author: McDONALD, Chief Justice.

text:
    W. C. PERRYMAN, Appellant, v. David F. SELF, Sr., et ux., Appellees.
    No. 5642.
    Court of Civil Appeals of Texas, Waco.
    Jan. 20, 1977.
    H. Kelly Ireland, Potter, Lasater, Guinn, Minton, Knight & Dickerson, Tyler, for appellant.
    W. A. Keils, Jr., Teague, Joe Cannon, Groesbeck, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Perryman from $9,450. judgment against him in favor of plaintiffs Self.

Plaintiffs Self sued defendants Perryman and Corley Drilling Company for damages to plaintiffs’ property during the drilling of an oil well on such property. Plaintiffs own the surface of 280 acres of land; Per-ryman owns an oil and gas lease on such property; and Corley drilled the well.

During the drilling of the well Corley’s employees drove a truck into plaintiffs’ barn, ruined plaintiffs’ fences; used a mud pump with a defective engine; all of which the jury found was negligence and a proximate cause of $9,450. damage to plaintiffs. The jury further found (Issue 10) that Cor-ley was “acting as an employee” of Perry-man, and not as an “independent contractor”.

Perryman’s motion for judgment non ob-stante veredicto was overruled by the trial court, which then rendered judgment on the verdict for plaintiffs for $9,450. against Perryman and Corley, jointly and severally, and provided Perryman indemnity over against Corley for sums paid by Perryman to plaintiffs.

Perryman appeals on one point: “The trial court erred in denying defendant Per-ryman’s motion for judgment non obstante veredicto for the reason there was no evidence and in the alternative insufficient evidence to support the jury’s finding in Issue 10 that Corley Drilling Company was acting as an employee of Perryman”.

If Corley was an Independent Contractor, Perryman is not liable for Corley’s negligence in damaging plaintiffs’ property. If Corley is an agent or employee of Perry-man, then Perryman is liable for such damages.

If there is any evidence that Cor-ley was an agent or employee of Perryman the trial court correctly overruled the motion for judgment non obstante veredicto. And the evidence must be considered in a light most favorable against whom the motion is sought and every reasonable intendment deducible from the evidence is indulged in such party’s favor. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194; Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547.

Whether Corley is an independent contractor or an agent or employee depends on whether Perryman had the right to control the details of the work. Newspapers, Inc. v. Love, Tex., 380 S.W.2d 582; Pitchfork Land and Cattle Co. v. King, 162 Tex. 331, 346 S.W.2d 598.

Plaintiffs owned the surface of the land. Perryman owned an oil and gas lease authorizing him to drill for oil and gas. Perryman entered a written contract with Corley under which Corley agreed to drill a well at a site selected by Perryman “4900 feet * * * ” for $15,000. furnishing all labor and material; and assuming liability for injuries to “any person or property, incident to or resulting from the operations of the contractor hereunder”.

Witness Frizzell, Perryman’s “accountant, trouble shooter and general manager” testified he was on the land during the drilling operation; that Perryman had a “drilling superintendent” on the ground during the drilling; that the drilling superintendent “represented us at the well to see that the work was properly done”; “he has the authority to protect our interest”; and “Q. And to correct things there at the well site in behalf of Mr. Perryman? A. That is right”.

And Perryman introduced into evidence Exhibit 7, his report to the Railroad Commission of Texas of plugging the well. Such report was signed by “Corley,” as “Agent”.

While the foregoing does not conclusively establish that Corley was an agent or employee of Perryman, (and we have not considered Exhibit 7 as a judicial admission); such constitutes some evidence which the jury had a right to believe; and we think same ample to sustain the jury’s answer to Issue 10.

Defendant Perryman’s point is overruled.

AFFIRMED.


source: Caselaw Access Project

author: SPURLOCK, Justice.

license: Public Domain

text:
    William T. ALFORD et ux., Appellants, v. CITY of DENTON, Texas, Appellee.
    No. 17789.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 21, 1977.
    McGuire, Levy, Collins & McCurley, John E. Collins, Irving, for appellants.
    Paul C. Isham, City Atty., City of Den-ton, Denton, for appellee.
   OPINION

SPURLOCK, Justice.

This is a summary judgment case. William T. Alford and wife, the owners of Ranch Estate Water Co., a water utility system, brought suit against the City of Denton, Texas, to recover damages caused by the City installing a competing water system. The City obtained a summary judgment. The Alfords appealed.

We affirm.

During oral submission the parties agreed that there is no genuine issue as to any material fact. It follows then that the question before the Court is whether the moving party is entitled to judgment as a matter of law. All of the material facts are before the Court by stipulation.

In general, the plaintiffs alleged that they acquired on November 10, 1964, a water system and were providing water services for the residents of Ranch Estate Addition, an addition outside the city limits of Denton. They continued this service until Denton annexed this addition. About two years later Denton installed a water system and began providing water service to the Ranch Estate Addition. Plaintiffs called upon the City to either compensate them for their water supply system or to cease competing with them in the supplying of water to this addition. They further alleged that their system had a life expectancy of 20 years and they could have reasonably anticipated a net profit of $138,-000.00 for the next 20 years except for the competition the City is now giving them in the supplying of water to this addition. Plaintiffs contend that the City’s action constitutes a taking of their property without compensation in violation of the Texas Constitution. (Emphasis added).

In summary form, the facts established by stipulation are: that the plaintiffs became owners of this water system on November 10, 1964, at which time they had four customers; Denton is a home-rule City; on July 28, 1970, plaintiffs supplied services to 42 customers in that subdivision; the City of Denton had never issued to them a public utility franchise; on April 7, 1972, 32 residents of this subdivision, who were serviced by plaintiffs, petitioned Den-ton for the extension of water services by Denton into this subdivision; Denton granted this request and began providing water to these residents in March 1973; the City’s water lines were installed separate and apart from those installed by the plaintiffs; Denton never physically interfered with plaintiffs’ property nor prevented them from selling or supplying water to their customers; Denton never made any payments or consciously assumed any obligation to plaintiffs; and at the time this suit was filed, plaintiffs were providing services to approximately 12 customers and the City to 35 customers.

The real basis of plaintiffs’ cause of action is that before the addition was annexed by the City they had constructed water lines and mains in what are now the City’s streets and were supplying customers and, therefore, had a monopoly to render such services to this addition. When the City installed its lines and started servicing customers, it took plaintiffs’ property without compensation in violation of Tex.Const. art. I, § 17. Its damages were its alleged loss of profits for the next 20 years, had it operated free of any competition.

Tex.Const. art. I, § 17 provides: “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person;

Tex.Const. art. I, § 26 provides: “Perpe-tuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this State.”

Denton is a home-rule City and, therefore, it has all the powers of home-rule cities granted to it be the Legislature. Tex. Rev.Civ.Stat.Ann. art. 1175 (1963), provides: “Cities adopting the charter or amendment hereunder shall have full power of local self-government, and among the other powers that may be exercised by any such city the following are hereby enumerated for greater certainty:”

“2. The power to fix the boundary limits of said city, to provide for the extension of said boundary limits and the annexation of additional territory lying adjacent to said city . .

“11. To have the exclusive right to own, erect, maintain and operate water works and water works system for the use of any city, and its inhabitants, . . . suitable grounds within and without the limits of the city on which to erect any such works and the necessary right of way, and to do and perform whatsoever may be necessary to operate and maintain the said water works or water works system

“12. To prohibit the use of any street, alley, highway or grounds of the city by any telegraph, telephone, electric light, street railway, interurban railway, steam railway, gas company, or any other character of public utility without first obtaining the consent of the governing authorities expressed by ordinance and upon paying such compensation as may be prescribed and upon such condition as may be provided by any such ordinance. . .

“13. To buy, own, construct within or without the city limits and to maintain and operate . . . any other public service or public utility, . .

“18. To control, regulate and remove all obstructions or other encroachments or encumbrances on any public street, alley or ground, . .”

In Brown v. Town of Corinth, 515 S.W.2d 722 (Tex.Civ.App.—Fort Worth 1974, no writ), this Court had before it a case very similar to the one now before us. In that case a husband and wife who owned a water works brought suit against the Town for inverse condemnation of their water system and an injunction. They likewise had been operating a water system in the streets of a subdivision before the subdivision became a part of the Town of Corinth by incorporation.' The Town of Corinth did no more than to “go into business” in competition with the plaintiffs which resulted in a material decrease in plaintiffs’ business and, therefore, decreased the value of their property. In that case the plaintiffs likewise complained that the Town was seeking to dispossess plaintiffs of a right previously possessed without just compensation.

This Court, speaking through its Chief Justice, stated: “Although loss of business is one of the elements of damage for which there should be compensation in a constitutional taking of property, it may not be the sole element and it must be attendant to the taking of some property right. In other words governmental action which causes or results in an individual’s loss of business, standing alone, does not constitute a constitutional ‘taking’ of property which gives rise to any right to receive compensation from the sovereign. A person operating a business in, under or over the streets, alleys and other public places within an incorporated municipality without a franchise has no property right in the continued use of such premises for conducting his business.”

