Preview
FILED
5/17/2023 4:07 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS & AUGHTRY, P.C. Treva Parker-Ayodele DEPUTY
ATTORNEYS AT LAW
DAVID N. CALVILLO 1200 SMITH STREET, SUITE 1400 HOUSTON
SHAREHOLDER HOUSTON, TEXAS 77002 ATLANTA
DIRECT: 713.654.9629 713.658.1818 800.342.5829 PHILADELPHIA
DAVID.CALVILLO@CHAMBERLAINLAW.COM FAX: 713.658.2553 SAN ANTONIO
May 17, 2023
Hon. Maria Aceves
192nd Civil District Court
George L. Allen, Sr. Courts Building
600 Commerce Street
Box 740
Dallas, Texas 75202
Re: Case No. DC-22-03103: La Energia Nortena, LLC et al v. Cuevas
Dear Judge Aceves:
We received a copy of Defendant’s demand for rulings on his summary judgment
objections.
Judge Stokes’ denial of Defendant’s Motion was correct. While this Court is free to rule
on Defendant’s objections as demanded in his letter, such a formal ruling is without a meaningful
purpose.
As one Houston Appellate Court has recently explained, “The general rule is that a denial
of a summary judgment cannot be reviewed on appeal. . . . The denial of a motion under paragraph
(i) [no-evidence motion for summary judgment] is no more reviewable by appeal or mandamus
than the denial of a motion under paragraph (c) [traditional motion for summary judgment].”
Nguyen v. Terra Nostra Realty, Inc., 2022 Tex.App. Lexis 6962 *8 (Tex. App.—Houston [1st Dist.]
2022, no pet.). Accordingly, whether this Court actually sustains or overrules the objections
signifies nothing.
Please feel free to contact us if you have any questions or comments
Sincerely,
CHAMBERLAIN, HRDLICKA, WHITE,
WILLIAMS &AUGHTRY, P.C.
By:
David N. Calvillo
State Bar No.: 03673000
David.Calvillo@ChamberlainLaw.com
30847957.v1
User Name: David Calvillo
Date and Time: Wednesday, May 17, 2023 9:19:00AM CDT
Job Number: 197280327
Document (1)
1. Nguyen v. Terra Nostra Realty, Inc., 2022 Tex. App. LEXIS 6962
Client/Matter: Novoa- La Energia Nortena
Search Terms: Nguyen v. Terra Nostra Realty, Inc., 2022 Tex. App. LEXIS 6962
Search Type: Natural Language
Narrowed by:
Content Type Narrowed by
Cases -None-
| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2023 LexisNexis
David Calvillo
Cited
As of: May 17, 2023 2:19 PM Z
Nguyen v. Terra Nostra Realty, Inc.
Court of Appeals of Texas, First District, Houston
September 15, 2022, Opinion Issued
NO. 01-20-00668-CV
Reporter
2022 Tex. App. LEXIS 6962 *; 2022 WL 4240909
TRINH NGUYEN, Appellant v. TERRA NOSTRA
REALTY, INC. AND RENE CASTILLO, Appellees LexisNexis® Headnotes
Prior History: [*1] On Appeal from the 215th District
Court, Harris County, Texas. Trial Court Case No. 2017-
00772.
Civil Procedure > Judgments > Relief From
Core Terms
Judgments > Motions for New Trials
statute of frauds, commissions, one year, trial court,
HN1[ ] Relief From Judgments, Motions for New
licensed, no-evidence, commission-sharing, hiatus,
Trials
summary judgment, unenforceable, real estate,
summary judgment motion, oral agreement, broker,
An order granting a motion for new trial rendered within
motion for a new trial, conclusions of law, relevant time,
the trial court's plenary power is not reviewable on
new trial, brokerage
appeal. When a motion for new trial is granted, the court
essentially wipes the slate clean and starts over.
Case Summary
Overview Civil Procedure > ... > Summary
Judgment > Appellate Review > Appealability
HOLDINGS: [1]-The trial court's order granting plaintiffs'
motion for new trial and its decision to deny defendant's Civil Procedure > ... > Summary
no-evidence motion for summary judgment and try the Judgment > Appellate Review > Standards of
case on the merits were not reviewable on appeal; [2]- Review
The trial court did not err in rendering judgment for
plaintiffs on their claim for breach of an oral HN2[ ] Appellate Review, Appealability
commission-sharing agreement because defendant did
not present any evidence that her agreement to share The general rule is that a denial of a summary judgment
commissions with plaintiffs could not be performed cannot be reviewed on appeal. More specifically, when
within a year, and thus, she failed to prove that the a motion for summary judgment is denied by the trial
agreement was unenforceable under the statute of court and the case is tried on the merits, the order
frauds in Tex. Bus. & Com. Code Ann. § 26.01; [3]- denying the summary judgment cannot be reviewed on
Section 1101.806 of the Real Estate License Act appeal. The party's remedy is to assign error to the trial
(RELA), Tex. Occ. Code Ann. § 1101.806(c), did not court's judgment ultimately rendered following trial on
prohibit plaintiffs' action to recover commissions the merits.
because both plaintiffs and defendant were "license
holders," as defined by RELA.
Civil Procedure > ... > Defenses, Demurrers &
Outcome Objections > Affirmative Defenses > Statute of
Judgment affirmed. Frauds
David Calvillo
Page 2 of 8
2022 Tex. App. LEXIS 6962, *1
Contracts Law > Statute of Contracts Law > Statute of
Frauds > Requirements > Writings Frauds > Requirements > Writings
Evidence > Burdens of Proof > Allocation Contracts Law > Statute of
Frauds > Requirements > Signatures
HN3[ ] Affirmative Defenses, Statute of Frauds
HN5[ ] Requirements, Performance
The statute of frauds is an affirmative defense and
renders a contract that falls within its purview Tex. Bus. & Com. Code Ann. § 26.01 encompasses
unenforceable. Tex. R. Civ. P. 94; Tex. Bus. & Com. agreements that are not to be performed within one year
Code Ann. § 26.01(a); Tex. Occ. Code Ann. § from the date of making the agreement. § 26.01(a),
1101.806(c). Under the statute of frauds, certain (b)(6). When a promise or agreement, either by its terms
contracts are not enforceable unless they are in writing or by the nature of the required acts, cannot be
and signed by the person against whom enforcement of performed within one year, it falls within the statute of
the contract is sought. The party pleading the statute of frauds and is unenforceable unless it is in writing and
frauds bears the initial burden of establishing its signed by the person to be charged. § 26.01(a), (b)(6).
applicability. Tex. R. Civ. P. 94. But if the agreement is capable of being performed
within one year, it is not within the statute of frauds.
Civil Procedure > Trials > Bench Trials
Contracts Law > Statute of
Contracts Law > Statute of Frauds > Requirements > Performance
Frauds > Requirements > Writings
Contracts Law > ... > Affirmative
Civil Procedure > Appeals > Standards of Defenses > Estoppel > Statute of Frauds
Review > De Novo Review
Contracts Law > Statute of
Civil Procedure > Appeals > Standards of Frauds > Requirements > Writings
Review > Questions of Fact & Law
HN6[ ] Requirements, Performance
Civil Procedure > ... > Defenses, Demurrers &
Objections > Affirmative Defenses > Statute of In deciding whether an agreement is capable of being
Frauds performed within one year, the court compares the date
of the agreement to the date when the performance
HN4[ ] Trials, Bench Trials under the agreement is to be completed. Tex. Bus. &
Com. Code Ann. § 26.01(b)(6). When the date
The application of the statute of frauds to a given performance will be completed cannot be readily
contract is a question of law. An appellate court may ascertained, the law provides that a writing is not
review whether a trial court's legal conclusions drawn required if performance could conceivably be completed
from the facts are correct. In an appeal from a bench within one year of the agreement's making. The statute
trial, the appellate court reviews the conclusions of law of frauds does not apply when the parties do not fix the
de novo and will uphold them if the judgment can be time of performance and the agreement itself does not
sustained on any legal theory supported by the indicate that it cannot be performed within one year, but
evidence. If the appellate court determines a conclusion does apply if the agreement, either by its terms or by the
of law is erroneous, but the trial rendered the proper nature of the required acts, cannot be completed within
judgment, the erroneous conclusion of law does not one year. That is, a contract that could possibly be
require reversal. performed within a year, however improbable
performance within one year may be, does not fall within
the statute of frauds.
