*1 grams, punishment assess his at con- penitentiary finement in the for a term of years. (INSERT ANY TERM NOT
LESS THAN FIVE YEARS NOR MORE LIFE.) THAN 99 YEARS OR In addi- tion to confinement in penitentiary, punishment
we further assess his at a $20,000.00. (INSERT fine of ANY $20,000.00.) AMOUNT FROM 0 TO Jury Foreman of the Appellant’s brief fails to cite authori- contention, in support ties of his and fails to indicate how the form amounts weight
comment on the of the evidence. 74(f). per- TEX.R.APP.P. the form Since mits the any punishment assess law, disagree within the confines of the we weight that it is a comment on the point The evidence. is overruled. judgment is affirmed. William H. DAVIS & Catherine L.
Davis, Appellants, SHEERIN, Appellee. James L. No. 01-87-00423-CV. Appeals Texas, Court of (1st Dist.). Houston June 1988. *2 (“appellee”)
rin was declared to own a 45% corporation in partnership, share in a pieces six real which included major found to be assets. The buy-out challenges against are an ordered corporation stock the award to interest in the six tracts of land found to be *3 (“appellant”) assets. William H. Davis remaining the owner of the interest in 55% corporation partnership. both and the May brought In appellee suit individually right, in his own and as a Co., shareholder on behalf of W.H. Davis Inc., (“the corporation corpora- a Texas tion”), against William H. Davis and Cath- (“appellants”) erine L. Davis based on alle- gations appellants’ oppressive conduct shareholder, appellee minority toward as a fiduciary and their breaches of duties owed appellee corporation. Appellee to and the brought against appellant also suit William Davis, ownership to establish his inter- 45% general partnership in est a Texas known (“the as & James L. W.H. Davis Sheerin partnership”), and certain tracts of land appellee partnership that claimed were as- sets, alleged and for an breach of the fidu- ciary duty by appellant appellee in owed partnership. connection with the appellee In in- William Davis and business, corporated initially started Davis, appellant William in which Davis appellee owned and owned 55% 45% corporation’s Appellants appel- stock. officers, lee all as directors and served president serving William Davis running day-to-day operations Appellee, appellants, unlike business. King, Anthony Sadberry, John J. J. Mar- employed by corporation. garet Kickler, Sullivan, King, Ann & Sa- appellee appellant William Davis bom, P.C., Houston, appellants. purpose of partnership formed a for the Binion, Browning, Kent J. Butler & acquiring real estate. Houston, appellee. appellee’s precipitating cause of law- appel- in denial of suit 1985 was EVANS, C.J., Before and SAM books, corporate right inspect lee’s DUNN, BASS and JJ. appellee produced unless his stock certifi- had Appellants appellee cate. claimed that OPINION 1960’s, them, gift in the late made a DUNN, Justice. appellee’s prior interest. Just 45% issue, appellant filing corporate appeal portions is an from of a trial suit on the This appellee also denied that judgment, court’s in which James L. Shee- William Davis fiduciary duty converting in six land in owned a interest tracts of breach 45% land; partnership claimed were assets of their assets other than the partnership. prop- Davis claimed that (11) the reformation of the deeds on partnership erties were not assets because appellee’s six tracts of land to reflect acquired prior the first tract was to the simple; undivided interest in fee 45% formation of the and all of the (12) the forced sale the six tracts of deeds were in his name. He also claimed land of a receiver to sell never intended to claim an proceeds and distribute the equity properties. interest in the according parties’ respective shares. Following jury, a six-week trial to a court, declaring trial addition appeal, appellants On the fol- corpo- owned a (1) lowing trial court: orders of the ration, six partnership, and the tracts buy-out ordered stock assets, land found be corporation; appointment of a re- following issued the orders and award of ceiver; (3) pay the order to dividends damages: *4 future; (4) the to of award 45% (1) by appellants “buy-out” an ordered of land; (5) ownership in the six tracts of the corpo- appellee’s of the stock in the 45% resulting prop- imposition of a trust on said $550,000, ration for the fair value deter- (6) proper- erty; and the forced sale of said jury; mined the ty proceeds to be distribut- 45% (2) appellee. Appellants a the to do not the of receiver for ed ownership in the corporation; the declaration of interest injunction mandatory