In the case of City of Vernon v. Montgomery, 265 S.W. 188 (Tex.Civ.App.—Amarillo 1924, writ ref’d), the Court held: “ . . . Under the state Constitution, art. 1, § 26, it has been held that a city cannot grant a private corporation an exclusive franchise to furnish water, light, and power or gas to the inhabitants of such city for a given number of years. Hartford Fire Insurance Co. v. City of Houston, 102 Tex. 317, 116 S.W. 36; City of Brenham v. Brenham Water Co., 67 Tex. 542, 4 S.W. 143. Even though a franchise has been granted, the city can nevertheless grant a similar franchise for the operation of a similar public utility to another corporation or can construct its own plant and operate it in competition with the company to which such a franchise has been granted. City of Austin v. Nalle, 85 Tex. 520, 22 S.W. 668, 960. . . .

“We think it is clear from the record that the city council is fully authorized, not only by the general laws referred to above, but by this article of the city charter, to issue the bonds for the purpose of constructing a plant of its own, although it may result in competition with a plant which is already performing such services for the inhabitants of said city. . . . ”

Plaintiffs rely upon cases which are not in point. In the cases relied upon by the plaintiffs the City physically took the water system without compensation; or used water and sewer lines belonging to others without compensation; or widened a highway and during the course of its construction interfered with the business of the adjoining property owner; or built a viaduct leaving the property owner without access to the public thoroughfare except by a small cul-de-sac which impaired the access to his property; and similar cases.

It is our holding, as a matter of law under the facts in this case, that the plaintiffs had no property right in the continued use of the City’s streets for the conducting of their business and, therefore, sustained no damage as a matter of law when the City went into competition with the plaintiffs. The plaintiffs, as a matter of law, did not have a monopoly to use the streets of the City to furnish water to the residents of the subdivision within the City. Each point of error has been considered and each is overruled.

Judgment is affirmed.


author: CHADICK, Chief Justice.

text:
    In the Interest of B. J. B. and C. E. B., children.
    No. 8427.
    Court of Civil Appeals of Texas, Texarkana.
    Jan. 25, 1977.
    Rehearing Denied Feb. 22, 1977.

      Gary E. Conrad, Dallas, for appellant.
    Thomas Wuntch, Wuntch & Wuntch, Dallas, for appellee.
   CHADICK, Chief Justice.

This appeal is from a judgment decreeing termination of the parent-child relationship existing between a father and his two infant daughters and appointing such children’s maternal grandparents their managing conservators. The judgment is affirmed.

The father and mother of the children were separated and the mother and children lived with and in the home of the wife’s parents. On February 14, 1974, the father visited with his wife and children. On that occasion, while the children were in a bedroom playing and the husband and wife were in the kitchen, an argument between the parents erupted. The husband killed his wife by stabbing her with a butcher knife. He was convicted October 18, 1974, of voluntary manslaughter and sentenced to confinement in the penitentiary for not less than two nor more than twenty years.

As a prelude to this appeal, a request by the father was made pursuant to Tex.R. Civ.P. 295 for findings of fact and conclusions of law. The request was honored. The court’s finding of fact numbered eight and conclusion of law numbered one are challenged on the ground that no evidence supports them or that the evidence is insufficient for such purpose and that such determinations are contrary to the great weight and preponderance of the evidence. In addition, the court’s two conclusions of law are each challenged as an abuse of discretion because such determinations are contrary to the great preponderance of the evidence.

The trial court’s response to the request did not include an express finding of fact that termination of the parent-child relationship was in the best interests of the children. The first numbered conclusion of law nevertheless stated that the relationship “be and the same is terminated.” The father urges points of error that the trial court erred in finding, for reasons earlier noticed, that termination would be in the best interest of the children. Though the finding thus challenged was not expressly made, under Tex.R.Civ.P. 299, this Court may presume that the trial court found that termination was in the children’s best interest as an omitted unrequested finding of an element of the action pled. See Hodges v. Hodges, 207 S.W.2d 943 (Tex.Civ.App. Fort Worth 1948, no writ).

Involuntary termination of the parent-child relationship is governed by Texas Family Code Ann., Sec. 15.02. This section authorizes a court, having jurisdiction, to enter such order when the evidence is sufficient to show termination is in the best interest of the child, if coupled with such finding an additional determination is made that there exists one of the several other grounds listed in Section 15.02. In this instance Section 15.02(1)(E) (Supp.1976-1977) is relied upon. To be sustained as a companion ground, such subdivision requires proof that a parent engaged in conduct which endangers the physical or emotional well-being of a child. The children’s best interests and the father’s conduct endangering their physical or emotional well-being combined to form the gravamen of this action for termination. Holley v. Adams, 544 S.W.2d 367 (Tex.1976); Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976). The trial court having expressly found as a fact one element of such cause of action, that is, conduct that endangers the children’s physical and emotional well-being, then the other element of the action, the children’s best interests, may be presumed as found in support of the judgment rendered.

The best interest of the children is not a concept which lends itself to easy definition. In Holley v. Adams, supra, the Supreme Court made a partial list of factors to be considered. Those which have bearing on this case are (1) the present emotional and physical needs of the children and such needs in the future, (2) the parental abilities of the individuals seeking custody, and (3) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one.

The father stipulated to the grandparents’ good character. Extensive testimony, sufficient in all material detail, was introduced to establish the grandparents possessed the abilities requisite to custody and the means for providing a stable environment and proper care and control of the children. Evidence of conduct of the father, alleged to endanger the children’s physical and emotional well-being, is pertinent to and entwined in the issue of the children’s best interests. Holley v. Adams, supra. To make an ultimate determination, it must be ascertained also whether the trial court’s finding that the father engaged in conduct endangering the physical or emotional well-being of the children is supported by sufficient or indeed by any evidence.

The father questions that portion of finding numbered eight which states the killing was in the presence of the children. He argues that the record does not establish that the children observed the incident. There is no first-hand testimony that they did. The children were not witnesses and the testimony of others that the older of the children may have said that they were present is not admissible as an exception to the rule against hearsay. The presence and observation of the father’s conduct by the children is not, however, an ultimate issue in the case. Section 15.02(1XE) is concerned with parent conduct that endangers the child’s physical and emotional well-being. It is not mandated therein that the children observed the conduct. Any error or of the trial court in finding the children present at the killing is no more than harmless error.

Evidence of the influence of the father’s conduct is found in the testimony of the children’s friends, relatives and teachers that the children were very upset by the fatal assault and that they had great fear of blood and knives, and of men resembling their father, in particular of men wearing a similar style of dark glasses and with a similar haircut. Also, there is evidence that they were terrified at the prospect of living in the house in which their mother was killed, so much so that the grandparents moved to another house.

The testimony of a qualified expert that a parent’s conduct was reasonably calculated to endanger the physical or emotional well-being of a child would be helpful in strengthening a trial court’s finding on such issues. See Magallon v. State, 523 S.W.2d 477 (Tex.Civ.App. Houston-1st Dist. 1975, no writ); Hall v. Harris Cty. Child Welfare Unit, 533 S.W.2d 121 (Tex.Civ.App. Houston-14th Dist. 1976, no writ). Such evidence is not indispensable; the trial judge might reasonably conclude from common knowledge and experience that the fears and anxieties of the children evidenced emotional damage to the children and that if the father’s relationship was not altered by termination and the father was allowed to continue to exercise paternal rights, the children’s emotional well-being would be further endangered. Also, the father’s demonstrated want of self control and propensity for aggression and vicious, cruel, brutal violence against one who did not conform to his will projected a threat that might reasonably be construed as endangering the physical well-being of children in his care, custody and control.

When the evidence as a whole is considered, it appears to be amply sufficient to support the trial judge’s finding of faet numbered eight, in its material aspect, and conclusion of law numbered one. Other issues raised by the father’s points of error have been carefully examined and found to be without merit. All points of error are overruled and the judgment of the trial court is affirmed.

      . “8. The surviving parent, B_J-B_, has engaged in conduct which endangers the physical and emotional well-being of the children, by killing his wife in the presence of his children, which act was observed by the children.”

      . “1. That the parent-child relationship between surviving parent, B- J-B_, and the children, B_ J_ B_ and C_ E_ B_, be and the same is terminated.” (In the spirit of the directions contained in Texas Family Code, Sec. 56.01(j), the names of the father and the children have been deleted here and throughout this opinion.)


author: BISSETT, Justice.

text:
    Thomas RYAN, D.V.M., et ux., Appellants, v. MORGAN SPEAR ASSOCIATES, INC., Appellee.
    No. 1092.
    Court of Civil Appeals of Texas, Corpus Christi.
    Jan. 26, 1977.
    Rehearing Denied Feb. 24, 1977.

