Mitchell Resort Enterprises, Inc. v. C & S Builders, Inc.
Decision Date | 17 August 1978 |
Docket Number | No. 5144,5144 |
Citation | 570 S.W.2d 463 |
Court | Texas Court of Appeals |
Parties | MITCHELL RESORT ENTERPRISES, INC., et al., Appellants, v. C & S BUILDERS, INC., Appellee. |
James V. Hammett, Jr., (appeal only) Stubbeman, McRae, Sealy, Laughlin & Browder, Kirt H. Kiester, Law Offices of J. Hubert Lee, Austin, for appellants.
Robert J. Werner and Thomas H. Watkins, Hilgers, Watkins & Hays, Austin, for appellee.
C & S Builders, Inc., sued Mitchell Resort Enterprises, Inc., Mitchell Development Corporation of the Southwest and William Canfield seeking recovery of "the reasonable profit to the joint ventures" between the parties and punitive damages because of defendants' conduct. Plaintiff's motion for nonsuit as to Canfield was granted. Based on the jury's verdict, judgment was entered in favor of C & S for $75,000 lost profits and $200,000 exemplary damages. Mitchell Resort and Mitchell Development appeal. We reverse and remand.
The parties entered into joint venture agreements for the construction and sale of High Point and Comanche Point Townhouses. The terms of the agreements generally provided that C & S was to construct the townhouses within a certain cost range and appellants were to provide the land, financing and marketing of the constructed townhouses. Upon sale of a townhouse, appellants were to receive a payment for land cost, a proportionate share of the interim financing was to be paid, and the profits remaining after payment of sales commissions and closing costs were to be split equally between the parties.
C & S became dissatisfied with the results of the sales of the townhouses. It contended that the Mitchell entities failed to provide as effective a sales program as a person using ordinary care would have provided under the same or similar circumstances; that such failure was intentional; and, was motivated by malice, in an effort to squeeze out fellow joint venturers.
The jury found (1) that the Mitchell entities failed to provide as effective a sales program as a person using ordinary care would have; (2) that such failure was intentional; (3) that such failure was the proximate cause of loss of profit to the townhouses joint ventures; (4) that C & S's 50% Of the lost profit was $75,000; (5) that the failure was motivated by malice on the part of Mitchell entities; and, (6) C & S was entitled to $200,000 exemplary damages.
Mitchell entities contend the court erred in rendering judgment for damages because C & S failed to plead, prove or request jury findings that the partnership between the parties had been dissolved and terminated which is an essential element of a cause of action for damages between partners. We agree.
The court in Staggers v. Vaughan, 527 S.W.2d 791 (Tex.Civ.App. Texarkana 1975, writ ref. n. r. e.), said:
In Amberson v. Horton, 255 S.W.2d 580 (Tex.Civ.App. San Antonio 1953, writ ref. n. r. e.), the court said:
The court in Chipley v. Smith, 292 S.W. 209 (Tex.Com.App.1927), recognized exceptions to the general rule quoting from 21 A.L.R. page 22 as follows:
" "
C & S argues the applicability in the instant case of one of the exceptions to the general rule. We disagree.
This is not a case where the cause of action is not connected with partnership accounts and is distinct and separate from partnership dealings. Schwarz v. Lee, 287 S.W. 519...
To continue reading
Request your trial-
Warren v. Chapman
...827, 837, 141 Cal.Rptr. 67, 73 (1977); Burris v. Burris, 140 Kan. 208, 216, 34 P.2d 127, 132 (1934); Mitchell Resort Enterprises v. C & S Builders, 570 S.W.2d 463, 465 (Tex.Civ.App. 1978); see also 60 AM.JUR.2D Partnership § 275 (1972); 96 A.L.R. 432, 441 (1935). Moreover, by simply accruin......
-
Kartalis v. Lakeland Plaza Joint Venture
...affairs. Chipley v. Smith, 292 S.W. 209 (Tex.Comm'n App.1927, judgm't adopted); Mitchell Resort Enters., Inc. v. C & S Builders, Inc., 570 S.W.2d 463, 464 (Tex.Civ.App.--Eastland 1978, writ ref'd n.r.e.) In Texas, 1 this principle is applied to joint ventures as well. See Rice v. Lambert, 4......
-
Maxson v. Travis Cty. Rent Account
...either plead or prove an accounting as a basis for fixing potential damages. See Mitchell Resort Enters., Inc. v. C & S Builders, Inc., 570 S.W.2d 463, 465 (Tex. Civ. App.-Eastland 1978, writ ref'd n.r.e.) (assuming that had plaintiffs pleaded need for accounting simultaneously with claims ......
-
VMS/PCA LTD. PARTNERSHIP v. PCA Partners Ltd.
...or between partners. As support for this proposition, the defendants rely on a partnership case, Mitchell Resort & Enterprises, Inc. v. C & S Builders, Inc., 570 S.W.2d 463 (Tex.Civ.App.1978). At one time (or at least in one case), Texas courts had different rules for joint ventures and par......