Full Opinion

Opinion issued October 16, 2026 In The Court of Appeals For The First District of Texas ———————————— NO. 01-25-00128-CV ——————————— QIAN WU AND LENSHOME OPTIC, LLC, Appellants V. ZHUO CHEN, SL VISION, LLC, AND LC-TX INVESTMENT, LLC, Appellees On Appeal from the 270th District Court Harris County, Texas Trial Court Case No. 2018-75354 MEMORANDUM OPINION This case involves one eye clinic, two eye doctors, and a trial over who owed what to whom. Dr. Chen said Dr. Wu bought the clinic from her but paid only part of what she owed, and a jury agreed. Dr. Wu disagrees and now appeals. We reverse the portion of the trial court’s judgment in favor of Dr. Chen on her breach of contract claim against Dr. Wu and remand that portion for further proceedings. We affirm the remainder of the judgment. Background Dr. Zhuo “Lucy” Chen went to medical school in China. In 2010, she obtained a license to practice optometry in Texas, and in 2012, she opened an eye clinic in the northwest part of Harris County. A few years later, this clinic caught the attention of Dr. Qian Wu, who had an interest in buying at least part of the business. A deal could make sense for both sides because Dr. Chen wanted to relocate and ply her trade elsewhere, while Dr. Wu saw an opportunity to purchase what she believed to be a profitable concern. The testimony conflicted about the fine points of the negotiations, in that Dr. Wu testified that she was told that the business generated more income than turned out to be the case, but all agree that the two doctors eventually signed their names to a pair of written contracts, with some disagreement as to the capacity in which Dr. Wu signed each. The first contract is called a Buy-Sell Agreement. The second is a lease. We will summarize the terms of each contract because they form the basis of the jury questions and the judgment. 2 The Buy-Sell Agreement has a Buyer and a Seller. It sets a purchase price of $330,000, which was to be paid in three tranches. Dr. Wu paid the first tranche but never paid the remaining $213,000. The Buy-Sell Agreement contains more than 20 single-spaced sections. It states that it is made among the Seller (SL Vision LLC and its owner Dr. Chen), the Landlord (LC-TX Investment LLC), and the Buyer (LensHome Optic LLC). Dr. Wu is not listed as a party. The recitals indicate the following: • Seller operates an eye care clinic, Lakewood Eye Care, • Landlord owns the premises, and • Buyer wants to take over the clinic, buy the assets, and lease the premises. Section 7 of the contract contains a guarantee from Seller that all the assets are free and clear of encumbrances and bank debt. If this guarantee proves untrue, Buyer has the right to terminate the deal. Section 14 contains a second termination provision: “When Buyer pays the full amount of Consideration, Seller shall transfer the title of all equipment and the Clinic to Buyer. If Buyer wants to terminate the transaction and cooperation, the parties agree to negotiate the issue. Seller shall not terminate the transaction in advance for any reason.” Under section 12, Seller will “provide ophthalmic medical services in the Clinic,” while Buyer will “operate the eyeglass business in the Clinic.” Seller is 3 solely responsible for the former, while Buyer is solely responsible for the latter. But the parties later stipulated that references to ophthalmic refer to optometry. Under section 13, Seller will collect the income from “ophthalmic medical services,” while Buyer will collect the “non-medical service income (including the income from the fitting and sales of various frames of eyeglasses and contact lenses).” Furthermore, Seller and Buyer will divide certain income every month, with 95% of Seller’s “received net income after deducting ophthalmologists’ salary and other costs” being paid to Buyer as a fee for use of the equipment and premises, and with 5% of Buyer’s “received net income” after deducting labor costs being paid to Dr. Chen as a consulting fee. The lease has a term of five years (60 months) at a rent of $3000 per month. It starts with definitions and contains two handwritten entries to indicate the identity of the landlord and the tenant: Nothing else in the definitional section casts any light on the relationship between SL Vision and Dr. Chen, or between Shanghai Lanhe and Dr. Wu. The rest of the 4 lease terms appear fairly standard. Dr. Wu paid rent for seven months but stopped and did not pay after that. The relationship fell apart in 2018. Dr. Wu engaged an attorney, Neal Cannon, who