      John C. North, North, White & Black-mon, Corpus Christi, for appellants.
    B. Mills Latham, Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appel-lee.
   OPINION

BISSETT, Justice.

This is a suit for damages for breach of contract, and, in the alternative, for negligence in the performance of professional services. Thomas Ryan (Dr. Ryan) and wife, Beverly Jean Mitchell Ryan, were plaintiffs in the trial court and Morgan Spear Associates, Inc., an architectural corporation, was defendant therein. Following a jury trial, a take nothing judgment was rendered in favor of the defendant. The plaintiffs have appealed.

The plaintiffs, in their action for breach of contract, alleged that they entered into a written contract with the defendant for the preparation of plans and specifications for an animal hospital building which was to be built in Corpus Christi, Texas, and for the supervision of the construction of the building; that they were led to believe, and did believe, that the defendant had properly tested the soil upon which the building was located and had adequately and properly designed and specified a foundation that would support the building; that immediately after completion, the building began to deteriorate, which was caused by an inadequate and improper design of the foundation; that the defendant breached its contract with the plaintiffs by reason of the faulty design of the foundation; that the building was a total loss; and that their damages amounted to $77,129.57.

In the alternative, the plaintiffs alleged that the defendant was negligent 1) in failing to “properly test the soil at the time and place in question”, and 2) in failing “from what soil tests were made, to draw up proper plans and specifications under the attending circumstances and specifically, plans and specifications for a suitable foundation”; and that each such failure proximately caused the damages sustained by plaintiffs in the aforesaid sum of $77,129.57.

Special Issue No. 1 inquired:

“Do you find from a preponderance of the evidence that Morgan Spear Associates, Inc., was negligent in the performance of its professional services?”

To which, the jury' answered: “no”.

The jury was given the following instruction in connection with Special Issue No. 1, to-wit:

“In connection with the above Special Issue you are instructed that the word ‘negligence’ is defined as the failure to use ordinary care which is the use of that degree of care which architects of ordinary knowledge and skill, engaged in architectural practice in Corpus Christi and the general vicinity thereof would use under the same or similar circumstances.”

Special Issue No. 2, the proximate cause issue which was conditionally submitted and was to be answered only if the jury answered “Yes” to Special Issue No. 1, was not answered by the jury.

The plaintiffs, in points 1 and 2 contend that the trial court erred in submitting Special Issues 1 and 2 because the suit is “for breach of contract and an implied warranty that defendant had a duty to prepare plans and specifications for a building suitable for the purposes for which it was going to be used and the submission of ‘negligence’, which was not an issue, placed an undue burden on plaintiffs”.

Dr. Ryan, a veterinarian, and the defendant, acting by and through Morgan Spear, its president and principal stockholder, entered into a written contract on or about February 15, 1971, which provided that the defendant would furnish the plaintiffs certain services in connection with the construction of the building here involved, as follows:

“The preparation of preliminary studies, working drawings, specifications, large scale and full size detail drawings, for architectural, structural, plumbing, heating, electrical, and other mechanical work; assistance in the drafting of forms of proposals and contracts; and the general supervision through construction of the project.”

The defendant hired Wally Wilkerson, a structural engineer, to prepare the plans and specifications for the foundation of the building. Wilkerson did so. The building was built by Fred Gunther, dba Creative Constructors.

The building was completed in June, 1971, in accordance with the plans and specifications. In September, 1971, the building began to deteriorate; the concrete floor cracked in several places, the air conditioner ducts pushed out of the walls, the doors warped and the concrete block walls showed signs of separation. Thereafter, the building was inspected by Gunther, Wilkerson and Frank Hall, a member of the defendant architectural firm. Following the inspection, the defendant wrote a letter to the plaintiffs on November 12, 1971. They were advised:

“After inspection by our Structural Engineer, Mr. Wally Wilkerson, of your damage, we concluded the following:
1. Massive water migration under building on East side caused slab to heave upward in some areas, thus damaging partitions, cracking floor slabs and racking doors. The source of this water is primarily roof drainage from the adjacent building on the property adjoining yours.
2. We recommend that you notify your neighbor, either personally or through your lawyer, that he must make provisions for keeping this water off your property . .
3. We have instructed the General Contractor, Creative Constructors to provide peripheral drainage of the building, particularly the critical area on the East side where water traps . Mr. Gunther says he wished to auger some holes near the areas where the pressure seems most intense to see if it will relieve some of the pressure and introduce a drying action to the water over the slab.
4. We recommend that you make no effort to repair the damage until the slab stabilizes. We can expect the shifting to reverse in direction and openings to close to about one half current size if we are observing máxi-mums.”

Six months after Dr. Ryan received the letter, he had Robert White, a soil expert for Trinity Testing Lab, come to the building site and test the soil. White concluded from the laboratory tests which were made under his direction that the damage was caused by moisture influx into the highly expansive soil layers under the building. The building continued to deteriorate, although the extent of permanent damage in late 1971 was disputed.

It is a well settled rule that an architect must use the skill and care in the performance of his duties commensurate with the requirements of his profession, and he is liable in damages if he is negligent in performing such duties. It is stated in 6 C.J.S. Architects § 27:

“The architect, by his contract, implies his possession of ordinary good taste, skill and ability, and a promise to exercise them reasonably, without neglect, and with a certain exactness of performance, in seeing that the work is properly done. The degree of skill required is such as would produce, if followed, a building of the kind called for, without marked defects in character, strength or appearance.
In the absence of special agreement, an architect is not liable for faults in construction resulting from defects in the plans, as his undertaking does not imply or guarantee a perfect plan or a satisfactory result, it being considered enough that the architect himself is not the cause of any failure, and there is no implied promise that miscalculations may not occur. Thus, an architect is only liable for a failure to exercise reasonable care and skill.”

The above rule has been followed by the appellate courts of this State. See Capitol Hotel Co. v. Rittenberry, 41 S.W.2d 697 (Tex.Civ.App.—Amarillo 1931, writ dism’d); American Surety Co. of New York v. San Antonio Loan & Trust Co., 98 S.W. 387 (Tex.Civ.App.1906, modified by the Supreme Court in 104 S.W. 1061, 106 S.W. 876); Pierson v. Tyndall, 28 S.W. 232 (Tex.Civ.App.1894, no writ); 6 Tex.Jur.2d, Architects and Engineers, § 31.

Concerning the question of warranties, both express and implied, in a contract between an architect and the owner of a proposed building, the rule in Texas is clearly stated in 6 Tex.Jur.2d, Architects and Engineers, § 32, as follows:

“A warranty by an architect will not be implied unless there is the clearest reason for it, and the burden of showing such reason rests on the one seeking to establish the warranty. Thus, where there is no warranty, express or implied, that plans contain no defects that might cause the collapse of the building while it is in construction, no such warranty should be implied by the owner in favor of one who, with plans and specifications before him and ample time to consider them, obligates himself to carry the work to completion.”

Although there is a contract between the parties in the present case, the cause of action for damages sustained by the plaintiffs is tortious in nature. Capitol Hotel Co. v. Rittenberry, supra; Pecos & N. T. Ry. Co. v. Amarillo St. Ry. Co., 171 S.W. 1103, 1105-06 (Tex.Civ.App.—Amarillo 1914, no writ). The contract between the plaintiffs and the defendant architectural corporation does not contain any special guarantees or warranties. There is no implied warranty on the part of the defendant to the plaintiffs that the plans and specifications for the foundation of the building were free from the alleged inherent defects. The contract is set out in general terms such that the only implication arising from the terms is that the architect will use reasonable care in preparation of the plans and supervision of the construction of the project.

Damages “due to breach of a written contract”, as asserted by the plaintiffs, is not an issue in this case. Any liability on the part of the defendant for the damages sustained by the plaintiffs can only be sustained on proof that it was negligent and that such negligence proximately caused plaintiffs’ damages. The trial court properly submitted the issue of liability in Special Issues Nos. 1 and 2. The instruction contained in Special Issue No. 1 correctly sets out the appropriate standard of care that is applicable to this case. Moreover, the jury, in its answer to Special Issue No. 3, found that the defendant did not fail to perform its professional services in a good and workmanlike manner”. Points 1 and 2 are overruled.

In points 3 and 4, plaintiffs assert that it was reversible error to submit Special Issues Nos. 1 and 2 because: 1) the submission of the Issue, “if submitted at all, should have inquired as to whether defendant, its agents, servants or employees, were negligent” (No. 3); 2) the submission of the Issue “limited the jury’s answer to the degree of care of architects without mentioning the degree of care of a structural engineer which amounted to an instruction by the court that if defendant was not negligent in hiring the structural engineer, defendant would not be liable, regardless of the structural plans and specifications prepared by such engineer” (No. 4).

