text:
    Darnell JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 56088.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 21, 1978.
    Dan V. Dent, Hillsboro, for appellant.
    Charles F. Campbell, Jr., Dist. Atty., Hillsboro, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated robbery. Punishment, enhanced by one prior conviction, was assessed at 99 years.

Appellant complains that the trial court erred by failing to give him ten days after the service of the indictment in which .to prepare for trial.

The prosecution in the instant case is based on a robbery which occurred at the First National Bank of Bynum on November 2, 1976. Appellant was arrested on November 16, 1976. Appellant was first indicted on December 9, 1976, along with three other men, for this crime. Appellant was reindicted February 2,1977, and prosecution herein was based on that indictment. Trial was held on February 8 and 9, 1977. Before trial began, appellant requested a continuance because he had not had ten days to prepare for trial after being served with a copy of the indictment upon which prosecution was based as required by Art. 27.12, V.A.C.C.P.

Article 27.12, supra, provides:

“In cases where the defendant is entitled to be served with a copy of the indictment, he shall be allowed the ten days time mentioned in the preceding Article to file written pleadings after such service.”

The appellant was confined continuously from the time of his arrest until the time of trial. Clearly, he had the absolute right to be served with a copy of the indictment against him. Arts. 25.01 and 25.02, V.A.C. C.P.

Appellant’s right to be served with a copy of the indictment is not affected by the fact that it was a reindictment. In Lockwood v. State, 32 Tex.Cr.R. 137, 22 S.W. 413, this Court said: “The fact that the second indictment charges the same offense as that charged in the first does not deprive the accused of the time allowed by the statute in which to prepare for trial.” See also: Stokes v. State, 35 Tex.Cr.R. 279, 33 S.W. 350; Harris v. State, 32 Tex.Cr.R. 279, 22 S.W. 1037.

Looking at the dates of indictment and trial in the instant case makes it clear that ten days could not have elapsed between the time the grand jury met and trial. The indictment was returned by the grand jury only six days before trial started. Even if appellant had been served with the indictment immediately after it was returned by the grand jury, he could not have been given the ten days required by Art. 27.12, supra.

The State contends that no error was committed because appellant was given a “copy” of the indictment before it was returned by the grand jury. The record reflects that on January 27, 1977, H. E. Wardlow, an Investigator for the Hill County District Attorney’s Office, served a copy of the proposed indictment on the appellant while he was being held in jail in Bastrop. Another copy of the proposed indictment was served on appellant’s attorney on January 28, 1977.

The State relies on cases such as Wright v. State, 109 Tex.Cr.R. 164, 3 S.W.2d 804, and Weir v. State, 115 Tex.Cr.R. 491, 26 S.W.2d 271, for the proposition that when an accurate copy of the indictment is served on a defendant with a defect such as lack of certification, it will not constitute reversible error. These cases are not applicable to the instant situation. Appellant was not served with a copy of the indictment, but with a copy of a proposed indictment which the District Attorney had drawn. It is undisputed that at the time appellant was served the grand jury had not even been given the proposed indictment for consideration.

Article 21.01, V.A.C.C.P., provides:
“An ‘indictment’ is the written statement of a grand jury accusing a person therein named of some act or omission which, by law, is declared to be an offense.” [Emphasis supplied.]

Article 21.02, V.A.C.C.P., sets forth nine “requisites of an indictment,” among which are the following:

“3. It must appear to be the act of a grand jury of the proper county. ******
“9. It shall be signed officially by the foreman of the grand jury.”

An examination of the document served on appellant in light of the above statutes reveals that it cannot be a “copy of an indictment.” Since the document is not a copy of a grand jury indictment, it is not the “statement of a grand jury” as required by Art. 21.01, supra. The document does not bear the signature of the grand jury foreman or anyone else. Since the document was not a copy of an indictment, it had no legal significance. The document was not even sufficient to constitute an information, see Arts. 21.21 and 21.22, V.A. C.C.P., or a complaint, see Art. 15.05, V.A.C. C.P.

It is impossible to serve a defendant with a copy of something that does not yet exist. Article 27.12 gives a defendant at least ten days after indictment before going to trial. While the proposed indictment in the instant case is identical with the one actually returned by the grand jury, there was no way of knowing what action the grand jury would take before they were presented with the case. The grand jury could have made substantial changes in the indictment or refused to return an indictment at all.

The instrument served on appellant herein clearly was not sufficient to start the ten-day period provided for by Art. 27.12, supra.

When a defendant has properly requested the time given him by Art. 27.12, supra, and such request is refused, reversible error has been committed. See: Gonzales v. State, 167 Tex.Cr.R. 377, 320 S.W.2d 679; Tillman v. State, 127 Tex.Cr.R. 246, 75 S.W.2d 683; Miller v. State, 123 Tex.Cr.R. 507, 59 S.W.2d 842; James v. State, 113 Tex.Cr.R. 305, 21 S.W.2d 667.

In the instant case, appellant called the trial court’s attention to Art. 27.12, supra, and requested to be given ten days as required by the statute. The trial court’s action in denying appellant’s request requires reversal.

The judgment is reversed and the cause remanded.

      . See V.T.C.A., Penal Code, Sec. 12.42(c).

      . V.A.C.C.P. Art. 27.11, provides:
      “In all cases the defendant shall be allowed ten entire days, exclusive of all fractions of a day after his arrest, and during the term of the court, to file written pleadings.”

      . Article 25.01, V.A.C.C.P., provides:
      “In every case of felony, when the accused is in custody, or as soon as he may be arrested, the clerk of the court where an indictment has been presented shall immediately make a certified copy of the same, and deliver such copy to the sheriff, together with a writ directed to such sheriff, commanding him forthwith to deliver such certified copy to the accused.”
      Article 25.02, V.A.C.C.P., provides:
      “Upon receipt of such writ and copy, the sheriff shall immediately deliver such certified copy of the indictment to the accused and return the writ to the clerk issuing the same, with his return thereon, showing when and how the same was executed.”

      .While the record is not completely clear on the point, it appears that appellant was never served with a copy of the indictment after it had been returned by the grand jury. Article 1, Sec. 10, Vernon’s Ann.Constitution of Texas, provides, in pertinent part: “He [an accused] shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof.” See: Holden v. State, 44 Tex.Cr.R. 382, 71 S.W. 600; Venn v. State, 86 Tex.Cr.R. 633, 218 S.W. 1060; Pabst v. State, 96 Tex.Cr.R. 617, 259 S.W. 577, and cases there cited.

      . These cases were all decided under Arts. 514 and 515, Vernon’s Ann.C.C.P. (1925), which differed from Arts. 27.11 and 27.12, supra, only in that they allowed two instead of ten days.


source: Caselaw Access Project

author: DALLY, Judge.

license: Public Domain

text:
    John A. GRAYLESS, Appellant, v. The STATE of Texas, Appellee.
    No. 56346.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 21, 1978.

