpor ate repr esentative deposition, had not revie wed a single document produce d in the lawsuit or otherwise talked to any Austin Capital Colli sion, L L C, empl o y ee s or repr esentatives reg arding the desig nated deposition topics, and demonstrated a repe ated inability to provi d e substantive response s on his own behalf or on behalf of Austin Capital Colli sion, L L C. Fur ther, at trial of this cause , Eric Hinojosa tried to chang e many of the answe rs he provided at his deposition which occur red a pproxi mately

one month befor e trial. 9McG alliard v. Kuhlmann , 722 S.W .2d 694, 697 (Tex. 1986) (stating that trial court may choose to

believe one witness and disbelieve others and re solve inconsistencies in any witness’s testimony);

see also City of Keller , 168 S.W .3d at 8 1 9. We defe r to the trial court’s first-hand assessment of Hinojosa’s cred ibilit y and demea nor. See Turner v. KTRK Television, Inc. , 38 S.W .3d 103, 120 (Tex. 2000) (“B eca

use the trier of fac t has the ability to examine the witness’s demea nor, we must defe r to its credibility

deter minations.”).
I n addition, the evidenc e s u p p orts the trial court’s finding that Pampalone fully perf o rm ed an d GP partly perf ormed under the contra ct. As evidenc e of her full perf ormanc e, Pampalon e testified that she mortg ag ed her home in order to make the loan; that the loan was to Capital Colli sion, not to Erik personally ; that the l oan was to be at 7 % fo r 20 y ear s; that she gave Erik $50,000 “for him to g ive to [ GP ] ”; t h at she wrote a chec k to Union Ba nk for the $30,000 balanc e of the loan; and that “that money was then sent to [GP ].” Erik testified that he and Hinojosa di s cu s s ed as k i n g Pampalone for a loan to use for the possible purcha se of the land on which the business operated; that he asked Pampalone to loan GP $80,000 at 7% int ere st over 20 y ear s; that Pampalone gave him $50,000; that he deposited it i nto GP’s acc ount using Quicken Bill Pay ; and that Quicken Bill Pay made a direc t mail deposit into GP’s acc ount throug h Metava nte Corp., which he believed is “some ty

pe o f pass-throug h entity for

. . . I ntuit,” the company that sells Quicken products. The bank statements of GP admitted into evidenc e ref lected a deposit from Metava nte Corp. for $50,000 and a “counte r cre dit” for $30,000 on dates that coincided with the approximate dates to which Pampalone and Erik testified the pay ments wer e made. And the terms of the loan to which Pampalone a

nd Erik testified we re r efle cted on the a mortiz ation schedule

.

10Concerning GP’s partial perf ormanc e , G P’ s b a

nk s ta te me n ts r e f

le c te d mo n

th ly d e b it s, for “B arba ra Pampalone Bill Pay ment” in the amount of $657.09, the amount of the monthly
pay ment indicated on the amortization schedule

. Pampalone testified that she never saw the chec ks but that deposits in the amount of $657.09 showed up on her Fidelity acc ount statements, and further testified that if a pay

ment was missed, she would tell Erik, who wo u l d call Hinojosa, and the
pay ments would resume. Fidelity rec ords enter ed into evidenc e included copies of monthly chec ks from the GP acc ount pay able to “B arba ra Pampalone” in the amount of $657.09. Erik testified that 1 0
he helped set up the automati c p aym en t s to Pampalone; that Hinojosa was awa re of it; that the
purpose of the pay

ments was to repa

y the $80,000 loan from Pampalone; and that at times when the
pay ments s t o p p ed, he would call Hinojosa and ask him to fig ure out what happene d, and the
pay ments would resume.