the (3) injunction against appellants’ con- against profit future contributions sharing plan tributing profit to a for sharing appellee, of plan to the exclusion proportionate unless a sum their benefit awarded, damages the order any of the paid appellee; to dissolving terminating partnership and (4) mandatory injunction pay- for the a along recovery of with the 45% future; in the ment of dividends interest, reformation of the deeds. nor the (5) damages award of in the amount an. seven, through $20,893 points In of error one appellee, individually, for of challenge the court’s order that fiduciary appellants’ willful of breach in the they buy-out appellee’s duty receiving informal dividends 45% sharing argument is making profit corporation. Appellants’ basic contributions to a (1) remedy “buy-out” of of a plan for their benefit to the exclusion fold: two un- appellee; minority to a shareholder not available law, (2) remedy if a Texas and der (6) $8,500 costs incurred an award of for available, of this case are the facts were rights to by appellee enforcing for, jury’s nor do the find- appropriate not $65,000 inspect paying for books and remedy application of this firm; ings support, the accounting court-appointed op- determination of on the court’s based (7) $192,600 appellee, on of an award pressive conduct. recovery corporation, for of behalf of the at- for corporate funds used Corporation Act The Texas Business fees; torney’s remedy provide for the expressly does resulting (8) trust imposition of a aggrieved minority “buy-out” for an of a land; the six tracts of Tex.Bus.Corp.Act. art. 7.05 shareholder. 1980) appoint- (9) (Vernon provide for the dissolution and termination does $41,422 recovery receiver, possi- with the eventual ment of a aggrieved share- liquidation, for for bility $12,078 land) (other assets than the establish the existence who can holders account; situations, illegal, op- capital including from the one of five conduct those pressive, or fraudulent $10,583 dam- for actual An award damages for control. exemplary ages and $500 one, liqui- the instant decree type find cases where eral
Nor do we
Texas
remedy
“buy-out”
accordingly appoint
has
a receiver.”
particular
of a
dation
ordered,
provided
recog-
for in a con-
The court
unless
Id.
We also hold that
We next address whether the court’s con-
expectations
objectively
defeats the
*7
oppressive
clusion of
and its or-
conduct
cir-
viewed were both reasonable under the
“buy-out”
conformity
dered
with
cumstances and
central to the minori-
were
jury’s findings.
join
ty shareholder’s decision to
the ven-
Oppressive conduct is the most com containing mon in states statutes violation which a Courts establishing appropriate remedy found to be an in other situations causes of action shareholders, See, Plasties, to those al- jurisdictions. e.g., minority similar Alaska 270; 901; statute, in the Texas have held Wiedy’s, P.2d 487 N.Y.S.2d lowed 232; independent McCauley, oppressive 724 P.2d conduct is an Baker v. Com showing Builders, Inc., ground requiring not Body mercial 264 Or. for relief fraud, mismanagement, wast- espe illegality, take P.2d 387 Courts an deadlock, assets, other cially application op- nor broad view of the grounds shareholders, available for though appellee, vorable to except on these factors frequently present. are Fix conspiracy, that we have al- Co., Inc., Fix Material 538 S.W.2d ready overruled. 358 (Mo.Ct.App.1976) (citing Gidwitz v. Some of undisputed evidence that the Co., Lanzit Corrugated Box 20 Ill.2d trial court could have also considered in its (1960)). 170 N.E.2d 135[1] oppressive conclusion of conduct includes noting general While definitions are following: of little application value for specific in a (1) appellants claimed that had case, Oregon supreme court in Baker gifted them his 1960’s, stock in the late quoted cited the most oppres- definitions of even though the records of corpora- sive conduct as: tion and income tax returns ‘burdensome, harsh wrongful con- clearly show as a stockhold- duct,’ ‘a lack of probity dealing and fair er, appellants and/or their son had in the affairs of company preju- made attempts purchase several appel- members,’ dice of some of its or ‘a visible lee’s stock in 1980’s,; the 1970’s and departure from the standards of fair (2) a letter corporation’s from the attor- dealing, and an violation play fair ney, 16, 1979, May dated referred ap- which every shareholder who entrusts pellant Davis’ “wish to declaring avoid money to a company is entitled to dividends and surplus disburse the
rely.’
form of bonuses to the officers of the
Baker,
383
1985).