Contracts Law > Statute of
Frauds > Requirements > Performance
Contracts Law > Statute of
David Calvillo
Page 3 of 8
2022 Tex. App. LEXIS 6962, *1
Frauds > Requirements > Writings holders include a broker or sales agent licensed under
the Real Estate License Act. Tex. Occ. Code Ann. §
Real Property Law > Brokers > Brokerage 1101.002(4); § 1101.002(1), (7) (defining broker and
Agreements sales agent).
Real Property Law > Brokers > Discipline, Licensing
& Regulation
Civil Procedure > Appeals > Standards of
Real Property Law > Brokers > Right to Review > Questions of Fact & Law
Commissions
HN10[ ] Standards of Review, Questions of Fact &
HN7[ ] Requirements, Writings Law
Tex. Occ. Code Ann. § 1101.806(c) bars judicial Unchallenged findings of fact are binding on the party
recovery of a real estate commission that is not based and the appellate court, unless the contrary is
on a written promise, agreement, or memorandum. established as a matter of law or there is no evidence to
support the finding.
Counsel: For Trinh T. Nguyen, Appellant: Pete Mai,
Contracts Law > Statute of John Na.
Frauds > Requirements > Writings
For Terra Nostra Realty Inc. and Rene Castillo:
Real Property Law > Brokers > Brokerage Appellee: Adam Potter.
Agreements
Judges: Panel consists of Justices Landau, Guerra,
Real Property Law > Brokers > Right to and Farris.
Commissions
Opinion by: Amparo Guerra
Real Property Law > Brokers > Discipline, Licensing
& Regulation Opinion
HN8[ ] Requirements, Writings
A real estate broker may not sue for a commission MEMORANDUM OPINION
unless the agreement is evidenced by a writing
complying with the Real Estate License Act (RELA). After a bench trial, the trial court rendered judgment
Courts have required strict compliance with Tex. Occ. against Trinh Nguyen for breach of an oral agreement to
Code Ann. § 1101.806(c), holding that an agreement to share commissions earned in real estate transactions
pay a real estate commission must be in writing or it is with Rene Castillo and his brokerage firm Terra Nostra
not enforceable. Texas courts strictly adhere to RELA's Realty, Inc. (Terra Nostra) (collectively, Castillo). On
statute of fraud requirements. appeal, Nguyen contends the trial court erred by (1)
granting a new trial and reinstating Castillo's claims after
first granting Nguyen a no-evidence summary judgment;
(2) ultimately denying her no-evidence motion for
Real Property Law > Brokers > Discipline, Licensing
summary judgment when it was reset; (3) rendering
& Regulation
judgment on an agreement that is unenforceable under
the statute of frauds; and (4) concluding that the Texas
Real Property Law > Brokers > Right to
Real Estate Licensing Act (RELA) did not require the
Commissions
commission-sharing agreement to be in writing.1
HN9[ ] Brokers, Discipline, Licensing & Regulation
We affirm.
By its plain language, Tex. Occ. Code Ann. § 1101.806
does not apply to an agreement to share compensation 1 Castillo
has not filed a brief responding to Nguyen's issues
among license holders. § 1101.806(a)(1). License on appeal.
David Calvillo
Page 4 of 8
2022 Tex. App. LEXIS 6962, *1
office in Bellaire, Texas. Nguyen would collect sales
Background commissions from Terra Nostra agents and share ten
percent of those commissions with Castillo, keeping 90
Nguyen and Castillo worked together in real estate percent for herself. Castillo explained that the 90/10 split
before Castillo filed his breach-of-contract and quantum- was more generous to Nguyen than a typical brokerage
meruit suit against [*2] Nguyen, alleging she had not arrangement because she was going to cover the costs
complied with an agreement to give Castillo ten percent of the Bellaire office. No writing memorializing the
of the real estate sales commissions she earned in a commission-sharing agreement was introduced into
two-year period.2 According to Castillo, the commission- evidence.
sharing agreement was intended to compensate him for
acting as Nguyen's sponsoring broker. Castillo further testified that he took a two-year "hiatus"
from real estate to pursue a food business; however, he
After answering the lawsuit and asserting affirmative continued to supervise Nguyen during that time. Issues
defenses, including that the statute of frauds barred arose during Castillo's hiatus that suggested to him that
enforcement of any commission-sharing agreement, Nguyen was mismanaging the business. Castillo
Nguyen moved for a no-evidence summary judgment on returned to Terra Nostra and investigated whether
all claims against her.3 Castillo did not respond, and the Nguyen had not complied with their agreement by
trial court granted Nguyen's no-evidence motion. withholding commissions. Based on his review of
Nguyen's sales history, Castillo determined that $60,761
Castillo timely moved for a new trial and asked the trial was owed to him. Nguyen did not cross-examine
court to set aside the summary judgment because his Castillo or present any evidence contradicting his
counsel was "duped into" not responding by Nguyen's testimony. [*4]
counsel's representation that the no-evidence motion
would be "passed." Castillo also complained about The trial court rendered judgment for Castillo and
pending discovery. ordered Nguyen to pay $60,397.89 in damages and
$51,180 in attorney's fees.5 The trial court also entered
Although Nguyen disputed her counsel had agreed to findings of fact and conclusions of law:
pass the no-evidence motion, the trial court granted
Castillo's new-trial motion and reinstated the claims
against Nguyen. Nguyen reset her no-evidence motion, Findings of Fact
and Castillo responded. Without stating its reasons, the 1. The relevant time period is January 1, 2014,
trial court denied the motion. through March 8, 2016.
2. [Castillo] was at all relevant times[] a real estate
The case proceeded to [*3] a bench trial.4 Castillo
broker licensed by the State of Texas.
testified that he founded his brokerage firm, Terra
3. [ Nguyen] was at all relevant times[] a licensed
Nostra, in 2012 and hired Nguyen the same year. They
real estate sales agent.
agreed Nguyen would open and manage a Terra Nostra
4. [Castillo] sponsored [Nguyen's] license during the
relevant time, which required [Castillo] to provide
supervision over each of [Nguyen's] real estate
2 Initially,
Castillo pleaded additional claims against Nguyen for transactions.
tradename and service mark infringement, injury to business
5. [Castillo] was at all relevant times[] the owner of
reputation, unfair competition, misappropriation, and fraud,
[Terra Nostra], a licensed real estate brokerage.
requesting both damages and injunctive relief. These
additional claims were abandoned in an amended pleading,
6. On or about January 1, 2014, [Castillo] took a
leaving only the breach-of-contract and quantum-meruit claims hiatus from real estate to pursue a restaurant
at the time of trial. venture.
3 Nguyen
7. [Nguyen] expressed an interest in managing
also pleaded counterclaims against Castillo, alleging
[Terra Nostra] while [Castillo] was on hiatus.
that he breached a promise to transfer ownership of Terra
Nostra to her in exchange for her promise to forgive a loan
between them. Her counterclaims included causes of action 5 Though it did not expressly reference Nguyen's
for breach of contract, promissory estoppel, unjust enrichment,
counterclaims, the trial court's judgment included finality
and breach of fiduciary duty.
language disposing of "all claims and all parties" and
4 Before the trial, Nguyen's counsel withdrew. She appeared indicating that "all relief not granted" was denied. Nguyen does
pro se at trial. not challenge the denial of her counterclaims on appeal.
David Calvillo
Page 5 of 8
2022 Tex. App. LEXIS 6962, *4
[Castillo] agreed, and the two entered into an oral damages.
agreement.
