This appeal arises from a dispute between the founders of a business who dissolved their relationship less than a year after establishing the business. Both parties filed suit against each other, alleging breach of agreements and other duties arising from their relationship. At the conclusion of a jury trial, the court directed a verdict-for appellees on each of the causes of action, thus prompting this appeal. Finding no error in the judgment below, we affirm.
Proper consideration of the issues raised in this appeal necessitates a brief review of the factual and procedural history of the parties’ dispute. In 1996, appellant Robbins was a student at Texas Tech University. He performed computer support and related services for appellee, Thomas K. Payne (Payne). The parties discussed establishing a business to provide internet *744 access services to the public in the Lubbock area. These discussions culminated in a short written agreement signed on October 18, 1996. 1 As described in the agreement, the business name was “the Door,” sometimes referred to аs “the Door to the Internet.”
Shortly after the agreement was signed the business began operating, with Robbins handling the technical aspects and some other daily operational decisions and Payne participating in financial, advertising and other business development activities. The record shows the business was successful in obtaining customers and providing service to those customers. However, even after several months of operation, the business was not producing a profit. Consequently, Robbins did not receive any financial benefit from the business during this time. Disagreements developed between Payne and Robbins about certain aspects of the business and, in the summer of 1997, Robbins explored the possibility of obtaining financing to “buy-out” Payne or establishing another business to compete in the same markets. Robbins ceased participating in the business about August 1, 1997.
Appellees Payne and the Door sued Robbins on June 15, 1998, for breach of contract and for a declaration that Robbins did not have an equity interest in The Door. The following day, Robbins filed suit against appellees Payne and the Dоor, asserting causes of action for breach of partnership agreement, breach of a duty of good faith, breach of agreement to form partnership, promissory estoppel, fraud, negligent misrepresentation, breach of fiduciary duty, and constructive trust.
After the denial of a motion for summary judgment filed by appellees, the case was tried to a jury on two days in October 2000. After both parties closed, appellees *745 amoved for a directed verdict as to each of Robbins’s causes of action on the grоund that the evidence was legally insufficient to support those claims. It also sought a directed verdict on appellees’ request for a declaration that Robbins did not have an ownership interest in the Door. The trial court granted the motion, stating that it found the evidence conclusively established an enforceable contract and all prior negotiations merged into that contract. It rendered judgment for appellees, declaring that appellant had no ownership interest in the Door and that he take nothing on his сlaims. After filing a motion for new trial, appellant timely perfected appeal and now presents three issues for our review. They are that the trial court erred in: 1) granting a trial amendment to add a denial of the existence of a partnership, 2) granting an instructed verdict when there was evidence of a meritorious theory of recovery, and 3) granting an instructed verdict when there was some evidence of a meritorious defense.
Trial Amendment
Robbins’s first challenge is to the trial court’s decision to permit appellees to file a trial аmendment denying the existence of a partnership. During the preliminary proceedings on the day of trial, Robbins pointed to the allegation in his petition alleging a fiduciary relationship between the parties and argued this implied the existence of a partnership. He also argued that appellees had failed to file a verified denial of partnership as required by Rule of Civil Procedure 93. In response, appellees sought leave to amend-their answer to add a verified denial of partnership. After considering the request during voir dire, the trial court permitted the amendment finding that the amendment would not operate as a surprise because the issue was raised in the pleadings, even though there was no verified denial. The court offered Robbins the opportunity to present evidence of surprise but, he only sought a continuance, which was denied.
Amendments to pleadings filed less than seven days before the date of trial may only be filed with leave of the trial court. Tex.R. Civ. P. 63. The rule provides that leave shall be granted unless there is a showing the filing will operatе as a surprise to the opposite party.
Id. See also
Tex.R. Civ. P. 66 (authorizing trial amendments unless the non-movant shows prejudice). The standard of review applicable to a trial court’s decision to permit amendment is whether the court abused its discretion.
Miller v. Wal-Mart Stores, Inc.,
At trial, appellees relied on
Kirby Forest Industries, Inc. v. Dobbs,
Trial of an issue by consent is relevant to the requirement of Rule 301 that the judgment rendered must conform to the pleadings. Under Rule 63, however, the relevant issue is whether the amendment *746 was a surprise and, under Rule 66, whether the amendment will prejudicе the non-movant. The fact that the parties fully litigated the issue without objection in Kirby is relevant to that court’s finding that there was no surprise to the party alleging a partnership.
