text:
    SAN ANTONIO BANK & TRUST, Appellant, v. M. B. PLETZ, Appellee.
    No. 16135.
    Court of Civil Appeals of Texas, San Antonio.
    July 11, 1979.
    Rehearing Denied Sept. 25, 1979.

      Mitchell S. Rosenheim, Schenker, Rosen-heim & Schenker, San Antonio, for appellant.
    Lewin Plunkett, Wiley, Plunkett, Gibson & Allen, San Antonio, for appellee.
   OPINION

CADENA, Chief Justice.

Plaintiff, San Antonio Bank & Trust (Bank), filed this suit to recover on a promissory note executed by Pletz Building Systems, Inc. (Systems). Bank also sought to recover from the other defendant, M. B. Pletz, alleging that he had guaranteed payment of the Systems note. The trial court granted judgment in favor of Bank against Systems but, based on the jury findings, denied Bank any recovery against Pletz. Bank appeals from that portion of the judgment absolving Pletz from liability as guarantor.

Pletz was engaged in the construction business, doing business under the name of Pletz Construction Company, unincorporated, of which he was the sole owner. He also owned 55% of the capital stock of Systems and was the president and chief executive officer of that corporation.

In September, 1974, Systems was indebted to Bank on a promissory note, in the original amount of $34,000.00, which was in default. This note had been signed by Pletz as president of Systems. At that time, and for some time previously, Pletz had maintained a checking account with Bank under the name of Pletz Construction Company. During the testimony, this account was referred to by the witnesses, including Pletz, as the “Pletz personal account,” and it will be so designated in this opinion.

On September 27, 1974, Bank, exercising what it refers to in its brief as its “right of offset,” withdrew all funds then on deposit with Bank in the Pletz personal account and credited such amount ($27,833.00) to the payment of the Systems note, reducing the unpaid balance on such note to $2,799.43. Bank notified Pletz of its action and demanded that Pletz pay the balance.

Pletz immediately discussed the matter with Bank officials. As a result of these discussions, Kenneth Semlinger, one of Bank’s employees, prepared a “renewal note,” in the principal amount of $30,000.00, dated September 30,1974, evidencing a loan in that amount to Systems. Pletz signed this note on October 1,1974, in his capacity as president of Systems. On the same date, Pletz signed a “guarantee agreement” in his individual capacity. This instrument was also prepared by Semlinger on a form then used by Bank. In the blank provided for insertion of the name of the principal debtor whose obligation was being guaranteed by the person signing the instrument Semlinger wrote “M. B. Pletz.” As a result, the instrument, as written by Semlinger and signed by Pletz, purports to be a guarantee by Pletz of payment of all obligations and indebtedness owed by him to Bank.

The proceeds of the loan evidenced by the 1974 note were used, with the exception of the amount required to satisfy the unpaid balance of the Systems note then in default, to restore the Pletz personal account to its status prior to the exercise by Bank of its right of “offset” on September 27, 1974.

Systems defaulted on the 1974 renewal note and on July 18, 1975, Pletz, acting in his capacity as president of that organization, executed a second renewal note, in the principal amount of $25,000.00, the unpaid balance on the 1974 renewal note. This second renewal note bore the notation that its payment was secured by “Assignment of $16,000.00 CD” and by “Letter of Guarantee dated 10/1/74.” A similar statement was contained in the “Loan Disclosure Statement,” a copy of which was delivered to Pletz by Bank. Pletz signed this statement, as president of Systems, acknowledging receipt of such instrument. On the same date Pletz executed, as president of Systems, an instrument captioned “Security Agreement-Pledge” in which the “collateral” was described as “Assignment of $16,-000.00 CD & Letter of Guarantee dated 10/1/74.” On that date, the certificate of deposit mentioned in all three instruments was in the possession of a bank in Austin, apparently as security for a loan. The evidence establishes that such certificate was never delivered to Bank.

The evidence indicates that the certificate of deposit was owned by Pletz. In addition, Pletz testified that he agreed to assign future proceeds from two construction contracts to Bank. These contracts related to construction work then being done by Pletz individually, under the name of Pletz Construction Company, not by Systems. The agreement concerning such proceeds was that Pletz would have future checks made payable to him and Bank jointly.

This suit was filed following default by Systems in payment of the 1975 renewal note.

The judgment in favor of Pletz is based on the negative answers of the jury to special issues 1 and 2. The first issue inquired whether Pletz and Bank intended that the October 1, 1974, guarantee signed by Pletz individually would operate as a guarantee by Pletz of the September 30, 1974, Systems note. The second issue inquired whether the insertion in such agreement of the words, “M. B. Pletz” instead of the words “Pletz Building Systems, Inc.,” was the result of “a mutual mistake of the parties.”

Bank urges that the negative answers to the two special issues are so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Many phrases have rolled from the judicial tongue in describing the role of a reviewing court in passing upon “no evidence” and “insufficient evidence” or “against the great weight and preponderance of the evidence” points. No particular problem exists where appellant insists that there is no evidence to support the jury finding or that the evidence conclusively establishes the contrary of the finding. In such a case, the appellate court, considering only the evidence favorable to the verdict, must overrule the point if, to use the stock phrase, “there is any evidence of probative force to support [the] finding.” In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). The determinative test is whether, when the evidence is so considered, “reasonable minds could differ.” Id. It is only where the conclusion is that reasonable minds could not differ that the appellate court will hold that there is no evidence to support the finding or that, as a matter of law, the evidence requires a conclusion contrary to the jury finding.

According to King, an “insufficient evidence” point, or a point urging that the finding is against the overwhelming weight and preponderance of the evidence, requires

the Court of Civil Appeals ... to consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial, if it thus concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust — this, regardless of whether the record contains some “evidence of probative force” in support of the verdict. . The evidence supporting the verdict is to be weighed along with the other evidence in the case, including that which is contrary to the verdict.

244 S.W.2d at 661.

The King opinion, in what is perhaps a deliberate understatement, recognizes that it is “not simple to describe the intellectual process to be followed by the Court of Civil Appeals in passing on the fact question — to specify just how a verdict may be supported by evidence of probative force and at the same time be on all the evidence so clearly unjust as to require a new trial.” Id. at 662. The reason why a description of the required mental gyrations is “not simple” is that a finding of some evidence of probative force to support the verdict is necessarily a finding that, based on such evidence, reasonable minds would be justified in reaching the same conclusion as did the jury. “It is drawing a rather fine line to say that the verdict was one which reasonable minds could reach, but at the same time was clearly the product of something other than reason.” Garwood, The Question of Insufficient Evidence on Appeal, 30 Texas L.Rev. 803, 813 (1952).

On what basis may a court say that although reasonable minds would be justified in finding as did the jury, the verdict is so manifestly unjust as to establish that it was the result of such passion and prejudice as to shock the judicial conscience? Justice Garwood points out that, “despite innumerable categorical statements suggesting the contrary, it seems that the power of . the court of civil appeals to weigh the evidence for the purpose of granting or refusing a new trial necessarily entails judging, to some degree at least, even the credibility of the witnesses.” Garwood, supra, at 810-11.

The conclusion that, although. the verdict is supported by some evidence of probative force, it must, nevertheless, be set aside and a new trial granted need not, and normally does not, rest on “extrinsic” evidence indicating bias. But see Barboza v. Service Mut. Ins. Co., 125 S.W.2d 1095 (Tex.Civ.App. — Austin 1939, writ dism’d judgmt. cor.). The conclusion is reached solely by consideration of the evidence and the finding which purports to be based on such evidence.