Nguyen timely moved for a new trial, challenging the
8. [Castillo] agreed to allow [Nguyen], under [his] sufficiency of the evidence and the enforceability of the
supervision, to manage and develop the business commission-sharing agreement under two statutes of
of [Terra Nostra] while he was on hiatus. [Nguyen] frauds. She argued the commission-sharing agreement
would operate [Terra Nostra] out of her own offices was unenforceable under the Texas Business and
located in Bellaire, [*5] and [she] would be Commerce Code because it was not in writing and not
responsible for all overhead and expenses. to be performed within one year. See Tex. Bus. &
9. In addition to the above terms, [Castillo] and Comm. Code § 26.01(b)(6) (requiring "agreement which
[Nguyen] agreed to a commission split of 90%/10%, is not to be performed within one year from the date of
in favor of [Nguyen]. making the agreement" to be in writing and signed by
10. In late 2012, [Castillo] offered to sponsor party to be charged). She also argued that the Texas
[Nguyen's] real estate license for free, but [she] Real Estate License Act (RELA) prohibited Castillo's
agreed to pay [him] a commission. . . . recovery of real estate commissions [*7] based on an
oral agreement. See Tex. Occ. Code § 1101.806(c) ("A
11. Additionally, all of the agents hired by [Nguyen] person may not maintain an action in this state to
agreed to sign a commission agreement with recover a commission for the sale or purchase of real
[Castillo], under the same terms [he] alleges [she] estate unless the promise or agreement on which the
agreed to on or about January 1, 2014. . . . action is based, or a memorandum, is in writing and
12. On or about March 2, 2016, [Castillo] returned
signed by the party against whom the action is brought
from his hiatus and discovered [Nguyen] had
or by a person authorized by that party to sign the
cleaned out [Terra Nostra's] bank account.
document."). The trial court denied Nguyen's motion for
13. Despite numerous demands by [Castillo],
new trial by written order, and she appealed.
[Nguyen] has continued to refuse to pay [him] any
of the commissions due and owing.
14. [Castillo] calculated the commissions due him Appealability
by [Nguyen] by obtaining data from the HAR.com
website. In her first and second issues, Nguyen challenges the
15. [Castillo] calculated the total commissions due trial court's orders granting Castillo's motion for new
equal $60,397.89. . . . trial, which had the effect of setting aside the no-
16. [Castillo and Terra Nostra] are also entitled to evidence summary judgment the trial court had
an award of attorney's fees in the amount of previously granted, and then denying her no-evidence
$51,180. . . . motion for summary judgment when it was reset. After
(Emphasis in original.) the trial on the merits, neither of these orders is
reviewable on appeal.
Conclusions of Law Here, after initially granting Nguyen a no-evidence
summary judgment, the trial court reinstated Castillo's
17. On or about January 1, 2014, [Castillo and claims against Nguyen on Castillo's motion for new trial.
Nguyen] entered into a valid and enforceable [*6] HN1[ ] An order granting a motion for new trial
contract regarding the development of [Terra rendered within the trial court's plenary power is not
Nostra] while [he] was on hiatus, including the reviewable on appeal. See Wilkins v. Methodist Health
commission split between [them]. Care Sys., 160 S.W.3d 559, 563 (Tex. 2005); Cummins
18. The contract allowed [Nguyen] to develop the v. Paisan Constr. Co., 682 S.W.2d 235, 235-36 (Tex.
Bellaire office of [Terra Nostra], including allowing 1984). When a motion for new trial is granted, "the court
her to hire her own agents. [She] was responsible essentially [*8] wipes the slate clean and starts over."
for all of the Bellaire office's operating expenses. Wilkins, 160 S.W.3d at 563. Castillo's new trial motion
Additionally, [she] agreed to pay [Castillo] 10% of was timely filed, and the trial court granted the motion
all commissions [she] received during the period during its period of plenary power over the judgment.
January 1, 2014 to March 8, 2016. See Tex. R. Civ. P. 329b. Consequently, the order is not
19. [Nguyen] breached the contract by failing to pay subject to review on appeal. See Shrewsbury v. Por,
[Castillo] any commissions due, entitling [him] to No. 08-13-00364-CV, 2015 Tex. App. LEXIS 6397, 2015
David Calvillo
Page 6 of 8
2022 Tex. App. LEXIS 6962, *8
WL 3898801, at *1 (Tex. App.—El Paso June 24, 2015, App.—Dallas 2011, no pet.) ("Under the statute of
no pet.) (mem. op.) (order granting new trial on claims frauds, certain contracts are not enforceable unless they
dismissed on summary judgment was not reviewable on are in writing and signed by the person against whom
appeal). enforcement of the contract is sought."). The party
pleading the statute of frauds bears the initial burden of
The same is true of the trial court's ultimate decision to establishing its applicability. See Dynegy, Inc. v. Yates,
deny Nguyen's no-evidence motion for summary 422 S.W.3d 638, 642 (Tex. 2013) (citing Tex. R. Civ. P.
judgment. HN2[ ] The general rule is that a denial of a 94).
summary judgment cannot be reviewed on appeal. See
Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 HN4[ ] The application of the statute of frauds to a
(Tex. 1996); Williams v. Colthurst, 253 S.W.3d 353, given contract is a question of law. See id. An appellate
359-60 (Tex. App.—Eastland 2008, no pet.). More court may review whether a trial court's legal
specifically, when, as here, a motion for summary conclusions drawn from the facts are correct. See BMC
judgment is denied by the trial court and the case is Software Belgium, N.V. v. Marchand, 83 S.W.3d 789,
tried on the merits, the order denying the summary 794 (Tex. 2002); Choice! Power, L.P. v. Feeley, 501
judgment cannot be reviewed on appeal. See S.W.3d 199, 208 (Tex. App.—Houston [1st Dist.] 2016,
Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. no pet.). In an appeal from a bench trial, we review the
1966); see also Tex. R. Civ. P. 166a cmt. ("The denial of conclusions of law de novo and will uphold them if the
a motion under paragraph (i) [no-evidence motion for judgment can be sustained on any legal theory [*10]
summary judgment] is no more reviewable by appeal or supported by the evidence. BMC Software, 83 S.W.3d
mandamus than the denial of a motion under paragraph at 794. If we determine a conclusion of law is erroneous,
(c) [traditional motion for summary judgment]."). "The but the trial rendered the proper judgment, the
party's remedy is to assign error to the trial court's erroneous conclusion of law does not require reversal.
judgment ultimately rendered following trial on the Id.
merits." United Parcel Serv., Inc. v. Tasdemiroglu, 25
S.W.3d 914, 916 (Tex. App.—Houston [14th Dist.] 2000,
pet. denied); see also Williams, 253 S.W.3d at 360 n.3. B. Section 26.01 of the Business and Commerce
Code
Accordingly, we overrule Nguyen's first and second
issues. In her third issue, Nguyen argues that the oral
commission-sharing agreement is unenforceable under
Section 26.01 of the Texas Business and Commerce
Statute of Frauds Code because Castillo sought compensation for
commissions earned during a two-year period, making
In her [*9] remaining issues, Nguyen argues the trial the agreement one that could not be performed within
court erred by rendering judgment for Castillo because one year and therefore subject to the statute of frauds.
the oral commission-sharing agreement was See Tex. Bus. & Com. Code § 26.01(a), (b)(6). We
unenforceable under two statutes of frauds. See Tex. disagree.
Bus. & Com. Code § 26.01(a), (b)(6) (statute of frauds
for agreements "not to be performed within one year HN5[ ] Section 26.01 encompasses agreements that
from the date of making the agreement"); Tex. Occ. are "not to be performed within one year from the date
Code § 1101.806(c) (RELA statute of frauds for actions of making the agreement." Id. § 26.01(a), (b)(6). When a
"to recover a commission for the sale or purchase of promise or agreement, either by its terms or by the
real estate"). nature of the required acts, cannot be performed within
one year, it falls within the statute of frauds and is
unenforceable unless it is in writing and signed by the
A. Standard of Review person to be charged. See id. § 26.01(a), (b)(6);
Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483,
HN3[ ] The statute of frauds is an affirmative defense 489 (Tex. 1991), overruled on other grounds by In re
and renders a contract that falls within its purview United Servs. Auto Ass'n, 307 S.W.3d 299 (Tex. 2010);
unenforceable. Tex. R. Civ. P. 94; see also Tex. Bus. & Niday v. Niday, 643 S.W.2d 919, 920 (Tex. 1982) (per
Com. Code § 26.01(a); Tex. Occ. Code § 1101.806(c); curiam); Beverick v. Koch Power, Inc., 186 S.W.3d 145,
S & I Mgmt., Inc. v. Choi, 331 S.W.3d 849, 854 (Tex. 149 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
David Calvillo
Page 7 of 8
2022 Tex. App. LEXIS 6962, *10
But if the agreement is capable of being performed possibility that appellant could have completed project in
within one year, it is not within the statute of frauds. See one year, even if only under very favorable conditions).
