In re Carlos Hernandez--Appeal from 79th Judicial District Court of Jim Wells County

MEMORANDUM OPINION

No. 04-03-00151-CV

IN RE Carlos HERNANDEZ

Original Mandamus Proceeding

Arising from the 79th Judicial District Court, Jim Wells County, Texas

Trial Court No. 99-09-37876

Honorable Terry Canales , Judge Presiding

Opinion by: Alma L. L pez , Chief Justice

Sitting: Alma L. L pez , Chief Justice

Paul W. Green , Justice

Karen Angelini , Justice

Delivered and Filed: April 2, 2003

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

Carlos Hernandez ("Carlos") seeks mandamus relief from the trial court's order granting a new trial on the basis that the jury's answers to two questions submitted in the jury charge were conflicting. Because the jury's answers do not contain an irreconcilable conflict, the trial court abused its discretion in granting the new trial.

Background

Carlos filed suit against his brother, Oscar, claiming that Carlos and Oscar agreed to become partners and co-owners of a partnership. Carlos claimed that Oscar failed to give him his equal share in the profits. After one confrontation, Oscar claimed that he was the sole owner of the business and took control over all of the partnership's assets and accounts.

The case was tried before a jury. During deliberations, the jury sent a note stating, "We need clarification on question 3 as [sic] relation to question 5." The trial court responded that the jury was to answer the questions as presented, and the jury was not to concern itself with the relationship, if any, of one question to another.

In response to the first two jury questions, the jury found that the partnership was dissolved by the withdrawal of a partner on July 31, 2000. In response to the third jury question, the jury found the fair value of Carlos's interest as of the date of withdrawal was $15,719. In response to the fourth jury question, the jury found that there was a continuation of the partnership business, without a settlement or liquidation of the partnership and, without objection from a partner for ninety (90) days after the withdrawal. In response to the fifth jury question, the jury found that Carlos was owed $15,719 for undistributed profits earned during the existence of the partnership. On January 16, 2003, the trial court granted a new trial on its own motion based on its finding that the jury's answers to question 3 and 5 were conflicting.

Discussion

Where no irreconcilable conflict exists in a jury's findings, the trial court has a ministerial duty to enter a judgment on the verdict. Traywick v. Goodrich, 364 S.W.2d 190, 191 (Tex. 1963);Rod Ric Corp. v. Earney, 651 S.W.2d 407, 408 (Tex. App.--El Paso 1983, orig. proceeding). Mandamus relief may be granted if a trial court abuses its discretion in granting a new trial on the specific basis that the jury's answers contain an irreconcilable conflict. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985); Stolhandske v. Stern, 14 S.W.3d 810, 816 (Tex. App.--Houston [1st Dist.] 2000, orig. proceeding [leave denied]). A jury's answers only contain an irreconcilable conflict if one of the answers requires a judgment in favor of one party while the other would require a judgment in favor of the other party. Otis Spunkmeyer, Inc. v. Blakely, 30 S.W.3d 678, 690 (Tex. App.--Dallas 2000, no pet.); Checker Bag Co. v. Washington, 27 S.W.3d 625, 642 (Tex. App.--Waco 2000, pet. denied); National Union Fire Ins. Co. of Pittsburg v. De La Cruz, 781 S.W.2d 697, 704 (Tex. App. --San Antonio 1989, writ denied).

The jury's answers in this case do not contain an irreconcilable conflict. Regardless of the amount the jury answered in response to questions 3 and 5, Carlos was entitled to recover based on the jury's answer to question 1.

Article 6132b-7.01 of the Texas Revised Partnership Act provides that if an event of withdrawal occurs (which the jury found to have happened), and no event requiring a winding up occurs within 60 days after the date of withdrawal, the partnership interest of the withdrawn partner automatically is redeemed, and the redemption price is the fair value of the interest as of the date of withdrawal. Tex. Rev. Civ. Stat. Ann. art. 6132b-7.01(a),(b) (Vernon Supp. 2002). If a withdrawn partner is required to maintain an action to have his interest redeemed in order to determine the terms of the redemption, and a court finds that the other party acted arbitrarily, vexatiously, or not in good faith, the court may assess damages against the other party, including if appropriate a share in the profits of the continuing business. Tex. Rev. Civ. Stat. Ann. art. 6132b-7.01(l) (Vernon Supp. 2002).

On the other hand, if a partner withdraws and an event occurs within 60 days that requires a winding up of the partnership: (1) the partnership may defer paying the redemption price to the withdrawing partner until the partnership first makes a winding up distribution to the remaining partners; and (2) the redemption price or contribution obligation is the amount the withdrawn partner would have received or contributed if the event requiring a winding up had occurred at the time of the partner's withdrawal. Tex. Rev. Civ. Stat. Ann. art. 6132b-7.01(m) (Vernon Supp. 2002). In the situation where a partner withdraws and a winding up occurs, the partnership interest of the withdrawn partner is credited with a share of any profits for the period after the partner's withdrawal but is charged with a share of losses for that period only to the extent of profits credited for that period. Tex. Rev. Civ. Stat. Ann. art. 6132b-8.06(b) (Vernon Supp. 2002).

Because the jury found that Carlos withdrew from the partnership, the jury's answers require a judgment in favor of Carlos, and the trial court must determine from the jury's answers what the appropriate redemption price is for that interest. None of the jury's answers require a judgment in favor of Oscar. Because the jury's answers did not contain an irreconcilable conflict, the trial court had a ministerial duty to enter a judgment on the jury's verdict and abused its discretion in granting a new trial. Johnson, 700 S.W.2d at 918; Traywick, 364 S.W.2d at 191.

Conclusion

Because the trial court abused its discretion in granting a new trial, we conditionally grant the writ of mandamus. The writ will only issue if the trial court fails to withdraw its order granting the new trial within ten days from the date of our opinion and order.

Alma L. L pez , Chief Justice

PUBLISH