Fur ther, email communications from Erik to Hinojosa and betwee n Erik and GP employ ees and repr esentatives ref lect GP’s pay

ments on the loan from Pampalone. At the beg inning of eac h y ear , Erik emailed GP e mploy ees, repor ted the amount of interest on the loan GP ha d paid the prior tax y ear , and attache d the amortization schedule

. At times, Erik also emailed Hino j o sa informing him of the amount of interest paid and attached t h e amortization schedule , and Erik exchang ed emails with GP’s acc ountant conce rning the interest GP paid, attaching the amortization schedule

. I n one exchang e, GP’s acc ountant ref err ed to Erik’s “mom’s loans,” and in another , Erik 1 1

As Pampalone testified, the bank rec ords ref lect that some monthly pay ments wer e missed 1 0 but that pay

ments wer e subsequently resumed. The rec ords also indicated, as Pampalone testified, that in J une 2011, the amount of the pay ments chang ed fr om $675.09 to $675.00. As noted above, Pampalone had previously loaned GP money , but that loan was taken over 1 1 by Erik when he left the c ompany and is not a par

t of this lawsuit. 11states that Hinojosa had asked him to forwa rd the information to GP’s acc ountant. Erik testified that none of the emails to GP “bounce d back” and that at no time did Hinojosa or any GP employ ee or
repr esentative respond by asking him to what loan he wa s ref err ing.
As for its own liability , ACC argues that the same defe cts that defe at liabili ty as
ag ainst GP also defe at Pampalone’s eff orts to enfor ce the alleg ed loan ag ree ment ag ainst ACC: The alleg ed assumption of the loan was unwritten, and there is no evidenc e that any pay ments wer e solely ref era ble to the alleg ed loan. ACC also ar gu es t h at ACC did not make pay ments to Pampalone b eca use the pay

ments came from an acc ount held in the names “Capital Colli sion GP” and “Eric A Hinojosa,” and not ACC’s acc ount. Howeve r, the evidenc e supports the trial court’s finding that ACC assumed the loan and partly perf ormed under the contra ct. The evidenc e showed that ACC conti n u ed operating the same business as GP, employ ed the same employ ees, used the same assumed
name, used the same email addre ss, used the same email signature block indicating the same phy sical ad d re ss, and assumed control of the bank acc ount into which Pampalone’s loan funds had been deposited. Thus, ACC acc epted the benef its of the unwritten loan proce eds. See 626 Joint Venture

v. Spinks , 873 S.W .2d 73, 76 (Tex. App.—Austi n 1 9 9 3 , n o wr i t) (stating that statute of fra uds is unavailable to party who acc epts benefi t s of oral contra ct and partially perf orms). I n addition, betwee n J uly 2010, when GP was terminated, and October 2013, when the last pay ment was made, the bank statements of ACC and GP ref lect multipl e transfe rs of funds in substantial amounts from the ac count held in the name s “Capital Collisi on” and “Eric A Hinoj osa”—a fter it wa s taken ove r b y AC C

— to the newly cre ated acc ount in the names of “Capital Colli sion GP” and “Eric A Hinojosa,” and t h er e we re continued monthly pay ments to Pampalone from the latter

12acc ount. Although Hinojosa denied that those funds wer e transfe rre d to pay Pampalone and testified

that instead he “per sonally ” deposited funds into the GP acc ount to pay her, the trial court could have discredited that testimony

. See Iliff , 339 S.W .3d at 83; City of Keller , 168 S

. W

. 3 d at 819;
McG alliard , 722 S.W .2d at 697.

Fur ther, the rec ord contains continued email comm u n i ca t i ons that ref lect ACC’s assumption of and partial perf ormanc e on the loan. I n May 2011, Erik emailed Hinojosa at what had become the ACC email addre ss, attaching the amortiz ation schedule

. I n ear ly 2012, Erik emailed Hinojosa at the ACC email addre ss, repor ting the amount of interest paid in 2011. And in September 2012, when Erik emailed Hinojosa informing him that Pampalone had chang ed acc ounts and asked that the deposits be sent to the new acc ount, he rec eived a reply from an ACC employ ee, Hinojosa’s sister-in-law , stating, “Rec eive d a n d U pdated. Thank You!” On this rec ord, we conclude that there was more than a scintilla of evidenc e that the pay ments made by GP and AC C to Pampalone wer e unequivoca lly ref era ble to the $80,000 loan from Pampalone and corr oborative of the fac t that a contra ct was made with Pampalone. W estergren , 453 S.W .3d at 426; Burbage , 447 S.W .3d at 259; In re K.M.L. , 443 S.W .3d at 112; City of Keller , 168 S.W .3d at 807; Berrym an’s , 418 S.W .3d at 193.

