Atterbury v. Brison

• Decision Date: 27 January 1994
• Docket Number: No. 06-93-00068-CV,06-93-00068-CV
• Parties: Joe B. ATTERBURY and Margie Anderson, Appellants, v. J.T. BRISON, Appellee.
• Court: Texas Court of Appeals

Page 824

871 S.W.2d 824

Joe B. ATTERBURY and Margie Anderson, Appellants, v. J.T. BRISON, Appellee.

No. 06-93-00068-CV.

Court of Appeals of Texas Texarkana.

Jan. 27, 1994.

Rehearing Overruled Feb. 23, 1994.

Dabney D. Bassel, Law, Snakard, Gambill, Fort Worth, for appellant.

Paul W. Mayben, Pittsburg, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

BLEIL, Justice.

This appeal arises from a suit for an accounting following the dissolution of a partnership. The key questions concern whether there is legally and factually sufficient evidence to support the judgment. We conclude that there is and affirm.

J.T. Brison bought Mt. Pleasant Answering Service and Mt. Pleasant Paging Service in 1981. In 1983, Brison wanted to buy pagers for his business, but was unable to obtain a bank loan. Brison asked Joe Atterbury for a loan to purchase the pagers. Atterbury refused to loan Brison the money, but agreed to buy a fifty percent interest in the business for a purchase price of $6,000.00. On April 29, 1983, Brison, Atterbury, and Anderson executed a partnership agreement. This agreement gave Atterbury and Anderson the option "to purchase the remaining 50% of the MT. PLEASANT ANSWERING SERVICE and MT. PLEASANT PAGING SERVICE ... at the end of six (6) months from closing date.... for $6,000.00 plus whatever equity [J.T. Brison] has in the paging service at that time."

Atterbury contacted Brison in September or early October 1983 and indicated that he wanted to exercise his option to purchase Brison's interest. On November 21, 1983, Atterbury, through his attorney, sent a letter to Brison offering to purchase Brison's interest in Mt. Pleasant Answering Service and Mt. Pleasant Paging Service for $6,000.00. Brison refused to sell his interest because he considered the offer to be untimely and insufficient.

In December 1983, Brison, Atterbury, and their attorneys met to discuss Atterbury's willingness to exercise the option to purchase the answering and paging services. Atterbury, claiming that there was no equity in the businesses, offered Brison $6,000.00. Brison refused to sell his interest, and Atterbury terminated the partnership at that time. Brison did not receive any financial benefits or compensation from the answering service or paging service after December 1983.

Brison sued Atterbury and Anderson for an accounting upon dissolution of the partnership. Trial was to the court. The trial court entered judgment in favor of Brison for $12,346.80 in actual damages plus attorney's fees and prejudgment and postjudgment interest.

Atterbury attacks both the legal and factual sufficiency of the evidence supporting the judgment. Findings of fact in a case tried to the court have the same force and dignity as a jury's verdict upon special issues. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). A trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence by the same standards that are applied in reviewing the evidence supporting a jury's answers. Id.

In reviewing a no evidence point, we consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex.1992). If there is any evidence of probative force to support the finding, we overrule the point and uphold the finding. In re King's Estate, 150 Tex. 662, 664, 244 S.W.2d 660, 661 (1951). In reviewing a factual insufficiency point, we consider and weigh all of the evidence and set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

