Landvest Associates v. Owens, 21384
| Decision Date | 26 January 1981 |
| Docket Number | No. 21384,21384 |
| Citation | 276 S.C. 22,274 S.E.2d 433 |
| Court | South Carolina Supreme Court |
| Parties | LANDVEST ASSOCIATES, Respondent, v. Marion B. OWENS, Jr., Appellant, and LANDVEST II, Respondent, v. Marion B. OWENS, Jr., Appellant. |
Coming B. Gibbs, Jr., of Gibbs, Gaillard, Rowell & Tanenbaum, Charleston, for appellant.
Theodore B. Guerard, of Guerard & Applegate, Charleston, for respondents.
The respondents initiated these actions to recover for alleged hidden profits on the sale of real estate to their partnership. The sole issue on appeal is whether or not their first cause of action for an accounting under Section 33-41-540, South Carolina Code of Laws (1976) and their second cause of action for fraud as a result of an affirmative misrepresentation are distinct causes of action. The lower court held that they were. We disagree and reverse.
Each respondent's complaint alleges that they, along with others, are limited partners in an association. The appellant is the general partner. In accordance with the terms of the partnership agreement, the appellant was to provide certain parcels of land. After the appellant transferred the land to the partnership and received in return notes for payment, it was learned by the respondents that the appellant did not transfer the property at his cost, but rather at a profit and without the consent of respondents, the limited partners. Following these generalized allegations, the complaint delineates two causes of action.
For a first cause of action, the respondents allege that they are entitled to an accounting under the provisions of Section 33-41-540 which provides:
Every partner must account to the partnership for any benefit and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct or liquidation of the partnership or from any use by him of its property.
The respondents' second cause of action is one in fraud seeking money damages. Essentially they allege that the appellant affirmatively represented to the respondents that he was transferring the land at cost and without any profit. They also allege they were entitled to rely on these representations because of the fiduciary relationship existing between the parties.
At the appropriate time, the appellant made a motion for the respondents to elect between the two causes of action. He argued that the respondents had alleged only one cause of action for which the law affords two possible remedies for redress, only one of which may be ultimately pursued. The lower court denied the motion by reasoning that although the two actions arise out of the same transaction, they are based upon an entirely different set of facts. We disagree that any essential factual differences are alleged.
We have defined a cause of action as:
A primary right possessed by plaintiff, and a corresponding primary duty devolving upon the defendant; a delict or wrong done by the defendant which consists in a breach of such primary right and duty ... Harth v. United Insurance Company of America, 266 S.C. 1, 221 S.E.2d 102; at 266 S.C. 5, 221 S.E.2d 104, citing Brice v. Glenn, 165 S.C. 509, 164 S.E. 302.
We have previously considered the nature of the primary right of the plaintiff and the primary duty of the defendant in a very...
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Jimenez v. Chrysler Corp., CivA. 2:96-1269-11.
...suppressed a material fact that duty obligated it to disclose, it effectively made a false representation. See Landvest Assocs. v. Owens, 276 S.C. 22, 274 S.E.2d 433, 434 (1981). Accordingly, state and federal law imposed on Chrysler a duty to The Court rejects Chrysler's argument to the ef......
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Anthony v. Atl. Grp., Inc., Civil Action Nos. 8:09–cv–02383–JMC, 8:09–cv–02942–JMC.
...omission where employer failed to inform an at-will employee that he was a candidate for termination) (citing Landvest Assocs. v. Owens, 276 S.C. 22, 274 S.E.2d 433, 434 (1981)). Plaintiffs' argument that DZ Atlantic misrepresented the requirements for per diem eligibility because its inves......
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Armstrong v. School Dist. Five, Lexington, Richland, Civ.A. 3:997-903-0.
...Matter of Moore, 280 S.C. 178, 312 S.E.2d 1 (S.C.1984) (attorney in fiduciary relationship with his client); Landvest Associates v. Owens, 276 S.C. 22, 274 S.E.2d 433 (S.C.1981) (partners are fiduciaries to each other); Talbot v. James, 259 S.C. 73, 190 S.E.2d 759 (S.C.1972) (officers and d......
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Anthony v. Atl. Grp., Inc.
...omission where employer failed to inform an at-will employee that he was a candidate for termination) (citing Ladvest Assocs. v. Owens, 276 S.C. 22, 274 S.E.2d 433, 434 (1981)). Plaintiffs' argument that DZ Atlantic misrepresented the requirements for per diem eligibility because its invest......