In Missouri Pacific Ry. Co. v. Somers, Justice Gaines, after pointing out that an instructed verdict or rendition of judgment n.o.v. would not have been proper in the case because of the existence of some evidence of probative value, nevertheless reversed and remanded because the verdict was against the weight and preponderance of the evidence. 78 Tex. 439, 14 S.W. 779 (1890). He pointed out that plaintiff’s evidence was contradicted by the testimony of two disinterested witnesses and that plaintiff had given inconsistent versions of the facts on two previous trials. Since there was no evidence, other than plaintiff’s testimony, which would support a judgment in his favor, the Supreme Court concluded that the verdict of the jury was the result of sympathy for plaintiff. Clearly, the reversal was based on the Supreme Court’s conclusion that the jury should not have believed plaintiff’s testimony.

The approach to the problem of insufficient evidence is, then, necessarily subjective and the court’s reaction may properly be described as visceral. Sometimes, as in Gulf, C. & S.F. Ry. Co. v. Wilson, 59 S.W. 589 (Tex.Civ.App.1900, no writ), the testimony relied on as supporting the verdict is, because of inconsistency with the facts and circumstances of the case, so inherently incredible that it must be disregarded. In such a case, it probably would be more accurate to say that there is “no evidence of probative force” supporting the verdict, since it makes little sense to say that reasonable minds would be justified in believing testimony which is inherently incredible. Nevertheless, the courts speak in terms of “insufficient evidence” in cases where, from a consideration of generally accepted scientific laws, matters of inherent probabilities or improbabilities, notorious facts of life and history, etc., the reviewing court “feels” that the verdict cannot be allowed to stand. See Garwood, supra, at 811.

In this case the testimony of Sem-linger, Bank’s loan officer who prepared the 1974 renewal note and letter of guarantee, was that it was agreed that the Systems note would be renewed in 1974 if Pletz would personally guarantee its payment, and that he inserted the words, “M. B. Pletz,” in the instrument instead of “Pletz Building Systems, Inc.,” by mistake. Pletz denied that he was ever asked to guarantee payment of the Systems note and also denied agreeing to be personally liable for payment of such note. He said that he did not notice what words had been inserted in the blank, but that he believed that the Bank desired that he guarantee payment of his personal obligations to Bank, and that is what he intended to do when he signed the guarantee. Semlinger testified that no useful purpose would be served by requiring Pletz to sign an instrument guaranteeing that he would be personally liable for payment of his personal obligations to Bank.

We believe that a consideration of all of the evidence requires that the jury findings be set aside as being so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust.

The explanation offered by Pletz strains credulity. The guarantee instrument concerns payment of obligations up to $30,-000.00, the exact amount of the Systems “renewal note” signed by Pletz at the time he signed the guarantee agreement. Pletz testified that he, in his personal capacity, had borrowed money from Bank several times prior to October, 1974, but that such personal loans had always been timely repaid, and that there had been no problems whatever concerning his personal indebtedness to Bank, although there may have been one or two occasions when his personal checking account had been overdrawn. His personal account was not in overdraft status in September, 1974, and there is no evidence that it had been in such status in the preceding months.

The agreement was signed by Pletz in the midst of negotiations concerning the financial responsibility of Systems, which was then in a state of default in its obligations to Bank. According to the testimony of Pletz, at that time the financial condition of Systems was not good and furnished no basis for the belief that Systems was in a position to repay a $30,000.00 note, particularly in view of its default in payment of prior obligations to Bank. It requires a significant degree of gullibility to believe that Bank, concerned with default by Systems, should require that Pletz guarantee payment of his personal obligations to Bank, rather than require assurance of payment of the obligation of a debtor with a history of default. Not even in the testimony of Pletz is there any indication that the 1974 discussions relating to the Systems’ obligations reflected any concern on the part of Bank as to the continued faithful discharge by Pletz of his personal obligations. The Pletz testimony is completely at variance with the surrounding circumstances.

The judgment of the trial court is reversed and the cause is remanded for a new trial.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James K. NANCE, Jr., Appellant, v. Guy J. ROBERTSON et al., Appellees.
    No. B2181.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 18, 1979.
    Rehearing Denied Sept. 5, 1979.
    Brantly Harris, Stephen J. Weeks, Prap-pas, Moncure, Harris & Termini, Houston, for appellant.
    Joel W. Cook, Schlanger, Cook, Cohn, Mills & Grossberg, Houston, for appellees.

      Before J. CURTISS BROWN, C. J., and COULSON and MILLER, JJ.
   OPINION ON APPELLEE’S MOTION TO DISSOLVE THE WRIT OF INJUNCTION OR, IN THE ALTERNATIVE, TO INCREASE THE SUPERSEDEAS BOND.

PER CURIAM.

This appeal involves, inter alia, questions of whether appellees Robertson, G & R Investment, a partnership, Wilcrest/West-heimer, a partnership, Richard P. Schissler, Jr. and M. A. Mills can properly foreclose on appellant Nance’s one-third interest in Wil-crest/Westheimer, a partnership, under a security agreement. For a discussion of the facts leading to this litigation see our opinion of this date in G & R Investments, et al v. Nance, 588 S.W.2d 804 (Tex.Civ.App.). On May 4, 1979, the trial court entered judgment denying a permanent injunction to appellant Nance and granting certain other relief to appellees. The appeal from that judgment has not yet been set for submission in this court.

On May 14, 1979, this court, after a hearing, issued a writ of injunction restraining Robertson, Mills, and G & R Investment (Robertson, et al) from taking any action to sell Nance’s one-third interest in Wilcrest/Westheimer pending final disposition of the case on the merits on appeal or until further orders of this court. This order was entered pursuant to Tex.Rev.Civ. Stat.Ann. art. 1823 (1964), in order to protect our jurisdiction by preserving the subject matter of the litigation in order to make any future decrees out of this court effective. Riverdrive Mall Inc. v. Larwin Mortgage Investors, 515 S.W.2d 2 (Tex.Civ.App. — San Antonio, 1974 writ ref’d n. r. e.). Robertson, et al, have filed a motion to dissolve our writ of injunction or, in the alternative, to increase the supersedeas bond filed by Nance. We are of the opinion that the writ of injunction was properly ordered, for it is apparent that Robertson, et al, intend to proceed with the sale of Nance’s one-third interest in the partnership. If such sale were consummated Nance’s point of error contending that the trial court erred in refusing to grant a permanent injunction prohibiting foreclosure upon and sale of Nance’s interest in Wilcrest/Westheimer would be rendered moot.

The trial court ordered Nance to post a supersedeas bond in the amount of $33,442.00. That court awarded a money judgment to Robertson, et al, in the amount of $32,902.00, which is more than secured by the amount of the supersedeas bond. In examining the judgment we have found, however, that several additional findings, declaratory in nature, are contained therein. These findings state that Robertson, et al, are entitled to collect from Nance additional sums representing his share of advances made to Wilcrest/Westheimer by Robertson, et al. While the amount of these sums is disputed, we believe that an additional amount should be added to the supersedeas bond in order to afford Robertson, et al, some protection in regard to these additional findings. We therefore order that Nance increase the amount of the supersedeas bond to a total amount of $50,000.00 within thirty days from the date of this order to keep our writ of injunction in effect. If the supersedeas is not increased within thirty days our injunction order shall be dissolved.