Viewing the evidenc e in the light most favor able to the verdic t, we there fore further conclude that there was more than a scintilla of evidenc e t o s u p p o rt t he trial court’s finding s that
AC C assumed GP’s debt on the loan from Pampalone and partially perf ormed. See Thom a s v. Mill er , No. 06-15-00095-CV, 2016 Tex. App. L EXI S 8322, at *20–21 (Tex . App.—Texarkana Aug

. 4, 2016, no pet.) (conc luding that partial performa nce exception was met wher e contract for

13sale of land did not contain sufficie nt proper t y descr iption and there fore failed to meet statute of

fra uds b u t b u y er moved into home, made monthly pay ments to bank for five y ear s, paid proper ty taxes, and made repa i rs with seller’ s knowledg e and consent); Aguirre v. Pompa , No. 11-14-00168- CV, 2016 Tex. App. L EXI S 5312, at *7–10 (Tex. App.—Eastland May 19, 2016,

no pet.) (mem. op) (conc luding that partial perf ormanc e exception applied wher e evidenc e showed purcha ser paid purcha se price , took possession of land, and moved persona l proper ty onto land, and seller provided rec eipts showing full pay ment); Stovall , 409 S.W .3d at 801 (ho l d i ng that partial perf ormanc e removed oral lease ag ree ment from st atute of fra uds wher e lessee occupied pro p er t y and paid rent for more than one y ear , and email communications ref lected lessor acc epted rent and provided maintenanc e service s); Cottman Transmissi on Sys., L

. L

. C

. v. FVLR Enters., L.L.C

. , 295 S.W .3d 372, 378–79 (Tex. App.—Dallas 2009, pe t. denied) (concluding that pay ment of rent

was “g ood indication” that party was assuming lease and holding that there was partial perf ormanc e

so as to remove lease from statue of fra uds wher e party took other actions consistent with assumption of lease , including enter ing into manag ement ag ree ment he had no authority to e nter unless he had assumed lease and placing manag er at and secur ing utilit ies for premises); Spinks , 873 S.W .2d at 74,
76 (conc luding that there was leg ally sufficie nt evidenc e to support jury ’s finding that joint venture ,

cre ated afte r closing on sale of proper ty , ag ree d to pay indebtedness underly ing n o t e wh er e joint
venture signe d no written ag ree ment to pay debt but assumed benef its of note by actively manag ing
proper ty , including making perma nent improvements, listi ng it as asset on tax returns, and making
pay ments to sellers); Estate of Kaiser v. Gifford , 692 S.W .2d 525, 525–26 (Tex. App.—Houston [1st Dist.] 1985, writ ref

’d n.r.e.) (noting ru l e t h at “whe re one party fully perf orms a contract, the

14Statute of Fr auds is unavailable to the other who knowing ly acc epts benef its and partly perf

orms”). We overrule ACC’s first issue.

I n its second issue, ACC argues that beca use Pampalone did not establish parti al perf ormanc e, there is no theory by which contra ctual claims can be sustained ag ainst ACC, and the

awa rd of attorney ’s fee s under chapte r 38 must there fore be overturne d as well. See Tex. Civ. Prac. & Rem. Code § 38.001(8) (providing for rec overy of attorney ’s fee s in suit based on oral or written
contra ct). Having deter

mined that there was leg ally sufficie nt e vidence to suppor t the trial court’s finding of par

tial perfor mance , we ove rrule A CC’s second issue.

P am palon e’s Cr oss-Appeal

I n a single issue on cross-a ppeal, Pampalone argues that the trial court err ed in failing
to impose alter eg o liability on Hinojosa for brea ch of contra ct based on its fac tual finding s and the undisputed evidenc e. The elements of alter eg o in a brea ch of contra ct case are : (1) the defe ndant has a financ ial interest in, owner ship of, or control of the corpor ation, (2) there is unity betwee n
corpor ation and defe ndant so that separ atene ss has cea sed, (3) it would be an injusti ce to hold only the corpor ation liable, (4) the defe ndant cause d the corpor ation to be used for perpe trating a fra ud, and (5) the defe ndant perpe trated an actua l fra ud for his direc t persona l benef it. See Tex. Bus. Org s. Code § 21.223(b); Mancorp., Inc. v. C u lpepper , 802 S.W .2d 226, 228 (Tex. 1990); Stewart
& Steve nson Servs., Inc. v. Serv- Tech, Inc. , 879 S.W .2d 89, 108 (Tex. App.—Houston [14t h Dist.] 1994, writ denied) . Pampalone ar g ues t hat t he trial court’s findings of fac t support an af firmative finding on eac h of these e lements. On this rec ord, we cannot a g ree .

