Pilcher v. Wheeler

Opinion

GILBERT, J.

The defendants in an action alleging breach of a limited partnership agreement prevailed in the trial court, but the trial court denied their motion for attorney fees. The partnership agreement did not have a provision for attorney fees, but a construction contract entered into pursuant to the partnership agreement did.

On appeal of the order denying the motion for fees, the defendants contend the partnership agreement and construction contract should be read together (Civ. Code,

1

§ 1642) or, in any event, the equitable principles stated in

Jones

v.

Drain

(1983) 149 Cal.App.3d 484 [196 Cal.Rptr. 827], compel an award of fees. We affirm.

Facts

Robert G. and Lawanda Pilcher entered into a limited partnership agreement with Dennis B. Wheeler, Jr., and David Martindale. Wheeler and

[354]

Martindale were the general partners, and the Pilchers were limited partners. The sole purpose of the partnership was to construct commercial condominium units on certain property in the Morro Bay area and to sell the units.

Article 17 of the agreement provided that “[t]he partnership shall enter into a contract with Wheeler Construction Co., Inc. for construction of 13,000 to 14,000 square feet of commercial condominium space.” But the same article provided “[w]hile the parties anticipate entering into a contract with Wheeler Construction Co., Inc., the partnership may consider bids from third parties unrelated to Wheeler.” The article also stated that the parties anticipated the cost of the construction would be approximately $390,000.

Article 21 of the agreement gave the general partners the sole and complete charge of the affairs of the partnership and the authority to employ independent contractors and to bind the partnership in all transactions involving the partnership’s property or business affairs.