Nicole Roberts, Individually and Derivatively on Behalf of R Partnership, LLC v. Scott Roberts, Individually and Derivatively on Behalf of R Partnership, LLC

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00668-CV

Nicole Roberts, Individually and Derivatively on behalf of R Partnership, LLC, Appellant

v.

Scott Roberts, Individually and Derivatively on behalf of R Partnership, LLC, Appellee

FROM THE 419TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-22-004974, THE HONORABLE MAYA GUERRA GAMBLE, JUDGE PRESIDING

MEMORANDUM OPINION

This is an appeal from the trial court’s order rendered after a bench trial involving

claims between two members of a closely held limited-liability company, R Partnership, LLC

(the Company). Pursuant to an earlier agreement between siblings Scott Roberts and Nicole

Roberts to wind up the Company, the trial court appointed wind-up supervisors, who sold most

of the Company’s assets and distributed the funds to Scott and Nicole, holding back $8 million

pending judicial resolution of the siblings’ claims against each other. Nicole appeals from the

trial court’s order resolving the parties’ “Member Retained Claims” and determining that Nicole

should take nothing on her claims and that Scott is entitled to $5.9 million for capital

contributions he made to the Company. For the following reasons, we affirm the trial court’s

order.
BACKGROUND1

Over fifty years ago, Scott and Nicole’s parents started a family business owning

and operating RV resorts and manufactured-home communities in multiple states. Scott and

Nicole formed the Company together in 2013 to continue and grow the family business. They

executed an operating agreement (the Operating Agreement) to govern the Company, and things

between the siblings and with the business went well for several years, with Scott providing most

of the sweat equity while Nicole had invested most of the initial capital. Both were managers

and members of the Company, and Scott ran the business with little involvement from Nicole

until late 2019. Although Scott kept Nicole informed about the overall business activities, there

were no official meetings or manager votes. Nicole never required approval of the Company

budgets or expenses; she acted as a self-described “investor who helps” and participated in the

Company’s business on a project-by-project basis.

The Company was the sole member and 100% owner of three property-owning

subsidiaries—Lake Osprey RV Resorts, LLC (Lake Osprey); Kyle Bluebonnet MHC, LLC

(Kyle Bluebonnet); and Tyler MHC, LLC (Tyler)—as well as Lakeside Sales, LLC (Lakeside

Sales), which was created to sell manufactured homes for the property-owning subsidiaries.

The Company owned 99% of the membership interest in Village Basecamp, LLC (Village

Basecamp), which the parties formed to purchase and develop property near Lake Tahoe,

California, to fulfill their vision of developing an upscale resort there offering RVs,

manufactured homes, and luxury park model homes. Early in the Company’s history, Nicole

1
Because on appeal Nicole challenges the legal sufficiency of the evidence, we recite the
facts in this section in the light most favorable to the order and assume that the trial court
resolved disputed facts in favor of its implied findings. See In re J.F.C., 96 S.W.3d 256, 266
(Tex. 2002).
2
agreed that Scott’s wholly owned company, SBR Management Company, LLC (SBR), would

manage the Company’s assets and subsidiaries. According to the Operating Agreement, if any

manager paid the costs and expenses of operating the Company’s property or business, that

manager would be entitled to reimbursement therefor, and thus Scott’s capital account was

credited monthly for SBR’s management of Company businesses.

In January 2019, when the Company had the opportunity to purchase the Village

Basecamp property, there was competition for it, so the Company purchased it using short-term

loans of $10 million each from the siblings’ mother and another third party. Scott asked Nicole

to supervise the design process for the new park model homes because of her interest and

experience in design. The siblings did not take a formal vote before making the Village

Basecamp purchase or obtaining the loans on behalf of the Company. Nicole chose Dvele

Homes (Dvele) to build the model homes. While necessary groundwork was underway to

prepare Village Basecamp to support the siblings’ vision, the Company borrowed $25 million

from Ladder Capital Finance, LLC (Ladder Bank) to repay its short-term loans. Nicole approved

the Ladder Bank loan, which had a three-year term and required the Company to meet interim

deadlines to start work on the clubhouse and to prepare the lots for the new homes. Scott was the

sole guarantor on the Ladder Bank loan.

By April 2020, the Company was experiencing serious cash-flow problems, and

things began to sour between the siblings. All of the Company’s properties had cash demands,

with the most significant constraint being the Ladder Bank loan. Scott asked Nicole to

contribute more capital to address the cash-flow issues, and she refused. Although Scott and

Nicole had planned to use the Company’s line of credit with First Bank to fund the homebuilding

project in Village Basecamp, Nicole blocked the Company’s access to the line of credit. That

3
summer, Scott pressed Nicole to finalize a contract with Dvele so that construction could begin

and Village Basecamp could meet its obligations under the Ladder Bank loan, but Nicole refused

to sign the contract, despite her prior communication with Dvele sending her final comments

on a contract with it to manufacture homes according to her specifications. Nicole stopped

responding to Dvele’s communications, and in early fall 2020, Scott took control over the

decision-making at Village Basecamp to get the project back on track. He executed a contract

with Dvele on behalf of Lakeside Sales to construct the homes at Village Basecamp and another

contract in June 2021 to address rising building costs. He signed these contracts to prevent the

Company’s defaulting on the Ladder Bank loan and to protect the Company’s investments in the

Village Basecamp and Kyle Bluebonnet projects, which were collateral for the Ladder Bank

loan. Over the next couple of years, Scott contributed $4.9 million to the Company to cover its

operating expenses, the cost of the Dvele homes, an unexpectedly high tax bill for Village

Basecamp, and to finish the last development phase of Lake Osprey.