Robbins cites cases such as
Washburn v. Krenek,
The record does not support Robbins’s claim of surprise. Appellees’ motion for summary judgment, filed sоme ten months before trial, specifically challenged Robbins’s partnership claim. Robbins’s response to the motion devoted three pages to the partnership issue, but failed to challenge the lack of a verified denial of that partnership.
Robbins next cites
Smith Detective Agency v. Stanley Smith Security, Inc.,
Robbins has failed to meet his burdеn to show the amendment was a surprise or prejudiced his claims or defenses. Therefore, we cannot say that the trial court abused its discretion in permitting the trial amendment and we overrule Robbins’s first issue.
Directed Verdict
We next consider Robbins’s challenges to the directed verdict. A directed verdict for a defendant may be proper when a plaintiff fails to present evidence raising a fact issue essential to the plaintiffs right of recovery or if the plaintiff admits, or the evidence conclusively establishes, a defense to the plaintiffs cause of action.
Prudential Ins. Co. of America v. Financial Review Services, Inc.,
Robbins initially asserts that there was legally sufficient evidence to support his claims for quantum meruit, partnership, *747 fraud, breach of fiduсiary duty, promissory estoppel, negligent misrepresentation, constructive trust, and exemplary damages. Consideration of this issue is simplified by noting that some of these claims are not recognized causes of action in Texas.
Promissory estoppel is a defensive doctrine which permits one who has relied on a promise to prevent an attack on the enforceability of the promise.
Wheeler v. White,
Quantum Meruit
Quantum meruit is an equitable remedy which is based on an implied agreement to pay for benefits received.
Iron Mountain Bison Ranch v. Easley Trailer Mfg. Inc.,
Robbins sought recovery under quаntum meruit for the labor he expended in establishing the Door and for which he was not paid. He cites
Truly v. Austin,
In Truly, the plaintiff sought to recover the value of services he provided to a joint venture. The services were provided under a contract in which he would have been paid $2,000 per month for supervision of a construction project. Id. at 936. The project fell apart when Truly breached a portion of the contract concerning his acceptance of personal liability. The court recognized some circumstances in which a party could obtain quantum meruit damages for services performed under a contract, but it held that because quantum meruit is an equitable remedy, the plaintiffs breach of the contract precluded his recovery. Id. at 938.
It is undisputed that Payne and Robbins had a contract governing the services provided by Robbins and that it was Robbins who ceased participating in the business after eight months. In spite of these undisputed facts, Robbins contends the trial court erred in finding he breached the contract because it erroneously construed the agreement in favor of Payne after finding it ambiguous. The record citation provided does not support Robbins’s statement that the trial court found the contract ambiguous. Nor do we find any support in the record for a finding that the contract was ambiguous.
Robbins does not directly dispute the fact that he breached the contract, but argues that the jury should have been given the opportunity to deсide if the breach was “legally excused.” Robbins fails to point to authority or evidence on which the jury could have found his breach “legally excused.” Moreover, Payne correctly notes that an allegation that a breach was excused is an affirmative defense.
See Bracton Corp. v. Evans Const. Co.,
Because the services at issue were governed by an express contract and Robbins failed to establish the applicability of an exception to the general rule, the trial court did not err in granting a directed verdict on this claim.
Partnership
The exact nature of Robbins’s claim for “partnership” is unclear. Applying a liberal construction to his brief, we will construe his claim as one for a judicial declaration that the parties were partners. In support, he first argues that Payne “failed to verify a denial specific to the allegation of a partnership between Robbins and Payne.” Examination of the amended answer shows this claim is without merit. The amended answer specifically provides, “Plaintiffs/Counter-defendants [Payne and the Door] specifically deny the allegation [that] Thomas K. Payne and Ty Robbins were partners.” The denial is clear and unequivocal.
Robbins next argues that the undisputed facts establish a partnership between himself and Payne. As support, he cites a portion of the Texas Revised Partnership Act, which defines a partnership as “an association of two or more persons to carry on a business for profit as owners.” Tex.Rev.Civ. Stat. Ann. art. 6132b-2.02 (Vernon Supp.2001). Robbins omitted the beginning of that sentence which provides, “Except as provided by Subsections (b) and (c), an associаtion of two or more persons_” Subsection (b) specifically provides that an “association or entity created under a law other than the laws described under Subsection (a) is not a partnership.” Id. The parties’ written agreement did not give Robbins an ownership interest. Rather, it evidences an intent to form a corporation, and the record shows that a corporation was formed. The record does not support a finding of partnership and the trial court did not err in directing a verdict on this issue.
