Smith v. Smith, 541 S.W.3d 251

David Smith was a part-time sales agent for his brother Brian Smith's companies, CRS Texas and POS Card Services, which sold POS hardware/software and payment-processing services.
After David left, he sent a demand letter seeking unpaid commissions on four merchant accounts, asserting an oral agreement to receive commissions on all sales for merchants he considered his.
Appellees (Brian, CRS, POS) sued in Harris County for declaratory relief seeking six declarations (including that David was never an employee and is not entitled to commissions or attorney’s fees). David counterclaimed for unpaid commissions and moved to transfer venue to Bexar/San Antonio.
The trial court denied the venue transfer (David appealed) and granted appellees’ hybrid summary judgment (no-evidence and traditional), entering declarations for appellees but denying appellees’ request for costs/fees.
On appeal, the court: (1) held the trial court did not abuse its discretion in finding David waived his venue objection; (2) reversed/remanded only the portion of the judgment declaring no agreement existed because David produced evidence raising fact questions about the existence and enforceability of an oral commission agreement (including partial performance/statute-of-frauds issues); and (3) affirmed summary judgment in all other respects, including denial of attorneys’ fees to appellees.

Issue	Plaintiff's Argument (David)	Defendant's Argument (Appellees)	Held
Venue transfer	Events occurred in San Antonio; venue should be transferred	David waived venue by delay and by participating in merits-related proceedings (discovery, summary-judgment response, continuance, jury demand)	Court: No abuse of discretion; David impliedly waived venue by delay and inconsistent actions; denial affirmed
Existence/enforceability of contract	Oral agreement entitling David to commissions on his merchants; deposition testimony and partial payments create fact issues and invoke partial-performance exception to statute of frauds	No enforceable contract; any oral agreement barred by statute of frauds	Court: Reversed/remanded as to declaration that no agreement existed—David raised fact questions on existence and partial performance exception
Breach of contract elements (performance, breach, damages)	David points to testimony but did not present evidence on performance, breach, or damages	Appellees moved no-evidence on all elements	Court: Affirmed summary judgment as to breach claim because David failed to raise fact issues on performance, breach, and damages
Attorneys’ fees and costs under Declaratory Judgment Act	(David) not directly argued on appeal	Appellees sought fees; argued fees reasonable/necessary and equitable because lawsuit defensive	Court: Trial court acted within discretion in denying fees; appellees failed to show award was required or that denial was arbitrary

In re Masonite Corp., 997 S.W.2d 194 (Tex. 1999) (plaintiff chooses venue; defendant must timely challenge)
Wilson v. Texas Parks & Wildlife Dept., 886 S.W.2d 259 (Tex. 1994) (venue principles and plaintiff’s choice of forum)
Carlile v. RLS Legal Sols., Inc., 138 S.W.3d 403 (Tex. App.—Houston [14th Dist.] 2004) (delay and merits-related actions can constitute waiver of venue)
In re PepsiCo, Inc., 87 S.W.3d 787 (Tex. App.—Texarkana 2002) (amended venue motion relates back to original if filed before ruling)
CMH Set & Finish, Inc. v. Taylor, 2016 WL 1254063 (Tex. App.—Dallas 2016) (discussed in opinion for waiver analysis)
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006) (summary judgment standard; evaluate evidence in favor of nonmovant)
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754 (Tex. 2007) (definition of fact question for summary judgment)
Duradril, L.L.C. v. Dynomax Drilling Tools, Inc., 516 S.W.3d 147 (Tex. App.—Houston [14th Dist.] 2017) (statute of frauds is an affirmative defense; exceptions like partial performance are generally fact questions)
PAS, Inc. v. Engel, 350 S.W.3d 602 (Tex. App.—Houston [14th Dist.] 2011) (no-evidence summary judgment requires nonmovant to produce evidence on each challenged element)
State v. Ninety Thousand Two Hundred Thirty-Five Dollars & No Cents in U.S. Currency, 390 S.W.3d 289 (Tex. 2013) (when summary-judgment order does not specify grounds, appellate court may affirm if any ground is meritorious)