Meanwhile, in May 2020, Scott informed Nicole of an opportunity to purchase a

24-acre tract (the Kyle Tract), offered for $500,000, adjacent to the Company’s Kyle Bluebonnet

manufactured-home community. Although Nicole initially agreed that the Company should

pursue the purchase of the Kyle Tract, when Scott called a vote of the managers to decide

whether to fund the purchase of the property with capital contributions from each sibling, Nicole

did not attend the manager vote and refused to submit a ballot. She also refused to approve the

contract to purchase the Kyle Tract that Scott executed on the Company’s behalf, and she told

Scott that she had “concerns with the closing” of the property. After the closing deadline on the

Kyle Tract passed, and the Company was unable to close due to lack of funding and Nicole’s

silence on the matter—despite her attorney’s advice that she agree to Scott’s request for capital

4
contributions—Scott purchased the Kyle Tract himself through his wholly owned entity, Kyle

Manufactured Home Community, LLC. He reimbursed the Company for the expenses related to

investigating the purchase. At the time of the trial, no development work or operations had

begun on the Kyle Tract, which remained raw land.

Because of the difficulties between Scott and Nicole, in late summer 2022 Scott

attempted to invoke the Operating Agreement’s buy–sell provision after attempting to reach an

agreement with Nicole to end their business relationship. The buy–sell provision provided that

either sibling could notify the other in writing of their desire to sell to or purchase from the other

their respective membership interest. The notice was required to specify the sale or purchase

price, which had to be the fair market value of the membership interest sought to be sold or

bought. Upon receipt of such an offer, the other sibling was required to either purchase the

offeror’s membership interest at a price equal to the fair market value multiplied by the

percentage interest of the offeree or sell to the offeror his or her membership interest at a price

equal to the fair market value multiplied by the offeree’s percentage interest. The buy–sell

provision provided further details on the timing and procedures for such sale and purchase.

In September 2022, Scott filed a lawsuit against Nicole to enforce the buy–sell

provision and compel her to sell him her membership interest in the Company. Nicole

countersued for fraud, breach of contract, breach of fiduciary duty, indemnification, and to

obtain an accounting. Scott later added claims for breach of contract, breach of fiduciary duty,

and tortious interference. He requested that the court place Nicole’s membership interest in

limited receivership pending resolution of the lawsuit and declare the amounts of capital

contributions he had made to the Company.

5
Trial commenced in June 2023, and during a recess the parties agreed to a judicial

winding up of the Company. The trial court signed an order dissolving the Company, appointing

as wind-up supervisors (Supervisors) Karen Nicolaou and Greg Milligan, and specifying that the

court would set forth the Supervisors’ authority by further order and recess the remaining claims

in the case pending further order. Shortly thereafter the trial court signed an Agreed Order

on Wind Up Supervisors’ Authority and Procedures (Agreed Order), which provided broad

authorization to the Supervisors with respect to the wind up: “except as expressly limited herein,

the Wind Up Supervisors shall have all powers, authorities, rights, and privileges necessary to

manage [the Company’s] property of any and every kind, whatsoever and wherever located.”

The Agreed Order limited the Supervisors’ powers in one significant way: “the Wind Up

Supervisors shall not hold authority to enforce those rights and claims asserted directly or

derivatively by or against [the Company’s] members, or the members’ affiliates and agents,

pending with this Court (the ‘Member Retained Claims’), which Member Retained Claims are

expressly reserved for court resolution.” The Agreed Order gave the Supervisors the “sole

authority to sell any [Company a]sset, including to direct any process involving the sale of all or

substantially all of” its assets and required them to “use reasonable efforts to conclude final

distributions by December 31, 2023 . . . , except as to the Member Retained Claims.”

In September 2023, the trial court signed an Agreed Order on Wind Up

Monetization Plan (Monetization Plan). The Monetization Plan specified how the Supervisors

were to liquidate the Company’s subsidiaries and their assets. Included in the Monetization Plan

was the process for the sale of Village Basecamp, which sale was to include the Dvele homes

“already located at Basecamp.” The Monetization Plan specified that the sale of the Dvele

6
homes “as part of the sale process is not an admission or waiver by either Nicole Roberts or

Scott Roberts regarding any Member Retained Claims . . . involving the Dvele Homes.”

Trial to the court on the parties’ member-retained claims resumed in July 2024.

On September 27, 2024, the trial court rendered the order that is the subject of this appeal:

Amended Order on Member Retained Claims (Order). In the Order, the trial court declared the

amounts and dates of capital contributions (as defined in the Operating Agreement) that Scott

had made, as well as the amount of priority return (10%) that he is entitled to receive beginning

on the date he made each contribution.2 The Order found that Scott had made the following

capital contributions on the following dates:

$1,000,000 December 10, 2021

$1,500,000 February 1, 2022

$124,220 March 4, 2022

$375,780 September 18, 2023

$1,966,727.66 September 18, 2023

The Order then provided,

The Court DENIES the remainder of the parties’ Member Retained Claims and
ORDERS that the parties take nothing on those claims.

IT IS THEREFORE ORDERED that the Wind Up Supervisors shall distribute
to Scott Roberts the amount of $5,895,767.00 for the Capital Contributions
listed above and his Preferred Return through September 11, 2024, no later than

2
The Operating Agreement authorizes the managers to make periodic distributions when
it has an excess of cash on hand (as defined), including a 10% priority return that has accrued on
the capital contributions of Class A and B Holders and specifies that Nicole is a Class A Holder
and Scott is a Class B Holder. It also specifies the priority of distributions to be made upon
dissolution and includes the return of capital contributions plus the 10% priority return in that list
of distributions after other distributions are made.
7
October 7, 2024. That interest and the Preferred Return will continue to accrue in
the amount of $1,361 per day through that distribution.

