Joshua Boyle, Ryan Pratt, and N-Motion Group, LLC D/B/A N-Motion Transport v. Kelly Decarteret, Decarteret Transport LLC, Timothy Rouch

Affirmed and Memorandum Opinion filed August 20, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00339-CV

JOSHUA BOYLE, RYAN PRATT, AND N-MOTION GROUP, LLC D/B/A
N-MOTION TRANSPORT, Appellants
V.
KELLY DECARTERET, DECARTERET TRANSPORT, LLC, TIMOTHY
ROUCH, Appellees

On Appeal from the 234th District Court
Harris County, Texas
Trial Court Cause No. 2016-74701

MEMORANDUM OPINION

Appellants Joshua Boyle, Ryan Pratt, and N-Motion Group, LLC d/b/a
N-Motion Transport 1 appeal a final judgment in favor of appellees Kelly
DeCarteret, DeCarteret Transport, LLC2, Timothy Rouch, and Shey Fiscus. In two

1
It is not entirely clear from the record whether there are two separate legal N-Motion
entities, but that issue is not before this court to decide.
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The final judgment references both a “DeCarteret Transport LLC” and “DeCarteret
issues on appeal, appellants argue that (1) the trial court’s finding that no
partnership existed was not supported by legally- and factually-sufficient evidence
and (2) the trial court erred by failing to segregate the attorney’s fees awarded to
appellees. We affirm the judgment of the trial court as challenged on appeal.

I. BACKGROUND

N-Motion Group is a Texas limited liability company, with Pratt and Boyle
as its sole members. In 2012, Kelly began working for N-Motion Group as an
independent contractor. Kelly received a 40% commission on her sales; she did not
receive a commission from any other sales made by Pratt or Boyle. At one point,
Kelly, Pratt, and Boyle discussed forming a partnership, but they neither agreed to
form one, nor did they formally sign any documents indicating that a partnership
had been formed.

In 2016, shortly after Kelly parted ways with N-Motion Group and began
her own business, Pratt and Boyle filed suit against appellees, including Kelly,
alleging breach of statutory duties owed by a partner under the Business and
Commerce Code and for theft of trade secrets under both the common law and the
Texas Theft Liability Act. See Tex. Bus. Orgs. Code Ann. § 152.204(a) (“A partner
owes to the partnership . . . (1) a duty of loyalty; and (2) a duty of care.”); Tex.
Civ. Prac. & Rem. Code Ann. § 134.003 (“(a) A person who commits theft is liable
for the damages resulting from the theft.”).

DeCarteret Transport, LLC filed a counterclaim, arguing that N-Motion
Group breached its contractual obligation to pay certain sums. The case was tried

Transport, Inc.,” even though it is unclear from the record whether those are two separate legal
entities. Additionally, appellants have not sought a different or more favorable judgment against
“DeCarteret Transport, Inc.,” so it is not an appellee. See Showbiz Multimedia, LLC v. Mountain
States Mortg. Ctr., Inc., 303 S.W.3d 769, 771 n.3 (Tex. App.—Houston [1st Dist.] 2009, no
pet.).

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without a jury, and the trial court rendered a take-nothing judgment on appellants’
claims against appellees. The trial court further ordered that DeCarteret Transport
LLC recover $26,890.88 on its counterclaim, and that DeCarteret Transport, Inc.,
Kelly DeCarteret, Rouch, and Fiscus recover $111,245.00 in attorney’s fees.

The trial court filed numerous findings of fact and conclusions of law. We
summarize several of the most pertinent findings: (1) Kelly received a 1099 form
from N-Motion Group each year, reflecting the commissions she received as an
independent contractor during the prior year; (2) N-Motion Group’s tax returns
showed only Boyle and Pratt as members, who each received K-1’s as partners for
tax purposes, but Kelly never receiver a K-1 for N-Motion Group; (3) Kelly did not
share in the profits and losses of N-Motion Group; (4) Kelly did not have
management or control over N-Motion Group; and (5) there was no written
partnership agreement, noncompete agreement, or confidentiality agreement.

