Ben Fitzgerald Realty Co. v. Muller, 12-90-00259-CV

• Decision Date: 08 January 1993
• Docket Number: No. 12-90-00259-CV,12-90-00259-CV
• Citation: 846 S.W.2d 110
• Parties: BEN FITZGERALD REALTY COMPANY, Ben Fitzgerald and Taylor Burns, Appellants, v. Jean MULLER & Derel Muller, Appellees.
• Court: Texas Court of Appeals

Page 110

846 S.W.2d 110

BEN FITZGERALD REALTY COMPANY, Ben Fitzgerald and Taylor Burns, Appellants, v. Jean MULLER & Derel Muller, Appellees.

No. 12-90-00259-CV.

Court of Appeals of Texas Tyler.

Jan. 8, 1993.

Rehearing Denied Feb. 11, 1993.

Keith Dollahite, Tyler, for appellants.

Paul S. Colley, Jr., Tyler, for appellees.

BISSETT, Justice (Retired). ¹

Our previous opinions and judgments are withdrawn and this opinion is substituted for the former opinions and is the opinion of this Court. Appellees' Motion for Rehearing, filed in this Court on October 8, 1992, is granted.

This is an appeal by some of the defendants from a judgment rendered against them in an action brought to recover damages for personal injuries allegedly sustained by the plaintiff Jean Muller, for breach of warranties and for violation of the Deceptive Trade Practices-Consumer Protection Act. Following a trial to the court, judgment was rendered that the plaintiffs recover "from the defendants" (a joint judgment) the sum of $106,576.71, which included $60,202.27 for actual damages, $26,307.03 for pre-judgment interest, and $20,067.71 for attorney's fees, together with court costs. We reverse and render.

THE PLEADINGS

Plaintiffs Jean Muller and husband, Derel Muller, hereafter referred to either by name, the "Mullers" or "plaintiffs," filed this suit on November 6, 1986. Plaintiffs' petition, their trial petition, is couched in the most general terms; no specifics were alleged. Plaintiffs alleged generally that they "contracted with the defendants to construct a residence" for them; that "Defendants warranted that the house would be built in a good and workmanlike manner;" that "Defendants were negligent in the construction of the residence referred to herein, and that as a direct and proximate result of such negligence plaintiffs have been damaged as herein alleged;" that they "sue herein for appropriate relief for personal injuries and property damages incurred;" that "Defendants made various representations and warranties to the Plaintiffs," which were relied on by plaintiffs, and "Defendants breached the warranties and representations and such The defendants, Ben Fitzgerald Realty Company, Ben Fitzgerald and Taylor Burns answered by way of general denial and pleaded the affirmative defense of the statute of limitations. Jack Jones did not file an answer, but did appear "pro se" at the trial and testified.

                breaches constitute violations of various sections of the Deceptive Trade Practices Act."   The issues regarding personal injuries to Jean Muller and breach of warranties were tried by consent.  The defendants did not file any exceptions to plaintiffs' petition and did not object to the introduction by plaintiffs of evidence relating to the issues of partnership or to the issues of liability for personal injuries to Jean Muller or damages for breach of warranties
                

All defendants except Jack Jones have timely perfected an appeal from the judgment. The defendants, Ben Fitzgerald Realty Company, Ben Fitzgerald and Taylor Burns, will henceforth be referred to either by name or as "the appealing defendants."

Before reviewing the points of error presented by the appealing defendants, we discuss the contentions made by the plaintiffs in their reply brief that the appealing defendants waived any defense "regarding the existence of the partnership (Dickey Construction Company composed of the partners Ben Fitzgerald, Jack Jones and Taylor Burns)," or "regarding the capacity in which they were sued" by their failure to file a verified denial pursuant to Rule 93, TEX.R.CIV.P. We do not agree.

Plaintiffs' original petition named as defendants to this suit: "Ben Fitzgerald, individually;" "Ben Fitzgerald Realty Company, d/b/a Dickey Construction;" "Taylor Burns, individually and d/b/a Dickey Construction;" and "Jack Jones, individually and d/b/a Dickey Construction." Those names appear in the first paragraph of the petition. Thereafter, reference is made to them as "defendants." "Dickey Construction" was not named as a defendant. There is no allegation that "Dickey Construction" was a partnership or that any of the defendants, including Jack Jones, were partners in the firm known as "Dickey Construction." Plaintiffs' petition does not contain any allegation of existence of any partnership and no allegation of facts which would constitute existence of the "Dickey Construction" partnership, or the partners therein. See Texaco, Inc. v. Wolfe, 601 S.W.2d 737, 740 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.). To put it simply, all defendants were sued as individuals and not as partners in any partnership. This is so even though plaintiffs attached a copy of a letter to their petition, identified as Exhibits A, B and C, ² signed by their attorney, dated April 4, 1986, and addressed to each defendant, reading in pertinent part to-wit:

Our law firm has been retained to represent Mr. and Mrs. Derel Muller regarding a claim against Jack Jones and Dickey Construction Company. This claim arises from the construction of a single family residence located on Lot 107, Lakeshore Drive, Horseshoe Club Lake Subdivision, Smith County, Texas. The construction was completed in 1978

. . . . .