Each party will bear its own attorneys’ fees and costs.

Nicole perfected an appeal from the Order, and Scott filed a motion to dismiss her appeal,

arguing that this Court does not have jurisdiction over Nicole’s appeal because the Order is not

final and appealable.

DISCUSSION

Jurisdictional issue

We first address the jurisdictional issue raised in Scott’s motion to dismiss. Scott

contends that because the Order does not include words indicating finality and the trial court has

“continued to decide contested matters related to the wind-up” of the Company, it is not a final

order that actually disposes of every pending claim and party. See Patel v. Nations Renovations,

LLC, 661 S.W.3d 151, 154 (Tex. 2023) (“By definition, a final judgment must dispose of all

parties and all claims in the underlying case.”). Scott cites the trial court’s Agreed Order on

Distributions of Lake Osprey RV Resort, LLC Inventory Lots signed November 21, 2024—after

the Order that is the subject of this appeal—to demonstrate that the Order is not final.3 He also

contends that the following actions related to the windup have yet to occur: the filing of tax

returns, a true-up of a closing adjustment for the properties sold to Scott, a final accounting, the

3
As to Lake Osprey, the Monetization Plan specified that the Supervisors were
authorized, without further court order, to “continue to market and sell all remaining unsold lot
inventory in the ordinary course of business.” It appears that by November 21, 2024, several lots
in the Lake Osprey resort remained unsold, and thus the agreed November 21 order specified the
procedures by which those remaining lots would be disposed, to include a sealed-bid auction
between Scott and Nicole, or any entity they appoint, to bid on the lots as well as a default
liquidation process should any of the lots not be disposed of through the auction.
8
filing of a certificate of termination with the Texas Secretary of State, and final payments and

discharge of the Supervisors and their counsel.

Scott is correct that a judgment or order is final for purposes of appeal if it

disposes of all pending parties and claims in the case, see id., and that there are remaining tasks

and actions to be taken by the Supervisors. However, if after a judgment disposing of all

pending parties and claims is rendered, there are further ministerial tasks for the court to

supervise that are necessary to carry out its decree, those tasks do not affect the judgment or

order’s finality. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). There is also

a presumption that an order or judgment rendered after a conventional trial on the merits, as here,

is final for purposes of appeal. See In re R.R.K., 590 S.W.3d 535, 541 (Tex. 2019). Although

the presumption can be overcome if an order following a conventional trial on the merits is

ambiguous as to its finality, see id., we do not believe the Order is ambiguous because it fully

resolves all member-retained claims between the parties, including attorneys’ fees. Furthermore,

if we had any doubt as to the Order’s finality, our review of the record leads us to conclude that

the trial court intended the Order to be final. See id.; see also Lehmann, 39 S.W.3d at 195

(“[W]hether a judicial decree is a final judgment must be determined from the language and the

record in the case.”).

The Order was rendered after a bench trial on the merits of all the claims

remaining pending between the parties after the trial court had already rendered its orders

dissolving the Company, appointing the Supervisors, specifying the broad powers and authority

of the Supervisors, and approving the parties’ agreed Monetization Plan. Although there

remained a few ministerial tasks for the Supervisors to perform after the Order was rendered,

those tasks constituted “carrying out” the earlier orders rendered by the trial court pertaining to

9
the Company’s winding up. See id.; Moody v. State, 520 S.W.2d 452, 456 (Tex. App.—Austin

1975, writ ref’d n.r.e.) (recognizing long-standing rule that “in some instances [such as

receivership] a court of necessity will retain control of a judgment, final on the merits, for further

proceedings to carry the judgment into full effect”). Those ministerial tasks—the filing of tax

returns, providing accountings, filing of a termination certificate, and making final

distributions—do not affect the finality of the Order, as the essential requisite for whether the

Order is final is whether it finally disposes of all issues and parties and leaves as “undone only

such matters as are necessary to carry the [winding down] into effect.” See Moody, 520 S.W.2d

at 456.

Furthermore, the Agreed Order specifying the Supervisors’ powers vested them

with the power and authority to handle any disagreements about the dissolution of the Company

on their own without further intervention or action by the trial court. Nonetheless, the

Supervisors were given “the right (but not the obligation) to bring any disagreement regarding

the management, operation or winding up” of the Company “to the Court for resolution” and

“may, but are not required, to obtain supplemental or further orders” regarding the disposition of

Company assets, the settlement of any disputes or causes of action that constitute Company

assets, or their authority and powers. But the Supervisors’ ability to seek further court orders, for

instance, the agreed order on the Lake Osprey distributions, until they complete their court-

ordered duties does not alter the finality of the Order resolving all remaining claims between the

parties. All that remained after rendition of the Order was for the trial court to supervise, as

necessary, the carrying out of its own prior decree to dissolve the Company. We conclude that

the Order is a final, appealable order, and we deny Scott’s motion to dismiss.

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Nicole’s appellate issues

Nicole raises three issues on appeal, asserting that the trial court erred in

(1) determining that she implicitly waived her right to enforce the Operating Agreement despite

its nonwaiver provision; (2) determining that she should take nothing on her breach-of-contract,

breach-of-fiduciary-duty, and indemnity claims; and (3) awarding Scott $5.9 million on his

member-retained claim for the return of his capital contributions.

When, as here, after a nonjury trial the trial court does not file findings of fact or

conclusions of law, we will imply that the trial court made all necessary findings to support the

judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). And we must

affirm the judgment on any legal theory that finds support in the evidence. See Narvaez v.