considered filing an action against the prior attorney who had advised Dr. Wu during the negotiations. Ultimately, however, Dr. Wu opted not to sue her prior lawyer and instead sued Dr. Chen. Among other claims, Dr. Wu alleged breach of contract and fraud. In response, Dr. Chen filed a general denial, raised some affirmative defenses, and asserted her own breach of contract allegations as counterclaims. Because the two contracts involve the two doctors as well as their business entities, the lawsuit includes those business entities as litigants. Specifically, the plaintiffs are Dr. Wu and her company LensHome Optic, LLC, while the defendants are Dr. Chen, her company SL Vision LLC, and another company called LC-TX Investment, LLC. In response to Dr. Chen’s counterclaim for breach of the Buy-Sell Agreement, Dr. Wu and LensHome interposed the affirmative defense of illegality. They contended that the contract violates the licensing provisions of the Texas Optometry Act. See TEX. OCC. CODE §§ 351.251–.367. That Act contains a fairly strict scheme relating to licensing and the practice of optometry. Dr. Chen challenged that defense with a no-evidence motion for summary judgment, to which Dr. Wu and LensHome responded by pointing to the statute’s ban on certain kinds of fee sharing. The trial 5 court granted the motion, so the case went to trial with Dr. Wu’s and LensHome’s illegality defense off the table. The trial was largely a swearing match, in that the two doctors were the only witnesses of any note. (There was some lawyer testimony about attorneys’ fees, but not about the contracts or the transactions.) Dr. Wu maintained that Dr. Chen had promised her a profitable business but sold her a mere money pit, while Dr. Chen disagreed and argued that Dr. Wu spent too much time in China on other endeavors and not enough time in Texas trying to make the clinic succeed. The jury rejected Dr. Wu’s breach of contract claim. The most significant jury findings are the following: • Dr. Wu failed to comply with the Buy-Sell Agreement. • The damages to Dr. Chen and SL Vision were $213,000. • Dr. Wu signed the lease in her individual capacity (as opposed to signing as an agent for her company, Shanghai Lanhe Optometry). • Dr. Wu failed to comply with the lease. • The damages to Dr. Chen, SL Vision, and LC-TX were $159,000. • The reasonable and necessary attorney’s fees for Dr. Chen, SL Vision, and LC-TX’s attorneys “in pursuing the breach of agreement claim(s)” was $120,000. The trial court rendered judgment as follows. First, the court ordered Dr. Wu to pay $213,000 to Dr. Chen and SL Vision. Second, the court ordered Dr. Wu to pay 6 $159,000 to LC-TX (although not to Dr. Chen or SL Vision). Finally, the court awarded interest and attorneys’ fees. On appeal, Dr. Wu advances five complaints:1 1. Summary judgment was improper on the illegality defense to the counterclaim for breach of the Buy-Sell Agreement. 2. Dr. Wu did not sign the lease in her individual capacity. 3. The trial court erred in granting a directed verdict that Dr. Wu signed the Buy-Sell Agreement in her individual capacity. 4. The trial court should have submitted a question or jury instruction about termination of the Buy-Sell Agreement. 5. The trial court erred in excluding the DTPA notice letter that Dr. Wu’s lawyer sent to Dr. Chen. We will go through the issues one by one. I. The Partial Summary Judgment Against Dr. Wu’s Illegality Defense. Dr. Wu and LensHome sued Dr. Chen and SL Vision on various theories, alleging, among other things, that the “sale was illegal.” They further sought to void the Buy-Sell Agreement because “the contract was illegal.” Dr. Chen and SL Vision filed a counterclaim for breach of the Buy-Sell Agreement. In response to the counterclaim, Dr. Wu and LensHome raised the affirmative defense of illegality, reiterating that the “sale was illegal.” 1 Dr. Wu does not challenge the jury’s No answer to the question whether Dr. Chen and SL Vision failed to comply with the Buy-Sell Agreement or the take-nothing judgment that the trial court entered against Dr. Wu and LensHome. 