The plaintiffs’ contention that Special Issues 1 and 2 should have included defendant as well as its agents, servants or employees is, in effect, an assertion that the case should have been tried on an agency theory. The assertion, however, is not preserved for review by this Court. The plaintiffs argue that Wilkerson, the structural engineer, as agent for the defendant architectural firm, and acting within the scope of his authority, negligently prepared the structural plans for the building. Although the petition does not specifically allege that Wilkerson was the agent of the defendant, it does allege that the defendant was responsible for the act of preparing the plans in a negligent manner. The evidence is sufficient to raise a fact issue on the question of agency. Morgan Spear consulted with Wilkerson and hired him to prepare the structural plans for the entire building. However, the special issue of whether Wilkerson was the agent of the defendant architectural firm was not requested by the plaintiffs. See American Nat. Ins. Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370, 373 (Tex.Comm’n App.1936, opinion adopted); Parmlee v. Texas & New Orleans Railroad Company, 381 S.W.2d 90, 93-4 (Tex.Civ.App.—Tyler 1964, writ ref’d n. r. e.).

Where an issue has not been requested in substantially correct form and the trial court makes no express finding on the point, the issue will be presumed to have been found in support of the judgment. Blackburn v. Sanders, 278 S.W.2d 924, 927 (Tex.Civ.App.—Amarillo 1955, writ ref’d n. r. e.). See Wise v. Anderson, 163 Tex. 608, 359 S.W.2d 876, 881 (Tex.Sup.1962). Under the record here presented, it must be presumed that the trial court found that Wilkerson was a consultant or independent contractor and not an agent of the defendant firm. Points 3 and 4 are overruled.

The plaintiffs, in points 8 and 12, complain that there is no evidence to support the jury’s answers to Special Issues Nos. 1 and 3, respectively. They assert, in points 9 and 13, that the evidence is factually insufficient to support the answers to those issues.

In disposing of the “no evidence” points, we follow the well established rule which requires us to consider only the evidence and inferences tending to support the jury’s answers to Special Issues Nos. 1 and 3, and to disregard all evidence and inferences contrary thereto. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). The “factually insufficient evidence” points require us to review all of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex.Sup.1951).

There is evidence that the east portion of the building sustained more damage than the other portions thereof. There is also evidence that rainwater from the roof of a building owned by a third party, whose west wall was three feet east of the east wall of the plaintiffs’ building, drained onto the east side of the land upon which the plaintiffs’ building was situated. It can be inferred from the evidence that the drainage from the roof of the building owned by the plaintiffs’ neighbor soaked into the narrow strip of land between the two buildings. It can also be inferred from the evidence that the invasion of the water from the roof of the building owned by the neighbor caused the problem that resulted in the damage to plaintiffs’ building.

In addition to calling White, the soil and foundation expert for Trinity Testing Lab, as a witness, the plaintiffs also called Charles Bellah, an architect and engineer, as a witness. Both White and Bellah testified, in substance, that they would not recommend a foundation based solely upon field-tested core samples taken in the Corpus Christi area since the tests did not furnish sufficient information for adequate foundation specifications.

Bellah testified that the raft-type foundation used in this case, since the foundation slab is tied into the deeper set piers, was a faulty design which should have been apparent to an architect since it was the worst of possible designs. He further testified that the architect, as the “prime professional”, should not accept on faith the structural engineer’s recommendations; and that he (Bellah), instead of recommending a raft-type foundation, would have recommended a floating slab which would give when the moisture causes expansion of the soil.

The defendant’s witnesses, in addition to Spear, Wilkerson and Gunther, were Jack Solka, an architect, and Harland Heitkamp, a civil engineer. Several theories were advanced by the defendant’s witnesses as to the cause of the damage to the building. None attributed the damage to an inadequate or faulty design of the foundation. The principal theory was that such damage was the result of “massive water migration” on the east side of the building which had been mentioned by the defendant in its letter of November 12, 1971 to the plaintiffs.

Spear testified that his firm hired Wilkerson because of his good reputation in the field of structural engineering. According to Spear, the design plans and specifications of the foundation for the building were left up to the structural engineer. He said that he did not have any reason to suspect that the foundation so designed would prove to be inadequate. Wilkerson determined that the raft-type foundation should be used. He based his decision partly on data that he obtained from two core samples which he obtained from the plaintiffs’ lot, and field-tested the cores at the site. The tests did not reveal the presence of the conditions found by White.

The peripheral drainage measures which the defendant in its letter of November 12, 1971, recommended that the plaintiffs take in order to correct the drainage problems caused by the adjoining building were never undertaken by the plaintiffs and were never accomplished by anyone. Spear and Gunther both testified that Gunther was willing to correct the problem with no cost to Dr. Ryan, but that he was prevented from doing so by conditions over which he did not have control. There is testimony that Gunther’s employees made several attempts to put certain drainage facilities in on the east side of the plaintiffs’ building, but they were prevented from doing so because each time that they attempted to do the work, plaintiffs’ adjoining neighbor objected and threatened them with a shotgun. No one, plaintiffs or anyone else, did anything to prevent the adjoining neighbor from acting in this manner.

Spear testified that he and Fred Gunther, before construction had commenced, informed Dr. Ryan that there was a potential water shedding problem in placing the building close to the neighbor’s building, but that Dr. Ryan had insisted upon locating the east wall of his building at the place called for in the plans and specifications, which was approximately three feet from the west wall of his neighbor’s building. Spear also testified that Dr. Ryan would not let Gunther effect the remedies suggested in the letter. This was disputed by Dr. Ryan.

Heitkamp testified that the damage was caused primarily by the capillary or pumping effect of putting a sealed moisture barrier over the ground water table which caused the ground water to rise to the expansive clay, which resulted in tremendous pressures on the foundation. He also testified that in late 1970 (when Wilkerson prepared the plans and specifications for the foundation) this effect would not have been predictable even with the information supplied in the lab tests conducted by White.

Solka testified that he was familiar with the raft-type foundation, and that his firm (an architectural firm) had used that type of foundation “a number of times in Corpus Christi”. He was acquainted with the soil conditions in the area of Corpus Christi. He said that the soil conditions in the ground upon which at least three of the buildings designed by his firm where the raft-type foundation was used were built were similar to those underlying the plaintiffs’ building. No trouble with the foundations of these buildings resulted. He stated that Wilkerson, defendant’s structural engineer; prepared the plans and specifications for the foundations of the three buildings (a furniture store, a warehouse and a movie theater), all of which were larger than plaintiffs’ building. With respect to the function of testing soils in connection with the design of a foundation, he said:

“We rely on our structural engineers.”

Wilkerson testified in response to hypothetical questions that under the conditions existing at and prior to the design of the foundation in question the ordinarily prudent architect could not have foreseen that the building would sustain damage as a result of a raft-type foundation. He further testified that a reasonably prudent architect would have been acting prudently in allowing the building to be built under the circumstances and in accordance with the plans and specifications which existed at the time that the building was designed and built. It was his opinion that the conditions which caused the damage to the building would have stabilized and the cost of repairs would have been between $7,000.00 and $10,000.00, had the recommendations contained in the November 12, 1971 letter been carried out.

Wilkerson, Solka and Heitkamp all testified that the raft-type foundation was not unusual for the type of soil which was present at the site of the building, and particularly so where cost was a factor. There is evidence that cost was a factor in this case. There is a dispute in the record as to whether Dr. Ryan was informed that the raft-type foundation was the least expensive of the three types of foundations that could have been designed.

It is conclusively established by the evidence that none of the plaintiffs’ witnesses had any personal knowledge of the conditions as they existed at the time the plans and specifications for the foundation were prepared, or in September, 1971, when it first became evident that the building was deteriorating rather rapidly, or in November, 1971, when the defendant suggested corrective action. There is no evidence that the plaintiffs attempted to do anything towards correcting the conditions after they became known.

The testimony of a party to a suit raises an issue of fact. Bishop v. Bish op, 359 S.W.2d 869 (Tex.Sup.1962). The conflicts- and contradictions between the testimony of the parties hereto and that of their witnesses are extensive. There was evidence pro and con. The evidence was not consistent. It varied in each area with considerable degree. But, it is within the sole province of the trier of fact, who had the opportunity to observe the demeanor of the witnesses on the stand, to judge their credibility and the weight to be given their testimony, to resolve conflicts in the testimony of one witness with testimony of another witness, and to believe part of a witness’ testimony and to disregard other portions of his testimony. Hall v. Villarreal Development Corporation, 517 S.W.2d 326 (Tex.Civ.App.—Corpus Christi, 1974, writ dism’d); Royal v. Cameron, 382 S.W.2d 335 (Tex.Civ.App.—Tyler 1964, writ ref’d, n. r. e.); United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App.—San Antonio 1951, writ ref’d); Ohlen v. Hagar, 212 S.W.2d 253 (Tex.Civ.App.—Fort Worth 1948, writ ref’d, n. r. e.).