Maldonado, 127 S.W.3d 313, 319 (Tex. App.—Austin 2004, no pet.). We first consider Nicole’s

second issue, as we need not consider her first issue to resolve this appeal. See Tex. R. App.

P. 47.1, 47.4.

Nicole’s member-retained claims

In her second issue, Nicole argues that the trial court erred in determining that she

is not entitled to recover on her claims for (1) breach of contract and breach of fiduciary duty

with respect to Scott’s purchase of the Kyle Tract and (2) indemnity for the attorneys’ fees she

incurred in defending against Scott’s lawsuit. She argues that she should have recovered on

these claims “as a matter of law”—that is, the evidence is legally insufficient to support the trial

court’s findings against her. As the party with the burden of proof on these claims before the

trial court, to prevail on appeal Nicole must demonstrate that the record conclusively establishes

all vital facts in support of her claims as a matter of law. See Shields Ltd. P’ship v. Bradberry,

11
526 S.W.3d 471, 480 (Tex. 2017). In conducting our legal-sufficiency review, we consider

evidence and inferences supporting the trial court’s judgment, and we ignore inferences to the

contrary. See City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). As long as the

evidence would enable reasonable and fair-minded people to differ in their conclusions, we will

not substitute our judgment for that of the factfinder, which is the only judge of witnesses’

credibility and the weight to be afforded their testimony. See id.

Breach of contract

Regarding her breach-of-contract claim, Nicole argues that Scott breached

Section 2.9 of the Operating Agreement by competing with the Company when he purchased

the Kyle Tract for himself. Section 2.9 provides,

2.9 Other Activities. Except as provided in this Operating Agreement, the
Managers, the Holders and their affiliates, will at all times be free to engage
generally, directly or indirectly, in any other business venture of any nature or
description, provided, however, any such business or venture may not compete
or tend to compete with the Company. The Managers, the Holders and their
affiliates have no duty or obligation to present to the Company any investment or
business opportunity, which they discover, other than any such investment or
business opportunity that may compete or tend to compete with the Company.
Neither the Company nor its Holders have any right by virtue of this Operating
Agreement in or to such other ventures or businesses, or to the income or profits
derived therefrom.

To prevail on her claim, Nicole had to prove the following elements: (1) the

existence of a valid contract between the parties; (2) performance (or excuse) by the party

asserting the claim; (3) breach of the terms of the contract by the other party; and (4) damages

resulting from the breach. C.W. 100 Louis Henna, Ltd. v. El Chico Rests. of Tex., L.P.,

295 S.W.3d 748, 752 (Tex. App.—Austin 2009, no pet.). To prevail on appeal, Nicole must

demonstrate that the record conclusively establishes each of those elements. See Shields Ltd.

12
P’ship, 526 S.W.3d at 480. We conclude that she has failed to do so with respect to at least

the third element: that Scott breached Section 2.9’s prohibition on a manager’s engaging in a

business or venture that competes or tends to compete with the Company.

The parties urge competing constructions of Paragraph 2.9’s restriction on

whether or under what conditions a manager may engage in competing ventures. Nicole argues

that the provision means a manager may not engage in any venture or business that competes or

tends to compete, full stop. Scott contends that the provision means a manager may engage in

such venture or business if he first presents the opportunity to the Company and the Company

declines to participate in it. However, we need not resolve this dispute about the meaning of

the provision because, even assuming that Nicole’s construction is correct, we conclude that she

has not demonstrated that the evidence conclusively establishes that Scott’s acquisition of the

Kyle Tract competed or tended to compete with the Company.

Nicole argues that “there’s no question that a manufactured home community

next door would compete with Kyle Bluebonnet and so with” the Company. Yet she cites no

evidence or authority to support this claim. She focuses her attention on portions of the record

that she claims demonstrate Scott’s “secret” plan to take advantage of the Kyle Tract opportunity

for himself rather than allow the Company to take advantage of the “promising opportunity” to

develop the Kyle Tract and add fifty to eighty manufactured homes adjacent to the existing Kyle

Bluebonnet property. But apart from what Scott’s plans may or may not have been to develop

the Kyle Tract himself, the evidence shows that at the time of the July 2024 trial, the Kyle Tract

remained undeveloped (as raw land), and no lots or homes had been rented or sold on it.

Because the Company was dissolved on June 22, 2023, the Kyle Tract was never an actual

competitor to the Company, nor does Nicole explain how any evidence demonstrates that Scott’s

13
ownership of the Kyle Tract would tend to compete with the Company. We conclude that Nicole

did not meet her burden to establish that the trial court erred in granting her no relief on her

breach-of-contract claim.

Breach of fiduciary duty

To prevail on her claim for breach of fiduciary duty, Nicole had to prove the

following elements: (1) the existence of a fiduciary duty; (2) breach of the duty; (3) causation;

and (4) damages. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214,

220 (Tex. 2017). Nicole argues that Scott, as a “corporate fiduciary,” had a fiduciary duty not

to “usurp corporate opportunities.” See Lifshutz v. Lifshutz, 199 S.W.3d 9, 18–19 (Tex. App.—

San Antonio 2006, pet. denied). She argues that Scott breached his fiduciary duty by usurping

the Company’s opportunity to develop the Kyle Tract by purchasing it himself, which allegedly

cost the Company $7.4 million in lost profits.

