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Scott Pelley P.C. v. Wynne

Court of Appeals of Texas, Fifth District, Dallas

August 28, 2017

SCOTT PELLEY P.C., THE PELLEY FAMILY LIMITED PARTNERSHIP, AND SCOTT PELLEY, INDIVIDUALLY, Appellants
v.
MICHAEL C. WYNNE, JOHN HUNTER SMITH, AND M&S WYNNE FAMILY LIMITED PARTNERSHIP, Appellees

         On Appeal from the 15th Judicial District Court Grayson County, Texas, Trial Court Cause No. CV 11-1026

          Before Justices Francis, Lang, and Lang-Miers.

          MEMORANDUM OPINION

          DOUGLAS S. LANG JUSTICE.

         This case involves a complicated web of claims, counterclaims, and cross-claims respecting the dissolution of the law partnership of Nall, Pelley, Wynne & Smith in Sherman, Texas. Appeals and cross-appeals were perfected with a total of five briefs, reply briefs, and cross-briefs filed in this case as well as a substantial trial court record. The record consists of nineteen volumes of clerk's record[1] and fifteen volumes of reporter's record.[2] There are a total of thirteen issues on appeal and three issues on cross-appeal submitted to us. The appeals and cross-appeals are from a trial court judgment generally in favor of Michael C. Wynne and John Hunter Smith on their counterclaims and cross-claims for breach of contract, an accounting, and attorneys' fees.

         As a preliminary matter, we note that, on appeal, the parties generally assert their issues without identifying the particular parties to which each issue and cross-issue pertains. Nor do they distinguish their issues based on the particular parties who asserted or defended against the claims, counterclaims, or cross-claims in the trial court. Accordingly, based on our review of the record, including the parties' claims, counterclaims, and cross-claims, the trial court's findings of fact and conclusions of law, and the trial court's final judgment, we identified below the appropriate parties to each issue and cross-issue on appeal.

         First, Scott Pelley P.C. appeals the portion of the trial court's final judgment in favor of Wynne and Smith on its claims for repudiation, breach of contract, conversion, theft, damages under the Texas Theft Liability Act, and breach of fiduciary duty. Scott Pelley P.C. raises four issues on appeal, arguing: (1) as to its claims for repudiation and breach of contract, the trial court erred "in its [c]onclusions of [l]aw" that Wynne and Smith did not (a) repudiate the 2008 Agreement, nor (b) breach the 2008 Agreement; (2) as to its claims for conversion, theft, and damages under the Texas Theft Liability Act, the trial court erred when it concluded that Wynne and Smith did not convert or steal (a) the 2010 bonus in the amount of $52, 139.79, or (b) the $50, 000 Cobb fee or the $391, 722 LJH fee; (3) as to its claim for breach of fiduciary duty, the trial court erred when it concluded that Wynne and Smith did not breach their duties of loyalty and care; and (4) as to its claims for conversion and theft, the trial court erred when it denied its motion to compel the return of misappropriated funds.

         Second, The Pelley Family Limited Partnership appeals the portion of the trial court's final judgment in favor of the M&S Wynne Family Limited Partnership on The Pelley Family L.P.'s claim for partition of the property. In one issue, The Pelley Family L.P. argues the trial court did not have jurisdiction to render any orders in its final judgment related to the partition of the real property.

         Third, Scott Pelley, individually, [3] appeals the portion of the trial court's judgment in favor of Wynne and Smith on their cross-claims for breach of contract, seeking specific performance, and voluntary judicial winding up of the partnership. Pelley raises seven issues on appeal arguing: (1) as to Wynne's and Smith's cross-claims for breach of contract, the trial court erred when it concluded that Wynne and Smith were entitled to the equitable remedy of specific performance; (2) as to Wynne's and Smith's cross-claims seeking specific performance, the evidence is legally insufficient to support the trial court's implied finding of fact that Wynne proved he was ready, willing, and able to perform his obligations; (3) as to Wynne's and Smith's cross-claims seeking specific performance, the trial court erred when it concluded against Pelley on his "unclean hands" defense; (4) as to Wynne's and Smith's cross-claims for voluntary judicial winding up of the partnership, the trial court erred when it concluded that the Texas Business Organizations Code did not apply and instead, applied the Texas Family Code; (5) as to Wynne's and Smith's cross-claims for voluntary judicial winding up of the partnership, the trial court erred when it concluded that (a) Wynne did not owe Pelley attorneys' fees for the work Pelley performed on the Gibbs Estate and Shankles Estate cases, and (b) the "reasonable compensation theory" did not apply to the Gibbs Estate and Shankles Estate cases; (6) as to Wynne's and Smith's cross-claims for voluntary judicial winding up of the partnership, the trial court erred when it concluded (a) the "reasonable compensation theory" did not apply for the determination of the law firm's assets, and (b) the challenge of Pelley to the referral fee paid to John Nix in the Skyberg case was without merit; and (7) as to Wynne's and Smith's cross-claims for voluntary judicial winding up of the partnership, the trial court erred in its determination of the law firm's "wrapping up expenses" because the evidence is legally insufficient to support the trial court's finding of fact that expenses totaled $310, 982.