443,
(Alaska
management,”
appel- Coppock,
nor does
705 P.2d
corporate
protection
light
fall under the
in
of the fact
especially
lants’ conduct
This is
true
rule,
judgment
two instances
the business
do not
inappropriate
to
for causes
found
be
$550,000
as the fair value
Texas case
under article 7.05. in a
action
stock,
by
set
which is the amount
by appellants.
cited
Texarkana Col-
See
“buy-out.”
for the
the trial court
537,
Bowl,
Phillips, 408
lege
Inc. v.
S.W.2d
re-
Appellants suggest that
was
1966, no
(Tex.Civ.App.—Texarkana
remedy of
quired
plead
statutory
to
for the
writ).
However, this
not raised
dissolution.
jury’s finding
hold that the
We therefore
error,
they
nor do
separate point
in a
conspiracy
deprive appellee of his
to
authority
provide any argument or
for this
corporation, together
with
contention.
fiduciary
breach
the acts of willful
are within the discre-
Equitable remedies
by
duty
jury,
as found
and the undis-
dis-
of the trial court and will not be
indicating
puted evidence
appeal
on
unless the record reveals
turbed
in the
denied
future voice
would be
a clear
of discretion. Aubin v. Ter-
abuse
are bafficient to
America,
Mortgage
ritorial
Co. of
oppressive
trial court’s conclusion of
con-
(Tex.App.—Houston
S.W.2d
[14th
that it would contin-
duct and
likelihood
writ);
1982, no
see also Citizens
Dist.]
inue
the future.
Azios,
Bldg. Inc. v.
analysis
by
Under the
set out
the Patton
(Tex.Civ.App.—Houston [1st Dist.]
liqui-
court in its determination of whether
n.r.e.) (both finding
appoint-
writ ref’d
appropriate,
dation was
we must determine
not to
ment of a receiver under article 7.05
“buy-out”
whether lesser remedies than a
discretion).
an
be
abuse
adequately protect appellee’s
could
inter-
case,
on the facts of this
we find
Based
Patton,
ests.
In
the court found sufficient
appropriate
that a
was an
reme-
support only
sup-
to
evidence
the malicious
did
its
dy, and that the trial court
not abuse
claim,
pression of dividends
and thus con-
discretion.
mandatory
pay
injunction
cluded that a
to
Points of error one
seven are
reasonable dividends then and in the future
overruled.
adequate,
protec-
with the additional
retaining jurisdiction.
tion of the court
eight through
points of error
case,
damages
In this
the award of
appellants argue
of a
injunctions might
and certain
be sufficient
of the trial court’s
receiver is an abuse
remedy
fiduciary
the willful breaches of
discretion, contending
nei
that there were
i.e.,
duty
by
jury,
found
informal divi
sup
ther
of fact nor evidence to
appellants by making
dends
contribu
previously
port
remedy.”
this “drastic
As
sharing
profit
plan
tions
and waste
mentioned, article 7.05 of the Texas Busi
legal
corporate
funds for
fees. How
provides
ap
Corporation
ness
Act
ever,
denying
appellants’
conduct
based
in an action
pointment of a receiver
corpo
appellee any interest or voice
establishing
aggrieved
upon
shareholder
ration,
these remedies are
we find that
situations, in
the existence of one of five
appellee’s interest
inadequate
protect
cluding oppressive conduct
those
con
corporation.
rights
and his
in the
corporate assets. Article
trol
and waste
part:
7.05 reads
conduct,
Appellants’
may
appointed for the
A. A receiver
be
along
attempts
purchase ap-
with their
corporation by
and business of a
assets
stock,
of their desire
pellee’s
are indications
county in
court for the
which
the district
corporation.
gain total control of the
corporation is
registered office of the
“buy-out” will
exactly
That
what a
located,
exist
whenever circumstances
sug
disagree
achieve. We
ap-
require
the court to
deemed
“buy-out” is a more drastic
gestion that a
to conserve
pointment of
receiver
remedy
liquidation.