Defenses to a corporate-usurpation claim include (1) the company’s financial

inability to take advantage of a corporate opportunity and (2) its abandonment of a business

opportunity, and the burden of proving either defense is on the director who allegedly

appropriated the corporate opportunity. See Landon v. S&H Mktg. Grp., Inc., 82 S.W.3d 666,

681 (Tex. App.—Eastland 2022, no pet.). Scott argues that he proved both defenses. As the

appellant challenging the trial court’s implied adverse finding that Scott met his burden on one or

both of these defenses, Nicole must demonstrate that no evidence supports the adverse finding.

See Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014). We conclude that

she has not so demonstrated with respect to at least Scott’s defense that the Company abandoned

the Kyle Tract opportunity.

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There was evidence that in May 2020, Scott informed Nicole about an

opportunity to purchase the Kyle Tract for $500,000. In September 2020, Scott sent Nicole a

draft purchase agreement for the Kyle Tract and on March 30, 2021, provided a Notice of

Meeting of Members to occur on April 5, 2021, requesting $1 million in contributions ($500,000

from himself and $500,000 from Nicole) to purchase the tract and provide additional working

capital for the Company. Scott testified that this was the “only way” to fund the purchase of the

tract and that the Company was “nowhere close” to having the “financial abilities” to purchase

the tract otherwise, but Nicole did not attend the meeting. She would not approve the purchase,

despite her attorney’s urging her to reconsider whether to approve the mutual capital funding

to close on the purchase, informing her that “it could be a nice asset to potentially enhance

Lakeside’s value.” Her attorney also warned her that Scott would argue that the Company

“waived its rights to acquire the property and will then submit his own offer” for the tract if she

did not approve the purchase.

On August 10, 2021, Scott’s counsel asked Nicole’s counsel about discussions

with Nicole regarding the Company’s capital requirements and informed her counsel that the

closing deadline for the Kyle Tract was August 16 and that the Company lacked the capital to

acquire or develop the land. Neither Nicole nor her counsel responded to Scott about the

Company purchasing the Kyle Tract. On August 16, having heard nothing from Nicole, Scott

purchased the Kyle Tract through his own company because, he testified, he could not close

on a real-estate transaction on behalf of the Company without Nicole signing the necessary

documents. Based on this evidence, the trial court could reasonably have found that the

Company abandoned the opportunity to purchase and develop the Kyle Tract. This and other

evidence in the record constitutes more than a scintilla to support the trial court’s implied finding

15
that Scott established his defense to corporate usurpation, and we accordingly overrule Nicole’s

argument that legally insufficient evidence supports the trial court’s determination that she

should take nothing on her breach-of-fiduciary-duty claim.

Indemnification

Nicole argues that the trial court erred in denying her indemnification claim, by

which she sought to have the Company indemnify her for the attorneys’ fees she incurred in

defending against Scott’s suit. She cites Section 9.1 of the Operating Agreement as support for

her indemnity claim. That section provides,

To the fullest extent permitted by law, the Company shall indemnify any
Member or Manager or agent of the Company who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Company) by reason of the fact
that such Member or Manager or agent is or was a Member or Manager or
agent of the Company or is or was serving at the request of the Company as an
agent, director or officer of another limited liability company, corporation,
partnership, joint venture, trust, or other enterprise, against liability incurred in
connection with such action, suit or proceeding, including attorneys’ fees,
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such Member or Manager or agent in connection with such action,
suit or proceeding, including any appeal thereof, if such Member or Manager
or agent acted in good faith and in a manner such Manager or agent
reasonably believed to be in or not opposed to the best interests of the
Company and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such Member or Manager’s or agent’s conduct was
unlawful. The termination of any action, suit, or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Member or
Manager or agent did not act in good faith and in a manner which such
Member or Manager or agent reasonably believed to be in or not opposed to
the best interests of the Company and, with respect to any criminal action or
proceeding, had reasonable cause to believe that such Member or Manager’s
or agent’s conduct was unlawful.

(Emphases added.)

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Scott responds that the indemnity provision does not apply to claims between

managers. See Claybar v. Samson Expl., LLC, No. 0 9-16-00435-CV, 2018 WL 651258, at *3

(Tex. App.—Beaumont Feb. 1, 2018, pet. denied) (mem. op.) (noting general rule that indemnity

provisions do not typically apply to claims between parties to agreement unless parties included

specific language in agreement to that effect). Scott further argues that, even if the indemnity

provision applies, the provision required Nicole to prove that she acted in good faith in rejecting

Scott’s efforts to enforce the buy–sell provision and in taking the other actions he challenged by

way of his claims, but she did not so prove. We agree with Scott on this latter argument and

therefore need not consider his argument that the indemnity provision does not apply; rather, we

assume for purposes of reviewing the evidence of whether Nicole acted in good faith that the

indemnity provision applies. Nicole argues that “she indisputably acted in good faith as a matter

of law,” that is, the evidence is legally insufficient to support the trial court’s implied finding to

the contrary. As the party with the burden of proof on that issue below, Nicole must demonstrate

on appeal that the evidence conclusively established that she acted in good faith. See Shields

Ltd. P’ship, 526 S.W.3d at 480.

The only evidence Nicole cites to support her claim that she acted in good faith

when rejecting Scott’s August 16, 2022 offer to buy her shares for $25 million is her receipt in

April 2024 of $32 million, her share from the Supervisors’ sale of most of the Company’s assets.

She argues this amount is “far more than she would have received had she accepted Scott’s”

offer and proves that his offer was not for the “fair market value” as required by the buy–sell

provision. However, this assertion fails to recognize the passage of time between Scott’s offer

and the Supervisors’ sale; it also does not account for the Supervisors’ and broker’s considerable

amount of work that went into marketing the Company’s assets between those dates, which

17
efforts were reflected in the trial court’s February 2, 2024 Order on Motion to Approve Asset

Sale.4 Nor does Nicole support this assertion with any evidence in the record showing that

Scott’s offer at the time was not for the “fair market value.” Furthermore, Nicole could have

opted to purchase the Company from Scott for $25 million, which would have benefited her

significantly, evidenced by the Supervisors’ sale of most of the Company’s assets for $73

million, undermining her assertion that Scott’s offer was not for the fair market value. Yet she

chose not to buy Scott’s interest.