      Charles D. Butts, Shirley W. Butts and Fred A. Semaan, San Antonio, for appellant.
    Bill M. White, Dist. Atty., Bill Harris, Charles T. Conaway and Bennie F. Stein-hauser, Jr., Asst. Dist. Attys., San Antonio, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of murder; the punishment is imprisonment for twenty-five years.

At the time of the offense the appellant was fifteen years of age. The offense occurred on August 17, 1973; appellant was born on January 21, 1958. Appellant contends that he was not served with summons and the juvenile court did not have jurisdiction over him in the proceeding in which he was certified as an adult for criminal prosecution; therefore, the order waiving jurisdiction and certifying him for criminal prosecution as an adult was void. The State • concedes error; we agree and reverse the judgment.

The proceeding to declare a juvenile a delinquent, V.T.C.A. Family Code, Secs. 54.03 and 54.04, and the proceeding to waive jurisdiction and to certify a juvenile as an adult for criminal prosecution, V.T. C.A. Family Code, Sec. 54.02, are separate and distinct proceedings. The record reflects that a petition alleging that appellant had engaged in delinquent conduct was filed in the juvenile court on August 17, 1973. On March 7, 1974, appellant was served with a summons, which subsequently was filed on March 11, 1974. That summons stated that a hearing was to be held on March 13, 1974, “to determine whether said child engaged in delinquent conduct, and if so, to determine what disposition shall be made of said child . . .” A subsequent petition to certify the appellant as an adult for criminal prosecution and to transfer the cause from the juvenile court to the district court was filed by the State on March 15,1974; the record reflects that no summons ever was issued on this petition.

The hearing in the juvenile court was held on April 24, 1974. The appellant, his parents, and retained counsel all were present, and there was no objection to the lack of service. At the conclusion of the hearing, the juvenile court waived its jurisdiction and ordered that the juvenile be transferred to district court for adult criminal proceedings. Appellant did not appeal the order of the juvenile court to the Court of Civil Appeals, but the failure to do so does not waive any jurisdictional defect. Johnson v. State, 551 S.W.2d 379 (Tex.Cr.App.1977).

Appellant subsequently filed motions based on the same ground as presented in this appeal to set aside the transfer of his case to the district court and to remand to the juvenile court. A hearing on these motions was held on December 4, 1975, following which they were overruled. A similar motion by the appellant was considered and overruled in a pretrial hearing on May 18, 1976.

The certification proceedings in this case are governed by V.T.C.A. Family Code, Sec. 54.02, which states, among other things, that the petition and notice requirements of V.T.C.A. Family Code, Secs. 53.04, 53.05, 53.06, and 53.07 must be satisfied; it also requires that the summons state that the purpose of the hearing is to consider discretionary transfer to criminal court. Sec. 54.02(b), supra. Failure of the summons to comply with Sec. 54.02(b) deprives the juvenile court of jurisdiction to consider discretionary transfer. Johnson v. State, supra; In re D.W.M., 562 S.W.2d 851 (Tex.1978); In re W.L.C., 562 S.W.2d 454 (Tex.1978); In re T.T.W., 532 S.W.2d 418 (Tex. Civ.App.—Texarkana 1976, no writ); In re K.W.S., 521 S.W.2d 890 (Tex.Civ.App.— Beaumont 1975, no writ). See generally In re J.R.C., 551 S.W.2d 748 (Tex.Civ.App.— Texarkana 1977, writ ref’d n. r. e.); In re P.B.C., 538 S.W.2d 448 (Tex.Civ.App. — El Paso 1976, no writ).

In juvenile proceedings, summons must issue to the named juvenile, his parents or guardian, his guardian ad litem, and any other party the court deems a necessary party to the proceeding. Sec. 53.06(a), supra. Citation may be waived by all the parties to the proceeding except the juvenile. Sec. 53.06(e), supra. Therefore, the appearance of appellant at the certification hearing and his failure to object to the lack of a proper summons did not constitute a waiver of the service of summons. In re D.W.M., supra; Johnson v. State, supra.

The record shows that the juvenile court did not have jurisdiction over the appellant. Since it did not have jurisdiction, its order waiving jurisdiction and certifying appellant for criminal prosecution was a nullity. Johnson v. State, supra. We hold that the district court did not have jurisdiction to try the appellant for a criminal offense in the absence of a valid waiver of jurisdiction by the juvenile court. V.T. C.A. Penal Code, Sec. 8.07.

Appellant also asserts that he was denied his constitutional right to a speedy trial. Since the remedy for denial of a speedy trial is dismissal of the indictment, Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973), we, at the State’s request, will discuss the speedy.trial issue.

The right to a speedy trial is guaranteed by the Sixth Amendment to the Constitution of the United States as applied through the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The same right is assured by Art. I, Sec. 10, of the Texas Constitution, and Art. 1.05, V.A.C.C.P.

Whether an accused has been denied a speedy trial may be determined by a “balancing test” which was set out in Barker v. Wingo, supra. Each case requires consideration of the following factors, although they are not exclusive:

(1) the length of the delay;
(2) the reason for the delay;
(3) the defendant’s assertion of the right; and
(4) the prejudice to the defendant resulting from the delay.

See also Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973); Easley v. State, 564 S.W.2d 742 (Tex.Cr.App., decided April 12, 1978); Turner v. State, 545 S.W.2d 133 (Tex.Cr.App.1976); Wilkerson v. State, 510 S.W.2d 589 (Tex.Cr.App.1974); McKinney v. State, 491 S.W.2d 404 (Tex.Cr.App.1973).

There is no precise length of delay which irrefutably constitutes a violation of the right to a speedy trial in all cases. The length of the delay is measured from the time the defendant is formally accused or arrested. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). Two years and nine months elapsed from the time of the appellant’s arrest until the time of his trial; that is certainly sufficient to require the application of the balancing test of Barker v. Wingo, supra, and that time must be considered in determining appellant’s speedy trial claim.

We next consider the reasons for the delay; we are told that different weight should be assigned to different reasons. For example:

“A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government [footnote omitted]. A more neutral reason such as negligence or overcrowded court should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, Should serve to justify appropriate delay.” Barker v. Wingo, supra, 92 S.Ct. at 2192.

The offense occurred on August 17, 1973. Appellant was arrested the same day and has been incarcerated ever since. Soon after his arrest appellant was transferred to Villa Rosa mental hospital, where he spent five months undergoing examination and treatment. Delays encountered in bringing a defendant to trial who claims to be incompetent or who is temporarily incompetent ordinarily do not infringe on the right to a speedy trial. United States v. Mills, 434 F.2d 266 (8th Cir. 1970); Hodges v. United States, 408 F.2d 543 (8th Cir.1969); United States v. Davis, 365 F.2d 251 (6th Cir.1966); United States v. Dale, 426 F.Supp. 675 (S.D.N.Y.1976); United States v. Beidler, 417 F.Supp. 608 (M.D.Fla.1976).

