Boucher v. Thacker

609 S.W.3d 206

Joe D. BOUCHER, Appellant

v.Mark A. THACKER, Appellee

06-19-00055-CV

Court of Appeals of Texas, Texarkana.

Date Submitted: July 22, 2020

Date Decided: September 1, 2020

John F. Berry, Brian E. Richardson, John F. Berry, PC, Tyler, for Appellant.

Bill Frizzell, Frizzell Law Firm, Tyler, for Appellee.

Before Morriss, C.J., Burgess and Stevens, JJ.

OPINION

Opinion by Justice Stevens

The case involves the imploding partnership between Joe D. Boucher and Mark A. Thacker in their firm, Sinclair & Wright Architects (the Firm). When it became clear that the Firm had acquired more debt than could be paid, Boucher and Thacker discussed the Firm's dissolution. During these dissolution discussions, Boucher sought to retire, but Thacker withdrew from the Firm before the effective date of Boucher's retirement. Thacker sued Boucher for breach of the partnership agreement and breach of fiduciary duties as part of the winding up and dissolution of the Firm, prompting Boucher's crossclaims for retirement money, among other things. The trial court granted judgment for Thacker, awarded him $49,500.00 in attorney fees, and entered a take-nothing judgment against Boucher.

On appeal, Boucher argues that the trial court erred (1) in failing to award Boucher any retirement or the value of his interest in the Firm, (2) in failing to award Boucher damages for Thacker's breach of fiduciary duty, and (3) by awarding attorney fees against him because Thacker did not secure an award of actual damages.¹ Thacker cross-claimed, arguing that the trial court erred by failing to award him any actual damages for Boucher's breach of contract.

Because the trial court entered a take-nothing judgment on all of Boucher's claims against Thacker, we interpret Boucher's first two points of error as questioning whether the evidence was factually sufficient to support the trial court's rejection of his claims. We find the evidence factually sufficient to support the take-nothing judgment and conclude, as a result, both that (1) Boucher was not entitled to retirement or the value of his interest in the Firm and (2) the trial court did not err in failing to award damages to Boucher. Even so, because we find that Thacker was not entitled to an award of attorney fees absent either an award of damages or a contractual provision providing for attorney fees, we sustain Boucher's last point of error. We dismiss Thacker's cross-appeal, which argues that the trial court erred in failing to award actual damages, because he failed to file a separate notice of appeal. As a result, we reverse the trial court's award of attorney fees and render judgment that Thacker is not entitled to attorney fees. We affirm the remaining portions of the trial court's judgment.

I. Factual and Procedural History

A. The Formation and Governing Documents of The Firm

Thacker, Boucher, Carroll M. Sinclair, and Garland C. Wright, the Firm's original partners, entered into a Revised Partnership Agreement, effective as of December 31, 2000 (the Agreement). The Agreement, which Thacker and Boucher both agreed controlled their dispute, provided,

2.02 Additional Contributions to Capital. Whenever required in the business of the Partnership, capital shall be contributed by the partners in the proportion in which they share in the Partnership profits and losses as determined by paragraph 2.07 of this Agreement.

....

2.07 Profits and Losses. Any net profits or losses that may accrue to the Partnership shall be distributed to or borne by the partners in proportion to their profit/loss percentage....

2.08 Profits of Deceased or Terminated Partner. On the death of a partner, or on the withdrawal, retirement, or expulsion of a partner as provided in this Agreement, such partner shall be entitled to his share of the profits and losses earned up to the date of his death, withdrawal, retirement or expulsion and such partner's distributive share of the future profits and losses of the Partnership shall be divided among the remaining partners in accordance with their percentage interests in such profits and loses as determined in Paragraph 2.07 of this Agreement....

....

3.06 Non-Competition, Restrictive Covenant and Confidentiality.... Upon the termination of a partner's interest in the Partnership, whether voluntary or involuntary, the terminating partner shall immediately return to the Partnership all files, log books, data, records and documents, and all copies thereof, in the partner's possession or control concerning or relating to, directly or indirectly, the business of the Partnership. Further, during the two-year period following the partner's termination, the terminating partner shall not make a direct contact with or a solicitation of any person or company who is a customer of the Partnership at the time of termination or any person or company who has been a customer of the Partnership at any time during the two years preceding the termination, nor accept a contact for the purpose of engaging in an activity that is in direct competition in any manner whatsoever with the business of the Partnership. "Terminating partner" refers to a withdrawing, retiring, disabled or terminated partner.