EXISTENCE OF CONTRACT

Atterbury claims that there is legally and factually insufficient evidence to support the trial court's finding that a contract existed between Brison and Atterbury for the purchase of Brison's one-half interest in Mt. Pleasant Answering Service and Mt. Pleasant Paging Service or that this finding was immaterial. However, he has wholly failed to brief or argue this point. Rule 74 requires that points of error be supported by argument and authorities. TEX.R.APP.P. 74(f). It has long been held that a point of error not in minimal compliance with the briefing rules is waived. Smith v. U.S. Nat'l Bank of Galveston, 767 S.W.2d 820, 823 (Tex.App.--Texarkana 1989, writ denied). It is not generally appropriate for an entire appeal to be disposed of because of briefing inadequacies. See Inpetco, Inc. v. Texas American Bank/Houston N.A., 729 S.W.2d 300, 300 (Tex.1987). But, Inpetco is deemed to not prevent one or more points of error from being waived on appeal when the remainder of the case has been fully and thoroughly presented to the appellate court. See Smith, 767 S.W.2d at 824. Thus, we conclude that Atterbury has waived those points of error not briefed or argued. Furthermore, a copy of the contract was admitted into evidence without objection. The second paragraph of the contract contains the purchase option. The exhibit is some and sufficient evidence to support the trial court's finding. In addition, at trial and on appeal, all parties admit that there was a partnership agreement, with an option, that was exercised by Atterbury. However, as noted by Chief Justice Cornelius in his concurring opinion, Atterbury's exercise of the option was ineffectual.

WRONGFUL DISSOLUTION

Atterbury also contends that there is legally and factually insufficient evidence to support the trial court's finding that the partnership business was dissolved on December 31, 1983, by Atterbury's actions and without any compensation being paid to Brison.

Atterbury announced at the December meeting that he wanted the partnership dissolved and that the partnership would be dissolved after a partnership tax return was filed for 1983. Atterbury moved the paging business, notified the partnership's customers that the business was dissolved and gave the customers the option of moving their accounts, filed an assumed name certificate, and acquired a new Federal Communications Commission permit.

Brison testified that he has not received any financial benefits or compensation from the answering service or paging service since December 1983. No partnership tax returns were filed after 1983; instead, Schedule Cs, which report the profits or losses from a business or profession, were filed with Atterbury's personal tax returns.

As trier of fact, it is for the trial court to judge the credibility of the witnesses, to assign the weight to be given to their testimony, and to resolve any conflicts or inconsistencies in the testimony. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). There was legally and factually sufficient evidence to uphold the trial court's finding that the partnership business was dissolved on December 31, 1983, by Atterbury's actions and without any compensation being paid to Brison.

DAMAGES

The primary issue on appeal is the value of the equity Brison had in the "paging service" at the end of 1983. Atterbury contends that the evidence is legally and factually insufficient to support the trial court's finding that he breached the contract on or about November 21, 1983, and that this breach caused Brison to suffer damages in the amount of $12,346.80. The damages are the sum of the $6,000.00 specified in the contract plus $6,346.80, which represented the value of Brison's equity in the business.

The court appointed Alan Carter, a certified public accountant, to calculate the partners' equity in the answering and paging services. Carter reported to the court that the value of Brison's equity interest in the partnership was $6,346.80. Carter did not specifically label this as book value, but based his opinion on the books of the business. He also disclaimed knowledge of the market value of Brison's interest.

Atterbury attacks Carter's testimony for its failure to divide Brison's equity between the "paging service" and the "answering service." The trial court found that the two services were really one business; therefore, the equity in the partnership also would be the equity in the paging service.

Atterbury also attacks Carter's testimony as having no probative value because Carter admitted that the partners' combined equity in the business would not necessarily reflect the net worth of the business and had nothing to do with the fair market value of the business. Carter calculated the partners' equity interests by taking the value of the partners' capital accounts at the beginning of the partnership (May 1, 1983), adding in any capital contributions made by the partners or profit generated by the business, and subtracting any losses or withdrawals by the partners. In comparison, fair market value is the amount that a willing buyer, who desires to buy, but is under no obligation to buy, would pay to a willing seller, who desires to sell, but is under no obligation to sell. City of Pearland v. Alexander, 483 S.W.2d 244, 247 (Tex.1972). Carter stated that his calculations represented only the partners' equity in the business, which is what the partnership agreement requires. Under the terms of the contract, fair market value had no bearing on Atterbury's exercise of his purchase option.

In support of his contention that the partners had no equity in the business in 1983, Atterbury testified that the business had been unprofitable through the years and that he had to invest additional sums in the business to keep it going. Also,...