than
See Stefano
*9
assets and business of
corporation
record reveals a clear abuse of discretion.
and to
damage
parties
avoid
to
at inter- Aubin,
damages awarded. corporation business of the and to avoid damages parties. Further, of a there is receiver within court, requested the sound discretion of the trial no evidence that ever appeal paid, will informally not be disturbed on unless the that dividends be either
385 provisions formally partnership under the article mission that the was on of formed Corporation 2.38-3 Business 1,1960, of the Act. December and that this was after a piece property acquired of on Novem- We find that the therefore trial court 21, 1960, Lockett, by partner- ber the Cleve in ordering pay- abused its discretion the accountant, ship’s for appellee as trustee ment of future dividends. Point of error appellant. and shows The evidence that 13 is sustained. partnership acquire the this proper- did not remaining points The of error concern 21, ty August 1961, from Lockett until and appellee’s in the partnership property of piece acquired first appellant William Davis. Points of error directly by partnership was on Decem- challenge 14 21 the court's award 15,1960, after the ber two weeks formation ownership of in the six the partnership. of 14, 15, tracts of land. Points of error and We therefore find sufficient evidence to challenge legal 16 factual sufficien- support finding partner- jury’s that cy support of the evidence to ship was the acquisi- formed at or before finding appellant that formed of the piece property. tion first of Points at or the acquisition before of 14, 15, of error and 16 are overruled. piece property acquired first of on 21, November 1960. point 17, In appellant argues error special 47, partner- that determining In issue whether points, no evidence we ship acquisi- are to was formed on or before the consider the evidence and inferences property, tion of the support findings, price tend to first was an and we disregard impermissible evidence, comment on the all evidence inferences to the Bauer, 845, suggestive contrary. King leading appel- v. 688 and was S.W.2d (Tex.1985). special 846 If there is lee’s evidence of desired answer to issue 47A. probative support finding, force to trial, appellant objected spe At point finding must be overruled and the grounds cial issue 47 on the of “no evi upheld. Estate, 662, re King’s 150 Tex. dence, evidence, predicate, insufficient no 664, 660, (1951). 244 661 S.W.2d In review party object comment on the evidence.” A ing questions of factual insufficiency, we charge point to a out distinctly must weigh evidence, must all consider grounds objectionable matter and the both in contrary of and to the objection. Volkswagen, of the Mahan Inc. challenged finding. The must be Hall, (Tex.App.-Houston S.W.2d upheld unless we find that the evidence n.r.e.); 1982, ref’d. Tex.R. writ [1st Dist] manifestly so weak as to be or erroneous complaining party’s Civ.P. 274. When the unjust. Id. The trier of fact is the sole objection or concealed obscured volu judge credibility witnesses objections, objec minous unfounded given and the weight testimony. to be their tion shall Rule 274. Be be untenable. Brannon, Rego Co. v. appellant explain cause failed how the (Tex.App. writ [1st Dist.] — Houston special issue constituted a comment on the n.r.e.). may ref’d We our substitute evidence, this only among but included oth opinion merely might because we objections, appellant er stock we find that conclusion. reached a different Benoit v. preserve objection. failed to this 273, 281, Wilson, 150 Tex. 239 S.W.2d Point of error 17 is overruled. 18, 19, and 20 Points error only appellant’s suffi basis legal sufficiency and factual ciency challenge is conten of evidence jury’s finding evidence to partner admitted that no special issue 47A that all six tracts land ship acquisi was formed at before the Appellant partnership property. are bases piece property, tion of the first which argument there appellant this fact that are no contends was on on the November agreement However, testimony appel 1960. deeds nor written reflecting interest in partnership’s lant indicates refers to ad- property, being the deeds all in the name piece that a certain property did not appellant. He reasserts his claim that the belong partnership, to the held that a writ- first purchased prior tract of land was satisfying ten instrument the statute of partnership, formation of the and fur- required frauds is before individu- purchased ther asserts that it was Lock- ally prospective owned partner prior ett as trustee for him. partnership may formation of a be- *11 partnership However, come a asset. the