Our order enjoining the sale of Nance’s interest in Wilcrest/Westheimer shall remain in effect pending a final disposition of this case on appeal or further orders of this court, provided however that if Nance does not increase the amount of the supersedeas bond to a total of $50,000.00 within thirty days then the injunction shall be dissolved.


author: COULSON, Justice.

text:
    G & R INVESTMENTS, a partnership, et al., Appellants, v. James K. NANCE, Jr., Appellee.
    No. B2111.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 18, 1979.
    Rehearing Denied Sept. 5, 1979.
    Joel W. Cook, Sehlanger, Cook, Cohn, Mills & Grossberg, Houston, for appellants.
    Brantly Harris, Prappas, Moncure, Harris & Termini, Houston, for appellee.
    Before J. CURTISS BROWN, C. J., and COULSON and MILLER, JJ.
   COULSON, Justice.

This is an appeal from a temporary injunction restraining the appellants Guy J. Robertson, G & R Investment, a partnership, Wilcrest/Westheimer, a partnership, Richard P. Schissler, Jr., and M. A. Mills from foreclosing on and selling appellee Nance’s one-third interest in Wil-crest/Westheimer, a partnership, pending final hearing upon the cause of action. Appellants (Robertson, et al) have filed a motion to dismiss their appeal as moot on the ground that a final hearing has been held and judgment entered on the merits. We grant appellants’ motion to dismiss as moot.

In 1976 appellee Nance left his employment with First Mortgage Company of Texas to become employed by Pilgrim Realty Company, an entity of which appellant Robertson was apparently a co-owner. This occurred after several discussions between Nance and Robertson concerning the advantages Nance could acquire by dealing with Robertson in real estate development. During the term of Nance’s employment by Pilgrim Realty, Robertson arranged for Nance to become a partner in some six different real estate developments. Nance alleged that Robertson promised to “carry” him as far as equity calls for these developments might be made, because Nance did not have the funds to contribute to such enterprises.

Wilcrest/Westheimer was one of the development partnerships in which Nance became a partner, along with Robertson and Schissler. In connection with the Wil-crest/Westheimer partnership Nance executed a promissory note in the principal amount of $39,000.00, secured under a security agreement by his one-third interest in the partnership. This note was executed in favor of G & R Investments, a partnership between Robertson and Schissler, and represented money to be advanced in the future by G & R to cover necessary expenses of Wilcrest/Westheimer. In January of 1979, after Nance had left his employment with Pilgrim Realty, G & R Investments made demand upon him for payment of the $39,000.00 note. When payment was not made G & R notified Nance that a foreclosure sale of his one-third interest in Wilcrest/Westheimer would be held pursuant to the terms of the security agreement.

Nance filed suit against appellants and on January 26, 1979, obtained a temporary restraining order restraining the foreclosure sale of his one-third interest in Wil-crest/Westheimer. On February 6, 1979, after a hearing a temporary injunction to the same effect was entered. Appellants appeal from that order granting a temporary injunction. Subsequent to appellants filing their appeal, but before the cause was set for submission in this court, a trial on the merits was held in the lower court. On May 4, 1979, a final judgment was entered in that case denying Nance’s request for a permanent injunction and granting certain other relief to appellants. Nance has filed an appeal from that judgment but the case has not yet been submitted to this court. Appellants have filed a motion to dismiss their appeal on the ground that the question whether the temporary injunction should have been granted is moot because a final determination has been made by the trial court that no permanent injunction should be granted and that the temporary injunction would be dissolved.

Appellee Nance argues however that this case is not moot due to the fact that he has filed a supersedeas bond in connection with his appeal from the judgment on the merits of the trial court. The question presented here is whether a temporary injunction is revived by the filing of a supersedeas bond pursuant to an appeal from the judgment denying the permanent injunction sought in the same case. Appellee Nance cites the case of Gulf, C. & S. F. Ry. Co. v. Fort Worth & N. O. Ry. Co., 68 Tex. 98, 2 S.W. 199 (1886) to support his contention that the effect of filing a supersedeas bond is to supersede or suspend the final judgment denying the permanent injunction and thus to continue the temporary injunction in effect. That case does state that “when an injunction is dissolved in a final judgment, and an appeal is prosecuted by giving a supersedeas bond, the dissolution is suspended, and the injunction is continued in force by the appeal,” 2 S.W. at 201.

In the later case of Riggins v. Thompson, 96 Tex. 154, 71 S.W. 14 (1902), however, the Supreme Court distinguished the Gulf, C. & S. F. Ry. Co. case as one where the temporary injunction order expressly made the temporary injunction effective “until the final determination of the suit,” which did not occur until the appeal had been disposed of. The Riggins court pointed out that the temporary injunction order in the case before it provided that it was to remain in effect only until a hearing was had on the merits in the trial court and thus had expired on its own terms at the time such trial on the merits was had. See Fort Worth St. Ry. Co. v. Rosedale St. Ry. Co., 68 Tex. 163, 7 S.W. 381 (1887), where it was held that a restraining order which had ceased to be operative by its own terms could not again be brought into existence by means of an appeal with the filing of a supersedeas bond.

The temporary injunction order in the case before us orders “that Defendants M. A. Mills, Guy J. Robertson and G&R Investment be and they hereby are restrained and enjoined from taking any further action to sell or cause to be sold Plaintiff’s one-third (⅛) interest in Wilcrest/Westheimer, a partnership, and that the Clerk of this Court issue a writ of injunction pending final hearing hereof so restraining and enjoining said Defendants” (emphasis added).

The order further provides that if the case “is not granted a preferential setting in the March-April 1979 term and tried on the merits within ninety days from and after February 2, 1979, Plaintiff shall be required to file an additional bond in the sum of $10,000.00 conditioned as the law requires, and if he fails to do so, the Court thereafter will entertain a motion to dissolve the temporary injunction.”

We find that the trial court’s order for a temporary injunction was clearly intended to remain in effect only until an early hearing on the merits could be had in the trial court, and was not intended to remain in effect until the final disposition of the case in the appellate courts. It thus expired, by its own terms, at the time of the resolution on the merits on May 4,1979, and could not be revived by the filing of a supersedeas bond pursuant to an appeal. Accordingly we have determined that this cause is moot.

This result is further supported by an examination of the purposes for which a temporary injunction is granted. The only purpose of a temporary injunction is the “preservation of the status quo of the subject matter of the suit pending a final trial of the case on the merits,” Transport Co. of Texas v. Robertson Transport, 152 Tex. 551, 261 S.W.2d 549, 552 (1953). Here there has been a trial on the merits, the temporary injunction has been set aside and the permanent injunction denied, and there is an appeal pending from that judgment. The time for determination of the respective rights of the parties is upon the appeal from the determination of the cause on the merits where the appellate court will have available the entire record made at such hearing. Texas City v. Community Public Service Co., 534 S.W.2d 412, 415 (Tex.Civ. App. — Beaumont 1976, writ ref’d n. r. e.). When a final judgment has been rendered by the trial court and an appeal has been perfected therefrom the case enters a different phase. Under certain circumstances the trial judge may enter a stay pending appeal or the appellate court may, as we have done in this case, enter an order under Article 1823, Tex.Rev.Civ.Stat.Ann. (1964) to preserve our jurisdiction. City of Corpus Christi v. Cartwright, 281 S.W.2d 343, 344 (Tex.Civ.App. — San Antonio 1955, no writ); Texas City v. Community Public Service Co., supra. There is no compelling reason to hold that the filing of a superse-deas bond should empower an appellant to revive a temporary injunction which was granted after an abbreviated hearing only to preserve the status quo pending a disposition on the merits, and was dissolved when such disposition was made by the trial court after a full hearing.