Beverick, 186 S.W.3d at 149. Consequently, we cannot say that Nguyen conclusively
proved that the oral commission-sharing agreement was
HN6[ ] In deciding whether an agreement is capable of unenforceable under Section 26.01. See id.; see also
being performed within one year, we compare the Chacko v. Mathew, No. 14-07-00613-CV, 2008 Tex.
date [*11] of the agreement to the date when the App. LEXIS 4331, 2008 WL 2390486, at *3 (Tex. App.—
performance under the agreement is to be completed. Houston [14th Dist.] June 12, 2008, pet. denied) (mem.
See Tex. Bus. & Com. Code § 26.01(b)(6); Young v. op.) ("A contract does not fall [*13] within the statute of
Ward, 917 S.W.2d 506, 508 (Tex. App.—Waco 1996, no frauds based on the absence of a requirement to
writ). When the date performance will be completed complete performance within a year; the lack of any
cannot be readily ascertained, the law provides that a expectation that performance will be completed within a
writing is not required if performance could conceivably year; or the fact that completion within a year proved to
be completed within one year of the agreement's be impossible in light of later circumstances.").
making. See, e.g., Niday, 643 S.W.2d at 920 (stating
general rule that statute of frauds does not apply when Accordingly, we overrule Nguyen's third issue.
"the parties do not fix the time of performance and the
agreement itself does not indicate that it cannot be
performed within one year," but does apply if "the C. Section 1101.806 of RELA
agreement, either by its terms or by the nature of the
required acts, cannot be completed within one year" In her fourth issue, Nguyen asserts that the oral
(emphasis in original)); Beverick, 186 S.W.3d at 149. commission-sharing agreement was unenforceable
That is, "[a] contract that could possibly be performed under Section 1101.806 of RELA. See Tex. Occ. Code
within a year, however improbable performance within § 1101.806(c). Again, we disagree.
one year may be, does not fall within the statute of
frauds." Beverick, 186 S.W.3d at 149 (emphasis in HN7[ ] Subsection (c) of Section 1101.806 bars
original). For example, in Miller v. Riata Cadillac judicial recovery of a real estate commission that is not
Company, 517 S.W.2d 773, 775 (Tex. 1974), the Texas based on a written promise, agreement, or
Supreme Court concluded that an indefinite term memorandum. See id.; see also Givens v. Dougherty,
employment contract was performable within one year 671 S.W.2d 877, 878 (Tex. 1984) (interpreting
and, therefore, did not fall within the statute of frauds. predecessor statute as statute of frauds); Prime Income
Asset Mgmt., Inc. v. Marcus & Millichap Real Est. Inv.
Here, although Castillo sought compensation for Servs. of Tex., Inc., No. 01-13-00020-CV, 2014 Tex.
commissions earned during a two-year period, the App. LEXIS 13901, 2014 WL 7473801, at *3 (Tex.
record does not eliminate the possibility [*12] that the App.—Houston [1st Dist.] Dec. 30, 2014, no pet.) (mem.
performance under the oral commission-sharing op.) (interpreting current statue as statute of frauds);
agreement could have been completed in one year. Lawrence v. Reyna Realty Grp., 434 S.W.3d 667, 673
Stated differently, although it was her burden, Nguyen (Tex. App.—Houston [1st Dist.] 2014, no pet.) (same). It
did not present any evidence that her agreement to provides:
share commissions with Castillo could not be performed A person may not maintain an action in this state to
within a year. See Dynegy, 422 S.W.3d at 642. No recover a commission for the sale or purchase of
evidence established that performance under the real estate unless the promise or agreement on
agreement was for a fixed period only. Rather, the only which the action is based, or a memorandum, is in
evidence of the potential duration of the agreement to writing and signed by the party against whom the
share commissions was Castillo's testimony, which action is brought or by a person authorized by that
supported an inference that the agreement was effective party to sign the document.
for the duration of his hiatus from Terra Nostra. But
again, even if Castillo's hiatus lasted two years, no Tex. Occ. Code § 1101.806(c); see Tex. Builders v.
testimony or other evidence established that it was not Keller, 928 S.W.2d 479, 481 (Tex. 1996) (HN8[ ] "A
possible it would last only one year. See Beverick, 186 real estate broker may not sue for a commission unless
S.W.3d at 149-50 (statute of frauds did not apply even the agreement is evidenced by a writing [*14]
though actual performance of oral agreement took two complying with the Real Estate License Act."). Courts
years to complete because evidence established have required strict compliance with this provision,
David Calvillo
Page 8 of 8
2022 Tex. App. LEXIS 6962, *14
holding that an "agreement to pay a real estate
commission must be in writing or it is not enforceable."
Brice v. Eastin, 691 S.W.2d 54, 57 (Tex. App.—San End of Document
Antonio 1985, no writ); see also Trammel Crow Co. No.
60 v. Harkinson, 944 S.W.2d 631, 637 (Tex. 1997)
(Texas courts strictly adhere to RELA's statute of fraud
requirements).
HN9[ ] However, by its plain language, Section
1101.806 does not "apply to an agreement to share
compensation among license holders." Tex. Occ. Code
§ 1101.806(a)(1); see also Ryland Enter., Inc. v.
Weatherspoon, No. 01-10-00715-CV, 2012 Tex. App.
LEXIS 10794, 2012 WL 6754966, at *9 (Tex. App.—
Houston [1st Dist.] Dec. 28, 2012, no pet.) (mem. op.);
Puckett v. Burris, No. 13-07-00703-CV, 2009 Tex. App.
LEXIS 9056, 2009 WL 4051975, at *9 n.25 (Tex. App.—
Corpus Christi—Edinburg Nov. 24, 2009, pet. denied)
(mem. op.). "License holders" include "a broker or sales
agent licensed" under RELA. Tex. Occ. Code §
1101.002(4); see also id. § 1101.002(1), (7) (defining
"[b]roker" and "[s]ales agent").
Here, based on Castillo's testimony that he was a real
estate broker who sponsored Nguyen at his brokerage
firm when she became a sales agent, the trial court
found that at all relevant times Castillo was a licensed
broker and Nguyen was a licensed sales agent.
Because these findings have evidentiary support and
are unchallenged by Nguyen, we are bound by them.
See McGalliard v. Kuhlmann, 722 S.W.2d 694, 696
(Tex. 1986) (HN10[ ] unchallenged findings of fact are
binding on the party and the appellate court, unless the
contrary is established as a matter of law or there is no
evidence to support the finding). And because these
findings establish that both Castillo and Nguyen
were [*15] "license holders," as defined by RELA,
Castillo and Nguyen's oral agreement to share
commissions fell outside the purview of Section
1101.806. See Tex. Occ. Code § 1101.806(a)(1). We
therefore hold that Section 1101.806 did not prohibit
Castillo's action to recover commissions under his oral
agreement with Nguyen.
Accordingly, we overrule Nguyen's fourth issue.
Conclusion
We affirm the trial court's judgment.