         Fourth, Scott Pelley P.C. and Pelley appeal the trial court's alleged, implied order denying their motion for "criminal contempt and [seeking to impose] sanctions." Specifically, Scott Pelley P.C. and Pelley raise one issue, arguing the trial erred when it concluded that a witness did not commit perjury.

         Fifth, Scott Pelley P.C., The Pelley Family L.P., and Pelley (collectively "the Pelley parties") appeal the portion of the trial court's judgment imposing joint and severable liability as to Wynne's and Smith's counterclaims against Scott Pelley P.C. and The Pelley Family L.P. In one issue, they argue the trial court erred when it pierced the corporate veil.

         Finally, in a cross-appeal, Wynne and Smith appeal the portion of the trial court's final judgment in favor of Pelley on their cross-claims for breach of fiduciary duty and request for appellate attorneys' fees. Wynne and Smith raise three cross-issues arguing: (1) as to their cross-claims for breach of fiduciary duty, the trial court erred when it concluded that Pelley did not breach his fiduciary duties; (2) as to their cross-claims for breach of fiduciary duty, the evidence is factually insufficient to support the trial court's finding of fact that Pelley did not breach his fiduciary duties; and (3) as to their requests for appellate attorneys' fees, the trial court abused its discretion when it failed to include contingent attorneys' fees on appeal in the judgment.

         The trial court's final judgment is reversed and remanded, in part, and affirmed, in part.

         I. FACTUAL AND PROCEDURAL CONTEXT

         We separate our discussions of the factual history from the procedural history and describe each of them, for the most part, in chronological order. The factual background includes some of the statements and evidence in the extensive record on appeal and the trial court's findings of fact.

         A. Factual Context

         In 1983, Wynne graduated from law school and began working for the law firm of Nall, Stagner & Pelley. In 1987, he became a partner and the law firm's name became Nall, Pelley & Wynne.

         In the 1990s, Pelley and Wynne purchased and renovated the property located at 707 West Washington Street, Sherman, Texas 75092 (the "Washington Street building"). The law firm and its employees moved to that building. On December 1, 1994, a joint venture was created so that Pelley and Wynne each owned 50% of the Washington Street building. On January 1, 2000, Pelley transferred his interest in the joint venture to The Pelley Family L.P. Scott Pelley P.C. was the general partner of The Pelley Family L.P. Similarly, on June 15, 2009, Wynne sold his interest in the Washington Street building to the M&S Wynne Family L.P. Wynne was the president of M&S Wynne Property Management L.L.C., which was the general partner of the M&S Wynne Family L.P.

         Smith began working for the law firm in 2003 and became a partner in 2008. The law firm of Nall, Pelley, Wynne & Smith[4] was a general partnership between Pelley, Scott Pelley P.C., Wynne, and Smith.[5] Nall, Pelley, Wynne & Smith rented the Washington Street building from the joint venture, which it occupied as its office.

         Pelley, Wynne, and Smith, in their individual capacities, signed a written agreement (the "2008 Agreement"), which was effective as of January 1, 2008 and for all years thereafter. The 2008 Agreement set out a monthly draw that each partner would receive and how all law firm revenue would be distributed. It also described how distributions were to be made to Pelley and Wynne for the Gibbs Estate and Shankles Estate cases, which were Nall, Pelley & Wynne assets prior to the 2008 Agreement. It also stated that "the Yelderman [m]atters and Highway 59 matter occurred prior to the creation of [] Nall, Pelley, Wynne [&] Smith."

         On January 21, 2011, the partners met to consider modifying the 2008 Agreement because the amount of income earned by Pelley was less than his "proposed 2010 end-of-year distribution" (the "2010 bonus") and it was apparent that the same situation was going to occur in 2011. During that meeting, Pelley indicated that he was inclined to "give back" a portion of his 2010 bonus.

         In early February 2011, the partners met again. During that meeting, Pelley stated he was going to give Smith a portion of his 2010 bonus, even though they all agreed that Pelley was entitled to it under the terms of the 2008 Agreement. After the meeting, Smith told Wynne that he did not feel right about accepting "all of the monies" Pelley gave him so he was going to give one-third of it to Wynne. On February 12, 2011, the partners met again to discuss adjusting the allocation formula. During that meeting, Smith told Pelley that he gave Wynne a portion of the money he had received from Pelley. Based on Pelley's reaction, Smith believed that Pelley was not pleased.

         On February 19, 2011, Wynne sent an e-mail to Pelley and Smith stating that "too much time has passed this year without [them] having a distribution agreement." Wynne reminded Pelley that he and Smith had provided Pelley a proposed 2011 distribution agreement and they were awaiting Pelley's counter-proposal. However, they had not received Pelley's counter-proposal. On February 23, 2011, Pelley responded to the e-mail stating, in part, that there was an agreement in place, the 2008 Agreement, unless Wynne's e-mail was intended to be a repudiation. On February 25, 2011, Wynne and Smith delivered a response by letter, stating they wanted to continue the partnership, but the 2008 Agreement needed to be modified as to the distributions. However, they stated that any modification they would approve would not affect the agreement relating to the Gibbs Estate and Shankles Estate cases. Pelley did not respond to this letter.