7 Dr. Chen and SL Vision attacked the illegality defense in a no-evidence motion for summary judgment. Dr. Wu and LensHome filed a response. This response addresses illegality by citing a statutory ban on fee-splitting, see TEX. OCC. CODE § 351.457, in a single paragraph of text: The Buy-Sell Agreement violates the Texas Optometry Act on its face. The Act holds, in one part: Sec. 351.457. PROFESSIONAL RESPONSIBILITY; FEES. (a) An optometrist or therapeutic optometrist may not directly or indirectly divide, share, split, or allocate a fee for optometric services or materials with: (1) a layperson, firm, or corporation; The Buy-Sell Agreement holds, in part, “[e]very month, 95% of Seller’s received net income . . . shall be paid to the Buyer . . .” (paragraph 13(4)). This is impermissible fee sharing, but the fee sharing arrangement goes to the heart of the financial impetus and consideration for this transaction. The response does not say anything further about illegality, although it does attach a copy of the Buy-Sell Agreement. The court granted the no-evidence motion and took the illegality defense out of the case. The parties then went to trial, with Dr. Chen contending that Dr. Wu had paid part of the total purchase price but had failed to pay the remaining $113,000 and $100,000 portions. The jury found a breach of contract by Dr. Wu and damages of $213,000, and the court rendered judgment accordingly. In Issue 1 on appeal, Dr. Wu and LensHome challenge the summary judgment against their illegality defense. They regard the Buy-Sell Agreement as illegal in two ways: (1) it involves an unlicensed optometrist in the practice of optometry, and 8 (2) it splits fees between an optometrist and “a layperson, firm, or corporation.” Id. The former argument fails, partly because there is no summary judgment evidence about anyone being unlicensed and partly because Dr. Wu and LensHome did not raise the issue of licensing in their response, as required by Rule of Civil Procedure 166a. State v. $3,774.28 in U.S. Currency, 713 S.W.3d 381, 391 (Tex. 2025) (to avoid no-evidence summary judgment, nonmovant must expressly point out fact issues in written response); Bertucci v. Watkins, 709 S.W.3d 534, 545 (Tex. 2025) (“A court of appeals, however, cannot reverse a summary judgment on grounds not presented to the trial court.”). The latter argument requires more attention. The Buy-Sell Agreement itself calls for splitting certain kinds of income: “Every month, 95% of Seller’s received net income after deducting ophthalmologists’ salary and other costs shall be paid to the Buyer as equipment and premises use fee, and premises management fee; and 5% of Buyer’s received net income after deducting the employee’s salary and other costs, shall be paid to Dr. Zhuo Chen as the consulting fee . . . .” According to Dr. Wu and LensHome, this clause impermissibly splits fees between an eyeglass business and an optometry business, in violation of section 351.457(a)(1). This argument is properly in play because Dr. Wu and LensHome raised it in their response and attached the agreement as summary judgment evidence. 9 A. Law of Illegal Contracts. Courts handle the issue of contract illegality using familiar legal principles. First, illegality provides an affirmative defense to a claim for breach of contract. TEX. R. CIV. P. 94. Courts will not enforce illegal contracts. Miller v. Long-Bell Lumber Co., 148 Tex. 160, 163, 222 S.W.2d 244, 246 (1949); Hunt’s Heirs v. Robinson’s Heirs, 1 Tex. 748, 760 (1847); see Roehl v. Pleasants, 31 Tex. 45, 48 (1868) (contract was against public policy, illegal, and void and therefore was “not enforceable in a court of justice”). A contract to do something that cannot be performed without violating the law violates public policy and is void. Philadelphia Indem. Ins. Co. v. White, 490 S.W.3d 468, 483 (Tex. 2016); BRCC Enters. LLC v. Skie, 697 S.W.3d 417, 424 (Tex. App.—Houston [14th Dist.] 2024, no pet.) (“An illegal contract is one in which the parties undertake to do an act forbidden by the law of [the] place where it is to be done.”). Second, courts “must interpret” contracts “to avoid a construction that renders the contract unlawful.” Borgelt v. Austin Firefighters Ass’n, IAFF Loc. 975, 692 S.W.3d 288, 303 (Tex. 2024); see also RESTATEMENT (SECOND) OF CONTRACTS § 203(a) (AM. L. INST. 1981) (“[A]n interpretation which gives a reasonable, lawful, and effective meaning to all the terms is preferred to an interpretation which leaves a part unreasonable, unlawful, or of no effect.”). 