Accordingly we have determined that this cause is moot and the appeal from the granting of the temporary injunction is dismissed. This action is taken without prejudice to the rights of the parties in their appeal from the judgment on the merits and we express no opinion upon the merits of the contentions advanced by them in this appeal. Texas City v. Community Public Service Co., supra.

Appellants have requested that we tax the costs of this appeal against appellee, arguing that the fact that a permanent injunction was denied establishes that it was improper for appellee to have obtained a temporary injunction. This proposition is not persuasive because the reasons for granting a temporary injunction are not the same as those for granting a permanent injunction. A temporary injunction serves only to preserve the status quo until the rights of the parties can be determined at a hearing on the merits. The fact that full hearing demonstrates that plaintiff is not entitled to a permanent injunction does not render the granting of the temporary injunction an abuse of discretion on the part of the trial court.

Furthermore, we observe that the trial judge made provision that an early hearing on the merits should be had. Such provision follows this court’s recommendations made in Gonzales v. Norris of Houston, Inc., 575 S.W.2d 110 (Tex.Civ.App. — Houston [14th Dist.] 1978, writ ref’d n. r. e.). The case before us is one which was resolved on the merits prior to the time that this court could consider the appeal from the interlocutory order. The time and expense involved in prosecuting this appeal could have been avoided had appellant followed our recommendation in Gonzales to try the case on the merits and allow the facts and law to be fully developed before asking this court to rule on the controversy. There is no compelling reason to apply to this court for a ruling on this controversy at an interlocutory stage when the trial court had provided for an early resolution of the merits of the case. The costs will remain taxed against appellants.

The appeal from the order granting a temporary injunction is dismissed as moot and all costs of this appeal are to be taxed against appellants.

      . See our opinion on the motion by Robertson, et al, to dissolve our writ of injunction or to increase Nance’s supersedeas bond in the case of Nance v. Robertson, et al, 588 S.W.2d 802, Tex.Civ.App., number B2181, which accompanies this opinion.

      . See footnote 1, supra.


author: MURRAY, Justice.

text:
    Alejandro PEREZ, Appellant, v. Matthew McHAZLETT, Appellee.
    No. 16286.
    Court of Civil Appeals of Texas, San Antonio.
    July 18, 1979.
    Rehearing Denied Overruled Sept. 25, 1979.
    Alonzo Villarreal, Jr., Uvalde, Richard C. Arroyo, Brownsville, for appellant.
    Luis M. Segura, San Antonio, Lupe Corti-nas, Crystal City, for appellee.
   OPINION

MURRAY, Justice.

This is an appeal from the district court of Zavala County, Texas, granting a temporary injunction. Matthew McHazlett, ap-pellee, sued Alejandro Perez, appellant, seeking to enjoin appellant from assuming the office of County Commissioner of Precinct Four, Zavala County. Appellant, Perez, was elected County Commissioner at the general election held on November 7, 1978, and appellee, McHazlett, applied for a recount of the ballots in the election as required by Article 9.38a of the Texas Election Code. The official recount of the ballots resulted in McHazlett being elected County Commissioner. Although Perez participated in the recount, he chose to ignore the same, was administered the oath of office, and has attempted to act as County Commissioner. After hearing evidence, the trial court granted the temporary injunction, and Perez has perfected his appeal to this court.

The trial court filed findings of fact and conclusions of law, which state in part:

13. The Court finds that the November 7, 1978, General Election for Zavala County Commissioner Precinct Pour was first canvassed November 13,1978, and it was announced that Raza Unida’s candidate, ALEJANDRO PEREZ, received 629 votes and Democratic candidate MATTHEW G. McHAZLETT, received 628 votes.
14. The Court finds that MATTHEW G. McHAZLETT applied for a recount of ballots cast in said election for County Commissioner of Precinct Pour of Zavala County as required by Article 9.38a of the Texas Election Code, that the application for recount was mailed to the opposing candidate, ALEJANDRO PEREZ, on November 13, 1978; that the said ALEJANDRO PEREZ received such application and personally attended the recount of votes cast in his race and that said recount was conducted on November 24th and November 25th, 1978.
15. The recount of the ballots showed that Plaintiff MATTHEW G. MeHAZ-LETT received 635 votes and Defendant ALEJANDRO PEREZ received 631 votes. The Recount Committee submitted its report and totals to the Commissioner’s Court sitting as the Canvassing Board at a called meeting held November 30,1978. Plaintiff MATTHEW G. McHAZLETT was declared the duly elected County Commissioner of Precinct Four of Zavala County as provided by Article 9.38a of the Texas Election Code.
16. The Court finds that MATTHEW G. McHAZLETT has been precluded from assuming the public office to which he was elected by the people of County Commissioner Precinct Pour of Zavala County, Texas.
17. The Court finds that Plaintiff has not been able to assume his office, its duties and emoluments.
18. The Court finds that Plaintiff was properly declared and duly elected County Commissioner of Precinct Four of Za-vala County.

Appellant contends that the recount of the ballots was void because the statutory notice requirements of Subdivision 2(b) of Article 9.38a were not complied with; therefore, he is the duly elected County Commissioner.

It is our opinion that appellant’s contention cannot be considered because he has not brought up a complete statement of facts. In the absence of a statement of facts, we are required to presume that the evidence was sufficient to support the findings of fact and the judgment rendered pursuant thereto. Appellee did not consent to a partial statement of facts, and in approving the statement of facts, the trial judge stated as follows:

The above and foregoing pages, have been examined by the Court, are found to be true and correct (insofar as they go) and are hereby ordered filed as the Transcription of the Court Reporter’s Notes in this cause on this the (17th) day of (Marchl. A.D. 1979.
[The following notation was written in longhand by the trial judge below the above quoted authorization of the statement of facts.]
This judge objects to the partiality of this statement — by taking only Mr. Perez’s testimony it gives a distorted picture.
/s/ Trov Williams Judge Presiding

In Villanueva v. Harville, 419 S.W.2d 711 (Tex.Civ.App. — San Antonio 1967, no writ), the court of civil appeals stated:

Appellant, under her first point, urges that the overwhelming preponderance of the evidence establishes that she was denied the essential elements of due proe-ess, to-wit, notice and the opportunity to be heard and defend her property rights in the office in an orderly proceeding. We are unable to review the entire record as required in passing upon this point because of appellant’s failure to comply with Rule 377, Texas Rules of Civil Procedure. The statement of facts filed herein does not contain any of the exhibits introduced in evidence although they are of obvious materiality. Among these exhibits is the order under attack, as well as other minutes and records of the Commissioners Court dealing with the need for two Justices in Precinct 1. Since appellees did not consent to a partial statement of facts, we are required to treat this as an appeal without a statement of facts. Gordon v. Aetna Casualty & Surety Co., 351 S.W.2d 602 (Tex.Civ.App. — Eastland 1961, writ ref’d).

419 S.W.2d at 712.

Appellant’s other contention that the trial court did not have jurisdiction to grant an injunction in this case is without merit. Appellant argues that appellee’s only remedy is by a quo warranto proceeding against appellant since he has already taken the oath of office. Tex.Rev.Civ.Stat. Ann. art. 6253 (Vernon 1970).