         On March 29, 2011, Wynne placed a handwritten note in Pelley's office, stating "Please get with [Smith] or I [sic] tomorrow." On March 31, 2011, Pelley sent Wynne and Smith an e- mail proposing that they enter into an agreement that all oral and written communications relating to a compromise or settlement will not be admissible in any later legal proceeding and that any agreement acknowledge that rule 408 of the Texas Rules of Evidence is applicable. After receiving the e-mail, Wynne and Smith went to Pelley's office and asked Pelley if he was planning to sue them. According to Wynne, Pelley responded "Yes, that is imminent." After the meeting, Smith told Wynne he could not be a law partner with someone who was going to sue him; Wynne said "I agree with you." At that point, Smith orally told Pelley he was "done with the partnership." That same evening of March 31, 2011, Wynne sent Pelley and Smith an e-mail, stating, in part:

Regretfully, it now appears that the dissolution of the [Nall, Pelley, Wynne & Smith] partnership is inevitable and upon us. I really wish we had been able to work things out and salvage our long[-]standing partnership. It is my sincere hope that we can accomplish the winding up of the partnership in a courteous, respectful, professional[, ] and efficient manner.

         After the March 31, 2011 discussions and correspondence, Pelley and Scott Pelley P.C. withheld payments from the Gibbs Estate and Shankles Estate cases. Also, Pelley deposited into the Scott Pelley P.C. account monies from the Pilkilton and Miller cases, as well as others. These cases had been contracted with Nall, Pelley, Wynne & Smith before March 31, 2011. Similarly, during the partnership process that took place after the March 31, 2011 discussions and correspondence, Wynne and Smith deposited monies into an account under their control from the Cobb and LJH cases, which were contracted before March 31, 2011. Also, Wynne and Smith retained some of "the Nall, Pelley, Wynne [&] Smith proceeds belonging to Pelley and/or Scott Pelley P.C." Pelley, Wynne, Smith, and their employees continued to occupy the Washington Street building jointly owned by The Pelley Family L.P. and the M&S Wynne Family L.P after the March 31, 2011 discussions and correspondence. Wynne and Smith continued to pay the upkeep and utilities for the office building. However, the Pelley parties did not contribute to the expenses for maintenance and operation of the building.

         B. Procedural Context

         After the parties' original and amended petitions, answers, counterclaims, and cross-claims were filed, the claims before the trial court were: (1) Scott Pelley P.C. and The Pelley Family L.P.'s claims against Wynne and Smith for fraudulent inducement, theft, damages under the Texas Theft Liability Act, fraud, conversion, misappropriation of the partnership property, breach of the fiduciary duties of loyalty and care, breach of contract, request for an involuntary judicial winding up of the partnership, request for an accounting, request for the appointment of an auditor, and a claim for rent; (2) The Pelley Family L.P.'s claim against the M&S Wynne Family L.P. for partition of the Washington Street building they owned together; (3) Wynne's cross-claim against Pelley for damages under the Theft Liability Act; (4) Wynne's and Smith's cross-claims against Pelley for breach of fiduciary duty, constructive fraud, breach of contract, money had and received, fraud, disgorgement, the appointment of a receiver, and a voluntary judicial winding up of the partnership; and (5) Wynne's and Smith's counterclaims against Scott Pelley P.C. and The Pelley Family L.P., and cross-claims against Pelley seeking a constructive trust and requesting an accounting and audit. In addition, Pelley asserted that he is not liable in his individual capacity and there was a defect in parties because he did not practice law with Wynne or Smith.

         During the course of the litigation, the trial court signed orders appointing a receiver and an auditor. Scott Pelley P.C. filed a motion to compel the return of misappropriated funds, which the trial court denied. Further, Scott Pelley P.C. and Pelley filed a motion for contempt and the imposition of sanctions, alleging a witness had committed perjury. The trial court carried that motion until the conclusion of the trial.

         A bench trial was conducted on May 18-21, 2015. On August 31, 2015, the trial court signed an order directing a sale of the Washington Street building by auction on September 18, 2015. On September 11, 2015, Wynne and Smith filed a notice of appeal of the trial court's order of sale in appellate cause no. 05-15-01109-CV.

         On October 7, 2015, the trial court signed a final judgment that: (1) awarded Wynne and Smith actual damages in the amount of $34, 948.09 from Pelley and Scott Pelley P.C., jointly and severally, "which represents all [Nall, Pelley, Wynne & Smith] fees withheld by [] Pelley and/or Scott Pelley P[.]C[.] after subtracting a set-off for [Nall, Pelley, Wynne & Smith] fees currently held by Wynne and Smith"; (2) awarded Wynne and Smith reimbursement in the amount of $55, 672.80 from Pelley and Scott Pelley P.C. for overhead operation expenses; (3) awarded Wynne and the M&S Wynne Family L.P. damages in the amount of $158, 961.76 from the Pelley parties jointly and severally, "which represents . . . Wynne's and the M&S Wynne Family[ L.P.'s] 45% share of all proceeds withheld up to May 18, 2015"; and (4) ordered that unless the parties can agree on a method to buy or sell the property, they shall furnish the name of a receiver to sell the Washington Street building within thirty days of the date of the final judgment. On October 23, 2015, in separate pleadings all of the parties requested that the trial court make written findings of fact and conclusions of law. On November 5, 2015, the Pelley parties filed a motion for new trial, which was overruled.