10 Third, courts sometimes sever illegal provisions from the rest of the contract: “An illegal or unconscionable provision of a contract may generally be severed so long as it does not constitute the essential purpose of the agreement.” In re Poly- Am., L.P., 262 S.W.3d 337, 360 (Tex. 2008). “Whether or not the invalidity of a particular provision affects the rest of the contract depends upon whether the remaining provisions are independent or mutually dependent promises, which courts determine by looking to the language of the contract itself.” Id. “The relevant inquiry is whether or not parties would have entered into the agreement absent the unenforceable provisions.” Id. This inquiry becomes easier when the parties use a severability clause, which indicates that they want to save as much of the contract as possible. Such clauses “serve to preserve contracts so long as the invalidated portions of the contract do not constitute the main or essential purpose of the agreement.” City of Brownsville v. Golden Spread Elec. Coop., Inc., 192 S.W.3d 876, 881 (Tex. App.—Dallas 2006, pet. denied). Thus, the courts have a tradition of enforcing whatever parts of a contract can properly be severed out. See Gulf, C. & S.F. Ry. Co. v. Hume, 87 Tex. 211, 218, 27 S.W. 110, 112 (1894) (“When one, for a legal and valuable consideration, agrees to perform two acts, which are severable, one of which is lawful and the other unlawful, the contract may be enforced as to that for which it was lawful to contract, and held void as to the other.”). A contract’s severability is a question of law. City of 11 Beaumont v. Int’l Ass’n of Firefighters, Loc. Union No. 399, 241 S.W.3d 208, 216 (Tex. App.—Beaumont 2007, no pet.). B. The Challenged Portion of the Buy-Sell Agreement is Severable from the Remainder of the Contract, and therefore the Contract is Not Illegal. The Buy-Sell Agreement contains numerous promises. Perhaps the most prominent one is the promise by Buyer to pay $330,000 as consideration to Seller. The agreement defines Buyer as LensHome Optic LLC, and Seller as SL Vision LLC and its owner Dr. Chen. Buyer paid some of that amount but failed to pay the remaining $213,000. This deficiency forms the basis of the recovery for breach of the contract. Although the summary judgment response urged illegality, it did so solely based on the fee-sharing ban in Occupations Code section 351.457(a), so we will focus on that ban in inquiring whether the agreement runs afoul of the law. McCreary v. Bay Area Bank & Tr., 68 S.W.3d 727, 733 (Tex. App.—Houston [14th Dist.] 2001, pet. dism’d) (“Where a contract is made in violation of a statute, it is illegal and void.”). Section 351.457(a) prohibits an optometrist from directly or indirectly dividing, sharing, splitting, or allocating a fee for optometric services or materials with a layperson, firm, or corporation. TEX. OCC. CODE § 351.457(a)(1). Paragraph 13—“Operating income and payroll”—contains four subdivisions. Subdivision (4) provides a percentage formula for sharing certain revenues. The 12 formula calls for Seller to pay Buyer 95% of received net income after deducting ophthalmologists’ salary and other costs. The contract calls this a fee for “equipment and premises use” and “premises management,” but Dr. Wu and LensHome see the arrangement as illegal fee splitting, given that the Seller is contractually responsible for the “medical” side of the business and will surely be receiving at least some revenues covered by the statute. Cf. Cmty. Health Sys. Pro. Servs. Corp. v. Hansen, 525 S.W.3d 671, 689 n.10 (Tex. 2017) (contract spoke of “professional medical services” and “practice losses,” but it must mean services by doctor and not by hospital, because including hospital revenue would result in the corporate practice of medicine, making contract void as matter of law). We will assume for purposes of argument that the fee-sharing formula violates the statute. That premise, however, would not vitiate the whole contract or taint the judgment for $213,000. The promise to pay a fixed purchase price for the clinic is sufficiently distinct from the fee-sharing scheme as to qualify as severable. Section 16 requires severability, and even if it did not, the sharing scheme would still appear divisible from the purchase arrangement. See Wicks v. Comves, 110 Tex. 532, 536, 221 S.W. 938, 939 (1920) (“Though the first act was unlawful, the second was lawful. No two acts could be more readily separated.”). For example, in Dietz v. Van Nortwick, 188 S.W.2d 590 (Tex. Civ. App.