In regards assertion, to the latter we in Pappas distinguishable facts are in that already partnership found that the did only piece there was one property at acquire property this from Lockett un- issue, property individually by til after owned one partnership the was formed. Fur- thermore, 21, partners prior of the the deed dated November the formation of 1960, property, referred the by appellant, does not and there was no written serving show for whom conveying Lockett was as instrument property after trustee, and Lockett testified that it was the formation partnership. of the understanding property his that case, In our pieces property all of the being acquired for the land venture consist- acquired were after the formation of the appellee appellant. partnership, though and even the deeds are regards appellant’s (but
In appellant’s first ar in the name not individual- gument, while there are no deeds nor a ly, appellant alleges), as sup- the evidence partnership agreement reflecting written ports finding properties that these were partnership’s tracts, interest in the six purchased for partnership, to which report court-appointed account partners according both contributed ing firm of Price supports Waterhouse respective their shares. jury’s finding. auditor/partner from Appellant’s reliance on Hooks v. Price Waterhouse part testified that the 122, Bridgewater, 111 Tex. 229 1114 S.W. nership books reflected acquisition (1921), regarding exceptions the limited pieces property, by six him described conveyances statute of frauds for oral primary as the activity partnership of the land, misplaced. Appellee is also is not through 1967, methods of financ relying land, conveyance on an oral but ing, primarily bank loans. He also testified contending is that the six tracts were all that partnership that records indicated purchased by and for the benefit of the appellant owned the assets of Furthermore, partnership. appellant ad in split, a 55/45 and that all mits in his brief that the statute of frauds contributions to the were made inapplicable property is if it is shown that shares, according except respective to their person held the name of one is held in split. the first one that reflected a 50/50 trust for another. The trial court must Appellee testified that the reason the impressed have so concluded when it appellant’s deeds were taken in name was resulting property. trust on the appellant managing part- because was the find We therefore that claim to and, appellee, ner unlike in Houston. lived in the six tracts of land is not legally factually We find sufficient barred the statute of frauds. Point of findings evidence to error 21 is overruled. partnership prop- all six tracts of land were Having points overruled of error 14 erty. 18, 19, Points of error and 20 are 21, through judg- we hold that the court’s overruled. awarding appellee ownership ment point 21, argues appellant of error the six tracts of land was not error. claim of interest in the six tracts Points of error 22 27 of land is unenforceable because imposing resulting trust the court’s convey- statute of frauds and the statute on the six tracts of land. Appellant Pappas favor ances. relies on v. Gounaris, 355, argues plead- there no Appellant 644 were 158 Tex. 311 S.W.2d submitted, (1958), court, finding ings, findings, or supreme special where the issues
387
imposition
purchase price
evidence to
of a
at the time of the trans
resulting
Corsi,
trust.
action. Nolana Dev. Ass’n v.
(Tex.1984);
246,
Bybee
see also
S.W.2d
that, among
The record
shows
(Tex.App.—
Bybee,
v.
S.W.2d
requests, appellee prayed
other
for the im
writ)
(partial equitable
Fort Worth
no
trust,
position of a constructive
and “for
imposed
portion
title
where
relief,
such other and further
at law and
purchase money
one not
contributed
equity,
plaintiff may
to which
himself
show
deed.)
resulting
if
named in a
Even a
trust
justly
general
A prayer
enriched.”
re
improper,
were
the evidence and
permit
lief is
sufficient
the trial court to
imposition
clearly support
of a con
resulting
impressed
decree that a
trust be
trust,
requested by
structive
which was
person
held in trust
one
and,
mentioned,
previously
person.
of another
Wimberly
benefit
resulting
A
often confused with a
trust.
Kneeland,
(Tex.Civ.
however,
trust
unlike a result
App.
n.r.e).
constructive
writ ref'd
— Galveston
*12
trust,
of,
Furthermore,
ing
implied irrespective
resulting
is
while a
trust and a
to,
distinguishable,
contrary
any implied
trust are
intention of
constructive
even
recognize
Mills,
987,
courts
parties,
existence of confusion the
210 S.W.2d at
trusts,
these
between
two
which achieve
imposed upon
can
be
violation of fidu-
Gray,
same result. Mills v.
