1 The claims of Barba ra Lemaire were non-suited during the trial, as were some of

the claims against several of the other def endants. Defendant Romeo James Milano did not appear at trial. NO. 07-01-0038-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A APRIL 17, 2002

______________________________ HARRY LEMAIRE, APPELLANT

V. DON J. DAV IS, GOLDEN GA TE, INC., NU CORP, INC ., CAGE, HILL & N IEHAUS, L.L.P. , RONALD R . NIEHAUS, HAL T. THORNE A ND THORNE & THORNE, IN C., APPELLEES

_________________________________ FROM THE 11 TH DISTRIC T COURT O F HARRIS COU NTY; NO. 98-22694; H ONORABLE MAR K DAVIDSON, JUDGE

_______________________________ Before BOYD, C.J., and REAVIS an d JOHNSON, JJ.
In four issues, app ellant Harry Lemaire chall enges a take- nothing judgment in favor of appellees Don J. Davis , Golden Gate, Inc ., NuCorp, I nc., Cage, H ill & Ni ehaus, L.L.P., Ronald R. Niehaus, Hal T. Thorne, and Thorne & Thorne, I nc. 1 In the suit, appellant2

sought to recover

damages for various c auses of action associat ed with the sale of his interest in a limited partnership. In the judgment , appellees Don J. Davis and NuCorp, Inc.
were awarded attorney fees in the amount of $89,490. For reasons we later discu ss, we affirm the judgment of the trial cour t.
In his issues , appellant arg ues the trial court erred in 1) submitting juryquestion no. 1 without an instruction on failure of consi deration and w ithout a definiti on of consideration , 2) submitting jury q uestion no. 2 because it w as redundant, confusing, and mi sstates the law with respect to the elements required to establish an attorney-client rela tionship, 3 ) failing to submit an attorney- client pri vity question to t he jury r egarding Ronald Niehaus and Cage, Hill & N iehaus and the li mited partnership, and 4) denyi ng appellant’s claims against Hal T. Thorne and Thor ne & Thorne, Inc. s eeking imposi tion of a construc tive trus t.
To understand appell ant’s complaint s in this appe al, it is necessary to recite th e events leading up to the underlyi ng laws uit. Appellant and appel lee Don Dav is (Dav is) had been involved in some busines s dealingswith each other. In one i nstance, Dav is assiste d appellant in recovering a claim against MBank by introducing him to a law yer w ith whom Davis had worked , appellee Ron Niehaus, and the law firm of Cage, Hill & Niehaus (jointly referred to as the Nie haus appellees) . The Niehaus appel lees later pr epared will s for appellant and his

wife.
In 1991, Davi s approached appel lant and Nan Patton (Patton) about inves ting in a limited partne rship to develop real estate property located at the s ite of a former Holiday Inn at 2100 Memorial D rive in Houston. Appellant and Pat ton agreed to i nvest $300,0003

in a limited par

tnership. In return they would each own a 25% i nterest in the limited partnership. An agreem ent cre ating 2100 Me morial Dri ve, Ltd. w as prepared by

the Niehaus appellees to carry out that purpose. App ellant and Patton each executed the document.
The general par

tner of the limited partnership was Golden Gate, Inc. (Gold en Gate), in which Davis w

as the sole shar

eholder, officer, an d director. Later that same year, the limited partnership acquired ow nership of the 2100 Memoria l Drive real es tate. Al though the agreement did not requir e that he do so, appel lant later made two additi onal loans to the limited part nership totaling $1 25,000. In 1992, appel lant entered in to an unrelated business transaction with Dav is and appellee NuCorp, Inc. (NuCorp) , in w hich appellant purchased a $250,00 0 interest in distributions owed by NuCorp to Davis.
Several years l ater, appellant and Patton became dis satisfied w ith their investment in the limited part nership. Patton retained Romeo Milano (M ilano) a/k/a James McMill ian to assist in bringing about a sale of the r eal estate owned by the partnership. Patton also arranged a meeting betw een Milano and appel lant. Milano appar ently repr

esented that the onlyway he could help Patton and appellant would be if the y assigned their interest i n the limited partnership to him so that he w ould own 50% of the partnershipand could force a sale of the assets. M ilano then sent appellant a bil l of sale, a rel eas e, and a mutual release, indemni ty and settlement agreement to be executed by appellant. These instrumentswere pr

epared b y t he Niehaus appel lees, who were the at torneys for the limited partne rship.4

