Pledger v. Schoellkopf
| Decision Date | 07 December 1988 |
| Docket Number | No. C-7086,C-7086 |
| Citation | 762 S.W.2d 145 |
| Parties | R.L. PLEDGER, Petitioner, v. Hugo W. SCHOELLKOPF, Jr. and Caroline Rose Hunt, Respondents. |
| Court | Texas Supreme Court |
Mark S. Werbner, Carrington, Coleman, Sloman & Blumenthal, Dallas, for petitioner.
Ernest R. Higginbothan, P. Michael Jung & John H. McDowell, Strasburger & Price, Dallas, for respondents.
This case concerns the questions of whether certain causes of action are individual causes of action or corporate causes of action, and whether a defendant is required to file a plea of verified denial under TEX.R.CIV.P. Rule 93(2) to contest a plaintiff's capacity to bring suit. The trial court rendered judgment against the defendants upon the jury findings of fraud, material misrepresentation, and tortious interference with a business relationship. The court of appeals determined that the claims here belonged to the corporation and that no verified denial was required. 739 S.W.2d 914. We reverse the judgment of the court of appeals and hold that a verified denial should have been filed. We need not reach the question concerning to whom the causes of action belong.
The action before us was originally a cross-claim in a suit brought by MBank of Dallas against all other parties upon a guaranty agreement. Because Hugo Schoellkopf and Caroline Hunt (formerly Caroline Schoellkopf) settled MBank's entire claim, only the cross-claim is before us. The cross-claim is an action by R.L. Pledger against Hunt and Schoellkopf for fraud, tortious interference with a business relationship, and material misrepresentations. The jury found in favor of Pledger on all claims. The court of appeals reversed, holding that the causes of action brought by Pledger belonged to Midway Aircraft Sales, Inc., of which Pledger, Schoellkopf and Hunt are shareholders. Pledger, however contends that Schoellkopf and Hunt waived their right to complain of his lack of capacity by failing to file a verified denial pursuant to Rule 93(2). That rule provides that "unless the truth of such matters appear of record," a pleading verified by affidavit must be filed where it is alleged "[t]hat the plaintiff is not entitled to recover in the capacity in which he sues, or that the defendant is not liable in the capacity in which he is sued." TEX.R.CIV.P. 93(2). The court of appeals rejected Pledger's argument, holding that Rule 93(2) applies only when a party is seeking recovery in a representative...
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...however, because we conclude there is insufficient evidentiary support for EMC Cement BV's damages even if it had capacity. In Pledger v. Schoellkopf , we held that the question whether a claim brought by a shareholder actually belongs to the corporation is a matter of capacity. 762 S.W.2d ......
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...duty to his co-shareholder.”); Schoellkopf v. Pledger, 739 S.W.2d 914, 920 (Tex.App.–Dallas 1987), rev'd on other grounds, 762 S.W.2d 145 (Tex.1988) (“Although such a fiduciary duty may exist in some instances, we are unwilling to apply it as a matter of law to all shareholders of closely h......
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