law-partnerships | partnership and joint venture | partnership formation and existence | contract formation
| common law partnership vs. statutory factors under the Texas Revised Partnership Act (TRPA) |  

PLEADING ISSUES REGARDING PARTNERSHIP ALLEGATION

Unless the truth of the matter appears of record, a pleading setting up the denial of a partnership as
alleged in any pleading as to any party to the suit shall be verified by affidavit. TEX. R. CIV. P. 93(5).  
When defendant does not comply with Rule 93(5), the existence of the partnership is deemed admitted.
See Sims v. Hill, 567 S.W.2d 912, 913 (Tex. Civ. App.—Houston [14th Dist.] 1978, no writ) (holding failure
to deny partnership status by verified denial results in admission of partnership’s existence that cannot
be controverted at trial.).

TEXAS REVISED PARTNERSHIP ACT (TRPA) - FORMATION FACTORS

TRPA lists five factors to be considered in determining whether a partnership has
been formed. This determination should be made by examining the totality of the
circumstances in each case, with no single factor being either necessary or
sufficient to prove the existence of a partnership. Here, the evidence is legally
insufficient to establish that a partnership existed between Ingram and Deere.
Because the evidence of the formation of a partnership is legally insufficient, we do
not address the issue raised in Ingram’s cross-petition challenging the court of
appeals’ decision that Ingram owed Deere a fiduciary duty. Accordingly, we
reinstate the trial court’s take-nothing judgment in favor of Ingram and reverse the
court of appeals’ judgment.
TRPA abrogated the common law’s requirement of proof of all five factors.
Ingram v. Deere,
No. 06-0815 (Tex. Jul 3, 2009)(Wainwright)(dispute over existence of partnership under TRPA,
partnership criteria/factors, fiduciary duty, common-law partnership vs. TRPA factors and standard,
totality of the circumstances test) (existence of partnership not proven, take-nothing judgment
reinstated)         
JESSE C. INGRAM, PH.D. AND BEHAVIORAL PSYCHOLOGY CLINIC, P.C. v. LOUIS DEERE, D.O. AND
HILLVALE MEDICAL GROUP ASSOCIATION D/B/A HILLVALE MEDICAL ASSOCIATION; from Dallas
County; 5th district (
05-05-00063-CV, 198 SW3d 96, 04-27-06 Opinion of the Dallas court of Appeals)
2 petitions  
The Court reverses the court of appeals' judgment and reinstates the trial court's judgment.
Justice
Wainwright delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht,
Justice Medina, Justice Green, and Justice Willett joined, in which Justice O'Neill and Justice Brister
joined except as to part II.D.5.a, and in which Justice Johnson joined except as to part II.D.2. [pdf]
Justice
Johnson delivered a concurring opinion. [pdf]
In this case, we review a court of appeals judgment reinstating a jury verdict finding that Louis
Deere, D.O. and Jesse C. Ingram, Ph.D. formed a partnership pursuant to the Texas Revised
Partnership Act (TRPA).


Koa Holdings, LP v. Young, 261 S.W.3d 60, No. 07-0197 (June 13, Tex. 2008) (Hecht)
(
default judgment, restricted appeal, partnership law, partner vs. partnership as defendant, effect of
failure to name and serve defendant in
individual capacity, individual liability of partner vs. liability of
partnership)
KAO HOLDINGS, L.P., D/B/A SEBRING APARTMENTS AND WILLIAM KAO v. ANNIE LEE YOUNG; from
Harris County; 14th district (
14-05-00398-CV, 214 SW3d 504, 11-21-06)
motion to take judicial notice denied



CASES FROM THE COURTS OF APPEALS IN WHICH PETITION FOR REVIEW
WAS DENIED


09-0366          
CHRISTOPHER KNOWLES AND MINA MANN v. JIMMY D. WRIGHT; from Harris County;
1st district (
01-08-00546-CV, ___ SW3d ___, 03-19-09, pet. denied July 2009)
as redrafted (
partnership claim fails)




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