On Sept emb er 30 , 199 6, ap pell ant e xe cuted a bil l of sale transferring his limited partnership interest to GMC Gr oup Investment, Inc. (GMC) , which w as owned by

Milano. Subs eque ntly, appellant retained K. Ray Campbel l to assist him in his dea lings w ith Milano and, on October

10, 1 996, appellant’s

signature on the releaseswas notar ized. At t hat time, appellant and Milano signed an agreement in which Milano ag reed to force a sa le of the partnership property and to pay appe llant his share of the proceed s.
Milano hired appell ees Hal T. Th orne and Thorne & Thor ne, Inc. (the Thor ne appellees) to as sist wi th th e clo sing o f th e sal e ofthe p artn ersh ip pro pert y. The Thor ne appellees incorporated GMC and sent the Niehaus appellees instructions to wire GMC’s share of t he sale to their client’s trust account. At the closing, GMC sold its partnership interest to Golden Gate for $700,000. The p artnershi p property was then sold to a third part y. The Niehaus appel lees drafted the cl osing documents to be used in the sal e. The
sum of $700,000 was transf erred to the Thorne app ellees’ trust account. On December 20, 1996, Campbell w rote the Thorne ap pell ees demanding that the proceeds of the clo sing be paid to appell ant, but the Thorne appe llees clai med no knowledg e of an y agreement

between Mi lano and appellan t. The mo ney was distributed from the trust account as dictated by

Milano. Appe llant never received any money from his investment in the partner

ship. Appellant

then brought s uit against the various parties inv

olved in the transac

tions alleging claims of legal malp r actice, breac h of fiduciary duty, fraud, v iolations of the Dece ptive Trade Practices A ct, co nve rsion, civ il conspir acy, breac h of contract, and5

seeking declaratoryrelief. At trial, the jur y found that appell ant had released Golden Gate, Davis, and the Niehaus appellees from the c laims and causes asser ted in the law

suit. The jury also found that, from the formation of 2100 Memorial D rive, Ltd ., an attorney -client relationship did not existbetween appel lant and the Ni ehaus appellees. Finally, the jury found that appellant ag reed to indemn ify D avisfrom al l cla ims arising out of the business dealin gs between Dav is and appellant . It was because of these finding s that the trial court rendered its judgment agai nst appellant.
In his firstissue, appell ant contends the trial court erred in submitt ing its i nitial jury question. In tha t question, the jury was asked if appellant had r eleased Golden Gate, Davis, and/or the Ni ehaus appelleesfrom the claims an d causes of action asserted in t he lawsuit. The jury was also instructed that a release is not valid as to a released party if it
was procured by

the fraud of that party . A definition of

fraud was furni shed to the jur y. In supporting his argument, appel lant reasonsthe question was improp er because it did not contain a definition of consi deration and it failed to inst ruct the jur y that the r

elease was invalid if it wasnot supported by considerati on. Appellant contends the definiti on an d instruction were re quired becaus e his testimony that no consider

ation was received for the release was uncontr

overted. Be cause consider ation is an es sential element to a release
or settlement, and because releas e was rai sed as an affirmative defense, appellant pos its thatit was t he de fen dan t’s bu rden to pro ve its existence. He also argues that the trial court abused its discr

etion in omitti ng the instruction because it concerned an ess ential element of a claim or r

elease.6

The trial court has wide discretion in determining the proper issues and i nstructions to be submitted to th e jury. Maddox v. Denk a Chemic

