In the Fifth District of Texas, the law is clear that a civil-conspiracy finding “remains a valid basis for joint and several liability even when [TCPRC] Chapter 33’s joint and several liability conditions are not satisfied.” Guillory v. Dietrich, No. 05-18-00504-CV (Jan. 6, 2020), reinforced the Fifth Court’s prior holding on this point in LandAmerica Commonwealth Title Co. v. Wido, No. 05-14-00036-CV, 2015 WL 6545685 (Tex. App.–Dallas Oct. 29, 2015, no pet.) (mem. op.), noting the subsequent opinions in Agar Corp., Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136 (Tex. 2019), and Stephens v. Three Finger Black Shale P’ship, 580 S.W.3d 687 (Tex. App.–Eastland 2019, pet. filed)).

The jury in Aztec Systems, Inc. v. glendonTodd Capital, LLC found a “joint enterprise” among the defendants in a contract dispute and the Fifth Court reversed. Assuming without deciding that the doctrine applied outside the tort context, the Court found that no evidence showed “how, or whether, the monetary benefits of the enterprise were shared,” or that the two businesses had “an equal right to a voice in the direction of the enterprise.” Potential profit from an eventual sale of one of the businesses was “insufficient to establish a community of pecuniary interest.” No. 05-18-00183-CV (March 29, 2019) (mem. op.) (applying, inter alia, David L. Smith & Assocs.. LLP v. Stealth Detection, Inc., 327 S.W.3d 873 (Tex. App.–Dallas 2010, no pet.)

In the context of affirming a grant of summary judgment for the defendants in a dispute about a commercial real estate development, the Fifth Court observed: “The elements of a joint venture are (1) an express or implied agreement to engage in a joit venture, (2) a community of interest in the venture, (3) an agreement to share profits and losses from the enterprise, and (4) a mutual right of control or management of the enterprise. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 225 (Tex. 2017). Joint venturere owe fiduciary duties to each other. Kirby v. Cruce, 688 S.W.2d 161, 165 (Tex. App.–Dallas 1985, writ ref’d n.r.e.).” Tin Star Development LLC v. 360 Residential LLC, No. 05-17-00040-CV (April 17, 2018) (mem. op.)

The court of appeals has affirmed a summary judgment ruling in favor of the owner of Las Colinas Country Club, in a case arising out of the death of a man who was diving for golf balls in the water hazard at the 18th green. The worker’s widow claimed that the country club was liable under the theory that it was engaged in a joint enterprise with the company it had contracted to recover lost golf balls, which had also employed the decedent. The country club obtained summary judgment on the basis that there was no evidence of a “community of pecuniary interest,” as required by the joint enterprise doctrine. The court of appeals agreed, holding that it was insufficient for the plaintiff to show that the country club paid the ball retrieval company 12 cents for each ball recovered. Joint enterprise theory does not rest on the fact that the defendants each had a common business interest in the enterprise.  Instead, it requires a common interest that is “shared without special or distinguishing characteristics” in the relevant common purpose. Although each party to the ball retrieval contract benefited from it, that fact alone was not capable of establishing that the defendants had a community of pecuniary interest.

Logan v. Irving Club Acquisition Corp., No. 05-11-01314-CV