According to the findings of the trial court from the hearing on the temporary injunction, appellee is prima facie entitled to the office of County Commissioner. His right to the office is conclusive until it is otherwise determined in an appropriate proceeding by some tribunal having authority in such matter. A proper regard for the orderly administration of government in the acts of its constituted authorities would require a defeated candidate to resort to the courts and not to self-help. On this point, this Court in Gonzalez v. Duran, 250 S.W.2d 322 (Tex.Civ.App. — San Antonio 1952, writ ref’d), stated:

The status protected is that status which has followed the law. If the law were otherwise, a holdover, or one who could maintain his possession by self-help or vi et armis, in the face of results as described by those governmental officers named by the law, would be protected against those who submitted themselves to the processes of the law. The status that is protected is that which the law says exists during an election contest and not that status asserted by the strong arm of possession pending the election contest. If such were the law, a candidate though defeated, at least temporarily could substitute himself as the legal authority to declare results, could displace elections and constituted authority and government, and remain in possession, however that possession may have been gained.

250 S.W.2d at 324.

The adoption of appellant’s contention would allow a defeated candidate to take the oath of office and exercise the powers of that office until the officers of the State of Texas saw fit to intervene by way of a quo warranto proceeding. We cannot give our assent to a result that would deny ap-pellee the protection he sought by way of injunction in this case.

The judgment of the trial court is affirmed.


author: CADENA, Chief Justice.

text:
    BANK OF AUSTIN, Appellant, v. Gladys FINLAY et al., Appellees.
    No. 16152.
    Court of Civil Appeals of Texas, San Antonio.
    July 27, 1979.
    Rehearing Denied Sept. 25, 1979.

      Benjamin H. Hathaway, Prud’Homme & Schulze, Austin, for appellant.
    John V. Elick, Bellville, for appellees.
   OPINION

CADENA, Chief Justice.

In this suit for wrongful sequestration filed by plaintiffs, Gladys Finlay and Jerry Bond, the defendant, Bank of Austin, appeals from a judgment, based partially on jury findings, awarding plaintiffs $150.00 actual damages, $2,500.00 punitive damages, and $5,725.00 as attorney’s fees. Plaintiffs also sought recovery for usury, but the issues relating to that portion of plaintiffs’ claim were answered unfavorably to plaintiffs.

On August 30,1976, Bond borrowed money from Bank and, with Royce Baker as co-maker, executed a note in the amount of $4,115.00, including prepaid interest and other charges, payable to Bank on demand or, in the absence of a prior demand, on October 29, 1976. The Bank received, as collateral, a security interest in a racing mare named Dolly Jester, which was owned by Finlay. Although the note and security agreement were signed only by Bond and Baker, the pledging of the mare as security was done with the consent of Finlay, and, at the time of execution of the note and security agreement, Bond delivered to Bank Dolly Jester’s certificate of registration.

The note was not paid when due, and on November 9,1976, Bank filed suit in Travis County to enforce the note and security agreement. As incident to such suit, Bank obtained, without notice to Bond, Baker, or Finlay, issuance of a writ of sequestration directing the sheriff of Guadalupe County to the location of Finlay’s ranch where the horse was kept, to take possession of Dolly Jester. When a deputy sheriff went to the ranch he found no one there and, since Dolly Jester was “running” with a colt which the officer considered to be unwe-aned, he refused to take possession of the mare. On November 12, 1976, again without notice or hearing, Bank’s second application for a writ of sequestration was granted. This second writ authorized seizure of both the mare and the colt and both horses were seized by a Guadalupe County deputy sheriff on November 15, 1976. On that same day, the promissory note was paid in full. On November 17, 1976, Bank filed a motion for dismissal of its suit on the note and for dissolution of the writ of sequestration, and this motion was granted on November 19, 1976. The horses were returned to the Finlay Ranch at night on November 20 or 21, 1976. Neither Bond nor Finlay were at the ranch when the horses were returned.

We will not refer to testimony relevant to the question of wrongful sequestration and will, for the purposes of this opinion, assume that the sequestration was wrongful.

In plaintiffs’ trial pleadings, Finlay alleged that she had suffered the following damages as a result of the wrongful seizure of the two animals: (2) $20,000.00, representing the loss in value of Dolly Jester between the date of the seizure and the date she was returned to the Finlay Ranch; (b) $7,500.00, representing the loss in value of the colt during such period; and (c) $20,000.00 for the loss of the use of both animals during that period.

The jury found that neither horse had decreased in value, and no issue concerning loss of use was submitted. No point is presented urging that the jury findings of no loss in value are against the weight and preponderance of the evidence. We are, therefore, bound by such findings. Assuming a wrongful sequestration, the verdict furnishes no basis for an award of actual damages to plaintiff Finlay.

Insofar as Bond’s damages are concerned, the pleadings allege that he incurred expenses in the sum of $100.00 in attempting to find and recover the horses; that as a result of the time spent in such search he experienced a loss of earnings in the amount of $250.00; and that he had incurred liability for attorney’s fees in connection with the claim for wrongful sequestration. The jury found that Bond had suffered no loss of earnings; that in his unsuccessful attempt to locate the animals he had incurred reasonable expenses in the amount of $150.00. In addition, the jury found that Bank had acted with malice and set $2,500.00 as punitive damages. Finally, the jury found that a reasonable attorney’s fee was $5,725.00.

The undisputed evidence establishes that the two animals seized under the writ of sequestration were owned solely by Fin-lay. Our attention has been called to no case, and we know of none, holding that a suit for wrongful sequestration can be maintained by a person who has no interest in the property wrongfully seized. There is no evidence that Finlay incurred any liability to Bond or to anyone else, or that she spent any money in attempting to locate and recover the horses.

It is clear that the sequestration, if wrongful, was wrongful only as to Finlay and cannot form the basis for any claim by Bond. Since the unchallenged jury findings establish that Finlay suffered no actual damages, the judgment awarding her and Bond $8,375.00 is clearly erroneous.

The reasons which preclude recovery for wrongful sequestration prevent recovery on plaintiff’s “alternate” theory of conversion.

In a case of this nature, failure to establish a claim for actual damages defeats the claim for punitive damages. See Hicks v. Wright, 564 S.W.2d 785, 795 (Tex.Civ.App.—Tyler 1978, writ ref’d n. r. e.).

Since plaintiffs were not entitled to recover, there is no basis for the award of attorney’s fees. Fitz v. Toungate, 419 S.W.2d 708 (Tex.Civ.App.—Austin 1967, writ ref’d n. r. e.).

The trial court correctly denied recovery for usury. There is more than sufficient evidence to establish that the amount of the loan was $4,000.00 and that Bond actually received that amount when the note was executed. If the amount advanced was in fact $4,000.00, the claim for usury lacks foundation.

That portion of the judgment denying plaintiffs recovery for usury is affirmed. The portion of the judgment awarding plaintiffs recovery for wrongful sequestration or conversion is reversed and judgment is here rendered that plaintiffs take nothing.


text:
    Chester Dale EASTIN, Appellant, v. Sherry Dean EASTIN, Appellee.
    No. 16177.
    Court of Civil Appeals of Texas, San Antonio.
    July 30, 1979.
    Rehearing Denied Sept. 25, 1979.
    Frank Y. Hill, Jr., Boerne, for appellant.
    Van G. Hilley, Goodstein & Semaan, San Antonio, for appellee.
   OPINION

CADENA, Chief Justice.