II. ANALYSIS

A. Standard of review and applicable law

When reviewing the legal sufficiency of the evidence, we consider the
evidence in the light most favorable to the challenged finding and indulge every
reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d
802, 821–22 (Tex. 2005); see also Graham Cent. Station, Inc. v. Peña, 442 S.W.3d
261, 263 (Tex. 2014) (per curiam). The evidence is legally sufficient if it would
enable a reasonable and fair-minded person to reach the verdict under review. City
of Keller, 168 S.W.3d at 827. “If the evidence at trial would enable reasonable and
fair-minded people to differ in their conclusions, then jurors must be allowed to do
so.” Id. at 822. “A reviewing court cannot substitute its judgment for that of the
trier-of-fact, so long as the evidence falls within this zone of reasonable
disagreement.” Id.
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“When a party attacks the factual sufficiency of an adverse finding on an
issue on which she has the burden of proof, she must demonstrate on appeal that
the adverse finding is against the great weight and preponderance of the evidence.”
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). In a
factual-sufficiency challenge, all the evidence in the record, both for and against
the finding, is reviewed. Id.
An association of two or more people to carry on a business for profit as
owners creates a partnership, regardless of whether (1) the persons intend to create
a partnership or (2) the association is called a “partnership,” “joint venture,” or
other name. See Tex. Bus. Orgs. Code Ann. § 152.051(b). In determining whether
a partnership was formed, the following nonexclusive factors are considered:

(1) receipt or right to receive a share of profits of the business;
(2) expression of an intent to be partners in the business;
(3) participation or right to participate in control of the business;
(4) agreement to share or sharing:
(A) losses of the business; or
(B) liability for claims by third parties against the business;
and
(5) agreement to contribute or contributing money or property to
the business.
Tex. Bus. Orgs. Code Ann. § 152.052(a); see Energy Transfer Partners, L.P. v.
Enter. Products Partners, L.P., 593 S.W.3d 732, 737–38 (Tex. 2020) (noting list of
factors enumerated in § 152.052(a) are “nonexclusive” and “to be considered in a
totality-of-the-circumstances test”). While it is possible for a party to
“inadvertently create a partnership despite their expressed subjective intention not
to do so[,]” the supreme court has held that the legislature did not “intend[] to
spring surprise or accidental partnerships on parties.” Id. at 738, 740 (quoting

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Ingram v. Deere, 288 S.W.3d 886, 898 (Tex. 2009)).

B. Was there a partnership?

In their first issue, appellants assert the evidence is legally-and
factually-insufficient to support the trial court’s finding that no partnership was
formed. They claim that all the statutory elements of a partnership were satisfied,
and that Kelly offered no evidence to the contrary except for the fact that she did
not intend to be a partner. However, when the evidence is viewed in the light most
favorable to the challenged finding, we conclude that it would enable a reasonable
and fair-minded person to conclude that no partnership was formed. See City of
Keller, 168 S.W.3d at 827. We begin by analyzing each of the statutory factors.

1. Profits

Appellants assert that Kelly shared in the profits, but nothing in the record
supports that contention. Instead, the testimony reflects that the parties had agreed
to pay Kelly a 40% commission of the net revenues from each transaction closed
by her, and the remaining 60% was retained by N-Motion Group, to cover
overhead and other expenses, with the balance then distributed to Pratt and Boyle.
Kelly did not receive any other form of compensation, nor did she receive any
compensation for sales that she did not participate in. This factor weighs wholly in
favor of the conclusion that no partnership was formed.

2. Intentions

The record clearly reflects that Kelly began working for N-Motion Group as
an independent contractor. While the parties explored the idea of forming a
partnership, there is no evidence to support the assertion that the parties finalized
those intentions or clearly intended to change Kelly’s business relationship from
independent contractor to partner.

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This factor weighs wholly in favor of concluding no partnership was formed.

3. Control

Appellants argue that Kelly asserted control over the N-Motion entities’
business decisions, pointing to the following evidence:

• An email from Kelly to Boyle and Pratt regarding Nina Atkins,
another N-Motion Group salesperson; in that email, Kelly says “it
reminds me that we need to put together an agreement for her.”

• A follow-up e-mail regarding Atkins, containing terms to have her
work as a 1099 contracted agent, saying “Here’s the basics –
Naturally, write it up as an agreement.”

• An email from Pratt to Boyle and Kelly, regarding remodeling the
offices. Kelly’s response was a simple “You have my vote.”

• An email from Kelly to Boyle and Pratt, forwarding an email from a
prospective independent contractor, Judi Mullins, in which Mullins
states her salary and work requirements. Kelly’s only statement
regarding Mullins’ email was “Received this from Judi this morning.
FYI.”

• An email from Kelly to Pratt and Boyle, regarding payday if the pay
period ends on a weekend, simply stating “Just a friendly reminder.”

• An email exchange between Boyle and Kelly regarding a new
employee’s request to Boyle for a letter overstating the employee’s
pay. Boyle said he did not feel comfortable and asked for Kelly’s
thoughts on the request. Kelly replied with “I agree with YOU. No
Bueno. Deny the request.”