al Corp. , 930 S.W.2d 668, 670 (Tex. App.--Houston [1 st Dist.] 1 996, no writ ); Board of County Commissioners of County of Beaver, Okla. v. Amarillo Hosp. District , 835 S.W.2d 115, 125 (Tex.App.- -Amarillo 1992,
no writ) . However, it is required t hat the trial court submit the questions , instructi ons, and definitions raised by

the wri tten pleadings

and the evidence and which are proper to enable the jury to render a verdict. Tex. R. Ci v. P. 277 and 278. An inst ruction is proper if it finds support in any ev idence of probative value or reasonab le infer ence s tha t may b e dra wn from the evidence and which maybe of some assistance to the jury. Sutherland v. Illinois Employers

Ins. Co. of Wausau , 696 S.W.2d 139, 141 (Tex.App.-- Houston [14 th Dist.] 1985,
no writ). Error in the jury charge only requires reversal if, after consi derat ion of the pleadings, the evidence presented at trial, and th e charge in its entire ty, the err or a moun ted to such a denial of a party’s rights a s was r

easonably ca lculated to, and probably did, cause r

enditi on of an improper verdict. Island Recr eational Devel

opment Co rp. v. R ep ub lic of

Tex as Sa v. Ass ’n , 710 S.W .2d 551, 555 (Tex. 1986 ).
Because appellees raised the aff irmative defense of release, they had the burden to establish theexistenceof a valid r elease. Vera v. Nor

th State Dodge Sa les, Inc . 989 S.W.2d 13, 1 7 (Te x.App .--Sa n Ant onio 1998 , no p et.) . Howeve r, a writte n instrument reciting a considerati on imports one and, to offset that presumption, the party seek ing to assert a lack of consi deration must pr esent eviden ce on that issue. Buddy L. Inc. v. General Trailer Co., Inc. , 672 S.W.2d 541, 547 (Tex.App.-- Dallas 1984, w rit ref’d n.r.e.).7

We note that both rel eases wit h which w e are concerned recite on thei r face that the release is given “for and in consid eration of” eith er $10 or $10 and the r

ecitals contained in the document. Further, ap pellant did not plead a f ailure of considera tion in hi s third amended original petition, which was his last live pleading before trial. Nevertheless, some evidence as to a lack of consi deration was offered at trial , and assuming arguendo that the admitt ance of such evidence amounted to a tri al of the issue by consent, the amount of the consi deration gi ven for a rel ease needs only to have some value in the eyes

of the law. Id. If the p romisee par ts with some legal right or s ustains
some legal inj ury as an inducement for the agreement, that will be sufficient. Lassiter v. Boxwell Bros, Inc ., 362 S.W.2d 884, 886 (Tex.Civ .App.--Amari llo 1962 , no writ).
The instrument de nomi nated as Mutual Release Indemnity and Settlement Agreement

between appel lant and Dav is and Nucor p was a mutual release, i.e. , i n exchange for appellant’s release of Davis and NuCorp from any claims arising from the ir business dealings pr

eceding the date of the agreem ent, appel lant r eceived the s ame release from Dav is and NuCorp.
In the other rele ase, appellant rel eased 2100 Memori al Drive, Ltd., Golden Ga te, Davis, and their attorneys, among others, f rom liabil ity r elated to appell ant’s limited partnership interest in 2100 Mem orial Drive, Ltd. The document also recites:
Releasor has ass i gned his li mited partnersh ip interest in 2100 for co n sideration, which as signment has be en approved by GOLDEN GATE. In conjunction w ith said assig nment the parties hereto execute thi s Release.8

Thus, the release must beviewed within the context of thepartnership agreement and the assignment

of appellant’s li mited pa rtnership ag reement to GMC. Furthermore , neither GMC nor