This is a divorce action in which appellant, Chester Dale Eastin, seeks reversal of the judgment of the trial court dissolving the marriage between appellant and appel-lee, Sherry Dean Eastin, and disposing of matters relating to custody of the children of the parties, support of the children, division of the community assets and liability of appellant for attorney’s fees. The provisions of the decree concerning custody, support, division of property and attorney’s fees are based on a written agreement signed by the parties prior to the hearing.

Appellant’s contention that the judgment must be reversed because the moving party, appellee, did not prove the existence of the necessary residence requirements must be overruled. What we have before us is obviously a partial statement of facts, and the record reflects that the trial court heard testimony in chambers during a hearing at which no court reporter was present. We must presume, therefore, that the evidence which was heard by the trial court but not brought forward to this Court was sufficient to support the decree granting the divorce.

Appellant also complains that he had made known to the court that he repudiated the agreement relating to custody, support, division of assets and liability for attorney’s fees before the trial court rendered its judgment on those matters.

The cause was set for trial on June 28, 1978. Prior to that date the parties had engaged in negotiations for the purpose of reaching an agreement as to the matters in dispute other than the question of divorce. On June 28, 1978, the parties finally reached agreement on all matters. The agreement was embodied in a handwritten instrument, with each attorney writing a portion of the instrument. The instrument bore the docket number of the case, the style of the case, and was captioned, “Decree and Agreement.” However, the instrument is not in the form of a judgment or decree, does not purport to dispose of the question of the marriage, and is clearly nothing more than a recital of the terms of the agreement, except for reciting, “All relief not expressly granted is specifically denied. Costs ⅞⅛ to each party.”

After the parties signed the instrument, they announced to the court that they had reached an agreement and it appears that evidence concerning the suit for divorce was then heard in chambers. Apparently, the trial court announced that the divorce would be granted. The judge then signed the handwritten instrument which had been prepared by the parties. Above the court’s signature there appears the statement, “Signed this June 28, 1978 after confirmed.”

On July 12, 1978, counsel for appellee mailed to appellant’s attorney the “necessary documents” required to carry out the agreement of the parties. On July 31,1978, appellant’s attorney told counsel for appel-lee that appellant was “having problems” raising the $68,000.00 which, according to the agreement, appellee was to receive in cash.

On August 4, 1978, appellee filed a “motion for entry of decree of divorce” to which was attached the divorce decree which ap-pellee desired to be signed. The trial court set the motion for hearing on August 14, 1978, on which date, prior to the time the hearing began, appellant filed his answer alleging that the decree suggested by appel-lee did not accurately “recite the proceedings had on” June 28,1978, and repudiating the agreement.

After the hearing, the trial court granted appellee’s motion and signed the decree which had been tendered by appellee.

It cannot be seriously contended that the signing of the written agreement by the court on June 28 constituted the rendition of a judgment. If such action on the part of the trial court be considered a judgment, the result would be that the divorce was denied, since the instrument recites that all relief not “expressly granted” is “specifically denied” and the instrument does not purport to grant a divorce, either expressly or by implication.

The facts in this case are very similar to those involved in Carter v. Carter, 535 S.W.2d 215 (Tex.Civ.App. — Tyler 1976, writ ref’d n. r. e.). In that case the Court, relying on Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951), said:

The law seems to be clear that a consent judgment cannot be rendered by a trial court when consent of one of the parties is lacking, even though consent may have theretofore been given by such dissenting party. The rule is that consent must exist at the very moment the trial court undertakes to make the agreement the judgment of the court.

535 S.W.2d at 217.

Appellee contends that judgment in this case was “rendered” on June 28,1978, prior to the time that appellant made known his repudiation of the agreement, and that after the trial court had so made “the agreement the judgment of the court” appellant could not withdraw his consent. There is nothing in the transcript which suggests that the trial court had announced its decision concerning custody, support, property division and attorney’s fees prior to the hearing held in August. Appellee lays great stress on the fact that her motion was not a motion for judgment but was, instead, a motion for “entry of judgment.”

Strictly speaking, there is a distinction between the rendition of judgment and the entry of judgment. A judgment is rendered when the court pronounces its decision and conclusions upon the matter submitted to it for adjudication. The entry of the judgment is the ministerial act which furnishes enduring evidence of the judicial act of rendition. 4 R. McDonald, Texas Civil Practice § 17.05.1 (rev. 1971). A judgment is rendered when “ ‘the decision is officially announced either orally in open court or by memorandum filed with the clerk.’ ” Knox v. Long, 152 Tex. 291, 296, 257 S.W.2d 289, 292 (1953). Normally, the decision is noted on the docket and the court then signs a formal document which recites the judgment. See Rule 306a, Tex. R.Civ.P. Finally, the clerk of the court “enters” the judgment upon the minutes of the court by copying it in such minutes, thereby giving the judgment the certainty required to permit it review upon appeal, its enforcement by process, and its proof in other courts. See generally 4 R. McDonald, supra, §§ 17.05.2-17.05.5. Despite these distinctions, the legal profession displays a tendency to use the terms “render” and “enter” interchangeably.

In this case there is no indication in the record that the trial court had, prior to the hearing on August 14, 1978, announced its conclusions and decision on the questions of custody, support, division of property, and attorney’s fees. Even if the testimony presented by appellee’s counsel at the hearing on her motion on August 14 can be considered as evidence of the rendition of judgment on June 28, such testimony concerns only the court’s action with respect to the dissolution of the marriage. The “decree” signed by the trial court on August 14 contains no suggestion that the judgment which it evidences was “rendered” at any prior time, nor are there any findings by the trial court indicating a rendition on June 28.

We conclude that the trial court erred in rendering judgment at a time when it knew that the agreement on which the judgment was based lacked, at the time of rendition, the consent of appellant.

That portion of the judgment granting a divorce is affirmed. The portion of the judgment awarding custody of the children to appellee, ordering appellant to pay child support, dividing the property and awarding attorney’s fees is severed from the portion granting the divorce and is reversed and remanded to the trial court for determination of such issues.


text:
    CARNATION COMPANY, Appellant, v. Willie Ellis BORNER, Appellee.
    No. B1969.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Aug. 15, 1979.
    Rehearing Denied Sept. 5, 1979.

      Ron D. Daugherty, Barlow, Lacy, Smith & Pollard, Houston, P. Anthony Burnham, Los Angeles, Cal., for appellant.
    Laron D. Robinson, W. Michael Leebron, II, Leebron & Robinson, Houston, for appel-lee.
    Before J. CURTISS BROWN, C. J., and COULSON and CIRE, JJ.
   COULSON, Justice.

This is a suit for the recovery of damages due to wrongful discharge of an employee under Article 8307c of the Texas Workmen’s Compensation Law, Tex.Rev.Civ.Stat. Ann. article 8307c (Supp.1978). Appellant Carnation Company, defendant below, appeals from a judgment in favor of appellee Bomer, plaintiff below. We affirm the judgment of the trial court.