— Galveston 1945, writ ref’d w.o.m.), this Court encountered a contract calling for the 13 sale of beer (legal) and the sale of gambling devices called punch boards (not legal). We severed the former part from the latter: “The unlawful part of the contract here can easily be separated from the lawful. That is, the sale of the beer can be separated from the sale of the punch boards. Therefore, the contract was enforceable in so far as it related to the sale of beer.” Id. at 592. Similarly, the purchase of the eyeglass business can be separated from the part requiring Dr. Chen to pay some of her optometric fees. Because we conclude that Paragraph 13(4) is severable from the remainder of the Buy-Sell Agreement, we conclude that the agreement as a whole is not illegal, and the trial court did not err by granting no-evidence summary judgment on Dr. Wu’s and LensHome’s illegality defense. II. Dr. Wu’s Personal Liability for Breach of the Lease. In Issue 2, Dr. Wu contends that legally and factually insufficient evidence supports the jury’s finding that she breached the lease in her individual capacity. In assessing this complaint, we follow well-established standards of review. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005) (when determining legal sufficiency, we ask whether trial evidence would enable reasonable and fair-minded people to reach verdict under review, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam) (when determining 14 factual sufficiency, we consider and weigh all evidence and set aside verdict only if it is so contrary to overwhelming weight of evidence as to be clearly wrong and unjust). A presumption of legal separateness exists between entities such as limited liability companies and corporations and the members and shareholders. Julka v. U.S. Bank Nat’l Ass’n, 516 S.W.3d 84, 88 (Tex. App.—Houston [1st Dist.] 2017, no pet.). As a result, an LLC member is not liable for the company’s debts “absent a separate agreement in the member’s individual capacity.” Id.; see Sherrard v. SignAd, Ltd., 637 S.W.3d 192, 199 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (“An agent who contracts for a disclosed principal is generally not liable on the contract.”). Agency is not presumed, but an agent will be personally liable on a contract if she does not disclose her agency. Gordon v. Leasman, 365 S.W.3d 109, 114 (Tex. App.—Houston [1st Dist.] 2011, no pet.). In determining whether an agent is personally liable on a contract the agent signed, we consider both the signature and the body of the contract. Plan B Holdings, LLC v. RSLLP, 681 S.W.3d 443, 454 (Tex. App.—Austin 2023, no pet.). Dr. Wu and Dr. Chen offered competing versions of the 22-page lease at trial. Both versions identify two tenants: Shanghai Lanhe Optometry Co. Ltd. and Qian Wu. The signature blocks begin on page 21 of the lease, with the block for the landlord. Both versions of the lease indicate that Dr. Chen signed the lease for 15 landlord LC-TX Investment, LLC in a representative capacity. Dr. Wu’s version states: Likewise, Dr. Chen’s version states: 16 The signature blocks for the tenant, however, differ. The version of the lease offered by Dr. Wu has two pages for page 22, the page with the signature block for the tenant. The first page does not indicate a representative capacity, but the second page does: 17 The version of the lease offered by Dr. Chen has only one page 22, and it does not indicate that Dr. Wu signed in a representative capacity: 18 The parties addressed this discrepancy at trial. Dr. Chen’s counsel pointed out the differences to Dr. Wu and stated, “Somebody added Shanghai Lanhe Optometry Clinic.” Dr. Wu replied, “It was not added in later on. It was there then.” When counsel asked if Dr. Wu “signed one without Shanghai Lanhe Optometry Clinic” and signed “the other one [that] did have Shanghai Lanhe Optometry Clinic,” she stated, “It was signed like this.” Dr. Chen, when asked about the differences, produced “the original lease,” which she was allowed to show to the jury as a demonstrative exhibit. She testified that “Shanghai Lanhe Optometry Clinic” was not on the signature page of the original lease. The jury thus had before it conflicting evidence concerning whether Dr. Wu signed the lease in a representative capacity on behalf of Shanghai Lanhe or in her 19 individual capacity.2 The jury also heard testimony that the handwritten “Shanghai Lanhe Optometry Clinic” was not on the original lease at the time of signing but was instead added later. As the factfinder, it was within the jury’s province to resolve conflicts in the evidence. See City of Keller, 168 S.W.3d at 820 (“[C]ourts reviewing all the evidence in a light favorable to the verdict must assume that jurors resolved all conflicts in accordance with that verdict.”). Moreover, jurors “are the sole judges of the credibility of the witnesses and the weight to give their testimony,” and they “may choose to believe one witness and disbelieve another.” Id. at 819. We may not substitute our judgment for that of the jury. