Thomas v. American National Bank

704 S.W.2d 319
CourtTexas Supreme Court
DecidedFebruary 19, 1986
DocketNo. C-4278
StatusPublished

This text of 704 S.W.2d 319 (Thomas v. American National Bank) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas v. American National Bank, 704 S.W.2d 319 (Tex. 1986).

Opinion

McGEE, Justice.

This is an appeal from a summary judgment granted in favor of American National Bank. The question is whether the evidence raises an issue of fact whether the joint venture known as Southwestern Cinema was dissolved before American National Bank lent it $360,000. The trial court found that the joint venture had not dissolved at the time of the loan and granted the Bank’s motion for summary judgment against the joint venture, Southwestern Cinema; the joint venture’s partners, McCombs, Thomas, and PGR Investment Company; and the individual partners of PGR Investment Company, Porter, Gonzalez, Rogers, and Dahlman, jointly and severally. The court of appeals affirmed the trial court judgment, holding that Thomas and McCombs had not effectively withdrawn their participation in Southwestern Cinema and, therefore, were liable on the note to American National Bank. 694 S.W.2d 543. We reverse the judgment of the court of appeals and remand the cause to the trial court. An issue of fact exists whether Thomas and McCombs effectively withdrew from the joint venture and dissolved the partnership prior to American National Bank’s loan to Southwestern Cinema.

Southwestern Cinema was a joint venture organized by Charles F. Thomas, B.J. McCombs, and PGR Investment Company in 1980 for the purpose of purchasing and distributing two motion pictures. PGR Investment Company is a partnership composed of four individuals: Charles R. Porter, Jr., Rick Rogers, Terrell W. Dahlman, and Celso Gonzalez. Gonzalez is the managing partner of PGR Investment Company and the managing venturer in Southwestern Cinema. According to the Southwestern Cinema joint venture agreement, Gonzalez had the express authority to borrow up to $500,000 to finance the venture. The distributed shares of the venturers are: McCombs — 33 ⅛%; Thomas — 33 ⅛%; and PGR Investment Company — 33⅛%, owned collectively by its partners.

The initial funding for Southwestern Cinema came from several sources and was ultimately consolidated in 1981 in a loan of $360,000 from Parkdale State Bank in Corpus Christi, Texas. Thomas and McCombs admit that they were partners in Southwestern Cinema at that time and acknowledge they were individually liable as such for the Parkdale Bank indebtedness.

On May 21, 1982, shortly before the Parkdale note matured, Gonzalez negotiated a new loan with American National Bank on behalf of Southwestern Cinema and used the proceeds from this loan to pay off the Parkdale State Bank loan. Later, when the American National Bank loan became due and Southwestern Cinema failed to timely pay the indebtedness due, the Bank gave notice and demanded payment of the note from Southwestern Cinema and its partners, individually. This suit was filed to collect on the note.

Thomas and McCombs allege they are not liable on the note to American National Bank because they had effectively dissolved the joint venture prior to the time the loan was negotiated. Article X of the Southwestern Cinema joint venture agreement specifically provides that the venture shall be dissolved by agreement of ventur-ers having 66⅝% interest in the capital account of the venture. It is undisputed that Thomas and McCombs own 66%% of the joint venture. The agreement does not specify any formalities to effect a dissolution. Therefore, by the terms of the joint venture agreement, the venture could be dissolved by Thomas and McCombs agreeing to do so.

In their depositions, both Thomas and McCombs state that they came to a mutual agreement early in 1982 to get out of the venture because of their inability to obtain information from Gonzalez with regard to their interests in the joint venture. Thom- ’ as and McCombs contend they dissolved [323]*323the joint venture when Thomas told Gonzalez, the managing partner of PGR Investment Company and the managing venturer of Southwestern Cinema, prior to May 21, 1982, that he and McCombs wanted out of the joint venture. TEX.REV.CIV.STAT. ANN. art. 6132b, § 31 (Vernon 1970). They further contend that subsequent to Thomas telling Gonzalez that he and McCombs wanted out, it was agreed that Thomas and McCombs would assign their interest in the joint venture to Gonzalez in his individual capacity.

