Amberson v. Wilkerson

• Court: Texas Civil Court of Appeals
• Writing for the Court: GRAY
• Citation: Amberson v. Wilkerson, 285 S.W.2d 420 (Tex. Ct. App. 1955)
• Decision Date: 07 December 1955
• Docket Number: No. 10335,10335
• Parties: Joe AMBERSON et al., Appellants, v. Louis Scott WILKERSON, Receiver of Cedar Park Quarries, Inc., Appellee.

Page 420

285 S.W.2d 420

Joe AMBERSON et al., Appellants, v. Louis Scott WILKERSON, Receiver of Cedar Park Quarries Inc., Appellee.

No. 10335.

Court of Civil Appeals of Texas, Austin.

Dec. 7, 1955.

Rehearing Denied Jan. 4, 1956.

W. C. Wofford, Taylor, for appellants R. K. Allen, Terry Lankford and A. F. Bredthauer.

House, Mercer & House, San Antonio, for appellant Leander Limestone Corp. Walter E. Gates, Austin, of counsel.

Louis Scott Wilkerson, Austin, for appellee.

GRAY, Justice.

This appeal is from an order overruling appellants' pleas of privilege.

Appellee was appointed receiver of Cedar Park Quarries, Inc. (later referred to as Cedar Park) by the 53rd District Court of Travis County and as such receiver filed this suit in that court against Joe Amberson, a resident of La Salle County; R. K. Allen; Terry L. Lankford; A. F. Bredthauer, all residents of Williamson County, and Leander Limestone Corporation (later referred to as Leander), a corporation with its principal place of business in Williamson County. All defendants, except Joe Amberson, filed separate pleas of privilege which were overruled at a nonjury trial.

It was alleged that Cedar Park was a corporation with its principal place of business in Travis County with Joe Amberson as president, R. K. Allen as general manager and treasurer, and Terry L. Lankford as assistant treasurer; that said officers together with A. F. Bredthauer were members of the board of directors and that each was authorized to draw checks on Cedar Park's bank accounts.

It was alleged that R. K. Allen was a member of the board of directors of Leander; that he and the above named Amberson, Lankford and Bredthauer formed a partnership under the trade name of Cedar Park Truck and Stone Company with R. K. Allen as its principal managing partner; that Joe Amberson without authority from the board of directors of Cedar Park entered into a contract with said partnership whereby it was obligated to haul stone for Cedar Park for an agreed sum depending on the amount of stone hauled and the distance covered; that separate bank accounts were not kept for the partnership and Cedar Park but their funds and assets were commingled and that funds of Cedar Park were wrongfully diverted.

It was further alleged that prior to April 28, 1952, the defendants entered into a conspiracy for the wrongful purpose of causing all the assets of Cedar Park to be transferred to Leander for the purpose of giving Joe Amberson a right of action against Leander for $154,000 and for the further purpose of causing Leander to give Allen, Lankford and Bredthauer jobs as officers and employees of Leander for the purpose of soliciting and procuring for Leander the business of persons who had theretofore done business with Cedar Park; that pursuant to said conspiracy said defendants wrongfully caused Cedar Park to cease to do the business for which it was incorporated and to become insolvent and that its assets became a trust fund in the hands of said defendants for the benefit of the creditors and shareholders of Cedar Park.

It was further alleged that pursuant to the conspiracy said defendants caused defendant Amberson to enter into a contract with Leander whereby all of the assets of Cedar Park were transferred to Leander in consideration of the payment by Leander to Amberson of $154,000, and that the machinery in Cedar Park's plant in Travis County was dismantled and the physical possession of said machinery and all other assets of Cedar Park were transferred to the possession of Leander.

It was alleged that Cedar Park owned a large amount of stone which had been severed from the ground and was located at its mill in Travis County and that Leander took possession of said stone and claimed it as its own under the terms of the above-mentioned contract. It was further alleged that after the execution of the above contract Leander wrongfully entered into two quarry pits and removed large and indeterminable amounts of stone therefrom which stone was wrongfully commingled and confused with other stone of Leander and was then cut, processed and sold by Leander thereby wrongfully converting the property interest of Cedar Park whereby it (Leander) became a constructive trustee of the proceeds of the sales of the stone for the benefit of Cedar Park.

It was alleged that one of the quarry pits was located in Travis County and one in Jones County.

Judgment was prayed for adjudging Leander to be a constructive trustee of all of its assets for the benefit of Cedar Park or in the alternative a judgment against Leander for $500,000 and in addition a judgment for money against the individual defendants jointly and severally and against the individual defendants and Leander jointly and severally was prayed for.

Appellants here present four points. These are to the effect that the trial court erred: (1) in admitting in evidence the minutes of the meeting of Cedar Park's directors and shareholders; (2) in admitting in evidence excerpts of testimony given by Terry L. Lankford and R. K. Allen in the trial of another cause; (3) in overruling the pleas of privilege because the pleadings and evidence show that a part of the suit is to recover possession of land located in Jones County, for...