         On December 30, 2015, the Pelley parties filed their notice of appeal of the trial court's final judgment. On January 6, 2016, Wynne, Smith, and the M&S Wynne Family L.P. filed their notice of cross-appeal of the final judgment. On January 27, 2016, this Court consolidated appellate cause no. 05-15-01109-CV, appealing the order of sale, into this appellate cause no. 05-15-01560-CV, appealing the trial court's final judgment.

         On January 29, 2016, the trial court signed two separate documents containing its findings of fact and conclusions of law: (1) the January 29, 2016 findings of fact and conclusions of law requested by Wynne and Smith; and (2) the January 29, 2016 findings of fact and conclusions of law requested by the Pelley parties. On February 12, 2016, the Pelley parties filed their request for additional and amended findings of fact and conclusions of law. On March 23, 2016, the trial court signed its additional findings of fact and conclusions of law.

         II. THE TRIAL COURT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW

         In issues one through eight, the first and second parts of issue nine, issues ten and eleven, and cross-issues one and two, the parties challenge the trial court's findings of fact and conclusions of law. In order to analyze the issues respecting the findings of fact and conclusions of law in an orderly way, we will address them in three stages. First, we will address the state of the arguments on appeal. Next, we will set out the applicable standard of review. Finally, we divide the parties' issues and arguments according to the nature and type of claim as follows: (1) Scott Pelley P.C.'s claims against Wynne and Smith for repudiation, breach of contract, conversion, theft, damages under the Texas Theft Liability Act, and breach of fiduciary duty; (2) Wynne's and Smith's cross-claims against Pelley for breach of contract, seeking specific performance, voluntary judicial winding up of the partnership, and breach of fiduciary duty; and (3) Wynne's and Smith's counterclaims against Scott Pelley P.C. and The Pelley Family L.P. for which the trial court imposed joint and several liability.

         A. Arguments on Appeal

         First, we address the state of the arguments on appeal of the Pelley parties, Wynne, and Smith. In their respective issues on appeal, on only a few occasions do the parties designate, identify, or provide citations to the specific underlying findings of fact or conclusions of law they challenge. In addition, in their prayers for relief and their arguments, the Pelley parties ask only that this Court "render" a judgment in their favor. However, the record on appeal shows the trial court signed three separate documents containing its findings of fact and conclusions of law: (1) the January 29, 2016 findings of fact and conclusions of law requested by Wynne and Smith; (2) the January 29, 2016 findings of fact and conclusions of law requested by the Pelley parties; and (3) the March 23, 2016 additional findings of fact and conclusions of law. These three documents contain a total of eighty-eight findings of fact and conclusions of law.

         1. Applicable Law

         A party appealing from a nonjury trial in which the trial court made findings of fact should direct its attack on the sufficiency of the evidence to specific findings of fact, rather than to the judgment generally. See Thompson & Knight L.L.P. v. Patriot Expl. L.L.C., 444 S.W.3d 157, 162 (Tex. App.-Dallas 2014, no pet.) (legal malpractice case discussing standard of review for findings of fact and conclusions of law in nonjury trial and generally noting preference for appealing party to direct sufficiency attack at specific findings of fact); Shaw v. County of Dallas, 251 S.W.3d 165, 169 (Tex. App.-Dallas 2008, pet. denied) (appeal of judgment denying attorney's fees claim, discussing standard of review for findings of fact and conclusions of law in nonjury trial and generally noting preference for appealing party to direct sufficiency attack at specific findings of fact). However, a challenge to an unidentified finding of fact may be sufficient if an appellate court can fairly determine from the argument which specific finding of fact the party challenges. See Copeland v. Cooper, No. 05-13-00541-CV, 2015 WL 83307, at *3 (Tex. App.-Dallas Jan. 7, 2015, pet. denied) (mem. op.) (appeal of default judgment awarding damages, discussing standard of review for findings of fact and conclusions of law in nonjury trial and noting challenge to unidentified finding of fact may be sufficient if appellate court can fairly determine from argument which specific finding of fact appellant challenges); Shaw, 251 S.W.3d at 169 (noting a challenge to an unidentified finding of fact may be sufficient if appellate court can fairly determine from argument specific finding of fact appellant challenges).