Also, beyond her rejection of Scott’s buy–sell offer for its alleged failure to be

set at the fair market value, Nicole does not cite any evidence demonstrating her good faith

with respect to the other challenged actions that Scott asserted in this suit: her alleged breach

of fiduciary duty and tortious interference with the Company’s contracts and business

relationships.5 Moreover, there is evidence in the record to the contrary, supporting the trial

court’s implied finding that Nicole did not act in good faith in failing to act on Scott’s buy–sell

offer and through the other actions and inactions that Scott challenged. That evidence includes

the following actions and inactions by Nicole:

4
The Order on Motion to Approve Asset Sale states, “The Court . . . finds that JLL [the
broker] and its professionals provided reasonable and necessary services and contributed
significant value to the . . . Supervisors and [the Company] in advancing the sales process.”
5
In his live petition, Scott alleged that Nicole breached her fiduciary duty by
unreasonably refusing to take actions in the best interest of the Company, by blocking the
Company from capital it needed to comply with its contractual agreements, by providing
inaccurate information to the Company’s lenders and vendors, by acting out of her own self-
interest, by withholding her consent to business opportunities presented to the Company, and
by damaging the Company’s reputation and goodwill. He alleged that she willfully and
intentionally tortiously interfered with the Company’s contracts and business relationships with
its employees, consultants, vendors, and lenders to serve her own personal interests at the
expense of the Company’s interests.
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• Failing to cooperate with Scott to take advantage of business opportunities for the
Company, including the Company’s potential purchase of the Kyle Tract by failing to
attend meetings, approve mutual capital funding for the purchase, and respond to Scott’s
communications about the impending closing date on the purchase.

• Interfering in SBR’s management of the Company by sending unprofessional and
harassing emails to its employees, for instance, demanding that specific actions be taken
or that specific employees be removed from various tasks, and stating about Scott—
while copying his employees—that “I will make all your actions public so people can
see who you really are.”

• Informing the Company’s contacts at First Bank that Scott was misappropriating
Company funds and her capital accounts and then unilaterally freezing the Company’s
line of credit at the bank so that First Bank was not an option to fund the purchase of the
Dvele homes or Kyle Tract.

• Refusing to provide more capital contributions, as she had typically done, to help fund
the Company’s management of its assets and to prevent the Company from defaulting
on the Dvele contract, despite being informed that the Company was experiencing cash-
flow issues.

• Assuming marketing and design responsibilities for Village Basecamp and negotiating a
contract with Dvele per her specifications but then ceasing to respond to Dvele’s
communications and failing to sign the contract.

While Nicole disputes the inferences that the trial court reasonably made from such evidence,

she does not demonstrate that the only reasonable inference the trial court could have drawn

from this and other evidence is that she acted in good faith. And the trial court, as the sole judge

of credibility and weight to be afforded the testimony and other evidence, see City of Keller,

168 S.W.3d at 822, 827, impliedly resolved the evidence of Nicole’s purported good faith against

Nicole and in Scott’s favor. Because Nicole did not demonstrate that the evidence conclusively

establishes she acted in good faith with respect to her challenged actions and inactions for

which Scott sued her, we conclude that the trial court did not err in denying Nicole’s

indemnification claim.

19
We overrule Nicole’s second issue.6

Scott’s Capital Contributions

In her third issue, Nicole challenges the trial court’s determination of some of the

capital contributions that Scott made and for which he is entitled a priority return. The Operating

Agreement defines a capital contribution as “any contribution by a Holder of cash, property

(whether real or personal), or services to the capital of the Company.” 7 Besides the initial and

subsequent capital contributions designated in the exhibits attached to the Operating Agreement,

the Operating Agreement specifies two circumstances under which additional capital

contributions may be made: (1) “By a Special Vote of the Members, the Class A Holders and the

Class B Holders may be required from time to time to make additional Capital Contributions,”

and (2) “If the Company does not have sufficient cash to pay its obligations and subsequent

contributions are not required by a Special Vote of the Members . . . any Member may advance

all or part of the needed funds to or on behalf of the Company and such advance shall be treated

as an additional Capital Contribution.”

It is undisputed that the first circumstance—special vote of the members—did

not occur with respect to the challenged capital contributions. Rather, in her first argument

6
In her first issue, Nicole argues that the trial court erred in implicitly determining that
she waived her right to enforce the Operating Agreement and may not recover on her member-
retained claims for that reason. Because the trial court made no express fact findings or legal
conclusions, Nicole’s non-waiver arguments derive from the parties’ legal arguments below and
comments the trial court made during trial. However, because we are affirming the trial court’s
judgment denying Nicole’s member-retained claims based on her second issue challenging the
legal sufficiency of the evidence, we need not address her first issue. See Narvaez v. Maldonado,
127 S.W.3d 313, 319 (Tex. App.—Austin 2004, no pet.) (appellate court must affirm judgment
on any legal theory supported by evidence); Tex. R. App. P. 47.1, 47.4.
7
A “holder” is defined as “any Person who holds a Membership Interest, regardless of
whether such Person holds such Membership Interest either as a Member or as an Assignee.”
20
contesting the capital contributions, Nicole contends that $3.25 million of the $4.9 million in

capital contributions the trial court determined were made by Scott cannot stand because those

advances did not meet the Operating Agreement’s “narrow exception” specified above in the

second circumstance: that the member advanced the funds to the Company or on its behalf to pay

the Company’s obligations when the Company did not have sufficient cash to do so. She

contends that “most of” the $3.25 million was used to pay for the purchase and installation of

the Dvele homes but that Scott was not authorized to incur those obligations because she had

not consented to the Company’s execution of the Dvele contract. She contends that Scott’s

purported breach of the Operating Agreement through execution of the Dvele contract and the

associated payments made thereunder preclude him from claiming those payments as capital

contributions.