Milano are parties to therelease. Because of this, the q uestion is not whether there was consi deration between those parties butis, rat her, whether there was consideration between appellant and Gol den Gate, Dav is, and the Ni ehaus appelleesfor the release in their favor. The partner ship agreement

providesthat a limited partner may onlyassign his in terest with the written approval of the general p artner a nd alth ough approval may not b e unreasonably withheld, whether to give approval is within the sole discretion of the general partne r.
When q uestioned as to t he reason he si gned the rele ases, appellant gave t h e fol lowin g test imon y: Q. Did you understand by signing this, you were rele asing the l imited part ners hip, Gold en Ga te, a nd f rom l iabi lity? A. Yes. Q. W hy did you do this? A. He said i t was needed i n order to cl ose. Q. Is that - - * * * Q. You mean Mr . Milano sai d he needed it? A. Yes. Q. Did Mr. Mil ano tell you why he needed to get Mr. Dav is released in order to close?2 There is no written approval of the assig nment from appellant to GMC in the record and thereis so me evidence th at one did not ex ist. However, by v irtue of the fact that the interest of GMC

was assi gned to Golden Gate at th e closing and Golden Gate then sold the partnershi p property , Golden Gate can be said to have impliedly given consent. 9 A. W ell, it’s just a norm al proceedin g, I think. That is when releases are exchanged. Q. At clos ing? A. At clos ing. Q. W as that your - - A. So if my w ife was not g oing to be t here, I need ed to have an ex ecuted instrument

here in the States that would be effective or valid for purposes if needed. Q. But it was your understanding that would be only effect ive at closing, if there was a closing? A. I understood it would only be effe ctive if I got my money back. Q: You never got you r mon ey? A. I wasn’t

going to release any body at all unless it w as tied to me rece iving mon ey.
This colloquy

shows that

appellant unders tood that the releas es were a normal part of the closing transaction, which i ncluded the assignment of his interes t to GMC, approv al of the sale by the ge neral partner, 2 and the ultimate sale of the partnership property, which was what appell ant desired. Appellant

had a separate ag reement wit h Milano in which it was state d that appellant

had executed and delivered the bill of sale and releas es to Milano in exchan ge for Milano using his best efforts to close t he sale of the partner ship and/or i ts property to10

a third part y. If Milano w as unable to do so , he would r eturn the documents to appellant. If Milano did effect such a closing , he was to pay appellant his share of the proceeds from the sale of the partnership and its assets . As the facts i ndicate, Mil ano did bring about the intended closing, buthe failed to pay appellant his share of the proceed s as requi red by his contract. Ther

efore, the evid ence as to failur e of considerati on that was presented at trial actually

relates to t he agreement betw een appellant and M ilano, not to th e lack of consideration between the par ties to the releases. That being so, with r espect to the releases, lack of conside ration wa s not raised by the tri al evidence and no instruc tion was necessary

in that reg ard. Appellant

also complains

thatby placing the question as to the releases as the first que ryto be answ ered by the j ury, it “invite s the jury to pour-out theLemaire’s” and “emphasizesthe release de fense.” However, appellant madeno trial obj ection to the charge on that basis. It is necess ary that a party objec ting to a c harge must poi nt out distinctly the objectionabl e matter and the grounds of the obj ection. Tex. R. Civ . P. 274. Afailure to do sowaives the objecti on. Also, an obj ection that an instruction may confuse the jury without further explanation is too genera l to mee t the specifici ty requ irement. Castleberry

v. Branscum , 721 S.W.2d 270, 276-77 (Tex. 1986). Furthermore , the goal of
a jury charg e is t o submi t the issue s fo r the ir dec ision logica lly, si mply, clea rly, f airly,
corre ctly, and c omp lete ly, and the trial court has br oad discreti on in accomplis hing that end
as long as the charge islegally correct. Hyundai Motor Co. v. Rodriquez

ex rel Rodr

iquez , 995 S.W .2d 6 61, 6 64 (T ex. 1999). The trial cour t did not abuse i ts discreti on in refusing11