Following appellant’s return to the juvenile detention center, the previously described juvenile court proceedings were begun. These proceedings took approximately two months and included a complete diagnostic study and social evaluation and a full investigation of the appellant, his background, and the circumstances of the alleged offense. V.T.C.A. Family Code, Sec. 54.02(d). Two months is not an unreasonable length of time in which to carry out these proceedings.

Appellant was indicted on June 19, 1974, two months after the juvenile court waived jurisdiction, and was arraigned on August 9, 1974. His trial was set for September 30,1974, but it did not begin on that date for a reason that does not appear in the record. Jorga Lindgron was the principal witness against appellant, without whom the State’s case would have failed. On October 10, 1974, a jury found co-defendant Lindgron incompetent to stand trial (“presently insane” within the meaning of Art. 46.02, Y.A.C.C.P., as it read in 1974). Lindgron was ordered placed in the Rusk State Hospital, and appellant’s-trial reset to February 10, 1975. The absence or illness of a principal witness will justify an appropriate delay. See Barker v. Wingo, supra; Smith v. State, 530 S.W.2d 827 (Tex.Cr.App.1975); United States v. Netterville, 553 F.2d 903 (5th Cir. 1977); United States v. Hay, 527 F.2d 990 (10th Cir.1975); Torres v. Florida, 477 F.2d 555 (5th Cir.1973), cert. denied, 414 U.S. 852, 94 S.Ct. 148, 38 L.Ed.2d 102; United States v. Spoonhunter, 476 F.2d 1050 (10th Cir. 1973). Lindgron remained at Rusk State Hospital until March 19, 1975, when she was returned to the county jail. She was found by a jury to be competent to stand trial on October 16, 1975, a year and six days after she was declared incompetent.

The defendant’s assertion of the speedy trial right is entitled to strong evi-dentiary weight in determining whether the defendant is being deprived of the right, and failure to assert the right will make it difficult to prove that he was denied a speedy trial. Barker v. Wingo, supra. Appellant first moved for a speedy trial on October 29, 1974, one year and two months after his arrest. This was not a timely assertion of the right. Cf. Turner v. State, 545 S.W.2d 133 (Tex.Cr.App.1976). He filed additional motions on April 23, 1975, and August 13, 1975. It is significant that appellant did not move for a speedy trial until after Lindgron was found presently insane, nor did he do so after she was found competent. Furthermore, appellant did not request a severance in order that he be brought to trial during the year Lindgron was incompetent.

On October 27, 1975, approximately one week after Lindgron was found competent to stand trial, appellant’s trial was set for December 1, 1975. On November 26, 1975, appellant filed a motion for severance, which was granted. On December 4, 1975, appellant’s bail was reduced from $75,000 to $20,000, and the case was reset by agreement to January 5, 1976. On the latter date, appellant filed a motion to determine the competency of Lindgron as a witness. An agreement was reached between appellant and the prosecutor to have Lindgron examined by a psychiatrist, and the trial was reset to May 17, 1976, on which date the trial began. Thus, a substantial part of the delay following the determination that Lindgron was competent to stand trial was agreed to by appellant.

It is generally said that there are three interests to be considered in determining prejudice to the defendant. These interests are prevention of oppressive pretrial incarceration; minimizing anxiety and concern of the accused; and limiting the possibility that the defense will be impaired. Barker v. Wingo, supra; United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773,15 L.Ed.2d 627 (1966); Smith v. Hooey, supra; Klopfer v. North Carolina, supra; McKinney v. State, supra. Appellant makes no serious contention that his ability to present a defense has been impaired.

Appellant asserts that the delay in bringing him to trial prejudiced him because: he was cut off from his schooling; he lost governmental financial assistance for medical treatment (appellant suffers from epilepsy) and schooling; he was deprived of parental guidance; and his image before the jury was changed, for he was fifteen years old at the time the offense was committed and nineteen years old at the time of trial. The loss of image of which appellant complains is, at the most, a speculative showing of prejudice; moreover, we observe that appellant already was seventeen years old when he first asserted his right to a speedy trial. The other factors which appellant complains prejudiced him all were due to his confinement. Although bail was granted appellant, he never attempted to secure his release on bail, and his failure to do so must be considered in evaluating his claim of prejudice resulting from pretrial confinement.

In summary, we find that: (1) appellant suffered a delay of two years and nine months from his arrest until trial; (2) valid reasons for all but, at most, eleven months of this delay were demonstrated; (3) appellant’s assertion of his right to a speedy trial was not timely; and (4) the prejudice which appellant suffered was due, at least in part, to his failure to make bail.

Our discussion of the speedy trial issue does not prevent the raising of this issue in the event of another trial. We are now only holding that appellant, on the record before us, was not denied a speedy trial; he is not now entitled to have the charges dismissed and the prosecution forever barred.

The judgment is reversed and the cause remanded.


text:
    Willie Herman JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 58132.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 21, 1978.
    W. John Allison, Jr. (on appeal only), Dallas, for appellant.
    Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Brady Sparks and Stewart Robinson, Asst. Dist. Attys., Dallas, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for aggravated robbery. Appellant entered a plea of guilty before the jury, which, after hearing evidence, assessed punishment at imprisonment for twelve years.

Appellant’s sole contention is that his conviction is void because the special judge who tried his case was assigned in contravention of the statutes of this State. Specifically, he contends that Art. 200a, Sec. 5a, V.A.C.S., as amended effective August 29, 1977, prohibits the assignment of retired judges of more than seventy years of age. It is a matter of record that the retired judge who tried this case was seventy-five years of age on October 23, 1977, the date of his assignment.

Prior to its 1977 amendment, Sec. 5a, supra, provided for the special assignment of “regular district judges” and district judges retired pursuant to the Judicial Retirement Act (Art. 6228b, V.A.C.S.). As it then read, Sec. 5a, supra, was construed to authorize the assignment to active duty of retired district judges who consent to such assignment, without regard to age. Werlein v. Calbert, 460 S.W.2d 398 (Tex.Sup.1970).

In 1977, the Legislature amended Sec. 5a, supra, to include within the group available for assignment all former district judges who have not yet retired, so long as they have not been defeated for reelection, have not been removed from office, are not more than seventy years of age, and have certified their willingness to serve. Acts 1977, 65th Leg., ch. 115, p. 248. A comparison of the language of Sec. 5a, supra, before and after the 1977 amendment makes it clear that those persons to whom the section was applicable prior to 1977 are not affected by the amendment. The age limit of seventy years found in Sec. 5a, supra, does not apply to retired or “regular” district judges; it applies only to “former” district judges. Tex.Att’y Gen.Op. No. H-1021 (1977).

The retired district judge who presided at appellant’s trial was lawfully assigned to the district court.

The judgment is affirmed.


author: WARD, Justice.

text:
    Jesse JUAREZ, Appellant, v. Thomas S. DUNN et al., Appellees.
    No. 6719.
    Court of Civil Appeals of Texas, El Paso.
    March 29, 1978.
    Rehearing Denied April 26, 1978.