However, Nicole has not presented substantive arguments or cited authority

regarding how or why Scott’s purported breach in executing the Dvele contract and making

payments thereunder would preclude the amounts he advanced from being characterized as

capital contributions under the Operating Agreement’s definitions. Once the Dvele contract was

executed—properly or improperly—it became an obligation of the Company, and there was

evidence of the Company’s “serious cash-flow problems,” inability to meet its obligations under

the Ladder Bank loan, and lack of capital to pay the amounts due under the Dvele contract and

that such circumstances were what spurred Scott to inject the capital he did towards the Dvele

homes. However, to the extent that Scott’s purported breach of the Operating Agreement by

executing the Dvele contract without Nicole’s consent would preclude him from claiming as

a capital contribution the amounts he advanced to purchase the Dvele homes and meet the

Company’s obligation under that contract, Nicole would have to demonstrate that the evidence

21
conclusively establishes all requisite elements of that breach by Scott, including damages.

See C.W. 100 Louis Henna, 295 S.W.3d at 752. We conclude that she has not conclusively

established at least one element—damages.

The only evidence of damages Nicole cites to support her argument that Scott

breached the Operating Agreement through his “unauthorized” execution of the Dvele contract is

a brief portion of the testimony of her expert witness, Dwight Duncan, and a spreadsheet he

prepared.8 Duncan testified that the more than $500,000 that Scott spent of Company funds

on the set-up, design, and installation of the Dvele homes would have been available “as one

source for how to purchase” the Kyle Tract had he not spent those funds, without the “requisite

approval,” on the Dvele project. But such testimony does not necessitate the inference that those

funds were the only source the Company could have used to purchase the Kyle Tract. In

fact, Nicole herself testified that the Company “had the liquidity” to close on the Kyle Tract or

could have “gotten a line of credit” to purchase the Kyle Tract. Moreover, as we have already

discussed, there was evidence that the Company effectively abandoned the Kyle Tract purchase

because of Nicole’s refusal to participate in discussions about how best to fund it and her non-

responsiveness to Scott’s communications as the closing date drew near.

8
Nicole also argues that she suffered “straightforward damages from this breach” in the
form of the priority return Scott is entitled to receive on the capital contributions the trial court
determined he had made. However, she does not cite any evidence in the record identifying
which contributions, and in what amounts, were spent on the Dvele homes, merely arguing that
“most of” the disputed $3.25 million went towards the Dvele homes. In contrast, Scott cites
general ledgers from SBR’s management of Village Basecamp supporting the trial court’s
determination that approximately $2.3 million went towards the Dvele homes. As explained
infra, the trial court’s affixing to that $2.3 million a contribution date coinciding with the date of
the Monetization Plan—when the parties agreed that the Dvele homes belong to the Company—
obviates any claim of premature accrual of a priority return because as of that date the Company
indisputably received the benefit of Scott’s contribution of the homes to the Company.
22
Regarding Duncan’s spreadsheet that Nicole references, it indicates that Village

Basecamp suffered a loss of income because the lots were occupied by the Dvele homes rather

than being rented as raw land. But the trial court appeared to have discredited Duncan’s

spreadsheet and testimony about it, as was its province, and conflicting evidence in the form of

Scott’s testimony demonstrates that the Company received far more in revenue from the installed

Dvele homes than it would have from unoccupied lots. For instance, Scott testified that “running

this [Basecamp Village property] as a transient RV park, you would never be able to generate

enough revenue to be able to satisfy the Ladder [Bank] loan. You had to get the homes installed,

you had to get the homes sold, and you had to run the hotel business model to make the business

plan work.” Furthermore, the evidence showed that the parties’ business plan was, indeed, to

install the Dvele model homes as a revenue source and that Nicole’s initially agreed-to task was

to negotiate and execute the contract with Dvele for the manufacture and delivery of the homes.

Evidence showed that the Ladder Bank loan required the Company to meet interim deadlines

to start work on the clubhouse and to prepare the lots for the new Dvele homes. To meet its

obligations under the Ladder Bank loan and prevent default, the homes needed to be built and

installed. The trial court could reasonably have found that Scott’s expenditure of both his

own funds and some of the Company’s to install the homes and implement the business plan

was necessary to meet the Company’s obligations with respect to the Ladder Bank loan, and

that execution of the Dvele contract was a requisite step in that endeavor. Nicole has not

demonstrated that the evidence conclusively establishes that Scott’s execution of the Dvele

contract caused the Company damages or precludes him from claiming as capital contributions

the advances he made towards that contract.

23
Nicole next argues that some of the money the trial court determined constituted

capital contributions by Scott either “didn’t come from Scott at all” or “didn’t go to [the

Company].” Nicole contends that “nearly $2.5 million that the trial court credited to Scott

wasn’t from him but from other entities he owned” and that the “money didn’t go to [the

Company] either . . . [but] went straight or through intermediaries to Dvele.” She argues that the

Operating Agreement “makes plain that only members could make contributions to” the

Company. To support this argument, Nicole cites Scott’s testimony that (1) as to a challenged

$500,000 contribution, that amount went “from SBR’s account to Rick Albers’ account to

Dvele”9 and (2) as to a challenged $1.97 million contribution, that amount went “straight from

VC Sales [Scott’s wholly owned entity] to Dvele.” But this testimony does not conclusively

establish that the funds did not “come from Scott.”