Amparo Guerra
Justice
David Calvillo
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Judy Rochna on behalf of David Calvillo
Bar No. 3673000
judy.rochna@chamberlainlaw.com
Envelope ID: 75744901
Filing Code Description: Correspondence - Letter To File
Filing Description: JUDGE ACEVES
Status as of 5/18/2023 3:33 PM CST
Associated Case Party: MOISES CUEVAS
Name BarNumber Email TimestampSubmitted Status
David LanCarte 24082464 chase@lancartelaw.com 5/17/2023 4:07:40 PM SENT
Associated Case Party: HUMBERTO NOVOA
Name BarNumber Email TimestampSubmitted Status
Debbie Kennedy debbie.kennedy@chamberlainlaw.com 5/17/2023 4:07:40 PM SENT
David N.Calvillo david.calvillo@chamberlainlaw.com 5/17/2023 4:07:40 PM SENT
Judy Rochna judy.rochna@chamberlainlaw.com 5/17/2023 4:07:40 PM SENT
Lauren Herrera lauren.herrera@chamberlainlaw.com 5/17/2023 4:07:40 PM SENT
Armando Huereca armando.huereca@chamberlainlaw.com 5/17/2023 4:07:40 PM SENT
Angel V.Mata attorney@angelmatalaw.com 5/17/2023 4:07:40 PM SENT
Rosa Reyes rosa.reyes@chamberlainlaw.com 5/17/2023 4:07:40 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Marcus C. Marsden 13014200 marcus@colanerifirm.com 5/17/2023 4:07:40 PM SENT
Estefany Martinez martinez@angelmatalaw.com 5/17/2023 4:07:40 PM SENT
Preview
FILED 5/17/2023 4:07 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS & AUGHTRY, P.C. Treva Parker-Ayodele DEPUTY ATTORNEYS AT LAW DAVID N. CALVILLO 1200 SMITH STREET, SUITE 1400 HOUSTON SHAREHOLDER HOUSTON, TEXAS 77002 ATLANTA DIRECT: 713.654.9629 713.658.1818 800.342.5829 PHILADELPHIA DAVID.CALVILLO@CHAMBERLAINLAW.COM FAX: 713.658.2553 SAN ANTONIO May 17, 2023 Hon. Maria Aceves 192nd Civil District Court George L. Allen, Sr. Courts Building 600 Commerce Street Box 740 Dallas, Texas 75202 Re: Case No. DC-22-03103: La Energia Nortena, LLC et al v. Cuevas Dear Judge Aceves: We received a copy of Defendant’s demand for rulings on his summary judgment objections. Judge Stokes’ denial of Defendant’s Motion was correct. While this Court is free to rule on Defendant’s objections as demanded in his letter, such a formal ruling is without a meaningful purpose. As one Houston Appellate Court has recently explained, “The general rule is that a denial of a summary judgment cannot be reviewed on appeal. . . . The denial of a motion under paragraph (i) [no-evidence motion for summary judgment] is no more reviewable by appeal or mandamus than the denial of a motion under paragraph (c) [traditional motion for summary judgment].” Nguyen v. Terra Nostra Realty, Inc., 2022 Tex.App. Lexis 6962 *8 (Tex. App.—Houston [1st Dist.] 2022, no pet.). Accordingly, whether this Court actually sustains or overrules the objections signifies nothing. Please feel free to contact us if you have any questions or comments Sincerely, CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS &AUGHTRY, P.C. By: David N. Calvillo State Bar No.: 03673000 David.Calvillo@ChamberlainLaw.com 30847957.v1 User Name: David Calvillo Date and Time: Wednesday, May 17, 2023 9:19:00AM CDT Job Number: 197280327 Document (1) 1. Nguyen v. Terra Nostra Realty, Inc., 2022 Tex. App. LEXIS 6962 Client/Matter: Novoa- La Energia Nortena Search Terms: Nguyen v. Terra Nostra Realty, Inc., 2022 Tex. App. LEXIS 6962 Search Type: Natural Language Narrowed by: Content Type Narrowed by Cases -None- | About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2023 LexisNexis David Calvillo Cited As of: May 17, 2023 2:19 PM Z Nguyen v. Terra Nostra Realty, Inc. Court of Appeals of Texas, First District, Houston September 15, 2022, Opinion Issued NO. 01-20-00668-CV Reporter 2022 Tex. App. LEXIS 6962 *; 2022 WL 4240909 TRINH NGUYEN, Appellant v. TERRA NOSTRA REALTY, INC. AND RENE CASTILLO, Appellees LexisNexis® Headnotes Prior History: [*1] On Appeal from the 215th District Court, Harris County, Texas. Trial Court Case No. 2017- 00772. Civil Procedure > Judgments > Relief From Core Terms Judgments > Motions for New Trials statute of frauds, commissions, one year, trial court, HN1[ ] Relief From Judgments, Motions for New licensed, no-evidence, commission-sharing, hiatus, Trials summary judgment, unenforceable, real estate, summary judgment motion, oral agreement, broker, An order granting a motion for new trial rendered within motion for a new trial, conclusions of law, relevant time, the trial court's plenary power is not reviewable on new trial, brokerage appeal. When a motion for new trial is granted, the court essentially wipes the slate clean and starts over. Case Summary Overview Civil Procedure > ... > Summary Judgment > Appellate Review > Appealability HOLDINGS: [1]-The trial court's order granting plaintiffs' motion for new trial and its decision to deny defendant's Civil Procedure > ... > Summary no-evidence motion for summary judgment and try the Judgment > Appellate Review > Standards of case on the merits were not reviewable on appeal; [2]- Review The trial court did not err in rendering judgment for plaintiffs on their claim for breach of an oral HN2[ ] Appellate Review, Appealability commission-sharing agreement because defendant did not present any evidence that her agreement to share The general rule is that a denial of a summary judgment commissions with plaintiffs could not be performed cannot be reviewed on appeal. More specifically, when within a year, and thus, she failed to prove that the a motion for summary judgment is denied by the trial agreement was unenforceable under the statute of court and the case is tried on the merits, the order frauds in Tex. Bus. & Com. Code Ann. § 26.01; [3]- denying the summary judgment cannot be reviewed on Section 1101.806 of the Real Estate License Act appeal. The party's remedy is to assign error to the trial (RELA), Tex. Occ. Code Ann. § 1101.806(c), did not court's judgment ultimately rendered following trial on prohibit plaintiffs' action to recover commissions the merits. because both plaintiffs and defendant were "license holders," as defined by RELA. Civil Procedure > ... > Defenses, Demurrers & Outcome Objections > Affirmative Defenses > Statute of Judgment affirmed. Frauds David Calvillo Page 2 of 8 2022 Tex. App. LEXIS 6962, *1 Contracts Law > Statute of Contracts Law > Statute of Frauds > Requirements > Writings Frauds > Requirements > Writings Evidence > Burdens of Proof > Allocation Contracts Law > Statute of Frauds > Requirements > Signatures HN3[ ] Affirmative Defenses, Statute of Frauds HN5[ ] Requirements, Performance The statute of frauds is an affirmative defense and renders a contract that falls within its purview Tex. Bus. & Com. Code Ann. § 26.01 encompasses unenforceable. Tex. R. Civ. P. 94; Tex. Bus. & Com. agreements that are not to be performed within one year Code Ann. § 26.01(a); Tex. Occ. Code Ann. § from the date of making the agreement. § 26.01(a), 1101.806(c). Under the statute of frauds, certain (b)(6). When a promise or agreement, either by its terms contracts are not enforceable unless they are in writing or by the nature of the required acts, cannot be and signed by the person against whom enforcement of performed within one year, it falls within the statute of the contract is sought. The party pleading the statute of frauds and is unenforceable unless it is in writing and frauds bears the initial burden of establishing its signed by the person to be charged. § 26.01(a), (b)(6). applicability. Tex. R. Civ. P. 94. But if the agreement is capable of being performed within one year, it is not within the statute of frauds. Civil Procedure > Trials > Bench Trials Contracts Law > Statute of Contracts Law > Statute of Frauds > Requirements > Performance Frauds > Requirements > Writings Contracts Law > ... > Affirmative Civil Procedure > Appeals > Standards of Defenses > Estoppel > Statute of Frauds Review > De Novo Review Contracts Law > Statute of Civil Procedure > Appeals > Standards of Frauds > Requirements > Writings Review > Questions of Fact & Law HN6[ ] Requirements, Performance Civil Procedure > ... > Defenses, Demurrers & Objections > Affirmative Defenses > Statute of In deciding whether an agreement is capable of being Frauds performed within one year, the court compares the date of the agreement to the date when the performance HN4[ ] Trials, Bench Trials under the agreement is to be completed. Tex. Bus. & Com. Code Ann. § 26.01(b)(6). When the date The application of the statute of frauds to a given performance will be completed cannot be readily contract is a question of law. An appellate court may ascertained, the law provides that a writing is not review whether a trial court's legal conclusions drawn required if performance could conceivably be completed from the facts are correct. In an appeal from a bench