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• An email from Kelly to a job applicant, regarding receipt of a resume
and a brief phone interview. The email is copied to Boyle and Pratt; it
stated, “We are interested in conducting a brief phone interview . . . . ”

• The fact that Kelly “fired” Fiscus. Fiscus is Kelly’s daughter; she was
hired by N-Motion Group as an independent contractor. The given
reason for Fiscus’s termination was that Kelly fired her, but Kelly
testified that after Fiscus witnessed Boyle being arrested at work, she
no longer felt safe at work. Because Kelly did not want to put Fiscus
in a position where she had to have another conversation with Boyle,
she simply told Fiscus to leave and then told people at work that she
had fired Fiscus.

Appellants argue that this evidence demonstrates that Kelly had the right to control
the business and make executive decisions, such as hiring, firing, participating in
decisions to remodel the office, and negotiate wages and working conditions.
However, in none of these instances did Kelly assert any control over the business.
The evidence certainly shows that Boyle and Pratt consulted Kelly regularly and
asked her opinion, but there was no evidence Kelly made any of the executive
decisions for the partnership.

Appellants allege that Kelly hired at least one individual but point to no
evidence to indicate that Kelly hired anyone or that she had the authority to do so.
At most, the evidence shows that she corresponded with a potential employee.
Similarly, even though appellants alleged that Kelly fired at least one person, Kelly
testified that she had simply told her daughter to stop coming to work because she
did not feel safe; she did not truly “fire” her. Regarding remodeling the offices,
Pratt did not ask for Kelly’s agreement or consent; Kelly merely indicated that she
approved of the decision.

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In total, this factor weighs in favor of concluding no partnership was formed.

4. Losses

There was no evidence that Kelly agreed to share in the losses. While an
agreement to share losses is not necessary to create a partnership, this factor still
weighs in favor of concluding that no partnership was formed. See Tex. Bus. Orgs.
Code Ann. § 152.052(c) (“An agreement by the owners of a business to share
losses is not necessary to create a partnership.”).

5. Contributions

There is no evidence that Kelly contributed any money or property to the
business. This factor weighs in favor of concluding no partnership was formed.

6. Additional factors

In addition to the statutory factors, we take note of the following factors,
which also weigh in favor of finding no partnership was formed:

• Appellants assert that Kelly held herself out to others as a partner,
pointing to her LinkedIn profile, which listed her as a “LTD partner”
of N-Motion Group. However, Kelly testified that Pratt set up her
LinkedIn profile and put the “LTD partner” on her account.

• N-Motion Group’s tax returns showed only Boyle and Pratt as
members, who each received K-1’s as partners for tax purposes. Kelly
never received a K-1.

• Kelly was not named as an owner or partner in any company-related
documents.

• Kelly did not tell anyone she was a partner. Kelly specifically told one
of her customers that she had presented a proposal to “the two

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partners” in N-Motion Group.

• Kelly had no access to the bank account of the business venture and
could not write checks.

Looking at the totality of the circumstances, we conclude that the trial
court’s finding that there was no partnership is supported by legally-sufficient
evidence.
The evidence supporting the trial court’s finding there was no partnership is
not factually insufficient. At most, the evidence demonstrates that Boyle and Pratt
consulted Kelly regularly and valued her input, but the evidence still does not
demonstrate that Kelly had any control over the business. And the remainder of the
factors and evidence still weigh greatly in favor of finding that Kelly was not a
partner. Thus, we cannot conclude that the trial court’s finding that there was no
partnership is “against the great weight and preponderance of the evidence.” Dow
Chem., 46 S.W.3d at 242.
We overrule appellants’ first issue.
C. Segregation of attorney’s fees
In their second issue, appellants argue that appellees were required to
segregate the attorney’s fees between recoverable and non-recoverable fees.
However, to preserve a complaint for appellate review, a party must present a
timely request, motion, or objection, state with specificity the grounds for the
ruling requested, and obtain a ruling from the trial court. See Tex. R. App. P.
33.1(a). Appellants never raised this issue to the trial court and thus waived this
issue. See id.; see also Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821,
823 (Tex. 1985) (“Because [appellants] did not object to the failure of the trial
court to segregate the attorney’s fees between the claims, they have waived that
point.”).

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We overrule appellants’ second issue.
III. CONCLUSION

We affirm the judgment of the trial court as challenged on appeal.

/s/ Charles A. Spain
Justice

Panel consists of Justices Wise, Spain, and Hassan.

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