      Craig L. Austin, Ingram Blair McLeod, San Antonio, for appellant.
    Morriss, Boatwright, Lewis & Monnig, Clarence R. Boatwright, Stanley E. Burch, San Antonio, for appellees.
   OPINION

WARD, Justice.

Jesse Y. Juarez sued to recover compensation for architectural services rendered to Thomas S. Dunn under the terms of a written contract. The Plaintiff also sought recovery from Norman Harwell on the basis that Dunn and Harwell were operating under a partnership arrangement. The trial Court, sitting without a jury, entered judgment for the architect against Dunn and entered a take nothing judgment in favor of the Defendant Harwell. The Plaintiff, on appeal, complains of the take nothing judgment against Harwell and of the trial Court’s failure to enter judgment for the Plaintiff on reasonable attorney’s fees against both Defendants. We reform the judgment below by permitting the Plaintiff to recover attorney’s fees against the Defendant Dunn, and affirm in all other respects.

The Plaintiff’s trial petition alleged that on August 10, 1975, he entered into a written contract with Dunn to perform architectural services for the partial design of a shopping center for which he was to be paid the agreed sum of 13 <£ per square foot or the total amount of $12,389.00, a copy of the contract being made a part of the petition and attached as Exhibit “A”. He alleged that he had received four partial payments totaling $5,250.00, and that a balance of $7,139.00 was past due and owing. The Plaintiff further alleged that Dunn and Harwell were partners operating under the terms of a written partnership agreement, the copy thereof being attached as Exhibit “B” and made a part for all purposes. The Plaintiff alleged, in the alternative, that the reasonable value of his architectural services was in excess of the contractual amount, that he was entitled to reasonable attorney’s fees, and attached an affidavit stating that “the foregoing account” was just, true and correct, the affidavit being in the form required by Rule 185, Tex.R.Civ.P.

The trial Court found as a fact that the Plaintiff substantially performed the contract for architectural services and was entitled to receive the full agreed consideration of $12,389.00, and that, since he had been paid $5,250.00, there was a balance due and owing of $7,139.00. There was also a finding that the fair market value of his services was the amount of $12,389.00, which services were received and retained by the Defendant Dunn for his use and benefit. The Court determined that reasonable fees for the Plaintiff’s attorney were in the sum of $1,427.80 in the trial Court, and $1,000.00 in the Court of Civil Appeals, but that, as a matter of law, no attorney’s fees were allowable. As pointed out, the judgment was then entered against Dunn only for the balance due and owing for the services rendered.

The Plaintiff’s first point is to the effect that his suit was properly brought under Rule 185, Tex.R.Civ.P.; that the Defendant Harwell did not file a verified denial as required by that Rule; and, consequently, he was entitled to judgment on his pleadings against Defendant Harwell. He contends that his petition evidenced a suit on a sworn account founded upon the written contract, and in the absence of a sworn denial under Rules 185 and 93(k), Tex.R. Civ.P., his account became prima facie evidence, with Harwell not being permitted to dispute the items or services or the correctness of the stated charges. Edinburg Meat Products Company v. Vernon Company, 535 S.W.2d 432 (Tex.Civ.App. — Corpus Christi 1976, no writ); Leyendecker v. Santa Rosa Medical Center, 533 S.W.2d 868 (Tex.Civ. App. — Tyler 1976, no writ).

Harwell argues generally that the Plaintiffs pleadings and exhibits taken together in no wise complied with the minimum requirements of a sworn account as contemplated by Rule 185, as this was a suit on an express contract with no itemization showing the nature of each item, the date, and the charges therefor. The cases are legion to support that contention where the account is an open one involving sales of personal property, but those eases do not relate to the subdivision of Rule 185 before us, which is one for personal services rendered by a plaintiff-architect under the terms of a written contract. As to that part of the Rule, the Rule itself is not clear that there must have been a systematic record maintained by the plaintiff of all charges and credits, entered in regular sequence and sworn to, before a plaintiff can be entitled to the advantages of the Rule. The Rule, as adopted in 1941, came from Article 3736, Tex.Rev.Civ.Stat.Ann. That Statute, before it was amended in 1931, limited a sworn account to one which was an open account, in which there was a sale on one side and a purchase on the other side whereby title to personal property passed from one person to another creating the relationship of creditor and debtor. In 1931, the Statute was amended and the benefits of a suit and the proof on a sworn account were extended to claims for liquidated money demands based upon contracts, or based upon business dealings between the parties, or for personal services rendered on which a systematic record! of accounts had been kept. That amendment required that a systematic record of accounts be kept where the suit was for the recovery of personal services. That requirement was reflected by the emergency clause of the 1931 amendment, where it was repeated in the following language:

“The fact that there is no existing statute authorizing a judgment to be rendered upon a claim for liquidated money demands based upon their contracts, or based upon business dealings between the parties, or for personal services rendered on which a systematic record of accounts has been kept which is supported by the affidavit of the party, his agent or attorney creates an emergency * * *.”

Substantially the same wording is carried forward into the present Rule. Thus, it would seem necessary that under Rule 185, where the suit was based upon the personal services rendered, a plaintiff should swear to a systematic record of all charges and payments, entered in regular sequence, before he would be entitled to the benefits of the Rule; that is, that a statement or invoice be set forth in the pleadings or by an attached and incorporated exhibit which clearly identifies the nature of the items constituting the sworn account, particularly where it is a suit for personal services. This thought is present in the article “Sworn Accounts and Summary Judgment Proceedings in Texas: A Proposed Change,” Tomasic and Kieval, 17 S.Tex.L.J. 147 (1976), where the authors of the article continue with suggested changes to Rule 185 that would promote greater clarity in the wording of the Rule.

Since the Plaintiff’s suit is upon a claim upon personal services with a stated amount as being the total due, and with no other itemization, we hold that the pleading and exhibits were insufficient under Rule 185 to constitute a suit upon a sworn account, as the term is used in Rule 185, and the Defendant’s general denial put in issue all matters not required to be specifically pleaded. Biscamp v. Zeno Carpet Company, 473 S.W.2d 218 (Tex.Civ.App.— Beaumont 1971, no writ); Benthall v. Goodwin, 498 S.W.2d 510 (Tex.Civ.App. — El Paso 1973, no writ).