to give a failure of consider ation instruc

tion, nor did it abuse its discretion in the ord er it presented to the j ury ques tions. Appell ant’s first i ssue is overruled.
In his second i ssue, appellant complai ns of the second jury question. In that question, the jury

was asked to determi ne whether an attorney- client rel ationship ex isted between appe l lant, indiv idually and not as a limi ted partner, and the Niehaus appel lees with respect to theoperationsof the limited par tnership. Appel lant arguesthe instruct ion contains contr

adictory and confusing defini tions of an attorney -client r elationship. The instruction in question reads:
An attorney- client rel ationship ex ists if the attorney has agreed, expressl y or impl iedl y, to render leg al servi ces of a spe cified or gen eral nature tothe person claimi ng such rel ationship. All that is required to create an atto rney-cl ient relati onship is that the parties, expressly

or implici tly by

their conduct

manifest an intenti on to create the attorney-c lient relat ionship. Spec ific ally, appellant arg ues that the first part of the instruction requ ires an agr eement by
an attorney to pro vide leg al services. Howev er, he continues , the second part of the instruction is broader and requires explicit or impli c it conduct that is determined by the conduct of both parties. Because there is no explanation as to how these two allegedly differentstandards rel ate to one another an d whether oneor both standardsmust be met, he posits the instructions are confu sing. Furthermore, he contends, the instruct ions fail to tell the jury of the attorney’s duty to tel l a client t hathe is not repr esenting him under the facts of the case. Fur ther, he posits , because the jur y had alrea dyanswered the first3 The testimony s howed that the Niehaus appellees had also prev iously r epresented Davis i n legal matter

s. 12 question affirmatively , the confusion of the second question was exacerbated because it suggested to the jury , without explanation, that their answer to the first questi on was not dispositive.
The attorney- client rel ationship qu estion b et ween appella nt and the Niehaus appellees arose because heclaimed that at the time of the prepar

ation and execution of the limited par

tnership ag reement, whi ch occurred over a three-hour period, he believed the Niehaus appell ees were r epresenting him. In that connecti on, appellant tes tified that in the past, the Niehaus appel lees had represented him in som e legal matters 3 and, prior to executing the limited partnership agreemen t, he in quire d whet her h e nee ded his own attorney and was told by Ron Niehaus that he did not need on e. However, Niehaus also told appellant that herepresented thelimited p artne rship, althou gh he did not ex plain to appellant th at he did not represent him ind ividually. Later, the Niehaus appellees also prepared the closing documents for the s ale o f th e par tner ship inte rest and p rope rty. Appe llan t sue d the Nieha us ap pell ees f or ma lpra ctice and b reac h offidu ciary d uty.
The law is well- settled that an at torney-c lient relat ionship is acontractual relationship in whic h an attorney agrees to r

ender professional service s for a client, and the relationship may be establishe d either expresslyor impliedly from the conduct of the parties. Mellon Service Co. v. To uche Ross & Co. , 17 S.W .3d 432, 437 (Tex.App.
-- Houston [1 st Dist.] 2000, no pet.) ; Vin son & Elkins v. Moran , 946 S.W.2d 381, 4054 In Moran, the appellant compla ined of error i n the charge because the court failed

to instruct t he jury t hat“agreed”meanta meeting of the mi nds which must be determined from the objective manifestations made by one party to anot her a nd no t by th e sub ject ive intent of any one party . The court held the trial cour t abu sed i ts dis cret ion b y fail ing to give that instruct ion, but the err or did not req uire reversal. Id. That particular complaint isnot before us in this appea l. 13 (Tex.App.-- Houston [14 th Dist.] 1997, writ di sm’d by ag r.); and Byrd v. Woodruff , 891 S.W.2d 689, 700 (Tex.App.--Dal las 1994, w rit dism’d by agr.). The instructi ons given by the trial cour