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); City of Keller, 168 S.W.3d at 819 (“Reviewing courts cannot impose their own opinions to the contrary.”). We conclude that legally sufficient evidence supports the jury’s finding that Dr. Wu signed the lease in her individual capacity. We further conclude that the jury’s finding is not against the great weight and preponderance of the evidence, and therefore factually sufficient evidence supports the finding. III. Dr. Wu’s Personal Liability on the Buy-Sell Agreement. In Issue 3, Dr. Wu complains about a directed verdict ruling. Although she had wanted a jury question that asked whether she signed the Buy-Sell Agreement 2 Dr. Wu’s counsel acknowledged this during a discussion about Dr. Wu’s motions for directed verdict, stating, “On the Lease, that is a fact issue because of the different versions of the Lease. I totally understand.” 20 individually as opposed to signing on behalf of her company LensHome, the trial court took that issue out of play by ruling as a matter of law that Dr. Wu signed individually. Dr. Wu assails that ruling. This issue arose after the last witness stepped down. With the evidence closed, the court moved on to hear arguments on directed verdict motions. Dr. Wu moved for a directed verdict to the effect that she should not be liable for breach of the Buy- Sell Agreement: “Her name nowhere appears in the contract other than her signing on the signature page on behalf of Lens Home. So, to that extent, it is clear that there can be no counterclaims against Dr. Wu for any breach of the Buy-Sell because she is not a party to the Buy-Sell.” The trial court was unpersuaded, explaining that Dr. Wu had one view, and Dr. Chen had another, so the jury should decide Wu’s liability on the counterclaim for breach of the Buy-Sell Agreement: “You think she’s not, he thinks she is. They will decide if she is or she isn’t, or what’s going on.” Shortly thereafter, the defendants adjusted their proposed liability question so that it no longer asked about a failure to comply by Dr. Wu’s company (LensHome), but only about a failure to comply by Dr. Wu. A long and free-flowing discussion ensued. The court eventually ruled as a matter of law that Dr. Wu signed the Buy-Sell Agreement in her individual capacity. The court then asked the jury in Question 4 whether Dr. Wu failed to comply with 21 the Buy-Sell Agreement. (Although the contract defines “Buyer” as LensHome, thus seemingly making LensHome a party to the contract, the court did not submit a question asking whether LensHome failed to comply.) The jury found that Dr. Wu failed to comply with the contract. On appeal, Dr. Wu argues that the directed verdict was erroneous. The standard of review for a directed verdict is familiar. See Bell v. Bay Area RV Parks, L.L.C., 722 S.W.3d 176, 210–11 (Tex. App.—Houston [1st Dist.] 2025, no pet.) (courts review granting of directed verdict de novo, viewing evidence in light most favorable to party suffering adverse judgment and determining whether any evidence of probative value raises material fact issue on question presented). The directed verdict cannot survive scrutiny. The written contract facially defines the Buyer as someone other than Dr. Wu. It defines the Buyer as “LensHome Optic LLC, a Texas limited liability company with an address of 12238 Queenston Blvd, Suit[e] K, Houston, TX 77095.” It repeatedly sets out the obligations as running between the Buyer and the Seller. With LensHome being an LLC, one would expect a signature from a company manager, which is exactly what appears. The signature page shows a signature by an LLC manager: 22 Nothing in the agreement mentions Dr. Wu or purports to impose any obligations on her. The record falls far short of establishing as a matter of law that Dr. Wu is a party to the contract or signed the agreement individually. See Cleveland Reg’l Med. Ctr., L.P. v. Celtic Props., L.C., 323 S.W.3d 322, 346 (Tex. App.