If we be mistaken in what we have said, there still remain more fundamental reasons why the Plaintiff could not claim the full advantage of Rule 185, Tex.R. Civ.P. The Plaintiff declared on a contract to which Harwell was a stranger, although the Plaintiff did allege that Harwell was a partner with Dunn and did attach a copy of an agreement between those two Defendants to his petition. Harwell, in his answer, did file a sworn denial of partnership in accordance with Rule 93(f), Tex.R.Civ.P. Also, the agreement between the two Defendants as attached did not reflect that any partnership was created, but that some sort of a partnership might be created in the future if contracts were ever secured to finance, purchase and construct a contemplated shopping center. Thus, in the instant case, we have facts which call for application of the stranger-to-the-account exception which dispenses with the requirement of an appropriate written denial under oath. This exception is said to apply where the plaintiff’s own pleadings or the exhibits reflect that the defendant was not a party to the original transaction. Boysen v. Security Lumber Company, 531 S.W.2d 454 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ). Also, in this instant case, the written denial of partnership under oath, as required by Rule 93(f), should be sufficient to controvert the account and put the Plaintiff on proof of his claim sued on. Booher v. Criswell, 531 S.W.2d 844 (Tex.Civ.App.—Dallas 1975, no writ); 31 Sw.L.J. 227 (1977). The Plaintiff’s first point is overruled.

The next two points, by which the Plaintiff asserts that the agreement between the two Defendants created a partnership as a matter of law, are overruled. The agreement at best was an executory contract to form a partnership in the future and, under the facts, the partnership never came into existence. Willis v. Harvey, 349 S.W.2d 323 (Tex.Civ.App.—Houston 1961, writ ref’d n. r. e.). These points are overruled. The next point, that the trial Court committed error in requiring an election by the Plaintiff between express contract and quantum meruit, is also overruled as being without merit.

The Plaintiff’s next point that the Court was in error in not determining that Harwell was liable to the Plaintiff on the theory of quantum meruit is also overruled. Harwell’s evidence was that the agreement that the Plaintiff had was with Dunn only. While this was contested by the Plaintiff, the version offered by Harwell was accepted by the trial Court and the point is overruled.

The Plaintiff’s final point complains of the failure of the trial Court to award attorney’s fees under Article 2226, Tex.Rev.Civ.Stat.Ann., after the trial Court had accepted the Plaintiff’s testimony and determined that reasonable attorney’s fees for the Plaintiff’s attorney were $1,427.80 in the trial Court, and $1,000.00 in the Court of Civil Appeals. The case was tried under the terms of the Statute before the last amendment, which became effective on August 29, 1977. The argument made against the award of attorney’s fees that this was not a suit on a sworn account does not prevent this award. Here, the Plaintiff brought himself within that subdivision of the Statute that allows the fees for one with a “valid claim against a person or corporation for services rendered, labor done * * Also, the fact that the claim originated out of a written or special contract does not prevent the recovery. Since this was a suit for the recovery of services rendered, questions of whether or not the suit was based on breach of contract or whether the suit was one brought to recover on a special contract are wholly immaterial in determining if an attorney’s fees are recoverable. Huff v. Fidelity Union Life Insurance Company, 312 S.W.2d 493 (Tex.1958); Tacker v. Phillips, 473 S.W.2d 1 (Tex.1971); Jackson v. Paulsel Lumber Company, 461 S.W.2d 161 (Tex.Civ. App.—Fort Worth 1970, writ ref’d n. r. e.). The prerequisites for the recovery of the fees were established here. The trial Court erred in not permitting the recovery as to the Defendant Dunn. The Plaintiff’s last point, insofar as it applies to the Defendant Dunn, is sustained.

The judgment of the trial Court is reformed to the extent only that the Plaintiff recover of and from the Defendant Dunn the additional sum of $2,427.80 as reasonable attorney’s fees. In all other respects, the judgment of the trial Court is affirmed.

ON MOTION FOR REHEARING

The Plaintiff, in his motion for rehearing, correctly challenges a statement we made when we overruled the Plaintiff’s point regarding his theory of quantum meruit. When the Plaintiff rested, the trial Court granted Harwell’s motion for judgment and did not dispose of the point as to quantum meruit as a fact finder. Our statement regarding that point is withdrawn. We are required to review the evidence and the inferences therefrom in the light most favorable to the Plaintiff’s contention that liability of Harwell existed under quantum meruit. We have done so and the point is overruled.

The motion for rehearing is overruled.


author: BISSETT, Justice.

text:
    WHARF CAT, INC., et al., Appellants, v. Clarence E. COLE and Wilma Cole, Appellees.
    No. 1282.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 13, 1978.
    Rehearing Denied and Supplemental Opinion on Filing Remittitur May 18, 1978.
    Second Rehearing Denied June 8, 1978.

      J. Robert McKissick, R. W. Woolsey, Kle-berg, Mobley, Lockett & Weil, Corpus Christi, for appellants.
    Jack K. Dahlberg, Jr. Guy Allison, Corpus Christi, for appellees.
   OPINION

BISSETT, Justice.

This is a suit for damages brought by Clarence E. Cole and wife, Wilma Cole, for personal injuries sustained by them while passengers aboard the vessel WHARF CAT, which was owned and operated by the defendants Wharf Cat, Inc., William J. Sheppard, Edward Sheppard, and Anton T. Mathews, Jr. Trial was to a jury. All issues were answered against defendants. Judgment in the amount of $162,250.00 was rendered against the defendants, who have appealed.

Defendants do not complain of the jury’s findings of negligence which proximately caused plaintiffs’ injuries. The only complaints on appeal are directed to the jury’s answers to Special Issue No. 8, subsections (a) through (f). The jury, in its answers to the several elements of damages inquired about, found that the following amounts of money would reasonably compensate Cole for his injuries, to-wit:

8(a) $50,000.00 for “physical pain and mental anguish in the past”;
8(b) $25,000.00 for “physical pain and mental anguish which, in reasonable probability, he will suffer in the future”;
8(c) $45,000.00 for “loss of earning capacity in the past”;
8(d) $25,000.00 for “loss of earning capacity which, in reasonable probability, he will sustain in the future”;
8(e) $4,000.00 for “physical impairment in the past”;
8(f) $10,000.00 for “physical impairment which, in reasonable probability, he will sustain in the future”.

The awards by the jury are attacked by “no evidence”, “factual insufficient evidence” and “against the great weight and preponderance of the evidence” points. In addition, the defendants complain that each award is “too large so as to be inequitable and requires that the Court (of Civil Appeals) direct a remittitur of the same in whole or in part”.

The defendants’ prayer, as stated in their brief, reads:

“. . Defendants pray that the Judgment of the Trial Court be modified to provide that Plaintiffs recover no more than the sum of $19,250.00, and as so modified, affirmed.”

We will review the record in its entirety. The “evidence” points will be disposed of in accordance with the guidelines set out by Justice Calvert in 38 Texas L.Rev. 359. In disposing of the “remitti-tur” points, an appellate court, in determining whether the amount of damages awarded by a jury is excessive, considers only the evidence that is favorable to the award. Sunset Brick & Tile, Inc. v. Miles, 430 S.W.2d 388 (Tex.Civ.App. — Corpus Christi 1968, writ ref’d n. r. e.). On appeal, the findings by the jury will not be disturbed on the ground of “excessiveness” if there is any probative evidence to sustain the award, unless the record shows that the minds of the jurors were so controlled by passion, prejudice or bias as made them unwilling to consider the case on its merits, to the end result that the award is so excessive that it shocks the conscience of the Appellate Court. World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962 (Tex.Com.App.1937, judgment adopted), reaffirmed in Dallas Ry. & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017 (1950).