Appellee Bomer was employed by the appellant Carnation Company in 1955 and continued in that employment until his discharge on August 10, 1973. His job with Carnation at the time of his discharge was that of a milk-loader. While performing his duties as a milk-loader, Borner was hit by a stack of falling crates in October of 1971, and injured his shoulder. In March of 1973, another stack of crates fell on Borner, reinjuring his shoulder and causing him to be off the job until May 14, 1973, when he was released to return to work by his physician and did return to his same job. Following his 1973 injury Borner hired a lawyer and filed a workmen’s compensation claim for both his 1971 and 1973 injuries. This claim was settled by a compromise settlement agreement following a prehear-ing conference before the Industrial Accident Board and Borner received a lump sum cash settlement. Carnation terminated Borner as an employee on August 10, 1973, some two days after the settlement agreement was approved by the Industrial Accident Board. Borner had been back on the job since May 14, 1973, with no complaints filed by Carnation about his job performance, although he had had some absences in the interim, but the reason given by Carnation for discharging him was that he was “Physically unable to perform assigned work.”

After his discharge Borner reported the facts of his discharge to his union which filed a grievance on his behalf with Carnation. The written grievance contended that Borner’s discharge was “unjust and contractually illegal” and requested that Bomer be reinstated and be reimbursed for his lost benefits. Apparently Carnation did not respond to the grievance for a long period of time, although its contract with the union specified that the Company and the Union should meet promptly to settle any griev-anee, because R. B. Moon, Secretary-Treasurer of the Union, wrote twice more to Carnation’s General Manager requesting that Carnation comply with the grievance procedure and reply to Bomer’s grievance. The first of these follow-up letters was dated October 4, 1973, and the second was dated December 4, 1973. Carnation responded in a letter dated January 2, 1974, which stated:

The company agrees for a period of one (1) year, effective from August 10, 1973, to allow Mr. Bomer to return to work at such time that in our opinion he is physically able to perform heavy duty work.

Upon receiving this letter, Bomer testified, he went to Moon, his Union Representative, and asked what the letter meant. He stated that Moon told him that he (Moon) did not know what the letter meant and told Bomer to see his own lawyer. It is undisputed that no further action on Borner’s grievance was ever taken by the Union or by Carnation. On July 16, 1975, one and one-half years after the letter from Carnation was written, Borner filed this suit claiming that his discharge violated Tex. Rev.Civ.Stat.Ann. art. 8307c (Supp.1978) which is entitled “Protection of Claimants from Discrimination by Employers; Remedies . . and provides in pertinent part:

Section 1. No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted, or caused to be instituted, in good faith, any proceeding under the Texas Workmen’s Compensation Act, or has testified or is about to testify in any such proceeding.
Section 2. A person who violates any provision of Section 1 of this Act shall be liable for reasonable damages suffered by an employee as a result of the violation, and an employee discharged in violation of the Act shall be entitled to be reinstated to his former position. The burden of proof shall be upon the employee.

Carnation filed, inter alia, a cross action against and a motion for leave to join the Union as a third party defendant in this suit. This cross-action was based upon allegations that the Union violated its duty of fair representation under the National Labor Relations Act. This motion was granted, whereupon the Union petitioned for removal of the entire case to Federal Court. Upon motion by Carnation the United States District Court for the Southern District of Texas, Houston Division, remanded Borner’s cause of action against Carnation to the District Court of the State of Texas, but retained jurisdiction of Carnation’s cause of action against the Union.

In state court Carnation made a motion for summary judgment which was denied. Borner’s cause of action was tried to a jury which found that Carnation violated Article 8307c, Section 1, with respect to Willie Bor-ner; that no settlement was reached on the grievance filed by Willie Borner, and that Carnation acted willfully and maliciously in discharging or otherwise discriminating against Willie Borner. The jury awarded damages in the amount of $24,768.00 for lost wages between August 10,1973 and the time of trial, $52,000.00 for loss of wages Bomer would probably incur in the future, and $44,000.00 for retirement and other benefits Bomer would have been entitled to had he continued to work for Carnation. In addition the jury awarded $60,000.00 as exemplary damages. After denying Bomer’s trial amendment to increase the amount of damages pled, the trial court entered judgment on the verdict in the amount of $100,-000.00, the total amount of damages pled for by Borner in his first amended petition. Carnation appeals from that judgment.

In its first point of error Carnation contends that the trial court erred in denying Carnation’s motion for summary judgment under this court’s holding in Thompson v. Monsanto, 559 S.W.2d 873 (Tex.Civ.App. — Houston [14th Dist.] 1977, no writ). This point of error further urges that it was error to fail to instruct the jury that Bor-ner’s cause of action was foreclosed if it found that there existed in the contract between the Union and Carnation a “final and binding grievance and arbitration procedure” and that Borner failed to pursue “that exclusive remedy under his collective-bargaining agreement.” We would first note that this is an appeal from a judgment resulting from a jury trial on the merits. The denial of such a motion for summary judgment is interlocutory in nature and is not appealable. Southwestern Materials Co. v. George Consol, Inc., 476 S.W.2d 454 (Tex.Civ.App. — Houston [14th Dist.] 1972, writ ref’d n. r. e.).

Carnation’s argument under this first point of error contends that this case is governed by our holding in Thompson v. Monsanto, supra. In the Thompson case the plaintiff, an employee who was injured within the scope of his employment, was awarded compensation under the Workmen’s Compensation Act and was subsequently discharged from his employment. He filed a grievance asking to be reinstated and his Union exercised its right to arbitrate that grievance. The arbitrator found that the employer was justified in discharging the plaintiff since the extent of his injury precluded the plaintiff from safely performing any job within his classification and seniority. The employee subsequently filed suit in district court claiming that his discharge was due to his good faith effort to pursue his workmen’s compensation claim and thus constituted a violation of Article 8307c. Monsanto asserted, as an affirmative defense to Thompson’s suit, that the plaintiff had elected to pursue his claim to arbitration and, under the collective bargaining agreement, the arbitrator’s decision was final and binding and therefore precluded further litigation. On appeal from a judgment in favor of Monsanto we concluded that an employee who has received an adverse binding arbitration award under a collective bargaining agreement was thereby precluded from bringing suit in state court under Article 8307c on the same claim of unlawful discharge.

Our opinion in Thompson v. Monsanto contains an in depth review of the federal and state cases which bear on the problem. Those cases led us to the conclusion that the policy of federal labor law requires employees to “attempt to use grievance processes agreed upon in the contract as the mode of redress” for grievances. Thompson v. Monsanto Co., supra at 874. The use of grievance procedures is the preferred method for “settling disputes and stabilizing the common law of the plant,” Thompson v. Monsanto Co., supra at 874. We further held that when “final grievance processes” have been exhausted by the aggrieved employee he

“has no right to an independent judicial determination of the merits of his grievance unless he establishes a union breach of its duty to fair representation. Such a rule would negate the desired finality to grievance arbitration procedures. Employers would have little reason to rely upon the terms of a settlement agreement . . ”

if the matter could be relitigated in court. Therefore we applied the policy of precluding employees “who have pursued their claims through final and binding grievance and arbitration from then having their claims litigated in the courts” (emphasis added) to suits under Article 8307c because we determined that “where applicable” federal labor law preempted the field of labor policy and must be applied in the face of an incompatible state law. Therefore we held Monsanto’s affirmative defense of final arbitration under the labor contract operated to preclude the employee’s suit in state court under Article 8307c.

