Richard Makover v. Randy S. Turrentine
01-14-00869-CV
Tex. App.Feb 2, 2015Background
- RAM Design + Build contracted with the City of Friendswood to renovate a fire station and hired RST Designs (Turrentine) as a subcontractor.
- Contract payments for the project were handled by an independent escrow agent, Contract Operations Planning, LLC (COP), which received and disbursed funds to contractors/subcontractors on application.
- RAM received a final post-performance payment of $466.56 on July 19, 2012; most earlier funds were disbursed before RST performed work.
- RAM later became insolvent and its bankruptcy was converted to Chapter 7; RST did not pursue the project surety bond and instead sued RAM’s officer, Richard Makover, personally in small claims; default judgment entered and Makover appealed to county court.
- The county court (trial court on appeal) awarded RST $4,416 for a Construction Trust Fund violation and additional conditional awards ($5,000 if RST prevails in the court of appeals; $7,500 if RST prevails in the Supreme Court); Makover challenges sufficiency of proof, personal liability, amount of trust funds, and the post-judgment conditional awards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Sufficiency of proof of Construction Trust Fund violation | Turrentine contends Makover/ RAM diverted trust funds and failed to pay subcontractor (entitling him to $4,416) | Makover: plaintiff offered only the RAM contract and testimony but no proof of misappropriation; COP controlled funds, not Makover | County court entered judgment for plaintiff (found trust-fund violation); this brief argues evidence was legally and factually insufficient |
| 2. Personal liability of Makover for corporate debts | Turrentine pursued Makover individually for unpaid amounts | Makover: he signed as RAM’s president; as corporate officer and registered agent he is not personally liable for corporate obligations | County court held Makover liable individually; appellant argues error and requests reversal |
| 3. Amount of trust-fund exposure | Plaintiff sought $4,416 in amended petition | Makover: COP disbursed funds and only $466.56 remained after plaintiff performed work; at most liability should be limited to $466.56 | County court awarded $4,416; appellant contends award exceeds proven recoverable trust funds |
| 4. Award for appellate costs ($5,000 if plaintiff prevails in court of appeals) | Plaintiff obtained judgment including conditional appellate award | Makover: no pleading sought such post-judgment appellate award; judgment must conform to pleadings | County court included $5,000 conditional award; appellant argues this relief was unauthorized by pleadings |
| 5. Award for supreme-court costs ($7,500 if plaintiff prevails in Supreme Court) | As above | As above | County court included $7,500 conditional award; appellant argues error for same reason |
Key Cases Cited
- Goswami v. Metropolitan Sav. and Loan, 751 S.W.2d 487 (Tex. 1988) (late pleadings may be treated as granted by trial court where record does not show denial)
- Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442 (Tex. 1989) (standard for factual sufficiency review — consider all evidence and weigh against the great weight and preponderance)
- INA of Texas v. Adams, 793 S.W.2d 265 (Tex. App.—Beaumont 1990) (application of factual-sufficiency principles)
- Webb v. Glenbrook Owners Ass'n, Inc., 298 S.W.3d 374 (Tex. App.—Dallas 2009) (judgment must conform to pleadings; judgment unsupported by pleadings is void)
- Ex parte Flemming, 532 S.W.2d 122 (Tex. Civ. App.—Dallas 1975) (same point on judgments and pleadings)