It is my understanding that Dickey Construction Company is no longer in business but was comprised of three individuals in an equal partnership. Each partner owning one-third of the business. The partners formerly comprising Dickey Construction Company were Jack Jones, Taylor Burns and you.

. . . . .

Plaintiffs would show that they have complied with the notice provisions of the Texas Deceptive Trade Practices Act in that they notified all Defendants in writing of the complaints made in this Petition. Such written notice to each Defendant is evidenced by the Exhibits A, B and C attached hereto.

Paragraph 6 of this petition reads:

Plaintiffs would show that they have complied with the notice provisions of the Texas Deceptive Trade Practices Act in that they have notified all Defendants in Even though reference to Dickey Construction Company as being a partnership is made in the letter exhibit, the petition does not allege that Dickey Construction is a partnership and that Ben Fitzgerald, Jack Jones and Taylor Burns were partners therein. The letter was not incorporated in the petition for the purpose of alleging a partnership. Paragraph 6 of the petition, quoted above, limits the letter exhibits to notice required by the Texas Deceptive Trade Practices Act. Therefore, the appealing defendants' general denial was sufficient to put only their individual liability in issue since they were sued only in their individual capacities. However, the existence of partnership was tried by consent. As hereinbefore noted, the petition did not allege a cause of action against Dickey Construction Company, a partnership, nor did it allege a cause of action against any of the defendants in their capacities as partners in any partnership. The relief sought by plaintiffs in their prayer was that they have a joint and several judgments "against all defendants." Therefore, since the petition did not allege a partnership, a verified denial of partnership was not required. See 57 TEX.JUR.3D, Partnership, § 225.

writing of the complaints made in this Petition. Such written notice to each Defendant is evidenced by the Exhibits A, B and C attached hereto.

FACTS

Jean Muller had been in the business of selling houses for 20 years. She began work as a realtor with Ben Fitzgerald Realty Company in 1977, and left after six and one-half years. In 1977, Jean Muller and her husband, Derel Muller, owned a lot at Horseshoe Club Lake near Chappel Hill. They decided to build a house on the lot and had someone draw up house plans for them.

In 1977, Taylor Burns and Jean Muller were co-workers at Ben Fitzgerald Realty Company. Mrs. Muller asked Taylor Burns about a contractor and Mr. Burns suggested "that maybe Jack Jones might be interested in building" her house. Jack Jones, Ben Fitzgerald, and Taylor Burns "had what they called Dickey Construction" and "they were in the process of building several spec ³ homes." Jack Jones, under the name of "Dickey Construction" acted as contractor and was responsible for the physical construction of houses. Ben Fitzgerald and Taylor Burns were not involved in the physical construction of houses; their role was limited to arranging financing. The Mullers, however, arranged their own financing for the construction of their house.

Jean Muller testified that Taylor Burns said "their fee" (referring to Jack Jones, Ben Fitzgerald, and Taylor Burns) was normally 15% of the cost, but since she was an employee, "they would let me have it at 12% above cost." Jean Muller never had any conversations with Ben Fitzgerald nor Fitzgerald Realty Company concerning construction of the house. She did not have any further conversations with Taylor Burns until some time after construction began.

Jean Muller approached Jack Jones about building her house. She showed him her house plans and Jack Jones gave her a projected cost of construction. It was agreed between Jack Jones and the Mullers that the former would build the house in accordance with the plans. However, the record does not contain a written contract between them and there is no showing in the record of any detailed oral agreement concerning the specifications. It appears that the house was built solely on the basis of the house plans, customary industry practices and all applicable building codes.

Construction of the house began in September 1977 and ended in August 1978. Jack Jones acted as general contractor and contracted with subcontractors such as electricians and carpenters, but did not do any of the physical construction himself. The house plans Jean Muller provided to Jack Jones called for a decorative beam 32 feet long spanning across the cathedral ceiling in the family room. The 32-foot ...