Wilson v. McCracken
| Decision Date | 03 July 1986 |
| Docket Number | No. B14-85-758CV,B14-85-758CV |
| Parties | Sammy WILSON, Appellant, v. Michael A. McCRACKEN, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Kevin Dubose, Houston, for appellant.
Benjamin H. Best, II, Pearland, for appellee.
Before PAUL PRESSLER, SEARS and CANNON, JJ.
Appellant started a landscaping service and offered to sell appellee a portion of the business. Appellee invested $15,000 in the incorporated business (Landscaping Specialists, Inc.). Appellee sued appellant for breach of contract and fraud saying that the business was used to wrongfully convert his money. The jury awarded appellee $15,000 in actual damages and $15,000 in exemplary damages and judgment was so entered. We affirm.
Appellant brings two points of error. In his first, he argues that there was a lack of conformity between the pleadings, verdict, and judgment on the issue of exemplary damages.
Texas law requires a judgment to conform to the pleadings and the verdict. Tex.R.Civ.P. 301. A party is limited to recovery upon the precise theory of recovery stated in his pleadings. Crozier v. Horne Children Maintenance, 597 S.W.2d 418 (Tex.Civ.App.--San Antonio 1980, writ ref'd n.r.e.). In his pleadings, appellee requested exemplary damages because:
the wrong done and committed by Defendant ... constitutes breaches of the fiduciary duties owed by him to Plaintiff; said wrongs were and continue to exhibit the kind of willfullness, wantonness, and malice for which the law allows ... the imposition of exemplary damages.
Appellant contends: 1) the plea for exemplary damages was based on "breaches of the fiduciary duties"; 2) the award of exemplary damages was based on answers to special issues setting forth the elements of fraud; 3) there were no special issues as to "breaches of the fiduciary duties"; therefore, 4) the trial court erred in entering judgment for exemplary damages because the judgment was based on a theory of recovery (i.e. fraud) not set forth in the pleadings.
Appellee is not limited to the particular theory of recovery set forth in the paragraph requesting exemplary damages. Tex.R.Civ.P. 301 and the cases appellant cites refer merely to "pleadings." We must view appellee's pleadings as a whole rather than considering only one paragraph. In other portions of his petition appellee plead both breach of contract and fraud as theories of recovery. Therefore, it was proper for the jury to make findings as to exemplary damages based on the elements of fraud. The special issues answered by the jury set forth the separate tort of fraud sufficiently for exemplary damages to be properly granted. Morgan v. Arnold, 441 S.W.2d 897 (Tex.Civ.App.--Dallas 1969, writ ref'd n.r.e.). The judgment of the trial court was in conformity with the pleadings and the verdict. The first point of error is overruled.
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