An appellate court (as well as a trial court), in deciding whether an award of damages is so excessive as to require a remittitur, is governed by the standard set forth in Wilson v. Freeman, 108 Tex. 121, 185 S.W. 993 (1916), and restated in Flanigan v. Carswell, 159 Tex. 598, 324 S.W .2d 835 (1959), as follows:

“All the Court of Civil Appeals can do, and all that is required of it to do . is to exercise its sound judicial judgment and discretion in the ascertainment of what amount would be reasonable compensation for the injury sustained, and treat the balance as excess [Having] decided upon an amount that would be reasonable compensation . it should authorize a remittitur of the excess ... in accordance with its sound judgment.”

The accident made the basis of this lawsuit occurred on February 13, 1973, while Clarence E. Cole, hereinafter referred to as “Cole” was injured when the vessel “WHARF CAT”, a fishing boat based in Port Aransas, Texas, collided with a large wave at the entrance of the Corpus Christi Ship Channel, near the end of the jetties. The collision was of such force that Cole was torn from the railing which he was holding and thrown to the deck. He sustained serious injuries to his back.

On the date of the accident, Cole was 65 years of age, in apparent good health, and had retired from business in 1968, some four or five years before the happening of the occurrence in question. After retirement in 1968, he and Mrs. Cole traveled with a travel trailer, spending the winter months, beginning about January of each year, in South Texas; went to the lake area in Minnesota for the summer, then returned to their home in Lincoln, Nebraska, for a few weeks in the fall before returning to South Texas again shortly after the first of the year. This lifestyle, or pattern, was one which they had followed consistently during the years following Cole’s retirement up to the date of the accident, and one which they had followed every year since the accident in February, 1973.

Following the accident, Cole was taken to Dr. James C. Sharp, Sr., in Port Aransas, who, after examination, sent him to a Corpus Christi Hospital, where he remained for nine days. Since that time, he has not been in a hospital with any back problems. He has not had any surgery. During the balance of the year 1973, he saw a doctor in April. In 1974, he went in the spring and the fall for x-rays and an examination and saw a doctor one time in 1975 for an examination. In the year 1976, he was examined by a doctor at the request of counsel for the defendants.

Cole testified that he “couldn’t feel anything” immediately after he was thrown to the deck of the boat; that at the doctor’s office he began to feel pain; and that he had never “had any kind of pain like that before”. Dr. Sharp described the pain suffered by Cole in these words:

“. .At the time I saw him he was in apparently excruciating pain . . .”

Cole’s injury was diagnosed as a compression fracture of a vertebra. Dr. Sharp testified in detail concerning vertebra and compression fractures. He said that such fractures are serious and painful; that the accident caused an immediate destruction of thirty per cent of the affected vertebra; that from the date of the injury in February, 1973 until the trial, which began on June 6, 1977, the destruction showed a progression from thirty per cent to fifty per cent; that the injury was permanent, which would not get any better, and could get worse, and that nature, by the time of trial, had fused Cole’s backbone, so that surgery would not be required, but that the natural fusion had developed calcification in the area of the crushed vertebra.

Dr. Wright, the orthopedic surgeon, who attended Cole while he was in the hospital, prescribed a steel brace which Cole wore for about three and a half months following his release from the hospital. About three months thereafter he was fitted with a back brace “similar to a corset”, but it made Cole “sore”, and he used it only when his “back began bothering me too much”. Approximately a year after the accident, Cole began to experience pain in his legs when he attempted to “do some lifting motions”. When casting while fishing, Cole said that his arm hurt and that it was “like something that pulls a string or something up back over my shoulder”, which he did not experience before the accident. Cole further stated that he has intermittent pain in his back which comes and goes, and that his back bothers him when he sits or stands in one position too long. He further testified:

“Q What percentage of the time in an average waking day would you say your back hurt you now?
A Oh, I would say thirty percent.”

He further testified that his enjoyment of life has been impaired because of the physical problems he sustained in this incident. He was not physically able to do the hunting or fishing that he had done previously. He had not been fishing in two years because of his inability to cast or pick up an ice chest without pain. The hunting activities he attempted in 1974 were curtailed because he could not walk over the frozen ground because of pain. The disability that he has with regard to sitting and walking has made these activities impossible. The trips in the automobile from Minnesota and Nebraska to Texas since the accident required approximately twice as long as was the case prior to the accident because of the frequent stops that were required for him to get relief from the pain caused by sitting in one position for more than two or three hours at a time.

Cole worked for the Airport Authority in Lincoln, Nebraska for a number of years. He quit working for the Airport on June 15, 1959, and went into the construction and trucking business. He owned the business, and performed the general duties of a manager and owner of that type of business, including the dispatching, overseeing and general supervision of heavy equipment operators and truck drivers. He was also a qualified heavy equipment operator. He sold his business and retired in 1968. He kept some of the heavy equipment and trucks which he personally operated in maintaining roads to his fishing camp, which was operated by him strictly for pleasure. He sold the fishing camp and all of the remaining heavy equipment and trucks in 1969.

For the approximate nine years (1959-1968) that Cole was in business for himself, his earnings from the business grossed about $30,000.00 per year. After he sold the business, he did not engage in any business or work for profit because he did not want to have the responsibility of operating a business or being fully employed. He said that he had not looked for employment either before or after the accident, but that “after you lay around so long”, a person might want to go back to work. He further said that he might go back to work “if I found the right job”.

The only work performed by Cole after the accident was in 1974 when he drew some plans for the construction of a building for a friend and he worked as a carpenter in constructing the building. Some days he could work, and some days he could not. He could do “nailing”, but could not do any work which required bending or stooping. On the days that he could work, he would work from four to six hours, but “physically had to lay down” as much as “twice in one day” because of his back.

The evidence before the jury showed that Cole was an active, agile and healthy person before the accident who had not experienced any back problems; physically he was able to lift, stoop, bend and involve himself in pursuits, both business and pleasure. The injury to his back and the pain that he suffered in the past, together with the pain that he will, in all probability suffer in the future, coupled with the fact that his back is now “fused”, seriously impairs him in doing anything. The evidence shows that Cole is physically unable to do many of the things that he could do before he was injured.

There is ample evidence of probative value that Cole: 1) “suffered physical pain and mental anguish, and in reasonable probability, will suffer physical pain and mental anguish in the future; and 2) that he sustained physical impairment in the past, and, in reasonable probability will sustain physical impairment in the future. The jury’s answers to that effect are not against the overwhelming weight and preponderance of the evidence. Points 9, 10, II and 13 are overruled.