         Nevertheless, when there are multiple findings of fact, multiple causes of action presented, a variety of legal theories involved, and a substantial record, it may not be possible for an appellate court to fairly determine from the appellate argument the specific findings of fact a party contends are not supported by the evidence. See generally, In re Estate of Bessire, 399 S.W.3d 642, 649 (Tex. App.-Amarillo 2013, pet. denied) (noting some authority for proposition that challenge to otherwise unidentified findings of fact may be sufficient if it is included in argument or issue, if after giving consideration to number of findings of fact, nature of case, and underlying elements of applicable legal theories, specific findings of fact which appellant challenges can be fairly determined from argument); Lujan v. Villa, No. 07-01-0277-CV, 2002 WL 1131005, at *3 (Tex. App.-Amarillo May 29, 2002, no pet.) (not designated for publication) (in appeal of sufficiency of evidence to support judgment of common law and statutory fraud, appellate court could not fairly determine specific findings of fact challenged because trial court made forty-five findings of fact, and case had multiple causes of action and presented variety of legal theories).

         When a party's issue globally attacks the trial court's findings of fact and there is no method to ascertain the appellant's true objection to the sufficiency of the evidence, the findings of fact issued by the trial court are binding on the appellate court. See In re Estate of Bessire, 399 S.W.3d at 649 (findings of fact are binding on appellate court because there is no method to ascertain appellant's true objection to sufficiency of evidence). However, the binding nature of the trial court's findings of fact does not prevent an appellate court from reviewing the conclusions drawn from those factual findings. See id. (binding nature of trial court's findings of fact does not prevent appellate court from reviewing conclusions of law drawn from those factual findings); see also Lujan, 2002 WL 1131005, at *3 (specific findings of fact challenged on appeal could not be determined, but appellate court went on to analyze conclusion of law as to proper measure of damages).

         2. Application of the Law to the Facts

         As indicated above, for the most part, the parties make global attacks on the trial court's findings of fact. Accordingly, we make these observations and conclusions as a preface to our later determinations. We have attempted to fairly determine the specific findings of fact and conclusions of law the Pelley parties challenge on appeal. See Copeland, 2015 WL 83307, at *3 (appeal of default judgment awarding damages, discussing standard of review for findings of fact and conclusions of law in nonjury trial and noting challenge to unidentified finding of fact may be sufficient if appellate court can fairly determine from argument which specific finding of fact appellant challenges); Shaw, 251 S.W.3d at 169 (noting a challenge to an unidentified finding of fact may be sufficient if appellate court can fairly determine from argument specific finding of fact appellant challenges). We construe issues three and ten to argue the evidence is insufficient to support the trial court's particular findings of fact addressed in those issues. Because of the generality of the other assertions on appeal, we construe the remaining findings of fact as not having been challenged on appeal and, as a result, they are binding on this Court. See In re Estate of Bessire, 399 S.W.3d at 649 (concluding that because there is no method to ascertain appellant's true objection to sufficiency of evidence, findings of fact are binding on appellate court).

         We also note that when an appellant does not clarify whether it has asserted legal or factual sufficiency challenges to the trial court's findings of fact and the arguments of that party consistently seek rendition in its favor on the grounds that it proved its case as a matter of law, an appellate court will construe the appellant's arguments as asserting legal sufficiency, that is, no evidence challenges. See Milton M. Cooke Co. v. First Bank & Trust, 290 S.W.3d 297, 302 (Tex. App.-Houston [1st Dist.] 2009, no pet.) (noting appellant's arguments in principal brief did not clarify whether they asserted legal or factual sufficiency challenges and construing argument as legal sufficiency challenge because appellants consistently sought rendition). Accordingly, as to the findings of fact contested in issues three and ten, we construe the arguments of the Pelley parties to raise only a legal sufficiency argument because the remedy they seek on appeal is rendition. Finally, we construe issues one, two, four, five, six, seven, eight, the first and second parts of issue nine, and issue eleven to argue only that the trial court erred in its conclusions of law.

         As to the specific findings of fact challenged by Wynne and Smith on cross-appeal, we construe cross-issue two to challenge the "sufficiency of the evidence" to support the trial court's particular findings of fact addressed in that cross-issue. We note that with respect to cross-issue two, in the "argument and authorities" section of their cross-brief, Wynne and Smith do not clarify whether they are asserting a legal or factual sufficiency challenge. Yet, they provide both standards of review. Also, in the "issues presented" section, they refer to factual sufficiency. Further, they argue the trial court's findings of fact are "against the great weight and preponderance of the evidence" and seek a "remand." Accordingly, we construe cross-issue two to raise only a factual sufficiency argument. Finally, cross-issue one appears to be a legal sufficiency argument because Wynne and Smith argue the trial court erred "as a matter of law." However, when we look beyond the label they assign to this cross-issue, we conclude the substance of their argument is that the trial court's conclusions of law are not supported by the findings of fact. Accordingly, we construe Wynne and Smith's argument as to cross-issue one to be that the trial court erred when it concluded that Pelley did not breach his fiduciary duties.

         B. Standards of Review

         In an appeal from a bench trial, findings of fact have the same weight as a jury's verdict. See Speer v. Presbyterian Children's Home & Serv. Agency, 847 S.W.2d 227, 233 n.4 (Tex. 1993); Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence by the same standards that are applied in reviewing the evidence supporting a jury's verdict. See BMC Software Belgium N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). The trial court's findings of fact are binding on the appellate court unless challenged on appeal. See Ponderosa Pine Energy L.L.C. v. Illinova Generating Co., No. 05-15-00339-CV, 2016 WL 3902559, at *3 (Tex. App.-Dallas July 14, 2016, no pet.).

