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Holmes v. Newman

Court of Appeals of Texas, First District

July 6, 2017

LEONARD HOLMES, Appellant
v.
STEVEN NEWMAN, Appellee

         On Appeal from the 151st District Court Harris County, Texas Trial Court Case No. 2014-10578

          Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

          MEMORANDUM OPINION

          Sherry Radack Chief Justice

         This case involves an investment in a start-up internet company that provides betting tips to gamblers for a fee. Appellant, Leonard J. Holmes, appeals from a summary judgment in favor of appellee, Steven Newman. In two issues on appeal, Holmes contends that (1) the trial court erred by excluding testimony from his expert witness regarding the meaning of a term used by the parties in the contract; and (2) fact issues preclude summary judgment. We affirm in part and reverse and remand in part.

         BACKGROUND

         Holmes and Newman had a prior business relationship; Newman worked at TD Ameritrade and Holmes was a customer. Newman left TD Ameritrade before the events giving rise to this suit.

         Newman made Holmes aware that he was looking for an investor to help fund a start-up website business that would provide advice and information to sports bettors. In April 2013, Holmes invested $50, 000 in return for a 50% interest in SportsPicks.com, LLC.

         The parties memorialized their agreement through a series of emails, which are dated April 3, 2013 and April 4, 2013. The April 3rd email from Newman to Holmes provides:

This is what we came up [with].
50k for 50%.
We also agreed the first return of capital would go to you up to 50k (your investment) and then be split according to ownership perpetually.
Capital will be distributed quarterly, 4 times a year.
2 of the 3 partners must agree to make material decisions.
If the site requires Rob [Abbott, the third investor] or I spending too much time on it, they will need to get paid at a reasonable rate.
We do not foresee that being an issue the first 12 months.
If it all sounds good, let me know if you would like to meet Rob or the best way to proceed to get this wrapped up.
(emphasis added).

         Holmes responded via email on April 4th that stated: no pay till I get paid is that ok . . . lets do it . . .thanks . . .jimmy Newman responded on April 4th:

Let's do it!
We are going to set it up as an LLC . . . what name do you want on the paperwork? Address? I'm going to have the paperwork done tomorrow.
Once set up, you can wire the money into the new account or if easier, write a check and we will get it deposited.

         On April 10, 2013, a Certificate of Formation Limited Liability Company for SportsPicks.com was filed ...


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