Fraud
The elements of a claim for fraud are: 1) a material representation that was false; 2) the person who made the representation knew it was false or made it recklessly as a positive assertion without any knowledge of its truth; 3) it intended to induce another to act upon the representation; and 4) that person actually and justifiably relied upon the representation and thereby suffered injury.
See Trenholm v. Ratcliff,
This еvidence does not support even an inference that Payne made any representation that the agreement provided Robbins would receive any payments before the business earned a profit or that payments to Robbins would be treated as operating expenses in determining whether the business earned a profit. Although Robbins suggests that Payne’s right to make all of the business decisions before payout gave him control over whether the *749 business made a profit, he makes no claim of any decision which delayed or prеvented the business from earning a profit and the record shows that Robbins maintained the records of the business.
Robbins argues the trial court prevented him from effectively developing evidence necessary to establish his fraud claim when it sustained objections made by Payne. However, Robbins failed to request an opportunity to create a bill of exceptions on this point, so there is nothing for us to review and any complaint on this issue has been waived.
Because there is nothing in the record to support a finding that Payne misrepresentеd the terms of the agreement, there was no evidence to support a finding of fraud and the trial court did not err in directing a verdict on this cause of action.
Breach of Fiduciary Duty
In support of his claim for breach of fiduciary duty, Robbins cites
Crim Truck & Tractor Co. v. Navistar International Transportation Corp.,
The court in
Crim Truck
stated the existence of a confidential relationship is ordinarily a question of fact but recognized that when the issue is one of no evidence, the question is one of law.
Id. (citing Thigpen v. Locke,
As in Crim Truck, there is no evidence that the relationship between Robbins and Payne went beyond that ordinarily existing between parties to a contract of this type. The relationship was not longstanding. Although Payne had significantly greater business knowledge and experience than Robbins, Robbins had much more knowledge of the technology and internet service provider industry.
Robbins next argues that Payne admitted owing a fiduciary duty to Robbins. When questioned about the nature of the relationship, Payne was very clear that he was not expressing an opinion on the legal status of the relationship because, in his words, “from a legal standpоint, I don’t think that I understood, and I’m not sure I understand the term. I know what it meant to me and I know what it means to me.” This testimony is not evidence that Payne owed Robbins a fiduciary duty.
Even if there was some evidence of a fiduciary relationship, Robbins presented no evidence of breach. The only evidence cited in support is his testimony that when he reported to Payne that working at the Door was causing problems in his marriage and that he was concerned about his father’s health, Payne reportedly responded that he should be prepared to “divоrce my wife and bury my father to stay in [the] business.” Accepting this statement as true, it could not support a claim for breach of fiduciary duty because nothing about the relationship of the parties related to Robbins’s reliance on Payne for personal advice. The trial court did not err in granting a directed verdict on this cause of action.
Negligent Misrepresentation
The only argument in Robbins’s brief in challenge of the directed verdict on
*750
his fraud claim is that Payne’s motion failed to specifically address that cause of action. We disagree. Payne’s motion allеged there was no evidence of a false representation. This was relevant to both Robbins’s fraud claim and his negligent misrepresentation claim. Without evidence of a misrepresentation, Robbins cannot establish his claim for negligent misrepresentation.
Zipp Industries, Inc. v. Ranger Ins. Co.,
Constructive Trust
Constructive trust is a remedy imposed when a person holding title to property would be unjustly enriched if permitted to keep the property.
Crowder v. Tri-C Resources, Inc.,
Robbins also contends that Payne’s motion should have been denied because it failed to state the specific grounds on which it was sought as required by Rule of Civil Procedure 268. We need not express any opinion on whether the motion contained the requisite specificity as to each cause of action because Robbins’s failure to present the trial court with an objection on that basis waived any error. See Tex.R.App. P. 33.1. We overrule Robbins’s second issue.
In his third issue, Robbins assigns error to the directed verdict because he presented some evidence of meritorious defenses. He initially argues the record establishes a question of fact existed on whether the written contract represented the entire agreement of the parties. Specifically, he argues the parties had differing intent on whеther payment to Robbins would be included in determining operating expenses. In support, he cites his testimony at trial where he sought to introduce a document listing “concerns” he had before the written contract was executed. Payne argued that any prior negotiations or agreements had merged into the written agreement, which covered the subject of payments to both parties.