A Court of Civil Appeals cannot substitute its judgment for that of trier of fact, even though after reviewing the evidence it may have reached a different conclusion from that of the jury or the trial judge sitting without a jury. Bardwell v. Anderson, 325 S.W.2d 929 (Tex.Civ.App.—Houston 1959, writ ref’d n. r. e.); Dyer v. Sterett, 248 S.W.2d 234 (Tex.Civ.App.—San Antonio 1952, no writ). A Court of Civil Appeals may not pass upon the credibility of witnesses or substitute its findings for those made by the trial judge or jury, as the case may be. Burchfield v. Tanner, 142 Tex. 404, 178 S.W.2d 681 (1944).

The conflicts in the evidence in this case were resolved by the jury in favor of the defendant. We hold that there was ample evidence of probative value which supports the answers of the jury to Special Issues Nos. 1 and 3. Points 8, 9, 12 and 13 are overruled.

We have carefully considered all of the plaintiffs’ remaining points of error. They are all overruled.

The judgment of the trial court is AFFIRMED.


author: WARD, Justice.

text:
    Harold KUNZ, Jr., et al., Appellants. v. H. Glenn HUDDLESTON, Appellee.
    No. 6517.
    Court of Civil Appeals of Texas, El Paso.
    Jan. 26, 1977.
    Rehearing Denied Feb. 23, 1977.

      Alfred W. Offer, San Antonio, for appellants.
    Foster, Lewis, Langley, Gardner & Ba-nack, Inc., Edward Kliewer, III, San Antonio, for appellee.
   OPINION

WARD, Justice.

This case involves the dissolution of a partnership, Kunz-Huddleston Interest. H. Glenn Huddleston filed suit against his partner, Harold Kunz, Jr., for injunctive relief, for dissolution of the partnership, for an accounting, and for damages. Joined as a Defendant was Kunz Construction Company, Inc., which filed a cross-action against the partnership, and in which, among other things, it sought judgment for the balance due under a construction contract. Trial was to a jury, which in the main determined that certain actions of the Defendants breached the fiduciary duty owed to the Plaintiff, that the Plaintiff had been damaged in the amount of $3,187.50, and that the unpaid balance owed by the partnership to the Defendants on the construction contract was $33,934.72. Thereafter, a judgment of accounting was entered, and the Plaintiff recovered $3,187.50 as damages from the Defendant, Harold Kunz, Jr.; Kunz Construction Company, Inc., recovered $33,934.72 against the partnership; the partnership was dissolved, and the Plaintiff, as the partner not in the wrong, was given the right of first refusal to purchase all partnership assets as provided under the terms of Article 6132b, Sec. 38(2)(b), Tex. Rev.Civ.Stat.Ann. The Defendants have appealed. We affirm the judgment after modification in one respect.

Huddleston and Kunz entered into a verbal partnership agreement in 1972 that they would purchase, construct, and manage certain small drive-in shopping centers, it being agreed that Huddleston would secure the locations, tenants, and financing, and finally manage the completed properties, and that Kunz would be the general contractor. The parties secured two locations which they proceeded to develop, one in Schertz and one on Bandera Road in Bexar County. The Bandera Road property was acquired in the summer of 1972; some work was done on it in that year, but the main construction was not undertaken until 1973. In June, 1972, $125,000.00 was secured as an interim construction loan from the Bexar County National Bank of San Antonio, the note being executed by the two partners and being secured by a deed of trust on the Bandera Road property. Thereafter, the Plaintiff secured a permanent loan commitment from Transport Life Insurance Company in the amount of $150,000.00, which the partners accepted in May, 1973, and for which the partnership paid a loan commitment fee of about $6,500.00. During this time, the Sehertz property had been acquired, and a drive-in grocery and ice house had been constructed and occupied and was being managed by the partnership at the time of trial. The two partners entered into a written partnership agreement on June 14,1973, and it was the parties’ different interpretation of that agreement that precipitated their dispute.

The agreement provided that neither party should receive any salary or compensation for their services during the initial acquisition, financing, construction, or leasing of the properties. One provision provided that Kunz would, without compensation, profit, or reimbursement for personal expense, act as a general contractor “either informally, or at his option, with a standard AIA form construction contract with himself or with Kunz Construction Company, Inc., or with such other firm as he may designate, for the improvements to be erected on Partnership properties.” The signatures of both partners were required in connection with such building contracts.

In undertaking his part of the partnership project, the Defendant Kunz elected to proceed through Kunz Construction Company, Inc., of which he was president and eighty-five percent of the capital stock of which was owned by him. On August 15, 1973, the Plaintiff received a bill from Kunz Construction Company in the amount of $34,589.85 on the Sehertz property. This bill was paid by the partnership, but the Plaintiff immediately questioned the markup and the profit to the corporation as not being in harmony with the spirit of the partnership agreement. Again, on January 30, 1974, the Plaintiff received a bill from Kunz Construction Company showing that $57,101.00 was then owing on the balance of the construction. Upon examination by the Plaintiff, the statement reflected a profit figure on construction by Kunz, or his company, of $5,773.57, this again being contrary to the Plaintiff’s understanding of the partnership terms. The Plaintiff also objected because the contract with the corporation had not been approved by the Plaintiff. Other charges were also shown which the Plaintiff felt were excessive. This disagreement delayed the final closing of the permanent loan and resulted in the loss of the commitment. On February 14th, after lengthy discussion and examination of the bills, Kunz changed his demand to $54,-841.16, and the Plaintiff again refused to permit the bill to be paid from partnership funds as it was still excessive.

On February 18, Mr. Kunz, as President of Kunz Construction Company, Inc., executed and then filed an affidavit to secure an involuntary lien on the Bandera Road property regarding this debt for $54,841.16. On March 11, without any notice being given to the Plaintiff, the corporation purchased the $125,000.00 partnership note from the Bexar County National Bank of San Antonio, together with the lien of the deed of trust security, paying therefor the sum of $3,467.06 in interest due and the balance being a corporation note for $99,-216.10, payable to the bank and being the amount then owing on the principal of the partnership note. As collateral for the last note, the corporation, by Mr. Kunz, granted to the bank a security interest in the partnership note, reserving to the corporation the right to foreclose under the deed of trust. Also on March 11, the corporation, by substitute trustee, posted the Bandera Road property for foreclosure sale and the Plaintiff was notified of the posting on March 14th. The Plaintiff then filed the present suit.

At the trial on the merits, the jury was instructed by the Court that they would treat the acts of the Defendant, Kunz Construction Company, Inc., in dealing with the Kunz-Huddleston Partnership and/or the Plaintiff, as the acts of the Defendant, Harold Kunz, Jr. In answer to Special Issues Nos. 1 through 5, the jury determined that the actions were taken by Harold Kunz, Jr., acting by and through the Kunz Construction Company, Inc., in submitting the $57,-101.00 construction bill, in purchasing the $125,000.00 real estate lien note from the Bexar County National Bank of San Antonio, in filing the involuntary lien and attempting to foreclose the partnership property, and Kunz’s refusal to execute the final loan closing documents, were all a breach of the fiduciary duty owed to the Plaintiff by the Defendant, Harold Kunz, Jr. In answer to Special Issue No. 6, the jury found that such actions were done in fraud of the Plaintiff, and in answer to Special Issue No. 8, the jury determined that the damages sustained by the Plaintiff due to the breach of the fiduciary duty by the Defendant, Kunz, was $3,187.50. By Special Issue No. 9, the jury found that the Plaintiff would suffer irreparable harm if the Defendants were allowed to foreclose on the property. In answer to Special Issue No. 14, the jury found that as to the disputed bill, the reasonable value of the labor and materials unpaid and furnished by Harold Kunz, Jr., and/or Kunz Construction Company, Inc., was $33,934.72.

Plaintiff, by two counterpoints, contests our consideration of any points based on the amended motion for new trial and any points of error complaining of the charge, as the Defendants in these areas have failed to follow the applicable briefing rules. Rules 274 and 320, Tex.R.Civ.P. The contest is brought about because the Defendants’ objections to the charge consist of some forty pages in the transcript, and the amended motion for new trial consists of thirty-nine pages with 153 assignments of error, many relating to alleged errors appearing at three other places during the trial, for a total of 288 assignments of error. The above is compounded as the Defendants’ brief contained fifty-one points of error, none of which point out the germane assignments of error, and are contrary to Rule 418(b), Tex.R.Civ.P. Regardless of the validity of the Plaintiff’s challenges as to many areas of the brief, they will be overruled insofar as they apply to the Defendants’ first five points, which complain of the Court’s instruction to the jury that in making their answers they would treat the acts of Kunz Construction Company, Inc., in dealing with the partnership or with the Plaintiff, as the acts of Harold Kunz, Jr., individually. Essentially, these first five points assert that there was no evidence that Kunz and the corporation constituted a single entity; that the corporation was not a sham; and that it was error to disregard the corporate fiction and to “pierce the corporate veil.”

