David Tubb and Superior Shooting System, Inc., Appellants/Cross-Appellees v. Aspect International, Inc. and James Sterling, Appellees/Cross-Appellants
12-14-00323-CV
| Tex. App. | Oct 31, 2016Background
- In late 2011 Superior Shooting Systems (and its principal David Tubb) and Aspect International (and its principal James Sterling) agreed to a joint venture to manufacture and sell high‑quality small‑arms ammunition; profits were to be split 50/50. Superior agreed to fund equipment and lend Tubb’s name; Aspect agreed to contribute prior IT work (as capital), convert Sterling’s garage into a manufacturing site, obtain packaging, and run manufacturing.
- Superior funded design and purchase of a high‑volume, computer‑controlled loading machine (built by FillPro), which was installed and certified production‑ready at Sterling’s Tyler facility in October 2012; retail packaging arrived only in mid–late January 2013.
- Tensions arose during late 2012: disputes over control, Tubb’s remarks about relocating operations to Canadian, Texas and putting his son in charge, removal by Superior personnel of 18,000 shell casings (which later were sold through a third party), and ongoing refusal or delay by Tubb to execute a written agreement despite repeated discussions.
- On January 7, 2013 Sterling demanded payment on IT invoices (which Superior later paid); on February 6, 2013 Aspect sued for breach of contract, quantum meruit, and promissory estoppel. A bench trial resulted in judgment for Aspect: $175,000 restitution (subject to a $35,019 offset) and attorney’s fees; the trial court also made written findings.
- On appeal, appellants challenged (1) legal sufficiency of the evidence of repudiation, (2) the trial court’s conclusion that the parties did not form a partnership (and thus that Aspect could recover restitution), and (3) denial of appellants’ request for attorney’s fees.
Issues
| Issue | Plaintiff's Argument (Aspect) | Defendant's Argument (Tubb/Superior) | Held |
|---|---|---|---|
| 1. Was there legally sufficient evidence that Superior repudiated the agreement? | Sterling: Tubb’s repeated refusal to sign a written agreement, removal/sale of casings, and other actions showed fixed intent not to perform. | Tubb: No fixed, unequivocal renunciation; many alleged acts were withdrawn or explained; production timing and lack of packaging meant no repudiation. | Court: Evidence legally sufficient to support repudiation finding (issue overruled). |
| 2. Did the parties form a partnership, precluding Aspect’s recovery for services (restitution)? | Aspect: Venture was not a partnership; restitution for value of services is appropriate. | Tubb: Parties shared profits, contributed property, intended partnership — partners cannot recover for services. | Court: Evidence insufficient to support trial court’s finding that no partnership existed; because a partnership was created, Aspect cannot recover restitution for services performed — judgment reversed in part and Appellees take nothing on restitution. |
| 3. Were appellants entitled to attorney’s fees after offset? | Tubb: Trial court’s offset shows partial success; they should recover fees under §38.001. | Sterling: Appellants did not prevail on their claims; fees not proven reasonable/necessary. | Court: No abuse of discretion in denying attorneys’ fees; appellants did not challenge take‑nothing ruling or prove fees reasonable and necessary (issue overruled). |
Key Cases Cited
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (legal‑sufficiency review standards for fact findings)
- Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) (definition of more than a scintilla of evidence)
- Ingram v. Deere, 288 S.W.3d 886 (Tex. 2009) (factors and totality‑of‑circumstances test for partnership formation)
- Glass v. Anderson, 596 S.W.2d 507 (Tex. 1980) (retraction of repudiation — timing and effect)
- Jenkins v. Jenkins, 991 S.W.2d 440 (Tex. App.–Fort Worth 1999) (no repudiation when refusal based on genuine mistake or misunderstanding)