15I n arguing that the elements of alter eg o wer e supported by the trial court’s finding s,

Pampalone cites Finding s of Fa ct Nos. 22–39 and 48. These finding s are listed under subheading s 1 2
that identify whi ch aspec ts of the trial court’s deter minations they support. Finding s of Fa ct Nos. 22–39 are included under the subheading s “De fenda nt Austin Capital Colli sion’s Assumption of the L oan” and “Austin Capital Colli sion, L L C’s, Def ault on the L oan” and contain fac tual finding s related to ACC’s assumption of, partial perf ormanc e on, and brea ch of the loan ag ree ment. Finding of Fa ct No. 48, stated under the subheadi n g “O t her Finding s by the Court” and quoted above, contains the trial court’s finding that Hinojosa lacke d cre dibilit y , which explains why the finding s ref lect that the trial court discredited Hinojosa’s testimony

. However, the trial court’s finding s include no express ref

ere nces to unity or lack of separ atene ss betwee n Hinojosa and the companies

or commingling of persona l and company funds, and they contain no mention of fra ud or injusti ce 1 3 1 4

She also cites Finding of Fa ct No. 57 but, in doing so, quotes from Finding of Fa ct No. 29. 1 2 Although Hinojosa testified that he “per sonally ” deposited funds into the GP acc ount, he 1 3 did not testify as to wher e those fu n d s ca m e from, and to the extent he intended to state that they wer e his persona l funds, the trial court could have d i s cr edited his testimony

. See Iliff v. Iliff , 339 S.W

. 3 d 7 4, 83 (Tex. 2011); City of Keller , 168 S.W .3d at 819; McG alliard v. Kuhlmann , 7 2 2 S .W.2d 694, 697 (Tex. 1986). There is no ref ere nce to Hinojosa’s depositi ng persona l fund s into either company ac count in the Finding s of Fa ct and Conclusions of L aw. Rather, Finding of Fa ct No. 33 states only that Hinojosa “intenti onally put money into the Ba nk of Americ a acc ount held in the names of ‘Eric Hinojosa’ and ‘Capital Colli sion, GP’ to cover the monthly bill pay ments to Plainti ff on the loa

n,” and the record r efle cts that on multipl e occ asions, substantial funds wer e transfe rre d from the ACC bank a ccount to the GP bank a ccount.

In oral argument, Pampalone argued t h at t h e t rial court’s Finding of Fa ct No. 28. that 1 4 Hinojosa failed to provide Pampalone with statutory notice that he was terminating the corpor ations an d GP is an alter eg o finding of fra ud—an argument she asser ted is based on fede ral authorit y . Having failed to raise this arg ument in her briefing , Pampalone has waived it. See Tex. R. App. P. 38.1(i). Fur

ther, even if we wer e to construe Finding of Fa ct No. 28 as a finding of fra ud, we would, as discussed below, decline to presume the omitted finding of inju s t i ce nece ssary to pierc e the corpor ate ve il. See M

ancorp., Inc . v. Culpepper , 802 S.W .2d 226, 228 (Tex. 1990). 16in holding only ACC liable. Thus, considering the finding s relied on by Pampalone in the context of the trial court’s explanatory subheading s and its oral pronounce ment that it did not “believe there

was evidenc e prese nted which would war rant that finding in attempting to de fra ud others by using the entity to do so,” we conclude that the trial court’s finding s support the trial court’s deter minations

conce rning ACC’s assumption of the l oan and partial performa nce unde r it and that the trial c ourt did not enter finding s of fa ct in support of Pampalone’ s alter e g o theory

.