....

4.01 Retirement or Withdrawal of Partner. Any partner may voluntarily retire or withdraw from the Partnership at any time by giving written notice to the other partners of his intention to so retire or withdraw.

4.02 Duty to Purchase Terminated Interest. The duty to purchase a terminated interest shall be governed by the following:

4.02.2 Other Partners. Upon the retirement or withdrawal of any other partner, the remaining partners shall continue the Partnership business and shall purchase the interest of the retiring or withdrawing partner in the assets and goodwill of the Partnership by paying to such partner or his personal representative the value of such interest determined as provided in Paragraph 4.05 of this Agreement. The purchasing partner or partners shall pay the amount determined under Paragraph 4.05 to the retiring or withdrawing partner or to his personal representative.... [I]n no event shall the annual aggregate of ... payments to any one retired partner exceed 5% of the annual gross fee or revenue of the Partnership....

....

4.05 Purchase Price of Partnership Interest. The value of each partner's interest in the Partnership shall be equal to the average annual gross fees or revenue of the Partnership as reported in the Partnership federal income tax return for the three (3) complete accounting years immediately preceding the date of valuation multiplied by such partner's then equity ownership in the Partnership....

....

4.09 Dissolution. On dissolution of the Partnership other than is provided in Paragraphs 4.01 through 4.05 of this Agreement, the affairs of the Partnership shall be wound up, the assets of the Partnership liquidated, the debts paid, and the surplus divided among the partners in proportion to their profit/loss percentage for the year of dissolution as indicated on Exhibit "A" attached hereto and made a part hereof for all purposes.

4.10 Files and Sketches. On any dissolution of the Partnership, the partner who has usually rendered professional services for a particular client shall be entitled to such client's files and sketches unless the client requests a different disposition be made thereof. In addition, on any dissolution of the Partnership, each of the partners shall be entitled to copies of any or all of the files and sketches of the Partnership, all at the expense of the Partnership before dissolution.

After Sinclair and Wright both retired, Thacker and Boucher each acquired a fifty percent interest in the Firm and filed Articles of Conversion in 2005 reorganizing the Firm as a professional limited liability company. Even so, both parties testified at trial that the Agreement, which labeled the firm as a partnership, still controlled and governed all Firm matters and the outcome of this lawsuit.

B. Boucher and Thacker's Souring Relationship Leads to Dissolution

In 2014, Boucher and Thacker's relationship began to sour. Thacker testified that the Firm was in debt, bills were racking up, and Boucher, who was allegedly not pulling his weight, "was not willing to interject additional capital into the firm." According to Thacker, "there was no other choice but to dissolve the firm." While Thacker testified that dissolution discussions began in the fall of 2014, Boucher testified that they started in January 2015.²

According to Boucher, Thacker addressed a letter to him that was titled "Dissolution of Sinclair & Wright Architects" before February 10, 2015. The letter, which listed many considerable debts together with those below, said,

As of February 10, 2015, it is now apparent the firm can no longer operate under a significant debt and no substantial contracts to be signed. Currently there is less than $5,000 cash in the bank. With no agreement in place between [Thacker] and [Boucher] to continue operation, the following must be addressed in order to wind down and conclude outstanding activities and obligations:

1. Debt to Garland ... $120,000.00....

....

10. .... "$32,359.15 loan....

....

33. Reasons for Ceasing Operation....

The dissolution discussions presented several options on how to proceed, breeding room for disagreement as shown by the Firm's February 13, 2015, minutes, which read,

Discussion

[Boucher] has met with his attorney, reviewed the current partnership agreement, discussed retirement, withdrawal from the firm, and closing of the firm. [Boucher] and his attorney believes [sic] if he withdraws he is leaving a lot of money on the table.

Retirement:

[Boucher] will get paid per the agreement. Approximately $ 300,000.

[Thacker] said he can't afford that and it doesn't make sense due to the economic situation of the firm.... [Thacker] said the option of closing the firm is still on the table. [Boucher] didn't respond....

Withdrawal from Firm:

[Boucher] said, again, if I withdraw from [the

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