The actions described as occurring in 1974 are without dispute. The Defendants’ argument ignores the applicable relationship of one partner being a fiduciary and accountable as such to the partnership. Art. 6132b, Sec. 21, Tex.Rev.Civ.Stat.Ann.; Johnson v. Peckham, 132 Tex. 148, 120 S.W.2d 786 (1938); 19 Hamilton, Texas Practice, Sec. 129. As pointed out in the cited authorities, the fiduciary duty established by this section of the Act should be broadly construed, and runs not only to the partnership, but to the other partner as well. At the time that Kunz, while acting for his corporation, executed and filed the affidavit to secure the involuntary lien on the partnership property and had the corporation purchase the partnership note and lien and proceeded to attempt the foreclosure, strained personal relations between the partners existed and Kunz undoubtedly was attempting to protect his corporation and himself. He may have felt that he had an unreasonable partner on his hands, that the partnership, for all purposes, was at an end, and that he could proceed at arm’s length to protect himself. That was of no material importance, as pointed out in Johnson v. Peckham, supra, at 788:

“ * * * Because of the strained relations which had developed he probably felt he was perfectly justified in dealing with his partner as a stranger. That is the standard of the market place, but in courts of equity a much higher standard for measuring conduct obtains.
******
“When persons enter into fiduciary relations each consents, as a matter of law, to have his conduct towards the other measured by the standards of the finer loyalties exacted by courts of equity. That is a sound rule and should not be whittled down by exceptions. If the existence of strained relations should be suffered to work an exception, then a designing fiduciary could easily bring about such relations to set the stage for a sharp bargain. There is no suggestion in this record that Peckham did that thing, but mischief would result more often from engrafting exceptions upon the general rule than from a strict adherence thereto.”

Kunz admitted that he was responsible for all decisions made by the corporation, and the instruction made by the Court was based on this undisputed testimony. The justification for the instruction was based on accepted principles of agency, and the liability of Kunz was that of a principal and not because he was the controlling shareholder of the corporation whose “veil was pierced.” 19 Hamilton, Texas Practice, Sec. 234 at 225. But if justification for the name calling of “piercing the veil” be required, that can readily be found in the facts of this case. The corporate structure was used by Kunz to avoid his existing legal obligation as a fiduciary, as required by the partnership and as called for under the partnership statute. Delaney v. Fidelity Lease Limited, 526 S.W.2d 543 at 546 (Tex.1975); Sutton v. Reagan & Gee, 405 S.W.2d 828 at 837 (Tex.Civ.App.—San Antonio 1966, writ ref’d n. r. e.). Kunz could not be permitted to avoid his fiduciary duty by use of this corporation. The Defendants’ first five points are overruled.

By a series of eight points, the Defendants challenged the submission of Special Issues Nos. 1 through 8, inclusive, on the grounds of no pleadings for their support. The objections to the charge consist of a long series of stock objections, among which are those of no pleadings, and the Defendants have effectively obscured any real complaint in this regard. Again, the assignments of error are of like character, and on this basis, we would be justified in overruling these points. Monsanto Company v. Milam, 494 S.W.2d 534 (Tex.1973); Rule 274, Tex.R.Civ.P. Regardless of that, the Plaintiff’s pleadings set out in detail the events which occurred and the manner in which the Defendant Kunz breached his fiduciary duty and committed a fraud upon the Plaintiff’s rights. Construing the Plaintiff’s second amended original petition as favorably as possible for the pleader, the Defendants’ points 6, 9, 12, 15, 18, 21, 25, and 28 are overruled. Gulf, Colorado & Santa Fe Railway Co. v. Bliss, 368 S.W.2d 594 (Tex.1963).

By a series of nine points, the Defendants challenge the submission of Special Issues Nos. 1 through 9, inclusive, on no evidence grounds. The criticism made above applies equally here. However, a review of the statement of facts also shows that these points are without merit. Special Issue No. 1 requested that the jury answer whether the submission of the $57,101.00 bill was a breach of the fiduciary duty owed to the Plaintiff by the Defendant Kunz. The evidence is undisputed that the bill was submitted, and in addition, this bill was shortly thereafter changed to $54,841.16. During the trial, the Defendants testified through their witnesses that the bill should have been in the amount of $46,845.96. On the other hand, the Plaintiff’s witnesses testified that even the last figure was excessive as it was in excess of the reasonable value of the work done by the Defendants. Further, there was ample evidence to sustain Special Issue No. 14 where the jury found that the reasonable value of the unpaid bill was $33,934.72. The issues submitted relating to the balance of the actions taken by Kunz in 1974 when he acted through his corporation were undisputed, and as discussed were a breach of the fiduciary duty owed by him to the Plaintiff.

Special Issue No. 6 required the jury to determine if any of the acts set forth in Special Issues Nos. 1 through 5 constituted fraud upon the right of the Plaintiff. In addition to asserting that there was no evidence to support the jury’s answer, the Defendants also assert there was insufficient evidence to support the jury’s answer to Special Issue No. 6. The trial Court instructed the jury that fraud was defined as “ * * * the successful employment of cunning, deception or artifice to curcum-vent, (sic) cheat or defraud another to his injury.” This followed the definition set forth in the case of International Life Insurance Company v. Herbert, 334 S.W.2d 525 (Tex.Civ.App.—Waco 1960, writ ref’d n. r. e.). When we consider the Plaintiff’s testimony that without notice the Plaintiff suddenly found himself in the position of either paying what he considered to be an extravagant construction cost, or facing the possibility of losing the final loan commitment and the ultimate liability to the Bexar County National Bank of San Antonio, then the evidence of the deceptive practices by Kunz justified the submission of the issue. By Special Issue No. 7, the jury determined that the breaches of fiduciary duty by the Defendant were a proximate cause of monetary damages to the Plaintiff. Special Issue No. 8 inquired as to the amount of monetary damages suffered by the Plaintiff proximately caused by the Defendant Kunz’s breach of fiduciary duty. The latter issue was answered in the amount of $3,187.50. As the Plaintiff testified, when the permanent loan commitment was lost, the partnership forfeited the loan commitment fee. One half of such sum was more than $3,187.50. The evidence was sufficient to justify the submission of these issues.

The jury found in answer to Special Issue No. 9 that the Plaintiff would suffer irreparable harm if the Defendants were allowed to foreclose upon the partnership property. The Court defined irreparable harm as “ * * * injury of such a nature that the injured party cannot adequately be compensated therefor in damages, or the damages which may result therefrom cannot be measured by definite, certain or usable pecuniary standard.” The Court followed the definition set forth in Gulf Oil Corporation v. Walton, 317 S.W.2d 260 (Tex.Civ.App.—El Paso 1958, no writ). In addition to the loss of his partnership property, if the Defendants had been allowed to foreclose, the damage done to the Plaintiff’s reputation would be such that it would quite probably affect his future business dealings, and the Plaintiff so testified. The no evidence point as to Special Issue No. 9 is likewise overruled. Having considered the evidence, the Defendants’ points 7, 10, 13, 16, 19, 22, 24, 26, 29 and 31 are overruled.

By Point No. 33, the Defendants assert that the trial Court erred in submitting Special Issue No. 9 to the jury because as submitted, it was not an ultimate issue, and the affirmative answer to the jury thereto could not form the basis of any judgment against either Kunz or Kunz Construction Company, Inc. The point is overruled.

The Defendants contend that the trial Court erred in submitting Special Issue No. 14, which required the jury to determine what the reasonable value of the labor and materials remaining unpaid was on the Bandera Road project. The Defendant corporation, in its cross-action, filed suit to collect this remaining unpaid balance, and the issue was over that sum. At one time, the Defendants had received a payment from the partnership account of $45,000.00, which according to the Plaintiff had been drawn without his knowledge and in violation of the written partnership agreement, which prohibited expenditures in excess of $2,000.00 without the signature of both parties. Regardless, this payment and all others that had been paid were undisputed. Special Issue No. 14 submitted the real issue existing between the parties which was the amount due and owing the Defendant corporation. The Defendants’ points that the ultimate issue was the reasonable value of all labor and materials furnished by the corporation to the partnership on the Band-era Road project, and which was in the form as submitted in the Defendants’ requested Special Issue No. 1, are overruled.