within one year of the agreement's making. The statute trial, the appellate court reviews the conclusions of law of frauds does not apply when the parties do not fix the de novo and will uphold them if the judgment can be time of performance and the agreement itself does not sustained on any legal theory supported by the indicate that it cannot be performed within one year, but evidence. If the appellate court determines a conclusion does apply if the agreement, either by its terms or by the of law is erroneous, but the trial rendered the proper nature of the required acts, cannot be completed within judgment, the erroneous conclusion of law does not one year. That is, a contract that could possibly be require reversal. performed within a year, however improbable performance within one year may be, does not fall within the statute of frauds. Contracts Law > Statute of Frauds > Requirements > Performance Contracts Law > Statute of David Calvillo Page 3 of 8 2022 Tex. App. LEXIS 6962, *1 Frauds > Requirements > Writings holders include a broker or sales agent licensed under the Real Estate License Act. Tex. Occ. Code Ann. § Real Property Law > Brokers > Brokerage 1101.002(4); § 1101.002(1), (7) (defining broker and Agreements sales agent). Real Property Law > Brokers > Discipline, Licensing & Regulation Civil Procedure > Appeals > Standards of Real Property Law > Brokers > Right to Review > Questions of Fact & Law Commissions HN10[ ] Standards of Review, Questions of Fact & HN7[ ] Requirements, Writings Law Tex. Occ. Code Ann. § 1101.806(c) bars judicial Unchallenged findings of fact are binding on the party recovery of a real estate commission that is not based and the appellate court, unless the contrary is on a written promise, agreement, or memorandum. established as a matter of law or there is no evidence to support the finding. Counsel: For Trinh T. Nguyen, Appellant: Pete Mai, Contracts Law > Statute of John Na. Frauds > Requirements > Writings For Terra Nostra Realty Inc. and Rene Castillo: Real Property Law > Brokers > Brokerage Appellee: Adam Potter. Agreements Judges: Panel consists of Justices Landau, Guerra, Real Property Law > Brokers > Right to and Farris. Commissions Opinion by: Amparo Guerra Real Property Law > Brokers > Discipline, Licensing & Regulation Opinion HN8[ ] Requirements, Writings A real estate broker may not sue for a commission MEMORANDUM OPINION unless the agreement is evidenced by a writing complying with the Real Estate License Act (RELA). After a bench trial, the trial court rendered judgment Courts have required strict compliance with Tex. Occ. against Trinh Nguyen for breach of an oral agreement to Code Ann. § 1101.806(c), holding that an agreement to share commissions earned in real estate transactions pay a real estate commission must be in writing or it is with Rene Castillo and his brokerage firm Terra Nostra not enforceable. Texas courts strictly adhere to RELA's Realty, Inc. (Terra Nostra) (collectively, Castillo). On statute of fraud requirements. appeal, Nguyen contends the trial court erred by (1) granting a new trial and reinstating Castillo's claims after first granting Nguyen a no-evidence summary judgment; (2) ultimately denying her no-evidence motion for Real Property Law > Brokers > Discipline, Licensing summary judgment when it was reset; (3) rendering & Regulation judgment on an agreement that is unenforceable under the statute of frauds; and (4) concluding that the Texas Real Property Law > Brokers > Right to Real Estate Licensing Act (RELA) did not require the Commissions commission-sharing agreement to be in writing.1 HN9[ ] Brokers, Discipline, Licensing & Regulation We affirm. By its plain language, Tex. Occ. Code Ann. § 1101.806 does not apply to an agreement to share compensation 1 Castillo has not filed a brief responding to Nguyen's issues among license holders. § 1101.806(a)(1). License on appeal. David Calvillo Page 4 of 8 2022 Tex. App. LEXIS 6962, *1 office in Bellaire, Texas. Nguyen would collect sales Background commissions from Terra Nostra agents and share ten percent of those commissions with Castillo, keeping 90 Nguyen and Castillo worked together in real estate percent for herself. Castillo explained that the 90/10 split before Castillo filed his breach-of-contract and quantum- was more generous to Nguyen than a typical brokerage meruit suit against [*2] Nguyen, alleging she had not arrangement because she was going to cover the costs complied with an agreement to give Castillo ten percent of the Bellaire office. No writing memorializing the of the real estate sales commissions she earned in a commission-sharing agreement was introduced into two-year period.2 According to Castillo, the commission- evidence. sharing agreement was intended to compensate him for acting as Nguyen's sponsoring broker. Castillo further testified that he took a two-year "hiatus" from real estate to pursue a food business; however, he After answering the lawsuit and asserting affirmative continued to supervise Nguyen during that time. Issues defenses, including that the statute of frauds barred arose during Castillo's hiatus that suggested to him that enforcement of any commission-sharing agreement, Nguyen was mismanaging the business. Castillo Nguyen moved for a no-evidence summary judgment on returned to Terra Nostra and investigated whether all claims against her.3 Castillo did not respond, and the Nguyen had not complied with their agreement by trial court granted Nguyen's no-evidence motion. withholding commissions. Based on his review of Nguyen's sales history, Castillo determined that $60,761 Castillo timely moved for a new trial and asked the trial was owed to him. Nguyen did not cross-examine court to set aside the summary judgment because his Castillo or present any evidence contradicting his counsel was "duped into" not responding by Nguyen's testimony. [*4] counsel's representation that the no-evidence motion would be "passed." Castillo also complained about The trial court rendered judgment for Castillo and pending discovery. ordered Nguyen to pay $60,397.89 in damages and $51,180 in attorney's fees.5 The trial court also entered Although Nguyen disputed her counsel had agreed to findings of fact and conclusions of law: pass the no-evidence motion, the trial court granted Castillo's new-trial motion and reinstated the claims against Nguyen. Nguyen reset her no-evidence motion, Findings of Fact and Castillo responded. Without stating its reasons, the 1. The relevant time period is January 1, 2014, trial court denied the motion. through March 8, 2016. 2. [Castillo] was at all relevant times[] a real estate The case proceeded to [*3] a bench trial.4 Castillo broker licensed by the State of Texas. testified that he founded his brokerage firm, Terra 3. [ Nguyen] was at all relevant times[] a licensed Nostra, in 2012 and hired Nguyen the same year. They real estate sales agent. agreed Nguyen would open and manage a Terra Nostra 4. [Castillo] sponsored [Nguyen's] license during the relevant time, which required [Castillo] to provide supervision over each of [Nguyen's] real estate 2 Initially, Castillo pleaded additional claims against Nguyen for transactions. tradename and service mark infringement, injury to business 5. [Castillo] was at all relevant times[] the owner of reputation, unfair competition, misappropriation, and fraud, [Terra Nostra], a licensed real estate brokerage. requesting both damages and injunctive relief. These additional claims were abandoned in an amended pleading, 6. On or about January 1, 2014, [Castillo] took a leaving only the breach-of-contract and quantum-meruit claims hiatus from real estate to pursue a restaurant at the time of trial. venture. 