Bourland v. State
| Decision Date | 08 October 1975 |
| Docket Number | No. 12303,12303 |
| Citation | 528 S.W.2d 350 |
| Parties | G. Bradley BOURLAND, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Mitchell, George & Belt, Arthur Mitchell and Jan Woodward Fox, Austin, for appellant.
John L. Hill, Atty. Gen. of Tex., William O. Goodman, Asst. Atty. Gen., Austin, for appellee.
This appeal involves Tex.Bus. & Comm.Code Ann. art. 17.41. Et seq., and its predecessor, Tex.Rev.Civ.Stat.Ann. art. 5069--10.01, Et seq. Article 17.41, Et seq., is commonly known as the Deceptive Trade Practices-Consumer Protection Act. Article 17.46(a) of that Act declares unlawful any false, misleading, or deceptive acts or practices in the conduct of any trade or commerce.
Appellee, the State of Texas, filed suit in the district court of Travis County against appellant, G. Bradley Bourland, individually, and as president of Kurbo, Inc., and as an officer of Hacienda de Oro Products, Inc., Falcon Advertising and Sales, Inc., and Falcon Financial Corporation, and other defendants 1 seeking to enjoin them from committing certain alleged deceptive acts, for penalties, and for restitution of money for the benefit of certain persons who had paid money pursuant to alleged deceptive trade practices. Upon final hearing, the court entered a judgment which provided, among other things, that Taylor, Levy, and Bourland pay $50,026.40 into the registry of the court '. . . as restitution of monies acquired by . . . (those persons) . . . pursuant to deceptive trade practices . . .' It is from that portion of the judgment that Bourland has taken an appeal to this Court. We will affirm the judgment.
In its petition, the State pleaded that the defendants Taylor, Levy, and Bourland were engaged in the promotion, development and construction of a purported resort and retirement community located on Lake Falcon in the state of Tamaulipas, Republic of Mexico. That development was allegedly marketed by those persons as 'Lake Falcon Country Club,' 'Lake Falcon Country Club Estates,' and 'Club Campestre de Lago Falcon.' Appellee alleged further that those persons promoted the development through a combination of various corporate and partnership entities, some of which were: Falcon Financial Corporation, Inc., Falcon Advertising and Sales, Inc., Hacienda de Oro Products, Inc., and Kurbo, Inc., Compania Constructora de Falcon, S.A., and Country Club Membership Sales.
The State pleaded further that the false representations and fraudulent conduct made the basis for the suit arose from a common scheme or conspiracy originally between Taylor, Levy and others. Allegedly those persons would solicit and receive large sums of cash from unsophisticated investors under the guise of developing the resort-retirement complex, but instead those sums were to be converted to their own use. The State alleged that Bourland by his conduct subsequently became an active participant in the said scheme, that he furthered its purpose and enjoyed a portion of the proceeds gathered in by the realization of the scheme, and for all purposes should be treated as a co-conspirator.
The State alleged that by August, 1972, Taylor, Levy, and Bourland began promoting and advertising the Lake Falcon project to residents of Texas and Florida. Lots and homesites were sold and memberships in the limited partnership known as 'Country Club Membership Sales' were solicited from the general public. A membership could be purchased for $6,000.00 and it would entitle one to the use of a lot in the development; to two shares of stock in Compania Constructora de Falcon, S.A.; to the use of the country club and marina currently under construction or soon to be constructed; and to employment opportunities in the planned community at the resort development. The State pleaded that in the course of promoting the development, soliciting memberships in the country club, and in selling homesites, condominiums, and townhouses, Taylor, Levy, and Bourland engaged in the following acts and made the following misrepresentations in violation of Tex.Rev.Civ.Stat.Ann. art. 5069--10.02 and Tex.Bus. & Comm.Code Ann. art. 17.46(a):
(1) Representing that Taylor had invested substantial amounts of his own capital in the project.
(2) Representing that Taylor exercised legal control over acreage located on the southern shores of Lake Falcon in northern Mexico that would be used as the site of the proposed development.
(3) Representing that the $6,000 membership investment made by the investors in the Country Club Membership Sales would be held in trust by G. Bradley Bourland, trustee.