We next consider the defendants' points of remittitur. In resolving the issue concerning the amount of each award, we recognize the difficulties presented. See K-Mart No. 4195 v. Judge, 515 S.W.2d 148 (Tex.Civ.App.—Beaumont 1974, writ dism’d). As .noted in Adams v. Houston Lighting & Power Company, 158 Tex. 551, 314 S.W.2d 826, 830 (1958):

. . [t]here is no rule prescribing the manner by which the court determines the amount of remittitur.”

We first consider the complaints that the award of $50,000.00 for past physical pain and mental anguish and the award of $25,-000.00 for future physical pain and mental anguish are each excessive to the point that a remittitur should be ordered. This Court, in Southern Pacific Transportation Company v. Peralez, 546 S.W.2d 88, 98 (Tex.Civ. App.—Corpus Christi 1976, writ ref’d n. r. e.), said:

“[40-42] Because personal injury damages are unliquidated and not capable of measurement by a certain standard, the jury has large discretion in fixing the amount of the award. Gallegos v. Clegg, 417 S.W. 347 (Tex.Civ.App. — Corpus Christi 1967, writ ref’d n. r. e.); Phillips Petroleum Company v. R. T. Burkett, 337 S.W.2d 856 (Tex.Civ.App. — Fort Worth 1960, writ ref’d n. r. e.). In awarding these damages, the jury is entitled to consider the constant decrease in the value of the dollar. Johnston Testers v. Rangel, 435 S.W.2d 927 (Tex.Civ.App.— San Antonio 1968, writ ref’d n. r. e.); Texas Consolidated Transportation Company v. Eubanks, 340 S.W.2d 830 (Tex. Civ.App.—Waco 1960, writ ref’d n. r. e.).

A case which is somewhat analogous to the issue now under consideration (pain and mental ’anguish) is Kansas City Southern Railway Company v. Simmons, 350 S.W .2d 884 (Tex.Civ.App. — Beaumont 1961, writ ref’d n. r. e.). There, the plaintiff sustained a back injury, and the jury awarded him damages in the amount of $139,615.00; the Court of Civil Appeals ordered a remittitur of $40,000.00. The Court observed:

“We regard the record as presenting a case of considerable past and probable future physical pain and mental suffering.”

See Houston Belt & Terminal Ry. Co. v. Burmester, 309 S.W.2d 271 (Tex.Civ.App.— Houston 1957, writ ref’d n. r. e.) for a multitude of cases involving injuries more or less similar to those sustained by Cole.

The instant case also presents a case of considerable past and probable future pain and mental anguish. In 1961, when the Simmons case was decided, the purchasing power of our dollar was far greater than its purchasing power in June, 1977, when judgment in this case was rendered. The net award of $99,615.00 in the Simmons case supports the award of $50,000.00 and $25,000.00, respectively, in this case for past and probable future pain and mental anguish, even though the plaintiff in the Simmons case had a life expectancy of 22.88 years as compared with Cole’s life expectancy of 10.4 years. Economics at the time of trial had changed significantly since 1961. The awards are not excessive. Points 12 and 14 are overruled.

We next consider the contentions that the award of $4,000.00 for physical impairment in the past and $10,000.00 for probable future physical impairment are each excessive and, under the evidence, require a remittitur. We do not so view the record. Unquestionably, Cole’s injuries are permanent which, because of the very nature of the injury and the attendant pain, severely limits Cole’s physical movements. No basis exists in the record for the suggestion of a remittitur because of physical impairment. Points 15, 16 and 19 are overruled.

Finally, we consider defendants’ points of error attacking the jury’s awards in special issues 8(c) and (d) of $45,000.00 “for loss of earning capacity in the past”, and of $25,-000.00 “for loss of earning capacity which, in reasonable probability, he will sustain in the future.” For the reasons stated below we agree that the jury’s answers to these special issues which assigned a monetary value to Cole’s loss of earning capacity cannot stand under the evidence presented at the trial.

The record contains no evidence of any particular monetary earnings attributable solely to Cole, either prior to, or after the accident. Under the decisions of the Texas Supreme Court, a plaintiff seeking damages for impairment of earning capacity must introduce into evidence some monetary measure of earning capacity, or have some reason for failing to do so. As stated by our Supreme Court, in Bonney v. San Antonio Transit Company, 160 Tex. 11, 325 S.W.2d 117, 121 (1959), said:

“. . . The rule in this jurisdiction is that where a plaintiff seeks damages for impairment of earning capacity, he must prove the amount of such damages with the degree of certainty to which it is susceptible. . . . This rule requires that a plaintiff introduce evidence from which a jury may reasonably measure in monetary terms his earning capacity pri- or to injury, unless some reason appears for his failure to do so. . ”

In the instant case, Cole candidly admitted that he had not searched for any work or employment before or since his injury because he really did not want to be employed. He was sixty years of age when he retired; he was sixty-five years of age when he was injured; he was sixty-nine years of age at the time of trial.

It is conclusively established by the evidence that Cole, in addition to self-employment, could earn money in the following categories: 1) as a heavy equipment operator; 2) as a carpenter; 3) as a draftsman of “plans”; and 4) as an employee in an unexplained capacity of an airport authority. Cole testified that his physical injuries caused by the accident would prevent him from working in these occupations to the same extent that he could have worked prior to the accident. The extent of the physical impairments which reduced Cole’s earning capacity was further corroborated by ample medical testimony. However, there is no evidence concerning the amount of his prior earnings as a heavy equipment operator, a carpenter, a draftsman or an employee of an airport authority, nor is there any evidence as to how much his earnings would have been had he worked in those capacities, or either of them.

Cole, prior to his injury, had been self-employed. That period, however, covered nine years and ended four or five years before the date he was injured. Cole’s earnings during the period of his self-employment (1959-1968) amounted to $80,-000.00 gross earnings per year; his earnings resulted from three sources: 1) his own management and supervision of his business, including employees; 2) the labor of his several employees; and 3) the return on capital invested in heavy equipment and trucks. Under the rule of King v. Skelly, 452 S.W.2d 691 (Tex.Sup.1970), Cole’s gross earnings of $30,000.00 per year for the years 1959-1968 were not a true measure of his earning capacity for the years subsequent to 1973.

There is no evidence which would indicate either the amount of Cole’s earnings had he worked for another, or a monetary measure of his earning capacity prior to his injury as required by our Supreme Court in the Bon-ney and King cases, above cited. No reason appears in the record for Cole’s failure to introduce such evidence. Without some specific evidence of earning capacity, the jury could do nothing more than speculate. Although there is no monetary evidence of earning capacity, there is some evidence of a general impairment of earning capacity due to Cole’s degenerated physical condition, and this was admitted by counsel for defendants by suggesting, in oral argument before this Court, that $5,000.00 be awarded for diminished past earning capacity.

After reviewing the record in its entirety favorably to Cole, we are of the opinion that the awards of $45,000.00 as damages for loss of past earning capacity, and $25,000.00 as damages for probable loss of future earning capacity, when considered in the light of the evidence, are so excessive as to warrant the conclusion that such awards were the result of passion or prejudice or some other improper motive. But, having found no other error in the record which requires reversal, it is our duty to suggest a remittitur and the time within which it may be filed. Rule 440, T.R.C.P.