3 Nguyen 7. [Nguyen] expressed an interest in managing also pleaded counterclaims against Castillo, alleging [Terra Nostra] while [Castillo] was on hiatus. that he breached a promise to transfer ownership of Terra Nostra to her in exchange for her promise to forgive a loan between them. Her counterclaims included causes of action 5 Though it did not expressly reference Nguyen's for breach of contract, promissory estoppel, unjust enrichment, counterclaims, the trial court's judgment included finality and breach of fiduciary duty. language disposing of "all claims and all parties" and 4 Before the trial, Nguyen's counsel withdrew. She appeared indicating that "all relief not granted" was denied. Nguyen does pro se at trial. not challenge the denial of her counterclaims on appeal. David Calvillo Page 5 of 8 2022 Tex. App. LEXIS 6962, *4 [Castillo] agreed, and the two entered into an oral damages. agreement. Nguyen timely moved for a new trial, challenging the 8. [Castillo] agreed to allow [Nguyen], under [his] sufficiency of the evidence and the enforceability of the supervision, to manage and develop the business commission-sharing agreement under two statutes of of [Terra Nostra] while he was on hiatus. [Nguyen] frauds. She argued the commission-sharing agreement would operate [Terra Nostra] out of her own offices was unenforceable under the Texas Business and located in Bellaire, [*5] and [she] would be Commerce Code because it was not in writing and not responsible for all overhead and expenses. to be performed within one year. See Tex. Bus. & 9. In addition to the above terms, [Castillo] and Comm. Code § 26.01(b)(6) (requiring "agreement which [Nguyen] agreed to a commission split of 90%/10%, is not to be performed within one year from the date of in favor of [Nguyen]. making the agreement" to be in writing and signed by 10. In late 2012, [Castillo] offered to sponsor party to be charged). She also argued that the Texas [Nguyen's] real estate license for free, but [she] Real Estate License Act (RELA) prohibited Castillo's agreed to pay [him] a commission. . . . recovery of real estate commissions [*7] based on an oral agreement. See Tex. Occ. Code § 1101.806(c) ("A 11. Additionally, all of the agents hired by [Nguyen] person may not maintain an action in this state to agreed to sign a commission agreement with recover a commission for the sale or purchase of real [Castillo], under the same terms [he] alleges [she] estate unless the promise or agreement on which the agreed to on or about January 1, 2014. . . . action is based, or a memorandum, is in writing and 12. On or about March 2, 2016, [Castillo] returned signed by the party against whom the action is brought from his hiatus and discovered [Nguyen] had or by a person authorized by that party to sign the cleaned out [Terra Nostra's] bank account. document."). The trial court denied Nguyen's motion for 13. Despite numerous demands by [Castillo], new trial by written order, and she appealed. [Nguyen] has continued to refuse to pay [him] any of the commissions due and owing. 14. [Castillo] calculated the commissions due him Appealability by [Nguyen] by obtaining data from the HAR.com website. In her first and second issues, Nguyen challenges the 15. [Castillo] calculated the total commissions due trial court's orders granting Castillo's motion for new equal $60,397.89. . . . trial, which had the effect of setting aside the no- 16. [Castillo and Terra Nostra] are also entitled to evidence summary judgment the trial court had an award of attorney's fees in the amount of previously granted, and then denying her no-evidence $51,180. . . . motion for summary judgment when it was reset. After (Emphasis in original.) the trial on the merits, neither of these orders is reviewable on appeal. Conclusions of Law Here, after initially granting Nguyen a no-evidence summary judgment, the trial court reinstated Castillo's 17. On or about January 1, 2014, [Castillo and claims against Nguyen on Castillo's motion for new trial. Nguyen] entered into a valid and enforceable [*6] HN1[ ] An order granting a motion for new trial contract regarding the development of [Terra rendered within the trial court's plenary power is not Nostra] while [he] was on hiatus, including the reviewable on appeal. See Wilkins v. Methodist Health commission split between [them]. Care Sys., 160 S.W.3d 559, 563 (Tex. 2005); Cummins 18. The contract allowed [Nguyen] to develop the v. Paisan Constr. Co., 682 S.W.2d 235, 235-36 (Tex. Bellaire office of [Terra Nostra], including allowing 1984). When a motion for new trial is granted, "the court her to hire her own agents. [She] was responsible essentially [*8] wipes the slate clean and starts over." for all of the Bellaire office's operating expenses. Wilkins, 160 S.W.3d at 563. Castillo's new trial motion Additionally, [she] agreed to pay [Castillo] 10% of was timely filed, and the trial court granted the motion all commissions [she] received during the period during its period of plenary power over the judgment. January 1, 2014 to March 8, 2016. See Tex. R. Civ. P. 329b. Consequently, the order is not 19. [Nguyen] breached the contract by failing to pay subject to review on appeal. See Shrewsbury v. Por, [Castillo] any commissions due, entitling [him] to No. 08-13-00364-CV, 2015 Tex. App. LEXIS 6397, 2015 David Calvillo Page 6 of 8 2022 Tex. App. LEXIS 6962, *8 WL 3898801, at *1 (Tex. App.—El Paso June 24, 2015, App.—Dallas 2011, no pet.) ("Under the statute of no pet.) (mem. op.) (order granting new trial on claims frauds, certain contracts are not enforceable unless they dismissed on summary judgment was not reviewable on are in writing and signed by the person against whom appeal). enforcement of the contract is sought."). The party pleading the statute of frauds bears the initial burden of The same is true of the trial court's ultimate decision to establishing its applicability. See Dynegy, Inc. v. Yates, deny Nguyen's no-evidence motion for summary 422 S.W.3d 638, 642 (Tex. 2013) (citing Tex. R. Civ. P. judgment. HN2[ ] The general rule is that a denial of a 94). summary judgment cannot be reviewed on appeal. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 HN4[ ] The application of the statute of frauds to a (Tex. 1996); Williams v. Colthurst, 253 S.W.3d 353, given contract is a question of law. See id. An appellate 359-60 (Tex. App.—Eastland 2008, no pet.). More court may review whether a trial court's legal specifically, when, as here, a motion for summary conclusions drawn from the facts are correct. See BMC judgment is denied by the trial court and the case is Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, tried on the merits, the order denying the summary 794 (Tex. 2002); Choice! Power, L.P. v. Feeley, 501 judgment cannot be reviewed on appeal. See S.W.3d 199, 208 (Tex. App.—Houston [1st Dist.] 2016, Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. no pet.). In an appeal from a bench trial, we review the 1966); see also Tex. R. Civ. P. 166a cmt. ("The denial of conclusions of law de novo and will uphold them if the a motion under paragraph (i) [no-evidence motion for judgment can be sustained on any legal theory [*10] summary judgment] is no more reviewable by appeal or supported by the evidence. BMC Software, 83 S.W.3d mandamus than the denial of a motion under paragraph at 794. If we determine a conclusion of law is erroneous, (c) [traditional motion for summary judgment]."). "The but the trial rendered the proper judgment, the party's remedy is to assign error to the trial court's erroneous conclusion of law does not require reversal. judgment ultimately rendered following trial on the Id. merits." United Parcel Serv., Inc. v. Tasdemiroglu, 25 S.W.3d 914, 916 (Tex. App.—Houston [14th Dist.] 2000, pet. denied); see also Williams, 253 S.W.3d at 360 n.3. B. Section 26.01 of the Business and Commerce Code Accordingly, we overrule Nguyen's first and second issues. In her third issue, Nguyen argues that the oral commission-sharing agreement is unenforceable under Section 26.01 of the Texas Business and Commerce Statute of Frauds Code because Castillo sought compensation for commissions earned during a two-year period, making In her [*9] remaining issues, Nguyen argues the trial the agreement one that could not be performed within court erred by rendering judgment for Castillo because one year and therefore subject to the statute of frauds. the oral commission-sharing agreement was See Tex. Bus. & Com. Code § 26.01(a), (b)(6). We unenforceable under two statutes of frauds. See Tex. disagree. Bus. & Com. Code § 26.01(a), (b)(6) (statute of frauds for agreements "not to be performed within one year HN5[ ] Section 26.01 encompasses agreements that from the date of making the agreement"); Tex. Occ. are "not to be performed within one year from the date Code § 1101.806(c) (RELA statute of frauds for actions of making the agreement." Id. § 26.01(a), (b)(6). When a "to recover a commission for the sale or purchase of promise or agreement, either by its terms or by the real estate"). nature of the required acts, cannot be performed within one year, it falls within the statute of frauds and is unenforceable unless it is in writing and signed by the A. Standard of Review person to be charged. See id. § 26.01(a), (b)(6); Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, HN3[ ] The statute of frauds is an affirmative defense 489 (Tex. 1991), overruled on other grounds by In re and renders a contract that falls within its purview United Servs. Auto Ass'n, 307 S.W.3d 299 (Tex. 2010); unenforceable. Tex. R. Civ. P. 94; see also Tex. Bus. & Niday v. Niday, 643 S.W.2d 919, 920 (Tex. 1982) (per Com. Code § 26.01(a); Tex. Occ. Code § 1101.806(c); curiam); Beverick v. Koch Power, Inc., 186 S.W.3d 145, S & I Mgmt., Inc. v. Choi, 331 S.W.3d 849, 854 (Tex. 149 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). David Calvillo Page 7 of 8 2022 Tex. App. LEXIS 6962, *10 But if the agreement is capable of being performed possibility that appellant could have completed project in within one year, it is not within the statute of frauds. See one year, even if only under very favorable conditions). Beverick, 186 S.W.3d at 149. Consequently, we cannot say that Nguyen conclusively proved that the oral commission-sharing agreement was HN6[ ] In deciding whether an agreement is capable of unenforceable under Section 26.01. See id.; see also being performed within one year, we compare the Chacko v. Mathew, No. 14-07-00613-CV, 2008 Tex. date [*11] of the agreement to the date when the App. LEXIS 4331, 2008 WL 2390486, at *3 (Tex. App.