By answer to Special Issue No. 15, the jury found that reasonable attorney’s fees for the Defendants’ attorney were $5,350.00 for prosecuting the claim of the corporation for labor and materials furnished on the Bandera Road project which remained unpaid. In the accounting, which the Court subsequently undertook pursuant to stipulation of the parties, this item to the corporation was disallowed. Complaint to this action is now made by the Defendants who argue that error was committed as the finding was disregarded without motion and notice, as required by Rule 301, Tex.R. Civ.P. In this case, the issue became immaterial, and a recovery of attorney’s fees by the Defendants would have been erroneous. The jury’s answers to the issues could have been disregarded as immaterial on the Court’s own motion without the required procedure under Rule 301. Ridout v. Mobile Housing, Inc., 497 S.W.2d 66 (Tex.Civ.App.—Austin 1973, writ ref’d n. r. e.). In addition, we have failed to discover where the Defendants preserved any asserted error in their motion for new trial to any improper procedure. Finally, the immateriality of the attorney’s fees was established from the Defendant’s attorney who testified that his fees were for services rendered in defending the suit, in attempting to foreclose the $125,000.00 partnership note, in attempting to foreclose the involuntary lien filed by the Defendant against the partnership, and in attempting to collect the $54,-841.16 construction bill submitted to the partnership by the Defendants. Each of these actions, on which the attorney had undertaken to represent the Defendants, was found by the jury to be a breach of the fiduciary duty owed to the Plaintiff, and in addition, the jury found that such acts constituted a fraud upon the Plaintiff’s rights. To have allowed the recovery of an attorney’s fee would have benefited the defaulting party, and would have allowed an advantage contrary to the statutory intent of the high fidelity owed by the partner to the other. Art. 6132b, Sec. 21, Tex.Rev.Civ. Stat.Ann. Recovery of the attorney’s fee under these circumstances would have been inequitable and was properly disallowed. Petty v. Hunter, 254 S.W.2d 543 (Tex.Civ.App.—Waco 1953, writ ref’d n. r. e.). Besides these reasons, no attempt was ever made to prove the reasonable value of the services for the collection of only the asserted $54,841.16 construction bill. Art. 2226, Tex.Rev.Civ.Stat.Ann. The point complaining of the refusal to allow the item of $5,350.00 for reasonable attorney’s fees is overruled.

The parties stipulated that the trial Court, on matters not submitted to the jury, would make the final determination as to the total value of the partnership assets and liabilities, and would then proceed to adjust the accounts. After the jury trial, two hearings were held on the assets and liabilities and their respective values, and the judgment the Court rendered reflects a complete accounting and these Court determined values and liabilities. One item which the Court considered was an attorney’s fee of $12,000.00 incurred by the Plaintiff, and this was allowed in the judgment as a partnership liability. The Court, evidently, was proceeding under Art. 6132b, Sec. 18(l)(b), Tex.Rev.Civ.Stat.Ann., which provides that:

“The partnership must indemnify every partner in respect of payments made and personal liabilities reasonably incurred by him in the ordinary and proper conduct of its business, or for the preservation of its business or property.”

Kunz having breached his fiduciary duty and having committed a fraud upon the Plaintiff, the Plaintiff, as the wronged partner, was justified in incurring reasonable expenses for the preservation of the partnership business and property, and one item would have been reasonable attorney’s fees.

As to this allowance, the Defendants complain with justification as nowhere in the Plaintiff’s pleadings or evidence before the jury was any mention made that any claim of this nature would be made by the Plaintiff. At the second dissolution hearing before the Court, which was some twenty-seven days after the jury had been discharged, the Plaintiff tendered and was permitted to file a trial amendment, which for the first time advanced the claim that the Plaintiff was claiming attorney’s fees against the partnership for protecting and preserving the partnership assets. Over the Defendants’ objection, the amendment was permitted and the testimony as to attorney’s fees was received at the hearing. In this, the Court committed error as the matter was entirely new and deprived the Defendants of a trial before the jury on that item. The stipulations of the parties, which were made at different times during the trial, were made in the light of the pleadings which were before the Court at the time the various stipulations were made, and in view of the new matter in the trial amendment, we fail to see where in any of the stipulations the Defendants ever agreed to waive their right to have the reasonableness of the attorney’s fees determined by a jury and submitted to the Court. The trial Court erred in awarding the $12,000.00 claim of attorney’s fees as a partnership debt.

The Defendants have advanced additional points of error. We have examined them all, have determined them to be without merit, and they are all overruled.

The judgment of the trial Court is modified to the extent only that in the final judgment, item (19) of the list of Kunz-Huddleston liabilities, which is the $12,-000.00 attorney’s fees due Foster, Lewis, Langley, Gardner & Banack, is hereby deleted, and the same shall not be paid as a partnership liability. In all other respects, the judgment of the trial Court is affirmed.


author: OSBORN, Justice.

text:
    Richard H. DeWEES, Appellant, v. H. J. Al ALSIP, Appellee.
    No. 6552.
    Court of Civil Appeals of Texas, El Paso.
    Jan. 26, 1977.

      Warren, Burnett, Associated, Wm. Ruff Ahders, Richard J. Clarkson, Odessa, for appellant.
    Ken Griffin, Odessa, for appellee.
   OPINION

OSBORN, Justice.

This case involves a promissory note and a contract for the sale of a partnership business which were executed simultaneously. The trial Court denied recovery on the note and we affirm.

In the Plaintiff’s original petition, Richard DeWees sued C. E. Luna and H. J. A1 Alsip alleging that the Defendants executed and delivered to Plaintiff their promissory note in the sum of $23,100.00, with an unpaid balance due on the note in the sum of $18,550.00. The suit also sought recovery of interest and attorney’s fees as provided in the note. The note was attached to the petition as an exhibit. There followed an affidavit in which Mr. DeWees swears that the attached exhibit is the instrument signed by Mr. Luna and Mr. Alsip on the date stated, that the allegations in the petition are true and within the knowledge of the affiant, that the same is due, that there is an unpaid balance of $18,550.00, plus interest and attorney’s fees and costs, and that all offsets, payments and credits have been allowed.

The Defendants answered that the note was given in connection with a contract which was attached, and which provided in part:

“(3) C. E. Luna and A1 Alsip d/b/a Texas Contracting Company shall pay to Richard H. DeWees the sum of $700.00 per month for 33 months, or until such time as Richard H. DeWees can be released from the obligation due K.B.K. which is a joint obligation with C. E. Luna.”

Defendants then alleged that DeWees was fully and completely released on May 6, 1974, of any and all obligations due KBK, and, as a result thereof, the Defendants were not indebted to DeWees in any sum whatsoever.

The case was tried to the Court without a jury after Plaintiff took a nonsuit as to C. E. Luna, who was deceased. After Mr. DeWees identified the note and it was admitted into evidence, his attorney moved for an instructed verdict on the grounds that this was a suit on a sworn account, and there being no sworn denial, there was no defense on which an issue could be raised by the remaining Defendant. The trial Court denied the motion. Mr. DeWees then testified on cross-examination. He stated that he had previously owned an oil field service company. He acknowledged that after Mr. Luna became a part owner, they borrowed $37,309.68 from KBK Financial, Inc., in August, 1973, and each of them personally guaranteed the loan. In December, 1973, Mr. Alsip became a partner with Mr. Luna in the service company, and at that time, they both executed the note and contract involved in this suit. Mr. DeWees admitted that he was paid $700.00 per month, as provided for in the note, until he was released by KBK in May, 1974. No further payments were made.

Mr. Alsip said he signed the note and contract at the same time, and that all payments were made until Mr. DeWees was released by KBK. Cancelled checks were offered to prove such payments. He testified that there was only one obligation, which was set forth in the contract, and that the note was evidence of the contractual obligation. Mr. Sutcliffe, a Vice President of KBK, testified that Mr. DeWees was released from his obligation to KBK in May, 1974, when the business was incorporated.

Mr. DeWees appeals from a take nothing judgment asserting that the trial Court erred in denying him recovery on the note, particularly in denying his motion for instructed verdict where no sworn denial was filed under oath pursuant to Rules 93 and 185, Tex.R.Civ.P. Under Rule 93(h), if no sworn denial is made of the execution of a written instrument, such issue may not be raised in the trial. In this case, Mr. Alsip never attempted to question the execution of the note. He admitted that he signed it. It was admitted into evidence without any objection by his counsel. But that alone does not establish absolute liability and preclude all defenses which have been raised in the pleadings.

Under Rule 185, a sworn account shall be taken as prima facie evidence thereof, “ * * * unless the party resisting such claim shall * * * file a written denial, under oath, stating that each and every item is not just or true, or that some specified item or items are not just and true * * *_” \ye conclude that Rule 185 is not applicable in this ease.

First of all, this Rule applies only to those transactions in which there has been a sale of certain goods, wares and merchandise, or the performance of personal service, or labor done, or materials furnished where a specified sum is claimed for such goods, services, or materials. A sworn account does not cover transactions between parties resting upon special contract. Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75 (1958). Rule 185 requires that the account sued upon show upon its face with reasonable certainty the nature of each item sold or service rendered, the date of each sale or service, and the reasonable charge therefor. Unit, Inc. v. Ten Eyck-Shaw, Inc., 524 S.W.2d 330 (Tex.Civ.App.—Dallas 1975, writ ref’d n. r. e.). There was no such pleading in this case.