One of Scott’s spreadsheets, which the trial court admitted into evidence, notes

that Scott wired the $500,000 “to SBR to fund Rick Albers Trust Account,” supporting the

trial court’s finding that the contribution came from Scott. Furthermore, in other parts of his

testimony, Scott confirmed that he was the source of the challenged advances. As to VC Sales,

Scott testified that he established the entity to purchase the Dvele homes and install them at

Village Basecamp because it was necessary for the Company to obtain a license to sell

manufactured homes in California. The license would need to be issued by the California DMV,

and Scott did not initially include Nicole as a principal on the entity-formation documents

because he was under stress to execute the business plan before the Company defaulted on the

Ladder Bank loan. However, Scott always intended VC Sales to be an “asset” of the Company.

9
Rick Albers is a Company attorney who established an escrow account and acted as a
trustee of the funds that Scott deposited into that account. After Albers verified invoices from
Dvele, he would release the funds to Dvele.
24
Scott testified that he at one point assigned the Dvele contract to VC Sales to

avoid any complications arising from Nicole asserting that she had not agreed to the contract.

After the Dvele homes had been paid for, some of which funding Scott channeled through VC

Sales, Scott and VC Sales signed an “Assignment of Rights and Claims” in which they agreed

that the “infusions” of capital that VC Sales made towards the Dvele homes would “be treated

as a distribution of property from VC Sales to Scott . . . and a concurrent capital contribution

of such property by Scott . . . into [the Company] for the benefit of its subsidiary” Village

Basecamp. Scott and VC Sales further agreed that VC Sales was thereby “assign[ing] to Scott

. . . all legal and equitable interests of VC Sales in and to the VC Sales Infusions.” Additionally,

Scott testified that the contributions he made to the Company through VC Sales and SBR

were not gifts to the Company; he considered them capital contributions. Finally, Supervisor

Nicolaou testified that she traced all of the challenged contributions as originating from Scott or

one of his wholly owned entities.

On this record, the trial court could reasonably have determined that the

challenged advances should be characterized as capital contributions made by Scott. The fact

that Scott used his wholly owned entities as conduits through which the contributions flowed

from him to the Company does not conclusively establish that Scott did not make the

contributions. As to Nicole’s argument that the contributions were not made to the Company

(but were made either directly to Dvele or funneled to Dvele after first being deposited in

Albers’s trust account), the Operating Agreement expressly allows capital contributions to be

advanced either to the Company or “on behalf of” the Company, which is what the evidence

establishes occurred with the challenged transfers to Dvele for the purchase of the Dvele homes.

25
We are not persuaded by Nicole’s argument that Scott’s capital contributions were not made “to”

the Company.

Nicole lastly argues that the trial court improperly determined that the date of

Scott’s last two capital contributions was September 18, 2023, which was the date the trial court

signed the Monetization Plan.10 Nicole argues that the trial court should instead have used

the date of the later Order because the Monetization Plan “expressly reserved the question of

whether the Company owned the Dvele homes” for the later trial regarding the parties’ member-

retained claims. She argues that the trial court’s use of the September 18 date “as the capital

contribution date makes clear that the court thought the homes were part of [the Company] at

that time—which is exactly what the parties disputed and reserved for decision later.” But the

Monetization Plan, by which the parties agreed that the Supervisors would market and sell the

Basecamp development, including the Dvele Homes already located therein, operates effectively

as an agreement by the parties that the Company did in fact own the Dvele Homes as of that

date by agreement of the parties. Otherwise, the Supervisors charged with selling the assets

belonging to the Company could not have been authorized to sell the Dvele Homes, nor could

the homes have been included in the later asset purchase agreement the trial court signed.

Furthermore, Nicole misconstrues the language in the Monetization Plan. Rather

than expressly reserving the question of whether the Company “owned” the Dvele homes until

trial, the Monetization Plan specifies that (1) “any specific value a winning buyer attributes to the

Dvele Homes . . . shall not be binding on . . . Nicole Roberts or Scott Roberts with respect to the

10
The evidence shows that Scott made those last two contributions before that date, but
Scott has not appealed the trial court’s determination of the later date. The date on which the
contributions were deemed made is significant because Scott’s 10% priority return is calculated
from such date going forward.
26
Member Related Claims” and (2) “the sale of the existing Dvele Homes” is “not an admission

or waiver” by either party “regarding any Member Related Claims . . . involving the Dvele

Homes.” That language does not reflect an agreement to reserve until trial the question of

whether the Company owned the Dvele homes; rather, it merely specifies that a winning bidder’s

value for the homes is not binding on the parties’ member-retained claims and that the inclusion

of the homes in the sale of the Company’s assets does not constitute a waiver or admission by

either party of their member-retained claims.

The trial court could reasonably have found that on the date of the Monetization

Plan, Scott unequivocally relinquished any interest he had in the Dvele homes to the Company,

resulting from his previous expenditures to purchase the homes, and therefore that such date

effectively constituted the date on which he made a contribution of cash or property to the

Company so as to constitute a capital contribution under the Operating Agreement’s definition.

We overrule Nicole’s third issue.

CONCLUSION

Having overruled Nicole’s appellate issues, we affirm the trial court’s order.

__________________________________________
Karin Crump, Justice

Before Justices Triana, Theofanis, and Crump

Affirmed

Filed: November 18, 2025

27