t substantial ly tra ck this lang uage. We disagree that the instruction s as submitted gave the jury tw o di ffere nt standards. The first instruction defines the relationshi p, and the second instruction states how the existence of such a relationship is to be determined. Al though the contr actual relati onship exi sts if the at torney agrees to render professional s ervices , the exis tence of that relat ionship is to be determined by the
e xpress o r implied co nduct of both parties . Stated differently , the attorney -client relationship does not exist merely because one party subjectively beli eves the other has agreed to re nder legal service s. See Moran , 946 S.W.2d at 406. 4 Appellant

also argue s error i n that the quest ion failed to instruct the jury of the duty to inform a client that the attorney was not representing him under the fa cts of this case. He further complain s of the placement of th e ques tion after question no. 1. However, again, appellant

failed to make thosespecific objec tions at tri al. By fail ing to so do, he has waived those complaints on appeal. See Murphy v. Seabarge, Ltd. , 868 S.W.2d 929, 935 (Tex.App.-- Houston [14 th Dist.] 1994, writ denied). Appellant’s second issue i s overru led.14

In his third issue, appellant contend s the trial court erred in faili ng to s ubmit an attorney-c lient

privit y questi on to the jury

regarding the Niehausappellees and thelimited partnership. Because his c laims wer e brought both in his indi vidual cap acity and on behalf of the limited par

tnership, he argues question no. 2 should have contain ed an inquiryas to the attorney

-client r elationship bas ed on his de rivati ve action. However, appellant did notmake this compl aint during the charge conference and he has, t her e fore, waived it. Appellant’s t hird issue is overruled.
In his fourth and final issue, appell ant complains of the trial cour t’s denial of

his claim against the Thorne appellees seeking impos ition of a constructive trust. He bases this complaint on the fact that the Thorne appellees received funds belonging to appellant, which they placed in their trus t account and refused to release to him, even after receivi ng notice that appellant c laimed he was entitled to the m. Appellant contends he was entitled to the i mpos iti on of a cons truc tive trust as a matter of law, but cites no auth ority in support of that claim. Without argument and citation of authorities, an appellant waives his issue. Seymour v. Amer ican Engine & Gr

inding Co. , 956 S.W.2d 49, 61 (Tex.App.-- Houston [14 th Dist.] 1996, wri t denied); Howell v. M urray Mor

tgage Co. , 890 S.W .2d 78, 81 (T e x.App-- Amarillo 1994 , w rit

deni ed). Mor

eov er, in g rant ing jud gmen t in fa vor of the Thorne appellees, the court opined:
The law review article and the case as cited in the Baylor Law Review article by Mr. DeShazo are distinguishable in that they rely on the statutory lien, the workers’ comp, o r someother kind of statutor

y or some ot her kind of a li en relationshi p. I am unable to fin d thatanything like that kind of relationship exists i n this court.15

Furthermore, I find that

Mr. Thorne w

as simply

disbursing funds from his trust account as directed by

his client

as he waslegally obligated to do. Therefore I render judgment in favor of Def endant Thorne a nd Thorne & Thorn e - - * * * –that they take nothing from the plaintiff on the theor y of construc

tive trus t, which w as the only theory you still had against them .

. . . Aconstructi ve trust is an equitable remedy i mposed to preventunjust enric hment. Meadows

v. Biersc

hwale , 516 S .W.2d 12 5, 13 1 (Te x. 1 974) . Theimpo sit ion of a
cons truc tive trustis within the discreti on of the trial court. Carr v. Weiss , 984 S.W.2d 753, 767 (Tex.App.--

Amarillo 1999, pet. denied); Hoggett v. Brown, 971 S.W .2d 4 72, 4 94 (T ex. App. --Ho uston [14 th Dist.] 1997, pet. denied). Ther e was no ev idence that the Thor ne appellees were unjustlyenriched and theevidence s upports the finding of the trial court. Thus, the trial court did not abuse its d iscretion i n refusing to i mpose a construc tive trus t. Appellant’s four

th issue is overrule d.
In summary, al l of appellant’sissues are overrule d and the judgment of the trial court is affirmed.

John T. Bo yd Chief Justice Publish.