Purselley Industries, Inc. v. Engle
| Decision Date | 28 July 1986 |
| Docket Number | No. 12-84-0156-CV,12-84-0156-CV |
| Citation | 717 S.W.2d 662 |
| Parties | PURSELLEY INDUSTRIES, INC. and T. Vincent Purselley, Appellants, v. C.B. ENGLE, Appellee. |
| Court | Texas Court of Appeals |
H.P. Smead, Longview, for appellants.
William J. Gardner, Longview, for appellee.
Before SUMMERS, C.J., and COLLEY and BILL BASS, JJ.
S.A. Rolfe, the original plaintiff below, 1 sued T. Vincent Purselley on a promissory note in the original sum of $90,000. T. Vincent Purselley, hereinafter Purselley, and Purselley Industries, Inc., 2 hereinafter Corporation, as third party plaintiffs/appellee, filed an action against C.B. Engle, third party defendant/appellee, hereinafter Engle, to recover monies allegedly due them under a contract of sale covering the transfer of certain real and personal properties. Engle filed a counterclaim alleging debts due him by Purselley and the Corporation aggregating some $352,000.00. The cause was tried before a jury, and based on its verdict, the trial court rendered a judgment awarding S.A. Rolfe $124,875.00 over and against Purselley, awarding Engle attorney's fees in the amount of $10,000.00 against Purselley and the Corporation, and decreeing that Purselley and the Corporation take nothing on their third party action against Engle. All costs were adjudged against Purselley and the Corporation jointly and severally.
Purselley and the Corporation appeal only from that part of the judgment rendered in favor of Engle on his counterclaim against them which decreed that Purselley and the Corporation take nothing on their third party action against Engle. We affirm in part and reverse and remand in part.
The appellants present nine points of error. All but one of these points are referable only to Purselley individually. That one point, point two, alleges that the court erred in disregarding the jury's responses to Special Issues 6, 7, 8, 9 and 10.
A brief summary of the facts is necessary to a proper understanding of our opinion. On September 1, 1979, Engle entered into a contract of sale with the Corporation, which acted by and through its president, Purselley. Under the agreement Engle sold to the Corporation certain real and personal properties, comprising a business then owned and operated by Engle. The contract recited consideration to Engle from the Corporation of $400,000.00, $100,000.00 in cash and a promissory note signed by Purselley as president of the corporation in the principal sum of $300,000.00. The note was payable in 180 monthly installments. On December 8, 1980, Purselley, individually, signed a promissory note in favor of plaintiff Rolfe in the sum of $90,000.00 payable to Rolfe on demand.
On June 19, 1981, Purselley and the Corporation, acting by Purselley as president, entered into a contract of sale with Engle. Under its terms, Engle was, in essence, "buying back" the business and properties sold by him to the Corporation on September 1, 1979. This contract 3 recited in part:
Consideration for the sale of this property shall be the assumption of certain liabilities of Purselley Industries, Inc., more specifically described as follows:
Notes Payable
Longview Bank and Trust $119,000.00
Longview Bank and Trust 35,000.00
Sam Rofe (sic) 90,000.00
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Total Notes Payable $244,000.00
Accounts Payable
Internal Revenue Service $ 37,000.00
Hocker Industries 7,200.00
Garman Industries 18,000.00
Trade Accounts Payable 9,000.00
Other Accounts Payable 8,000.00
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Total Accounts Payable $ 79,200.00
TOTAL LIABILITIES: $323,200.00
The jury found in response to Special Issues 6, 7, 8, 9 and 10 that Engle "represented" to Purselley and the Corporation that he "would assume and pay" the various debts of the Corporation in accordance with the 1981 contract (Special Issue 6); "this representation was false" (Special Issue 7); Purselley and the Corporation "relied upon the representation" (Special Issue 8); that the "representation ... was material" (Special Issue 9); and "at the time such representation was made [Engle] did not intend to assume and pay...." the same (Special Issue 10). The subjects inquired about in these issues were contractual in nature. Engle was bound to assume and pay the debts listed in the 1981 contract. Regardless of whether the findings are supported by some evidence, each is nonetheless immaterial to the dispute here presented. The judgment rendered took into account the aggregate amount of the debts assumed by Engle under the contract. Point two is overruled.
The merits of the remaining points of error depend upon whether the trial court was justified in "piercing the corporate veil" and subjecting Purselley to personal liability for the Corporation's debt to Engle. If the court was so authorized, then the points are without merit. Purselley generally alleges in his first point that the court erred "in failing to render judgment" for him against Engle in the sum of $217,391.32. 4 By points three and four, Purselley contends the court erred in allowing an offset for Engle of the Corporation's debt to Engle against "the indebtedness of C.B. Engle to [Purselley]" because Engle had no pleading, offered no proof, and secured no jury finding that the Corporation was the "alter ego" of Purselley. Purselley urges by his fifth point of error that the trial court erred "in making an implied finding" in support of the judgment. In points six through nine, Purselley complains that the trial court erred in awarding Engle attorney's fees, in disallowing his attorney's fees, and in adjudging the costs against him.
We first address points three and four....
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