—Beaumont 2010, pet. denied) (directed verdict proper “only if the evidence conclusively establishes the movant[’]s right to judgment, negates the opponent’s right to judgment, or is insufficient to raise a fact issue on a vital fact” (quotation omitted)). Dr. Chen contends that Dr. Wu judicially admitted having individual liability. According to Dr. Chen, Dr. Wu’s live petition contains a breach of contract allegation on behalf of the plaintiffs (plural), which the petition defined as both LensHome and Dr. Wu. The petition vacillates a bit in stating who made the Buy-Sell Agreement: • Singular (LensHome only). In paragraph 11, it alleges the making of the Buy-Sell Agreement between “Plaintiff LensHome Optic LLC, and Defendant Chen and her company SL Vision LLC.” • Plural (LensHome and Dr. Wu). In paragraph 29, it says that “Plaintiffs re- allege and by reference adopt all allegations contained in the preceding 23 paragraphs 1-24. However, should the contracts at issue be found to be legal and enforceable, then in the alternative to paragraphs 25-26, Plaintiffs contend that Defendants Zhou Chen and SL Vision, LLC breached the contract at issue.” None of this vacillation rises to the level of a judicial admission that Dr. Wu herself became a party to the Buy-Sell Agreement. “A clear, deliberate, and unequivocal factual allegation made in a live pleading and not pleaded in the alternative constitutes a judicial admission that conclusively establishes the fact and bars the pleader from disputing it.” Lake Jackson Med. Spa, Ltd. v. Gaytan, 640 S.W.3d 830, 839 (Tex. 2022). Paragraph 29 of the petition does not state that Dr. Wu made or signed the Buy-Sell Agreement; at most, it accuses Dr. Chen and SL Vision of breaching it. Furthermore, given the earlier allegation that LensHome made the contract, we see no clear and unequivocal assertion that Dr. Wu personally signed the contract or was a party to it. Dr. Chen also argues that Dr. Wu signed for a nonexistent entity, so she has individual liability. We acknowledge the general rule that a promoter who signs for a nonexistent entity has personal liability unless the counterparty agrees otherwise. See Bibbee v. Root Glass Co., 128 Tex. 220, 222, 96 S.W.2d 975, 976 (Tex. [Comm’n Op.] 1936) (“[O]rdinarily promoters of a corporation are personally liable on contracts made in the name of and for the proposed corporation.”). The theory is 24 that one cannot act as the agent of a nonexistent principal.3 This general rule is all very well, but it has no application here. LensHome existed.4 The nonexistent entity that Dr. Chen refers to is not LensHome, but Shanghai Lanhe, a completely different company. Dr. Chen also says that Dr. Wu’s liability raises an issue of capacity, which needed to appear in a verified denial but did not. Under Rule 93, a defendant who wants to contest the capacity in which he or she is sued must do so by verified denial, “unless the truth of such matters appear of record.” TEX. R. CIV. P. 93(2). 3 See Weatherford, M.W. & N.W. Ry. Co. v. Granger, 86 Tex. 350, 353–54, 24 S.W. 795, 796 (1894) (“[W]here there is nothing more than a contract by a promoter, in which he undertakes to bind the future corporation, it is generally conceded that it cannot be enforced. The promoters themselves are liable upon the contract, unless the person with whom they engage agrees to look to some other fund for payment.” (citation omitted)); see also Fish v. Tandy Corp., 948 S.W.2d 886, 897–98 (Tex. App.—Fort Worth 1997, writ denied) (quoting Granger and then stating, “[o]therwise, a promoter is relieved of personal liability only when the corporation subsequently adopts the contract either expressly or by accepting its benefits”); Bradshaw v. Jones, 152 S.W. 695, 697 (Tex. Civ. App.—Texarkana 1912, writ ref’d) (similar); RESTATEMENT (THIRD) OF AGENCY § 6.04 (AM. L. INST. 2006) (“Unless the third party agrees otherwise, a person who makes a contract with a third party purportedly as an agent on behalf of a principal becomes a party to the contract if the purported agent knows or has reason to know that the purported principal does not exist or lacks capacity to be a party to a contract.”). 4 Dr. Wu testified that at the time the lease was signed on March 18, 2018, LensHome “was not formed yet,” so Wu signed the lease on behalf of Shanghai Lanhe, LensHome’s parent company. There is no evidence in the record of when LensHome was formed. Thus, there is no evidence that LensHome did not exist when the Buy-Sell Agreement was signed the following week on March 25, 2018. 25 Dr. Chen’s capacity argument lacks merit. First, the truth of the matter appears of record. See Beesley v. Hydrocarbon Separation, Inc., 358 S.W.3d 415, 422 n.6 (Tex. App.—Dallas 2012, no pet.); see also InvestIN.com Corp. v. Europa Int’l, Ltd., 293 S.W.3d 819, 825 (Tex. App.