We are of the opinion that the award of $45,000.00 as damages for loss of past earning capacity is excessive in the amount of $40,000.00, and that the award of $25,000.00 for probable loss of future earning capacity is excessive in the total amount of the award. We hold that the judgment is excessive in the amount of $65,000.00. Points 17 and 18 are sustained, and points 1 through 8 are overruled.

It is accordingly, ordered that a remitti-tur of $65,000.00 be filed in this Court by the plaintiffs within ten days from the announcement of this decision, whereupon this Court will reform the judgment of the trial court by the amount of the remittitur; otherwise, the judgment of the trial court will be reversed and the cause remanded for a new trial.

The judgment of the trial court is AFFIRMED ON CONDITION OF REMITTI-TUR.

SUPPLEMENTAL OPINION ON THE FILING OF REMITTITUR

This Court has suggested that appellees remit the sum of $65,000.00 as set forth in the original opinion. The appellees, through their attorney have filed a remitti-tur in the amount suggested by this Court.

Therefore, in accordance with the opinion of this Court heretofore announced, the judgment of the trial court is reformed to the extent of the amount hereby remitted by appellees so that the amount of judgment against the appellants is reduced to the sum of $97,500.00.

The costs of this appeal are taxed one-third (⅛) to the appellees and two-thirds (⅜) to the appellants.

The judgment as herein reformed is hereby AFFIRMED.


author: KLINGEMAN, Justice.

text:
    Lee WOLFMAN, Appellant, v. J. D. R. CORPORATION, Appellee.
    No. 15938.
    Court of Civil Appeals of Texas, San Antonio.
    April 19, 1978.

      John R. Shaw, Shaw & Benson, San Antonio, for appellant.
    Ralph L. Bell, San Antonio, for appellee.
   KLINGEMAN, Justice.

This is an appeal by Lee Wolfman from a judgment entered against him in favor of J.D.R. Corporation in the amount of $13,-000. Trial was to a jury who, in answer to the three special issues submitted, found: (1) that Plaintiff J.D.R. Corporation entered into an oral agreement with Defendant Lee Wolfman to construct a building in Bexar County, Texas; (2) that Plaintiff had .an oral agreement with Defendant to be paid a fixed fee for constructing the building in question; and (3) the fixed fee agreed upon was $13,000.

Defendant, in his first two points of error, complains that the trial court erred in overruling his motion for instructed verdict, motion for judgment non obstante veredic-to, and motion for new trial because plaintiff failed to present sufficient evidence to (a) support an oral building contract, or (b) prove an oral building contract. By his last point of error, defendant complains that the trial court erred in entering a judgment for $13,000 because there was no evidence as to lost profits necessary to support such an award.

It is clear from an examination of the record that the evidence as to whether there was an oral agreement: (1) to construct a building, and (2) to pay a fixed fee for such construction, is disputed and conflicting. Plaintiff’s president testified that he and Wolfman made a deal to build a building for a fee of $13,000; that in connection therewith plaintiff did some work and had some expenses; that plaintiff was willing and able to build the building, but that someone else built the building.

Defendant Wolfman and his wife testified just as positively that there was no agreement to build the building, and that no fee for plaintiff was ever agreed upon. Upon the basis of this conflicting testimony, the jury found that there was an oral agreement to build the building and that a fixed fee of $13,000 was agreed upon for the construction of such building. The jury was the judge of the credibility of the witnesses and the weight to be given their testimony, and, clearly, under the evidence, there is some support to the jury’s finding. Defendant’s points of error Nos. 1 and 2 are overruled.

However, the question of the award of a judgment in the sum of $13,000 stands in a somewhat different position.

As a general rule, the proper measure of damages for breach of a contract such as we have here is the net profits plaintiff would have made had the contract been carried out. In other words, the gross contract proceeds less the cost to plaintiff in doing the work is the proper measure. Deal Development Co. v. Amarillo Concrete Contractors, Inc., 554 S.W.2d 294 (Tex.Civ. App.—Waco 1977, no writ); Dankowski v. Cremona, 352 S.W.2d 334 (Tex.Civ.App.—Eastland 1961, writ ref’d n.r.e.); South Builders, Inc. v. Brown, 449 S.W.2d 542 (Tex.Civ.App.—Eastland 1969, writ ref’d n.r.e.); Tower Contracting Company v. Flores, 294 S.W.2d 266 (Tex.Civ.App.—Galveston 1956), aff’d as modified, 157 Tex. 297, 302 S.W.2d 396 (1957); Wynnewood Development Co. v. Belmares, 295 S.W.2d 441 (Tex.Civ.App.—Eastland 1956, no writ); 10 Tex.Jur.2d, Building Contracts § 63 (1960).

Dankowski v. Cremona, supra, was a suit for breach of a building contract. The sole point of error in the owner’s appeal was that the proper measure of damages was not applied in the case. The appellate court reversed and remanded the case based upon the fact that the proper measure of damages was not applied, saying:

Generally speaking, a plaintiff seeking to recover on the contract under circumstances such as here presented is entitled to recover an amount which would place him in a position equivalent to that which he would have occupied if there had been no breach, and the contract had been fully performed. This would compensate him for the damages suffered by reason of the breach of the contract (citations omitted). He is entitled to recover the contract price for the work done under and according to the contract if this can be established, and to damages sustained or profit lost by being prevented from completing the contract (citations omitted). He is not entitled to recover his expenses.

Plaintiff alleged that he had an agreement with defendant that he would construct a dress shop on defendant’s land for $13,000; that he did preliminary work pursuant to the agreement, but construction was begun by another contractor, which constituted a breach of contract. It is undisputed that plaintiff did not build the building. Plaintiff testified that in connection with such matter he spent approximately sixty-seven hours, and had out-of-pocket engineering fees, a trip to Houston and back, telephone fees, and motel expenses in Houston, for a total of $3,972. The problem is that there is no evidence whatsoever as to what plaintiff would have made had he finished the construction, and there is nothing in the record whatsoever to determine the amount of plaintiff’s lost profits.

For the reasons stated, the judgment is reversed and the case remanded for another trial.

      . “§ 63. — Loss of Profits. Loss of profits that he would have derived had he been permitted to perform may be recovered by the contractor where he has been prevented by the owner from completing the contract, or where he has justifiably abandoned further performance because of a breach by the owner, if this element of damages can be proved with reasonable certainty and was shown to be within the contemplation of the parties.

        Loss of profits is usually measured by the difference between the contract price and what it would have cost the contractor to carry out the contract in accordance with its provisions and the plans and specifications, and the probable cost of completing the work may be established by proof of the value of the material, labor, and skill required, with the cost of necessary labor and material determined as of the date of the breach, and of the reasonable value of the contractor’s time that would have been used.”