I f the trial court’s finding s of fac t do not include any elements of a g round of rec overy

or aff irmative defe nse, then the party rely ing on the g round of rec overy or aff irmative defe nse must specific ally reque st additional finding s in proper form; the failure to reque st the additional finding s results in the waiver of any complaint reg arding the unmentioned g round. See Tex. R. Civ. P. 298 (af ter t ri al co u rt files orig inal finding s and conclusions, any party may file reque st for specifie d additional or amende d finding s or conclusions); Briggs Equip. Trust v. Harris Cty. Appraisal Dist. , 294 S

. W

. 3 d 667, 674 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) ; Cooper v. Cochran , 288 S.W .3d 522, 531 (Tex. App.—Dallas 2009, no pet.) (op. on reh’ g ). Pampalone did not reque st
any amende d or additional finding s of fac t and conclusions of law. There fore , beca use the trial court
enter ed no finding s as to Pampalone’s alter eg o cause of action and Pampalone reque sted none, we conclude that P am p al o n e has waived her complaint on appea l reg arding the lack of a finding in support of her alter eg o theory

. See Tex. R. Civ. P. 298; Brig g s , 294 S.W .3d at 674; Cooper , 288 S.W .3d at 531; see also Tex. R. App. P . 33.1.

Even i f we wer e to construe the finding s of fac t as addre ssing some elements of Pampalone’s alter eg o claim, we would conclude that there is no finding on the element of injusti ce

17and that the e vidence does not support a deemed finding t hat i t would be an injusti ce to hold only

ACC liable. See Tex. R. Civ. P. 299 (whe n court’s finding s addre ss one or more elements of g round of rec overy , we presume finding s on omitted, unreque sted elements when supported by evidenc e); Saulsberry v. Ross , 485 S.W .3d 35, 41 (Tex. App.—Houston [14t h Dist.] 2015, pet. denied) (same, citing Rule 299). Pampalone now argues t hat limit ing liability to ACC would work an injusti ce beca use Hinojosa “emptied the orig inal debtor to make a new company without telling any one” so that Pampalone cannot be paid from GP becau s e i t n o l o ng er ex ists and because the bank rec ords showed that the GP acc ount was beingused for littl e more than making monthly loan pay ments to Pampalone. Howeve r, we have alre ady upheld the trial court’s finding s that ACC assumed the loan and par tially perf ormed, a nd it is ACC ’s, not GP’s, corpor ate ve il Pampalone seeks to pier ce. As plaintiff, Pampalone had the burden of proof on alter eg o. S ee T o r regrossa

v. Szelc , 603 S.W .2d 803, 804 (Tex. 1980); Capital Fin. & Commerce AG v. Sinopec Ove rseas Oil
& Gas, Ltd. , 2 60 S.W .3d 67, 82 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Although Pampalone asser

ts that “ther e is a substantial likelihood that the [amount of the debt that exceeds the
superse deas bond will] g o unpaid” if ACC is “t h e o n l y responsibl e party ,” she offe red no curr ent bank records f

or ACC and no other documentary or t estimonial evidenc e that ACC does not have the funds to pay the rema inder of the judgme nt, and she offe red only speculation that Hinojosa will take future actions to evade the debt. There fore , even if we wer e to de termine that the trial court’s finding s addre ssed some elements of the alter eg o theory , we would decline to presume the omitted element of injusti ce for lack of evidence. See T ex. R. Civ. P. 299; Saulsberry , 485 S.W .3d at 41;
W alker v. W

hitman , 759 S

. W .2d 781, 783 (Tex. App.—For t Worth 1988, no writ) (dec lining to

18presume omitted finding s wher e court found no evidenc e to support omitted finding s and concluding

that conclusion of law based on finding s on only some elements of theory could not sustain judgme nt). We overr

ule Pampalone’ s single issue on c ross-appe al.

CONCLUSION Having overr u l ed ACC’s issues on appea l and P ampalone’ s issue on cross-a ppeal,

we a ffirm the judg ment of the trial c ourt.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Melissa Goodwin, Jus tice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Bour land Affir med Filed: De cembe r 8, 2016

19