Appellee Bomer’s position is different from that of the plaintiff in Thompson v. Monsanto Co. Borner complied with federal labor policy and with the applicable contract in “attempt[ing] to use the griev-anee procedures” under that contract. He followed all procedures specified therein for an employee’s filing of a grievance after he has been discharged. Once he had done so the processing of his grievance was in the hands and under the control of the union and the employer, Carnation Company. No arbitration procedure was invoked by either of them and no “final and binding” arbitration decision was obtained. Furthermore the jury found that no final settlement of the grievance was reached at any earlier stage in the grievance process. In fact no resolution of Borner’s grievance was ever reached. We are unwilling to hold either that the existence of a labor contract containing provisions for a grievance procedure or the mere filing by an aggrieved employee of a grievance pursuant to that procedure operate as a matter of law to deny the individual employee his rights under a state statute which expresses the state’s public policy of protecting its important interest in insuring that its workmen’s compensation law can function to the benefit of its intended beneficiaries, employees, without coercion or unjust treatment from their employers as a result of exercising their rights under that law.

We therefore hold that although the existence of a final and binding arbitration award or the existence of a final settlement of an employee’s grievance at a stage in the process prior to the invocation of the arbitration procedure would preclude a suit under Article 8307c by that employee, the mere filing of such a grievance, which is not resolved under the applicable contract procedures, does not have that effect. The remedies available to an employee who is terminated by his employer for the good faith exercise of his rights under the workmen’s compensation law remain available to him under that statute in a situation where his grievance was properly filed by him but was not resolved through efforts of the Union and the employer.

We emphasize that our holding applies only to suits under Article 8307c and does not in any way intend to alter the requirements dictated by federal law for suits for unjust discharge based upon the labor contract itself. See Chapel v. Southwestern Bell Telephone Company, 520 S.W.2d 592 (Tex.Civ.App. — Fort Worth 1975, no writ); Duckstein v. General Dynamics Corp., Fort Worth Div., 499 S.W.2d 907 (Tex.Civ.App.— Fort Worth 1973) cert. denied 419 U.S. 835, 95 S.Ct. 61, 42 L.Ed.2d 61 (1974).

In its second point of error Carnation asserts that Special Issue number 1 was improperly submitted because of its “vagueness, ambiguity, and duplicitousness (sic).” Special Issue number 1 was submitted as follows:

Do you find from a preponderance of the evidence that Carnation Company violated Article 8307(c), Section I with respect to Willie Bomer?

Carnation’s argument under this point of error apparently contends that it was entitled to have each element of the statute submitted individually in separate special issues. All of the cases cited by Carnation to support its position were decided prior to the 1973 amendment of Rule 277, Tex.R. Civ.P. which now provides, in pertinent part:

It shall be discretionary with the court whether to submit separate questions with respect to each element of a case or to submit issues broadly. It shall not be objectionable that a question is general or includes a combination of elements or issues.

Special Issue number 1 is a permissible mode of submitting the plaintiff’s claim in this Article 8307c cáse under Rule 277. See State v. Norris, 550 S.W.2d 386 (Tex.Civ.App. — Corpus Christi 1977, writ ref’d n. r. e.). This is particularly true because, contrary to what Carnation apparently claims, Bomer would be entitled to prevail should the jury find he was discharged because he took any one of those actions (filing a workmen’s compensation claim, hiring a lawyer to represent him in a claim, instituting a proceeding under the Texas Workmen’s Compensation Act, or testifying in any such proceeding) specified in Section I of that statute. Bomer pled and offered evidence that each of these actions was taken by him prior to his discharge. Therefore there was support for submission of all those elements of Article 8307c to the jury and the broad form of submission used by the trial court was not error. Carnation’s second point of error is overruled.

In its third point of error Carnation objects to the submission of Special Issue number 2 which inquired:

Do you find from a preponderance of the evidence that a settlement was reached on the grievance filed by Willie Borner?

Carnation contends that it was entitled to an additional instruction in connection with this issue as to whether either Borner or his Union had failed to pursue his grievance to arbitration. Carnation’s brief states that this issue was “critical to Appellant-Defendant’s defense” since Carnation maintained that it “was entitled to a verdict upon a finding that either Borner or the Union failed to pursue the grievance to the final step, the arbitration process.”

Under our holding under Carnation’s first point of error herein such an instruction would not have constituted an affirmative defense to Borner’s cause of action. Carnation pled as an affirmative defense that the grievance had been settled or resolved, not that it had been filed but not processed to arbitration. The jury was asked to determine whether the grievance had been settled. A further finding on whether it had been pursued to arbitration would have been unnecessary for there was no claim made or evidence presented that arbitration had been invoked. Appellant’s third point of error is overruled.

Carnation’s fourth point of error contends that it was improper for the trial court to submit special issues dealing with exemplary damages. We note that the only objection made to these special issues at trial and therefore the only complaint preserved for appeal, was that such damages were “not properly recoverable under an 8307(c) [8307c] action.” Article 8307c Section II delineates the remedies available to one who is a victim of the actions prohibited by Section I of that statute:

A person who violates any provision of Section I of this Act shall be liable for reasonable damages suffered by an employee as a result of the violation .

Carnation cites us to no authority, nor have we discovered any which indicates that “reasonable damages” under Article 8307c may not, in a proper case, include exemplary or punitive damages. Carnation’s fourth point of error is overruled.

In its fifth point of error Carnation complains of the submission of special issue number four which permitted the jury to find and award Borner elements of future damages. Carnation’s only objection made at trial which has been preserved for appeal was that future damages are not recoverable in an action under Article 8307c. We find that the “reasonable damages” specified in Article 8307c may include damages to be incurred in the future in a proper case. Carnation’s fifth and final point of error is also overruled.

Appellee Borner has urged two cross-points of error. In the first he complains of the trial court’s denial of his twice-offered trial amendment which sought to increase the amount of damages alleged in his petition from $50,000.00 in actual damages and $50,000.00 in exemplary damages to $150,000.00 in actual damages and $50,000.00 in exemplary damages. The question of whether to permit the filing of a trial amendment is addressed to the sound discretion of the trial court and his order will not be disturbed unless the complaining party makes a clear showing that the court abused his discretion. Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605 (1948). Borner made no showing at trial of any reason why he could not have amended his pleading to increase the amount of damages within the time allowed for amendment to pleadings without leave of court. See Fry v. Guillote, 577 S.W.2d 346 (Tex.Civ.App. — Houston [14th Dist.] 1979, writ ref’d n. r. e.). Carnation was entitled to rely upon the maximum claim made by Borner in his first amended petition. Furthermore there was no trial by consent or waiver merely because the cumulative evidence on damages would add up to a sum greater than that sought by Borner in his first amended petition. Williams v. General Motors Corporation, 501 S.W.2d 930 (Tex.Civ.App. — Houston [1st Dist.] 1973, writ ref’d n. r. e.). We do not find any abuse of discretion in the trial court’s action in refusing to allow Borner’s trial amendments.

Bomer’s second cross-point deals with the exclusion of certain evidence. This point has become immaterial in view of the fact that we are affirming the judgment of the trial court in favor of Borner. See Texas Steel Co. v. Douglas, 533 S.W.2d 111 (Tex.Civ.App. — Fort Worth 1976, writ ref’d n. r. e.). We overrule both of Borner’s cross-points of error.

The judgment of the trial court is affirmed.

CIRE, J., not participating.

      . Section 8.4 of the collective bargaining agreement provided:
      8.4 Processing of Grievance. The Company and the Union shall meet promptly to settle any grievance filed. If they are unable to settle the written grievance within ten (10) calendar days, the Union may invoke arbitration and name its representative. Within five (5) days after the Union has named its representative, the Company shall name its representative, and the two shall attempt to settle the grievance, or to agree on an impartial arbitrator, within five (5) days.