§ 7-60-130, 3A C.R.S. (1986). See also Schoeller v. Schoeller, 497 S.W.2d 860 (Mo.App. 1973); Bader v. Cox, 701 S.W.2d 677 (Tex.App. 1985); Lange v. Bartlett, 360 N.W.2d 702 (Wis. 1984). "The winding up includes the entire process of settling the partnership affairs after dissolution."
The vast majority of Partnership clients opted to have the new Gonzales & Gonzales entity “continue to represent” them.SeeBader v. Cox , 701 S.W.2d 677, 681–82 (Tex.App.–Dallas 1985, writ ref'd n.r.e.) (plurality op.) (holding that contingent-fee contracts of dissolving law firm partnership were “unfinished business” and assets of the partnership required to be wound up); id. at 688 (Whitham, J., concurring) (agreeing with that holding); see alsoHarris v. Harris , 765 S.W.2d 798, 803–04 (Tex.App.–Houston [14th Dist.] 1989, writ denied) (similarly recognizing that contingent-fee contract between law partnership and clients was partnership property).While many of the case authorities we cite were decided under predecessor statutes to the Business Organizations Act, the material holdings and principles we note would apply under the Act as well.
When the appellant does properly attack the trial court's sustaining of the special exceptions and dismissal of the cause of action, we review the pleading to determine whether the trial court abused its discretion in sustaining the special exceptions. Bader v. Cox, 701 S.W.2d 677, 686 (Tex.App. — Dallas 1985, writ ref'd n.r.e.). We construe the petition liberally accepting as true all of the factual allegations set forth.
Texas courts have consistently indicated that to force a party to plead his or her entire case with exactness is not concordant with the spirit of the rules governing pleadings. Bader v. Cox, 701 S.W.2d 677 (Tex.App. — Dallas 1985, writ ref'd n.r.e.). Fair notice has been given if the pleadings are sufficiently specific that an opposing attorney of reasonable competence can ascertain from the pleadings the nature and the basic issues of the controversy and the testimony probably relevant. Bader, 701 S.W.2d 677. The party excepting to a pleading must show that fair notice has not been given. Bader, 701 S.W.2d 677.
Although "surplus" is not defined in TUPA, Texas courts have held that "'[s]urplus' is the excess of assets over liabilities." Bader v. Cox, 701 S.W.2d 677, 681 (Tex.App. 1986) (citingFulgham v. Gulf, Colorado Santa Fe Railway Co., 288 S.W.2d 811, 813 (Tex.App. 1956)).
In fact, the “efforts, skill and diligence” rule appears to read that provision right out of the statute, in contravention of the Legislature's intent, as plainly expressed in Partnership Law § 40(6). Furthermore, the case on which Kirschrelies—Bader v. Cox, 701 S.W.2d 677 (Tex.App. Dist. 5 1985), involved what was considered a “surviving” partner, who is therefore expressly entitled to compensation under the UPA's modification of the no compensation rule. Bader, in turn, relies on Timmermann v. Timmermann, 272 Or. 613, 538 P.2d 1254 (1975) (en banc), which appears to embrace the rule that any partner who winds up firm business is entitled to compensation, even if she was not forced to do so by the death of her partner.
In fact, the “efforts, skill and diligence” rule appears to read that provision right out of the statute, in contravention of the Legislature's intent, as plainly expressed in Partnership Law § 40(6). Furthermore, the case on which Kirsch relies—Bader v. Cox, 701 S.W.2d 677 (Tex.App.1985), involved what was considered a “surviving” partner, who is therefore expressly entitled to compensation under the UPA's modification of the no compensation rule. Bader, in turn, relies on Timmermann v. Timmermann, 272 Or. 613, 538 P.2d 1254 (1975) (en banc), which appears to embrace the rule that any partner who winds up firm business is entitled to compensation, even if she was not forced to do so by the death of her partner.
BLACK'S LAW DICTIONARY 1090 (5th ed. 1979).See Bader v. Cox, 701 S.W.2d 677, 681 (Tex.App. — Dallas 1985, writ ref'd n.r.e.).See Bader, 701 S.W.2d at 681-82; Humphrey v. Bullock, 666 S.W.2d 586, 590 (Tex.App.-Austin 1984, writ ref'd n.r.e.); Egan v. American State Bank, 67 S.W.2d 1081, 1084 (Tex.Civ.App.-Amarillo 1934, writ refused); art. 6132b, § 40(a)-(c).
¶ 44. Bader v. Cox, 701 S.W.2d 677 (Tex.App. 1985), another case affirming that the burden is on the exiting partner to establish profits attributable, is of particular relevance to our burden of proof discussion. In Bader, the widow of a deceased partner sought to recover profits of the partnership's business, and the court placed the burden on the widow to prove profits attributable, concluding that it is the exiting partner who "must prove, by competent evidence, the profits gained after dissolution and prior to termination which are attributable to the use of decedent's right in the property of the dissolved partnership."
In the context of the DKBP partnership agreement, we define work in process as: the unfinished business of the dissolved partnership, including those contractual agreements for the performance of services which were in existence before the dissolution of the partnership. See Bader v. Cox, 701 S.W.2d 677, 682 (Tex.Ct.App. 1985); WYO. STAT. § 17-13-605(a) (1988). Unfortunately, this process was not faithfully executed.