—Dallas 2009, pet. denied) (where evidence showed that company and not individual was contracting party, issue of capacity appeared of record and needed no verified denial). Second, Dr. Wu has a right to defend the merits of the claim by showing that she made no promise and broke no promise because she is not a party to the contract. See Light v. Wilson, 663 S.W.2d 813, 814 (Tex. 1983) (Rule 93 addresses party’s “standing to assert or defend the action before the Court” but “does not relate to the merits of the cause of action or the merits of the defenses thereto”); Beesley, 358 S.W.3d at 421–22. A general denial allows such a defense. Light, 663 S.W.2d at 814; Beesley, 358 S.W.3d at 421–22. For these reasons, the trial court erred in granting a directed verdict that Dr. Wu signed the Buy-Sell Agreement in her individual capacity. IV. Whether the Jury Charge Needed to Address Termination. In Issue 4, Dr. Wu contests her liability for breach of the Buy-Sell Agreement, based on her contention that the jury charge needed either an extra question or at least an instruction on her right to terminate the deal. Although we remand this claim for further proceedings, we nevertheless address this issue now because it is likely to recur on remand. 26 Questions 4 and 5 of the charge asked about breach and excuse, but they did not contain any stand-alone language about the right to terminate the Buy-Sell Agreement. They read as follows: QUESTION 4 Did Dr. Qian Wu fail to comply with the Buy-Sell Agreement? Answer “Yes” or “No.” Answer: Yes QUESTION 5 Was Dr. Qian Wu’s failure to comply, if any, excused? Failure to comply by Dr. Qian Wu is excused if you find that Dr. Qian Wu substantially relied to her detriment on a promise by SL Vision, LLC or Dr. Zhuo (“Lucy”) Chen, if any, and her reliance was foreseeable. Answer “Yes” or “No.” Answer: No Dr. Wu asserts: “The trial court committed harmful error by refusing to submit either a question or instruction on the termination issue.” She wanted “a separate question for the jury to answer as to whether Dr. Wu terminated the Buy-Sell Agreement,” or, failing that, at least “an instruction on termination along with the question of whether Dr. Wu breached the Buy-Sell Agreement.” The applicable legal principles appear in Hyundai Motor Co. v. Rodriguez ex rel. Rodriguez, 995 S.W.2d 661 (Tex. 1999). “The goal of the charge is to submit to 27 the jury the issues for decision logically, simply, clearly, fairly, correctly, and completely. Toward that end, the trial judge is accorded broad discretion so long as the charge is legally correct.” Id. at 664. As Hyundai explains, a single question may relate to multiple legal theories. Id. Hence, it may be unnecessary or even unwise to ask the same basic question in multiple ways: Because the controlling issues regarding the existence of a defect for strict liability and breach of implied warranty were functionally identical in this case, we hold that the district court was not required to submit Rodriguez’s requested question and instruction. Rather, to avoid confusing the jury and the possibility of inconsistent findings, the district court properly refused the requested question and instruction. This is true even though the language of the refused question and instruction was different than that of the question and instruction submitted. While trial courts should obtain fact findings on all theories pleaded and supported by evidence, a trial court is not required to, and should not, confuse the jury by submitting differently worded questions that call for the same factual finding. Id. at 665–66. Dr. Chen counters that Dr. Wu’s termination theory amounts to an affirmative defense that needed to be pleaded but was not. To avoid a fight about the adequacy of her pleadings, Dr. Wu replies that her general denial empowered her to contest the claim for breach of the contract: “Here, Plaintiffs’ actions in terminating the Buy- Sell Agreement are the very same actions that Defendants claimed constituted a breach of the contract. They are not an independent basis for avoiding contractual obligations.” 28 As in Hyundai, the trial court submitted the controlling question—whether Dr. Wu failed to comply with the Buy-Sell Agreement—and did not need to go over the same ground a second time by asking or instructing about termination of the Buy- Sell Agreement. See Berg v. Wilson, 353 S.W.3d 166, 179 (Tex. App.—Texarkana 2011, pet. denied) (“The issues of excuse and/or repudiation were subsumed by the trial court’s submission of disjunctive questions for competing claims of material breach, together with an instruction directing the jury to determine who committed the first material breach.”); VingCard A.S. v. Merrimac Hosp. Sys., Inc., 59 S.W.3d 847, 866 (Tex. App.—Fort Worth 2001, pet. denied) (op. on reh’g) (“[T]he trial court’s decisi