         1. Legal Sufficiency of the Trial Court's Findings of Fact

         A challenge to the legal sufficiency of the evidence supporting an adverse finding of fact on an issue for which the appellant did not have the burden of proof requires the appellant to show that no evidence supports the adverse finding. See Graham Central Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014) (per curiam). However, when a party attacks the legal sufficiency of an adverse finding on which it had the burden of proof, it must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). When reviewing the record, an appellate court determines whether any evidence supports the challenged finding of fact. See Sheetz v. Slaughter, 503 S.W.3d 495, 502 (Tex. App.-Dallas 2016, no pet.). If more than a scintilla of evidence exists to support the finding of fact, the legal sufficiency challenge will not prevail. See Graham Central, 442 S.W.3d at 263.

         2. Review of the Trial Court's Conclusions of Law

         An appellate court reviews the trial court's conclusions of law de novo. See BMC Software, 83 S.W.3d at 794; Sheetz, 503 S.W.3d at 502. An appellant may not challenge the trial court's conclusions of law for factual insufficiency, but it may review the legal conclusions drawn from the facts to determine their correctness. See BMC Software, 83 S.W.3d at 794. Further, a trial court's conclusions of law are not reviewable on the basis that there is legally insufficient evidence to support them. See Farkas v. Aurora Loan Servs. L.L.C., No. 05-15-01225-CV, 2017 WL 2334235, at *4 (Tex. App.-Dallas May 30, 2017, no pet. h.) (mem. op.); see also Merry Homes, Inc. v. Chi Hung Luu, 312 S.W.3d 938, 944 (Tex. App.-Houston [1st Dist.] 2010, no pet.). If an appellate court determines that a conclusion of law is erroneous, but the trial court nevertheless rendered the proper judgment, the error does not require reversal. See BMC Software, 83 S.W.3d at 794; Sheetz, 503 S.W.3d at 502; Reisler v. Reisler, 439 S.W.3d 615, 619-20 (Tex. App.-Dallas 2014, no pet.); Fulgham v. Fischer, 349 S.W.3d 153, 157-58 (Tex. App.-Dallas no pet.).

         C. Claims of Scott Pelley P.C. Against Wynne and Smith

         In issues one, five, and six, Scott Pelley P.C. argues the trial court erred in its findings of fact and conclusions of law as to its claims for repudiation, breach of contract, conversion, theft, damages under the Texas Theft Liability Act, and breach of fiduciary duty.

         1. Repudiation of the 2008 Agreement

         In the second part of issue one, Scott Pelley P.C. argues the trial court erred "in its [c]onclusion[] of [l]aw that Wynne and Smith did not [] repudiate the 2008 Agreement" as to its claim for anticipatory breach.[6] It claims the evidence establishes that Wynne and Smith first repudiated and then breached the 2008 Agreement. Wynne and Smith respond that Scott Pelley P.C. "cannot show no evidence [sic] to support the trial court's finding and cannot prove . . . repudiation as a matter of law."

         a. Applicable Law

         Repudiation or anticipatory breach is a positive and unconditional refusal to perform the contract in the future, expressed either before performance is due or after partial performance. See Markovsky v. Kirby Tower L.P., No. 01-13-00516-CV, 2015 WL 8942528, at *3 (Tex. App.-Houston [1st Dist.] Dec. 15, 2015, no pet.) (mem. op.); Van Polen v. Wisch, 23 S.W.3d 510, 516 (Tex. App.-Houston [1st Dist.] 2000, pet. denied). The elements of repudiation or anticipatory breach are: (1) the defendant repudiated the obligation, (2) without just excuse, and (3) the plaintiff was damaged from the breach. See McDonald v. McDonald, No. 05-15-00338-CV, 2016 WL 2764881, at *5 (Tex. App.-Dallas May 11, 2016, no pet.) (mem. op.); Poe v. Hutchins, 737 S.W.2d 574, 578 (Tex. App.-Dallas 1987, writ ref'd n.r.e.); Taylor Pub. Co. v. Sys. Mktg., Inc., 686 S.W.2d 213, 217 (Tex. App.-Dallas 1984, writ ref'd n.r.e.) (op. on mot. for reh'g). A repudiation or anticipatory breach occurs when a party's conduct "shows a fixed intention to abandon, renounce, and refuse to perform the contract." See Hunter v. PriceKubecka P.L.L.C., 339 S.W.3d 795, 802 (Tex. App.-Dallas 2011, no pet.); SAVA gumarska in kemijska industria d.d. v. Advanced Polymer Sci., Inc., 128 S.W.3d 304, 315 (Tex. App.-Dallas 2004, no pet.); Grp. Life & Health Ins. v. Turner, 620 S.W.2d 670, 673 (Tex. Civ. App.-Dallas 1981, no writ). The repudiation must be absolute and unconditional. See Hunter, 339 S.W.3d at 802.

         b. Application of the Law to the Facts

         We construe the argument of Scott Pelley P.C. to challenge the following conclusion of law in the trial court's March 23, 2016 additional findings of fact and conclusions of law:

[II. B.] Wynne and Smith did not repudiate the 2008 Agreement in 2011, prior to their withdrawal from the law firm.