See Carr v. Weiss,
Robbins next argues there was evidence supporting a finding that any breach of the contract by him was legally excused. He contends the contractuаl requirement that the business make a profit before Robbins was paid, and that Payne recoup his investment before Robbins had an ownership interest, were conditions precedent and the giving effect to them was “contrary to guiding principles of law” (citing
Criswell v. European Crossroads Shopping Center, Ltd.,
In
Criswell,
the issue was whether a contractual provision that an engineer would be paid when real property was sold
*751
as a “condominium project” precluded his payment when the property was sold before it was remodeled into condominiums.
Id.
at 947. The court noted that in construing a contract, forfeiture by finding a condition precedent is to be avoided when another reasonable reading of the contract is possible,
Schwarz-Jordan, Inc. v. Delisle Construction Co.,
Accepting Robbins’s premise that a profit and payout were conditions precedent, he offers no authority supporting the conclusion that such conditions would excuse his breach. Unlike Criswell, the contractual requirements at issue here would hot work a forfeiture. The structure of the contract divided the risk of establishing the business. The risk Robbins accepted of working without pay if the business was not successful, is no more onerous than the risk Payne accepted in financing the business without any guarantee his investment would be repaid. The public policy considerations relevant in Sirtex Oil, supra, are not applicable here. Also, as noted above, an allegation that a breach of contract is legally еxcused is in the nature of an affirmative defense, but Robbins’s pleadings contained no such defense.
Robbins claims the evidence presents a fact question on whether the agreement was supported by consideration and mutuality. He argues that the agreement lacks consideration because Payne “gave up nothing[, he] surrendered no contractual rights and was required to do nothing.” This ignores the plain language of the agreement and the evidence presented at trial. The first paragraph of the agreement imposed оn Payne the obligation to fund the start-up costs of the business and the evidence showed he invested over $100,000 in satisfaction of that obligation. The obligation was valid consideration and made the parties’ promises mutual.
Northern Nat. Gas Co. v. Conoco, Inc.,
Finally, Robbins argues that there was evidence establishing a fact question on whether the business had reached “payout” under the contract. It cites a profit and loss statement as support for his claim that the business had $2,398,504.21 in gross profit. Examination of the document shows this figure excluded all of the expenses of operating the business other than cost of goods sold. After deducting those expenses from the gross profit, the document shows the business had a net loss of $272,479.79. None of the financial records presented into evidence could support a finding that the business had reached payout under the agreement. We overrule appellant’s third issue.
In summary, all of appellant’s issues are overruled and the judgment of the trial court is affirmed.
Notes
. Thomas K. Payne ... and Timothy Robbins ... agree as follows:
1) Payne will fund the start-up costs for an internet related business to be called “THE DOOR”;
2) Robbins agrees to devote full-time to this business;
3) 100% ownеrship of the business will be retained by Payne until such time as Payne has achieved "payout” as defined below;
4) Operating profits will be distributed 75% to Payne and 25% to Robbins until Payne achieves payout;
5) Operating profits will be offset by any operating losses prior to any profits being distributed;
6) All tax benefits associated with start-up and operations of THE DOOR will accrue 100% to Payne until Payne has achieved payout;
7) "Payout” is defined as the time at which Payne has received cash distributions from this business equal to the sum of Payne's original investment plus any additional cash сontributions made by Payne subsequent to start-up and prior to payout, plus 10% simple interest on outstanding balances;
8) This business will occupy office space in a building owned by Payne. Payne will supply one office, a common storage area and office equipment for use by The Door. These services will be charged to The Door at the rate of $600 per month. In the event The Door occupies additional office space in the future such space will be charged to The Door at the rate of $12.00 per square foot. Full sеrvice. Payne will retain ownership of all office equipment, unless same is later purchased by The Door;
9) When "payout” is achieved, profits will be distributed 50% to Payne and 50% to Robbins. Furthermore, at payout 50% equity ownership in this business will be vested in Robbins, who will at that time receive 50% of the stock in the corporation;
10) In regard to decisions which must be made in the future, prior to payout all final decisions will be made by Payne. Subsequent to payout, all final decisions which are financially related will be made by Payne, and all final decisions which are systems related will be made by Robbins.