— performance under the agreement is to be completed. Houston [14th Dist.] June 12, 2008, pet. denied) (mem. See Tex. Bus. & Com. Code § 26.01(b)(6); Young v. op.) ("A contract does not fall [*13] within the statute of Ward, 917 S.W.2d 506, 508 (Tex. App.—Waco 1996, no frauds based on the absence of a requirement to writ). When the date performance will be completed complete performance within a year; the lack of any cannot be readily ascertained, the law provides that a expectation that performance will be completed within a writing is not required if performance could conceivably year; or the fact that completion within a year proved to be completed within one year of the agreement's be impossible in light of later circumstances."). making. See, e.g., Niday, 643 S.W.2d at 920 (stating general rule that statute of frauds does not apply when Accordingly, we overrule Nguyen's third issue. "the parties do not fix the time of performance and the agreement itself does not indicate that it cannot be performed within one year," but does apply if "the C. Section 1101.806 of RELA agreement, either by its terms or by the nature of the required acts, cannot be completed within one year" In her fourth issue, Nguyen asserts that the oral (emphasis in original)); Beverick, 186 S.W.3d at 149. commission-sharing agreement was unenforceable That is, "[a] contract that could possibly be performed under Section 1101.806 of RELA. See Tex. Occ. Code within a year, however improbable performance within § 1101.806(c). Again, we disagree. one year may be, does not fall within the statute of frauds." Beverick, 186 S.W.3d at 149 (emphasis in HN7[ ] Subsection (c) of Section 1101.806 bars original). For example, in Miller v. Riata Cadillac judicial recovery of a real estate commission that is not Company, 517 S.W.2d 773, 775 (Tex. 1974), the Texas based on a written promise, agreement, or Supreme Court concluded that an indefinite term memorandum. See id.; see also Givens v. Dougherty, employment contract was performable within one year 671 S.W.2d 877, 878 (Tex. 1984) (interpreting and, therefore, did not fall within the statute of frauds. predecessor statute as statute of frauds); Prime Income Asset Mgmt., Inc. v. Marcus & Millichap Real Est. Inv. Here, although Castillo sought compensation for Servs. of Tex., Inc., No. 01-13-00020-CV, 2014 Tex. commissions earned during a two-year period, the App. LEXIS 13901, 2014 WL 7473801, at *3 (Tex. record does not eliminate the possibility [*12] that the App.—Houston [1st Dist.] Dec. 30, 2014, no pet.) (mem. performance under the oral commission-sharing op.) (interpreting current statue as statute of frauds); agreement could have been completed in one year. Lawrence v. Reyna Realty Grp., 434 S.W.3d 667, 673 Stated differently, although it was her burden, Nguyen (Tex. App.—Houston [1st Dist.] 2014, no pet.) (same). It did not present any evidence that her agreement to provides: share commissions with Castillo could not be performed A person may not maintain an action in this state to within a year. See Dynegy, 422 S.W.3d at 642. No recover a commission for the sale or purchase of evidence established that performance under the real estate unless the promise or agreement on agreement was for a fixed period only. Rather, the only which the action is based, or a memorandum, is in evidence of the potential duration of the agreement to writing and signed by the party against whom the share commissions was Castillo's testimony, which action is brought or by a person authorized by that supported an inference that the agreement was effective party to sign the document. for the duration of his hiatus from Terra Nostra. But again, even if Castillo's hiatus lasted two years, no Tex. Occ. Code § 1101.806(c); see Tex. Builders v. testimony or other evidence established that it was not Keller, 928 S.W.2d 479, 481 (Tex. 1996) (HN8[ ] "A possible it would last only one year. See Beverick, 186 real estate broker may not sue for a commission unless S.W.3d at 149-50 (statute of frauds did not apply even the agreement is evidenced by a writing [*14] though actual performance of oral agreement took two complying with the Real Estate License Act."). Courts years to complete because evidence established have required strict compliance with this provision, David Calvillo Page 8 of 8 2022 Tex. App. LEXIS 6962, *14 holding that an "agreement to pay a real estate commission must be in writing or it is not enforceable." Brice v. Eastin, 691 S.W.2d 54, 57 (Tex. App.—San End of Document Antonio 1985, no writ); see also Trammel Crow Co. No. 60 v. Harkinson, 944 S.W.2d 631, 637 (Tex. 1997) (Texas courts strictly adhere to RELA's statute of fraud requirements). HN9[ ] However, by its plain language, Section 1101.806 does not "apply to an agreement to share compensation among license holders." Tex. Occ. Code § 1101.806(a)(1); see also Ryland Enter., Inc. v. Weatherspoon, No. 01-10-00715-CV, 2012 Tex. App. LEXIS 10794, 2012 WL 6754966, at *9 (Tex. App.— Houston [1st Dist.] Dec. 28, 2012, no pet.) (mem. op.); Puckett v. Burris, No. 13-07-00703-CV, 2009 Tex. App. LEXIS 9056, 2009 WL 4051975, at *9 n.25 (Tex. App.— Corpus Christi—Edinburg Nov. 24, 2009, pet. denied) (mem. op.). "License holders" include "a broker or sales agent licensed" under RELA. Tex. Occ. Code § 1101.002(4); see also id. § 1101.002(1), (7) (defining "[b]roker" and "[s]ales agent"). Here, based on Castillo's testimony that he was a real estate broker who sponsored Nguyen at his brokerage firm when she became a sales agent, the trial court found that at all relevant times Castillo was a licensed broker and Nguyen was a licensed sales agent. Because these findings have evidentiary support and are unchallenged by Nguyen, we are bound by them. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986) (HN10[ ] unchallenged findings of fact are binding on the party and the appellate court, unless the contrary is established as a matter of law or there is no evidence to support the finding). And because these findings establish that both Castillo and Nguyen were [*15] "license holders," as defined by RELA, Castillo and Nguyen's oral agreement to share commissions fell outside the purview of Section 1101.806. See Tex. Occ. Code § 1101.806(a)(1). We therefore hold that Section 1101.806 did not prohibit Castillo's action to recover commissions under his oral agreement with Nguyen. Accordingly, we overrule Nguyen's fourth issue. Conclusion We affirm the trial court's judgment. Amparo Guerra Justice David Calvillo Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Judy Rochna on behalf of David Calvillo Bar No. 3673000 judy.rochna@chamberlainlaw.com Envelope ID: 75744901 Filing Code Description: Correspondence - Letter To File Filing Description: JUDGE ACEVES Status as of 5/18/2023 3:33 PM CST Associated Case Party: MOISES CUEVAS Name BarNumber Email TimestampSubmitted Status David LanCarte 24082464 chase@lancartelaw.com 5/17/2023 4:07:40 PM SENT Associated Case Party: HUMBERTO NOVOA Name BarNumber Email TimestampSubmitted Status Debbie Kennedy debbie.kennedy@chamberlainlaw.com 5/17/2023 4:07:40 PM SENT David N.Calvillo david.calvillo@chamberlainlaw.com 5/17/2023 4:07:40 PM SENT Judy Rochna judy.rochna@chamberlainlaw.com 5/17/2023 4:07:40 PM SENT Lauren Herrera lauren.herrera@chamberlainlaw.com 5/17/2023 4:07:40 PM SENT Armando Huereca armando.huereca@chamberlainlaw.com 5/17/2023 4:07:40 PM SENT Angel V.Mata attorney@angelmatalaw.com 5/17/2023 4:07:40 PM SENT Rosa Reyes rosa.reyes@chamberlainlaw.com 5/17/2023 4:07:40 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Marcus C. Marsden 13014200 marcus@colanerifirm.com 5/17/2023 4:07:40 PM SENT Estefany Martinez martinez@angelmatalaw.com 5/17/2023 4:07:40 PM SENT