         However, as to Scott Pelley P.C.'s claim for repudiation, the trial court made the following express finding of fact in the January 29, 2016 findings of fact and conclusions of law requested by the Pelley parties:

11. The [trial] [[c]ourt finds that the 2008 Agreement has not been rescinded or repudiated by Wynne or Smith and has not been amended.

         Also, the trial court made the following express findings of fact in its March 23, 2016 additional findings of fact and conclusions of law:

[II.C.] Wynne and Smith, in 2011, prior to their withdrawing from the law firm and without just excuse did not indicate by unconditional words or action, that they would no longer perform their contractual obligations to Scott Pelley under the terms of the 2008 Agreement.
[II.D.] Wynne [sic] and Smith's conduct did not show a fixed intention to abandon, renounce, and refuse to perform under the terms of the 2008 Agreement.

         Because Scott Pelley P.C. does not challenge these findings of fact on appeal they are binding. See Ponderosa, 2016 WL 3902559, at *3. The above-quoted findings of fact support the trial court's conclusion of law against Scott Pelley P.C. on its claim for repudiation because they find that Wynne and Smith did not absolutely and unconditionally show a fixed intention to abandon, renounce, and refuse to perform the 2008 Agreement. See Hunter, 339 S.W.3d at 802; SAVA, 128 S.W.3d at 315; Turner, 620 S.W.2d at 673. Accordingly, we conclude the trial court did not err when it concluded Wynne and Smith did not repudiate the 2008 Agreement.

         The second part of issue one is decided against Scott Pelley P.C.

         2. Breach of the 2008 Agreement

         In the first part of issue one, Scott Pelley P.C. argues the trial court erred "in its "[c]onclusion[] of [l]aw that Wynne and Smith did not breach [] the 2008 Agreement" as to its claim for breach of contract.[7] It claims the evidence establishes that Wynne and Smith breached the 2008 Agreement. Wynne and Smith respond that it "cannot show no evidence [sic] to support the trial court's finding and cannot prove breach . . . as a matter of law."

         a. Applicable Law

         To prove a claim for breach of contract, a plaintiff must establish: (1) the existence of a valid contract between the plaintiff and the defendant, (2) the plaintiff's performance or tender of performance, (3) the defendant's breach of the contract, and (4) the plaintiff's damage as a result of the breach. See Hunter, 339 S.W.3d at 802; Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owners Ass'n, 205 S.W.3d 46, 55 (Tex. App.-Dallas 2006, pet. denied).

         b. Application of the Law to the Facts

         We construe the argument of Scott Pelley P.C. to challenge the following conclusion of law in the trial court's March 23, 2016 additional findings of fact and conclusions of law:

[I.E.] The Defendants, Wynne and Smith, did not materially breach the 2008 Agreement.

         However, as to its breach-of-contract claim, the trial court made the following express findings of fact in its January 29, 2016 findings of fact and conclusions of law requested by the Pelley parties:

1. A general partnership existed between [] Pelley and Scott Pelley P.C., [] Wynne and [] Smith, called Nall, Pelley, Wynne and Smith.
2. [P]elley, [] Wynne[, ] and [] Smith entered into a contract, to wit, the 2008 Agreement, which was effective as of January 1, 2008 and for all years thereafter.
12. The [trial] [c]ourt finds that [] Wynne and [] Smith did not materially breach the 2008 Agreement.

         Also, the trial court made the following express findings of fact in its March 23, 2016 additional findings of fact and conclusions of law:

[I.A.] The 2008 Agreement was a valid enforceable contract.
[I.D.] The Defendants, Wynne and Smith, performed, tendered performance of, or w[ere] excused from performing their contractual obligations to [] Pelley under the terms of the 2008 Agreement.

         Again, Scott Pelley P.C. does not challenge these findings of fact on appeal. As a result, these unchallenged findings of fact are binding. See Ponderosa, 2016 WL 3902559, at *3. These findings of fact support the trial court's conclusion of law against Scott Pelley P.C. on its breach of contract claim against Wynne and Smith because they find Wynne and Smith performed, tendered performance, or were excused from performing under the terms of the 2008 Agreement. See Hunter, 339 S.W.3d at 802; Hackberry Creek, 205 S.W.3d at 55. Accordingly, we conclude the trial court did not err when it concluded Wynne and Smith did not breach the 2008 Agreement.

         The first part of issue one is decided against Scott Pelley P.C.