Even if the rule on sworn accounts applied to notes or a special contract, it could not be applied in this case. Rule 185 specifically requires that the pleading be supported by an affidavit that the claim is “just and true.” The affidavit of Mr. DeW-ees attached to his pleadings said that the amount was due and unpaid, but not that the account was “just and true.” Such an affidavit is insufficient to comply with the requirements of Rule 185. Johnson v. Walker, 330 S.W.2d 508 (Tex.Civ.App.—San Antonio 1959, no writ).

In those cases where the Rule is applicable, the stated account is received as prima facie evidence, but the failure to deny the account under oath does not deny the Defendant the right to defend on other grounds raised by his pleadings and which raise a defense other than the correctness of the stated charges. 2 McDonald, Texas Civil Practice, Sec. 7.31 (1970). Thus, a defense of payment or accord and satisfaction may be established, where pled, even though there is no sworn denial of the account. Goddard Machinery Company v. Industrial Equipment Repairs, 351 S.W.2d 371 (Tex.Civ.App.—Waco 1961, no writ).

There being evidence that the note was signed simultaneously with the contract, that there was but one obligation as set forth in the contract, which was evidenced by the note, and that that obligation had been fully discharged, the trial Court correctly entered a take nothing judgment.

The Appellant’s three points of error are overruled. The judgment of the trial Court is affirmed.


text:
    H. H. BRISCOE, Appellant, v. LAMINACK TIRE SERVICE, INC., Appellee.
    No. 8431.
    Court of Civil Appeals of Texas, Texarkana.
    Feb. 1, 1977.
    Rehearing Denied Feb. 22, 1977.

      Burns Parum, Grand Prairie, for appellant.
    Fred S. Abney, Abney, Conner & Mills, Dallas, for appellee.
   CHADICK, Chief Justice.

The appellant, J. H. Briscoe, one of the three defendants below, has perfected an appeal from a judgment that awarded Lam-inack Tire Service, Inc., the plaintiff below, a joint and several recovery of actual damages together with $20,000.00 exemplary damages from Briscoe and his two co-defendants.

The single point of error briefed is concerned with the award of exemplary damages. It is as follows:

“THE TRIAL COURT ERRED IN AWARDING EXEMPLARY DAMAGES TO THE APPELLEE BECAUSE THERE WAS NO EVIDENCE TO SUPPORT A FINDING THAT THE APPELLANT ACTED WILFULLY OR INTENTIONALLY TO INJURE THE APPEL-LEE.”

The point, and argument under it, submits as the issue in the appeal whether or not there is an absence of evidence to support a finding that Briscoe acted wilfully or intentionally to injure Laminack Tire Service, Inc.

Appellant, J. H. Briscoe, was President of AGRI-PET, INC. a defendant below, which engaged in the business of selling fuel and tires at wholesale. In early March 1974, Jerry Bristol, an employee of AGRI-PET, INC. and the third defendant below, received an inquiry from Bobby E. Laminack, President of Laminack Tire Service, Inc., relative to acquisition of 2,800 automobile tires that were understood to be available as a result of confiscation by the sheriff of Rockwall County, Texas. As a follow-up to the inquiry and discussions with Laminack, Bristol and Briscoe appeared at the Lami-nack Tire Service, Inc. place of business with a written AGRI-PET, INC. invoice made out to Laminack Tire Service, Inc. for the 2,800 tires. In the invoice the tires were described, priced and sizes and quality guaranteed together with a specified date of delivery. At that time Briscoe stated to Laminack that the tires were in a warehouse in Rockwall County in the custody of the sheriff of the county. Briscoe said, also, that he had arranged to buy the tires on or before April 2,1974, and that it would be a cash transaction. To make the purchase, Briscoe informed Laminack $48,-020.00 cash would be needed. Laminack paid him that amount and received the tendered invoice for the tires.

The foregoing facts are uncontroverted. With respect to other evidence in the record, it suffices to say that the purchase transaction by which Briscoe was to obtain the tires was not consummated. Briscoe claimed that he failed to obtain the tires because he was the victim of a confidence scheme, in slang terms a “con game,” in which he paid out $25,000.00 of the money paid him by Laminack to an unknown bogus deputy sheriff and that the tires Bris-coe sold to Laminack were not in the custody of the sheriff and not in a warehouse in Rockwall County, as no such tires existed.

The trial judge found from the evidence that Briscoe and his co-defendants represented to Laminack the following: That on the date of the transaction between them, March 30, 1974, the 2,800 tires were then in storage in a warehouse in Rockwall County; that Briscoe had at that time a firm and established arrangement whereby he was entitled to purchase and have delivery of the tires on or before April 2, 1974; that the representations so made were false. The other elements of legal fraud were also found and in addition it was found that Briscoe and his co-defendants, jointly and severally, acted with reckless disregard of the plaintiff’s rights and interests; and that the sum of $20,000.00 was a reasonable and proper amount to award as exemplary damages.

The trial court did not make a finding as a basis for awarding exemplary damages in the words of the point of error, that is, that Briscoe “acted wilfully or intentionally to injure.” However, the conclusion is reached that the finding made, that Briscoe “acted with reckless disregard for the rights and interests” of Laminack Tire Service, Inc., is equivalent to a finding of wilful and intentional action. See LaCerra v. Woodrich, 321 Ill.App. 107, 52 N.E.2d 461 (1943); Hull v. Seaboard Air Line Ry., 76 S.C. 278, 57 S.E. 28 (1907); 36 Words and Phrases 785 (1962); 17 Tex. Jur.2d, Damages, Sec. 178. In the Hull case, it is said:

“Each of the words, ‘wantonness,’ ‘willfulness,’ and ‘recklessness,’ embodies the element of malice, either express or implied, and are in law substantially the equivalent of each other, in so far as they give rise to punitive damages.”

The point sufficiently directs attention to the error claimed. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943). See also Sias v. Berly, 245 S.W.2d 503, 516 (Tex.Civ.App. Beaumont 1950), rev’d on other grounds, 152 Tex. 176, 255 S.W.2d 505 (1953).

The trial judge, as trier of facts, was empowered to disregard any part of Bris-coe’s testimony that he found not worthy of belief. 1 McCormick & Ray, Texas Law of Evidence, Sec. 3. He was authorized to, and apparently did, regard Briscoe’s “con game” explanation as fictitious and not worthy of belief. However, disbelief of all or part of Briscoe’s testimony is not sufficient to establish facts antithetical to those he testified to. Disbelief of testimony given by Briscoe affords no basis for finding the antithesis or converse of the discredited testimony in the absence of other evidence tending to prove the antithetical fact.

There is evidence that Briscoe represented the tires were in a warehouse in Rock-wall. Briscoe was the only witness to testify that there were no tires so stored. His testimony in self justification tended to show existence of the tires was a fiction that he discovered several days after he made the deal with Laminack. The court was warranted in finding, as it did, that such representation was made by Briscoe to Laminack and that it was false. But there is no testimony from Briscoe or other evidence in the record that at the time Briscoe made the representation on March 30, 1974, he knew the tires were not in a warehouse in Rockwall or that he wilfully made the representation with full knowledge of its falsity and with the intent that Laminack should act upon the representation Briscoe then knew to be false. Likewise, there is evidence that Briscoe represented that he had a firm and established arrangement entitling him to purchase the tires, but there is no evidence that at the time the representation was made he knew it to be false, etc.

An indispensable element of proof in an action to recover exemplary damages, in a factual situation such as this, is evidence that the party making the false representation knew it to be false and with knowledge of its falsity intended to cause the party to whom it was made to act upon and be injured by it. Baker v. Moody, 219 F.2d 368 (5th Cir. 1955); Mason v. Peterson, 250 S.W. 142 (Tex.Com.App.1923, opinion adopted); Wilson v. Jones, 45 S.W.2d 572 (Tex.Com.App.1932, holding approved); Stroud v. Pechacek, 120 S.W.2d 626 (Tex.Civ.App. Austin 1938, no writ); Morgan v. Arnold, 441 S.W.2d 897 (Tex.Civ.App. Dallas 1969, writ ref’d n.r.e.). Though adherence to this rule is not clearly discernible in many cases, nothing said in Dennis v. Dial Finance & Thrift Company, 401 S.W.2d 803 (Tex.1966), is in derogation of the rule and the few cases in which it may not appear to have been followed are not considered authoritative or persuasive.

As indicated, the record contains no evidence, except the testimony of Briscoe, showing the two representations discussed were false. He maintained that he was misled at the time he made the misrepresentation by statements and information given him by a bogus deputy sheriff. There is no evidence that Briscoe had ascertained or thought that the information given him by the spurious deputy was false at the time of his transaction with Lami-nack.

Appellant’s point of error number one is sustained and the judgment of the trial court insofar as it awards exemplary damages is reversed and judgment rendered that Laminack Tire Service, Inc. take nothing by way of exemplary damages. The judgment below is modified to eliminate the exemplary damage recovery and as modified is affirmed with costs adjudged against Laminack Tire Service, Inc.