147 Tex.
cary duty
adjust
rights
part
and to
33,
(1948)(citing
We need not determine whether
ordered,
property can
it must be
sale of
be
the evidence is
sufficient to
property
suscep-
trust,
that the
is not
imposition
resulting
established
of a
which
kind,
someone,
partition in
and that this de-
implied in
tible to
law when
other than
taken,
question of fact for the
person
pays
in
termination is a
whose name title is
jury.
points
He
no
special mony
out that
expert appraisal
of the
witness con-
requested
issue was
or submitted to the
cerning the effect on the property’s value
jury,
argues
nothing
in the jury’s
parties’
of the
ownership
lack of
of the
findings support
determination,
such a
entire block.2 We find this evidence to be
that, therefore, the trial court lacked au-
legally insufficient for the court to con-
thority or abused its
in ordering
discretion
clude,
law,
as a matter of
property
the sale.
susceptible
partition
in kind.
partition
kind,
The law favors a
Because
spe-
failed to submit a
fairly
when such can
equita
be made
cial
regarding
non-susceptibility
issue
bly, rather than a forced sale with the
partition,
that,
of the
we hold
proceeds.
Johns,
division of
Rayson
v.
the absence of evidence to establish it as a
(Tex.Civ.App
law,
matter of
the court’s order of a forced
. —Texar
n.r.e.).
kana
writ ref’d
Before a sale
sale and
of the receiver
ordered,
will
party seeking
be
the sale
property,
partition
to sell the
rather than
prove by preponderance
must
of the evi kind, was error.
dence that the propérty
susceptible
is not
Points of
error 27
33 are sus-
to a
equitable partition
fair and
in kind.
tained.
Adams,
Adams
205 S.W.2d
portion
judgment
of the trial court’s
(Tex.Civ.App.
writ).
no
When
— Waco
ordering mandatory injunction
pay
div-
evidence on the
susceptibility
issue of
idends
the future is reversed and ren-
conflicting or admits of more than one in
portion
judgment
dered. The
order-
ference, its
determination is for the
partnership proper-
a forced sale of the
fact,
preponderance
trier of
based on a
*13
ty
procedures
is reversed and remanded for
Rayson,
the evidence.
at
necessary
partition
for the
in kind of the
(and
therein);
cases cited
see also
v.White
matters,
property.
In all other
judg-
Smyth,
Tex
tion). EVANS, Justice, concurring Chief Appellant argues that there is no evi- dissenting. regarding non-susceptibility dence majority’s holding I concur with the ex- property partition. He further ar- cept majority the extent concludes gues pleadings that own that the trial court its discretion in proof abused special and the issues all refer to requiring appellants pay and, that the reason- separate distinct and tracts of land thus, annually appellee in able dividends fu- property’s susceptibility years profits ture from partition. retained and re- We further note that earnings petition, appellee alleged long tained of the as never that property susceptible partition, as the remains a shareholder in and, prayer, requested corporation. in his formal he determining the court “enter a decree my opinion, jury’s findings sup- property susceptible partition port the trial court’s conclusion that unless directing partition in accordance with so, appellants ordered to do would never respective parties.” shares of the pay any in the dividends Therefore, appellee points The my evidence future. it is view that non-susceptibility to for court did not abuse its discretion direct- alleged pay is the inference that reasonable divi- appellee pending the court could have drawn from the testi- dends to the the effectua- block, adjoining city 2. All six tracts are within one tract. Davis, individually, Catherine owns a seventh Although, buy-out. ordered out, majority points did protection injunctive have the of other or- receivership, protection and the
ders not, my opinion, preclude trial does specific injunc- that a court’s determination adequate provide tive order needed to protection. JENNINGS, Wayne Appellant,
Richard Texas, Appellee. STATE No. 01-86-00260-CR. Appeals Texas, Court of (1st Dist.). Houston June 1988. Rehearing July Denied 1988. *14 Proctor, Houston, Boyd, Walter
T.W. appellant. Holmes, Atty. B. Dist. Harris Coun-
John appellee. ty, for EVANS, C.J., SAM Before DUNN, BASS and JJ.
OPINION
DUNN, Justice. Appellant pleas entered of nolo conten- indecency sepa- child in dere to with a two