         3. Conversion, Theft, and Recovery of Damages Under the Texas Theft Liability Act

         In issue five, as to its claims for conversion, theft, and damages under the Texas Theft Liability Act, Scott Pelley P.C., argues the trial court erred when it concluded that Wynne and Smith did not convert or steal (a) the 2010 bonus in the amount of $52, 138.79, or (b) the $50, 000 Cobb fee or the $391, 722 LJH fee.[8] It contends Wynne and Smith wrongfully converted Scott Pelley P.C.'s interest in the Cobb and LJH funds that have been held in the law firm's trust account. It also maintains that Wynne and Smith continued to conceal the existence of these partnership funds by providing erroneous and misleading information regarding the law firm's financial assets. Wynne and Smith respond that the allegations are addressed in the trial court's findings of fact.

         a. Applicable Law

         i. Conversion

         Conversion is the unauthorized and wrongful assumption and exercise of dominion and control over the personal property of another, to the exclusion of or inconsistent with the owner's rights. See Waisath v. Lack's Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971); Lawyers Title Co. v. J.G. Cooper Dev., Inc., 424 S.W.3d 713, 718 (Tex. App.-Dallas 2014, pet. denied); Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 365 (Tex. App.-Dallas 2009, pet. denied). To establish a claim for conversion, a plaintiff must prove that: (1) the plaintiff owned or had possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised control over the property to the exclusion of, or inconsistent with, the plaintiff's rights as an owner; (3) the plaintiff demanded return of the property; and (4) the defendant refused to return the property. See Lawyers Title Co., 424 S.W.3d at 718; Tex. Integrated, 300 S.W.3d at 365-66. The plaintiff also must establish it was injured by the conversion. See United Mobile Networks L.P. v. Deaton, 939 S.W.2d 146, 147 (Tex. 1997) (per curiam); Lawyers Title Co., 424 S.W.3d at 718. An action for conversion of money arises only where the money can be identified as a specific chattel, meaning it is: (1) delivered for safe keeping; (2) intended to be kept segregated; (3) substantially in the form in which it is received or an intact fund; and (4) not the subject of a title claim by the keeper. See Lawyers Title Co., 424 S.W.3d at 718; see also Edlund v. Bounds, 842 S.W.2d 719, 727 (Tex. App.-Dallas 1992, writ denied).

         ii. Theft and Texas Theft Liability Act

         Pursuant to the Texas Theft Liability Act, a person who commits theft is liable for the damages resulting from the theft. See Tex. Civ. Prac. & Rem. Code Ann. § 134.003(a) (West 2011); Tex. Integrated, 300 S.W.3d at 366. Theft is defined as "unlawfully appropriating property or unlawfully obtaining services as described by [s]ection[s] 31.03, 31.04, 31.06 [or 31.11-31.14 of the Texas] Penal Code." Civ. Prac. & Rem. Code § 134.002(a) (West Supp. 2016); see Tex. Integrated, 300 S.W.3d at 366; see also Tex. Penal Code Ann. §§ 31.03 (theft) (West 2016). Section 31.03(a) of the Texas Penal Code provides that "[a] person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property." Penal Code § 31.03(a); see Tex. Integrated, 300 S.W.3d at 366. Appropriation of property is unlawful if it is without the owner's effective consent. Penal Code § 31.03(b)(1); Tex. Integrated, 300 S.W.3d at 366.

         b. Application of the Law to the Facts

         First, we address the claims for conversion, theft, and damages under the Texas Theft Liability Act as to the 2010 bonus. We construe Scott Pelley P.C.'s argument to challenge the following conclusions of law in the trial court's March 23, 2016 additional findings of fact and conclusions of law:

[III.A.] Defendants, Wynne and Smith, did not wrongfully exercise dominion or control over all and/or part of the bonus due to [] Pelley in the amount of $52, 139.79 [the 2010 bonus].
[III.B.] The Defendants, Wynne and Smith, did not unlawfully appropriate the bonus due to [] Pelley in the amount of $52, 139.79 [the 2010 bonus] with the intent to deprive [] Pelley of the property.

         However, Scott Pelley P.C. does not provide any argument as to why the trial court erred, as a matter of law, with respect to the 2010 bonus. Texas Rule of Appellate Procedure 38.1(i) requires an appellant's brief to "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex.R.App.P. 38.1(i). Accordingly, because we conclude that Scott Pelley P.C. has failed to adequately brief this argument on appeal, there is nothing for us to review on this point.

         Second, we address the claims for conversion, theft, and recovery under the Texas Theft Liability Act as to the Cobb and LJH fees. We construe Scott Pelley P.C.'s argument to challenge the following conclusions of law in the trial court's March 23, 2016 additional findings of fact and conclusions of law:

[III.D.] Defendants, Wynne and Smith, did not wrongfully exercise dominion or control over all and/or part of the $50, 000.00 Cobb fee and the $391, 722 LJ[H] fee.
[III.E.] The Defendants, Wynne and Smith, did not appropriate the $50, 000.00 Cobb fee and the $391.722 LJH fee, nor did they intend to deprive [] Pelley of the property.

         However, as to Scott Pelley P.C.'s claims for conversion, theft, and damages under the Texas Theft Liability Act, the trial court made the following express finding of fact in its March 23, 2016 additional findings of fact and conclusions of law:

[III.C.] The $50, 000.00 Cobb fee and $391.722.00 LJH fee were personal property that belonged to the [Nall, Pelley, ...

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