American National Bank, however, does not characterize that conversation as including a notice of dissolution. Rather, American National Bank characterizes it simply as an assignment of Thomas’s and McCombs’s interest in the joint venture to Gonzalez in his individual capacity. By characterizing the conversation simply as an assignment, the Bank reaches the conclusion that a dissolution did not occur. TEX.REV.CIV.STAT.ANN. art. 6132b, § 27(1) (Vernon 1970).

While it is true that an assignment of interest in a partnership by a partner will not cause a dissolution of the partnership itself, American Bank’s reliance on section 27 is misplaced. That section states that a:

conveyance by a partner of his interest in the partnership does not of itself dissolve the partnership, nor, as against the other partners in the absence of agreement, entitle the assignee ... to interfere in the management of administration of the partnership business or affairs; it merely entitles the assignee to receive in accordance with his contract the profits to which the assigning partner would otherwise be entitled_ (emphasis added).

When a partner assigns his rights in the partnership, but the remaining partners have not agreed to admit the assignee as a partner, this section assures that the as-signee does not become a partner without the consent of the remaining partners in contravention of section 18 of the Uniform Partnership Act (hereinafter UPA). TEX.REV.CIV.STAT.ANN. art. 6132b, § 18(l)(g) (Vernon 1970). By distinguishing between assignees of a partnership interest and the admission into the partnership of new partners, section 27(1) operates to allow conveyance of a right to receive profits without giving the assignee an interest in the firm’s assets. See Wester & Co. v. Nestle, 669 P.2d 1046, 1048 (Colo.App.1983); Rapoport v. 55 Perry Co., 50 A.D.2d 54, 376 N.Y.S.2d 147 (1975). Hence, the provision that the partnership is not dissolved when a partner assigns his interest in the partnership merely protects the original parties from an unwanted partner or from a finding of partnership from the fact of the assignee’s receipt of a share of the profits. See TEX.REV.CIV.STAT.ANN. art. 6132b, § 7(4) (Vernon 1970). However, section 27 and Thomas’s and Gonzalez’s discussion of assignment is not dispositive of whether a dissolution occurred.

In contrast, section 29 of the UPA provides that dissolution of a partnership is the change in relation of the partners caused by any partner ceasing to be associated in the carrying on of the business. This section is consistent with the concept expressed in section 31 of the UPA, upon which Thomas and McCombs rely, which provides that dissolution is caused by "the express will of any partner_” TEX.REV.CIV.STAT.ANN. art. 6132b, §§ 29, 31 (Vernon 1970). Thus, no party is compelled to continue as a partner when, by his express will, he chooses to withdraw.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Nicholes v. Hunt
541 P.2d 820 (Oregon Supreme Court, 1975)
Timmermann v. Timmermann
538 P.2d 1254 (Oregon Supreme Court, 1975)
Wester & Co. v. Nestle
669 P.2d 1046 (Colorado Court of Appeals, 1983)
Cave v. Cave
474 P.2d 480 (New Mexico Supreme Court, 1970)
McKellar v. Bracewell
473 S.W.2d 542 (Court of Appeals of Texas, 1971)
Wilcox v. St. Mary's University of San Antonio, Inc.
531 S.W.2d 589 (Texas Supreme Court, 1975)
Babray v. Carlino
276 N.E.2d 435 (Appellate Court of Illinois, 1971)
Green v. Waco State Bank
14 S.W. 253 (Texas Supreme Court, 1890)
Thomas v. American National Bank
694 S.W.2d 543 (Court of Appeals of Texas, 1985)
Rapoport v. 55 Perry Co.
50 A.D.2d 54 (Appellate Division of the Supreme Court of New York, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
704 S.W.2d 319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-american-national-bank-tex-1986.