(4) Representing that the Banco Nacional de Mexico, S.A. guaranteed the legal title in trust for investors in the limited partnership or alternatively guaranteed the usufruct right to these investors in the said 36,000 acres or that a portion of the said acreage was to be purchased with partnership funds.
(5) Representing that the Banco Nacional de Mexico safeguards incoming funds, payment of taxes, and essential services as further security to the limited partners and members of the development.
(6) Representing that the trust agreement with the Banco Nacional de Mexico guaranteed title or the usufruct right to the land continued in perpetuity and was freely assignable and inheritable by the heirs of the member or investors.
(7) Representing that the following facilities had been or were being constructed at the site of the Lake Falcon Country Club or Club Campestre Lago Falcon:
Country clubs, motels, condominiums, homes, shopping centers, churches, marinas, mobile home parks, Two Worlds Recreation Amusement Park, hospital, hunting preserves, cultural village, health spa, camping facilities, golf courses, town-house apartments, supermarkets, tennis clubs, riding stables, bull ring, private airport, convention hall, Jai-Lai Fronton, fishing piers, international restaurants, theatre clubs, athletic stadium, recreational parks, international culture trade mart, service station, farmers market, and location sets for motion picture companies.
(8) Representing that a $6,000.00 membership in the limited partnership known as Country Club Membership Sales would entitle the investor to the use of a lot or a mobile home site in the development.
(9) Representing that the development was to be built on a constant level lake and that take front lots would be made available to investors.
(10) Representing that an investor in Country Club Membership Sales would be guaranteed a job at the development at a salary of at least $20,000.00 each year.
(11) Representing that the two shares of stock in Campania Constructora de Falcon, S.A. which were transferred to each investor in the Country Club Membership Sales had a present value of $3,000.00.
(12) Representing that townhouses or condominiums would be constructed at a certain pre-development price which was $3,000.00 below the real value.
Appellant Bourland was the only defendant who filed an answer. By way of defense, appellant averred that he was an attorney and that in the autumn of 1971 Taylor employed him to draw the necessary instruments creating legal entities through which the development of the Lake Falcon project could be accomplished. Pursuant to that employment he set up Falcon Advertising and Sales, Inc., Hacienda de Oro Products, Inc., and Falcon Financial Corporation.
Bourland denied knowledge or notice of any scheme or conspiracy on the part of the other defendants to defraud anyone. He pleaded further that the other defendants had duped him and that he had lost considerable time, effort, and money in discharging his duty as an attorney. He claimed that in disbursing funds he acted as an attorney and as an employee following the directions and instructions of his clients. He denied misrepresenting or causing to be done any act to procure those funds. He denied further that he appropriated any of those funds, and he denied having '. . . any agreement to participate in the spoils of this scheme and gigantic fraud conceived and executed by the other defendants herein.'
Bourland answered further that, 'While it is admitted that some of the acts which have been voluntarily disclosed to the Plaintiff (the State) on the part of G. Bradley Bourland appear to cast him in light as principal, his sole role here was as attorney, as employee, and as agent; he sought only to discharge his duty as a conscientious attorney and not to play a principal role in any plan, scheme, or contrivance to defraud the public.'
Upon final hearing the court entered judgment adverse to the defendants. That judgment recited that '. . . the facts are what the Plaintiff (appellee) has alleged in its petition and that the Defendants have engaged in certain acts and practices in violation of Article 5069--10.02, V.T.C.S., The Texas Deceptive Trade Practices Act and Section 17.46 of the Texas Business & Commerce Code, the Texas Deceptive Trade Practices-Consumer Protection Act . . .' As already stated, the judgment provided that Taylor, Levy, and Bourland pay into the registry of the court $50,026.40 as restitution of monies acquired by them 'pursuant to deceptive trade practices.'
Appellant attacks the judgment by a number of points of error. Appellant claims by points of error three and four that the court erred in entering judgment against him since there was no evidence, or insufficient evidence, that '. . . Appellant was a (sic) active participant in a Conspiracy to defraud individuals identified in Plaintiff's Original Petition.' (Emphasis added)
Appellant's points three and four misapprehend the case pleaded by the State and the judgment entered by the district court. The State pleaded and the effect of the judgment of the district court was that Taylor, Levy, and Bourland had entered into a conspiracy to obtain property by engaging in false, misleading, or deceptive acts and practices in...
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