author: HOYT, Justice.

text:
    Anthony Fitzgerald TURNER, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0481-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 28, 1985.

      Allen C. Isbell, Houston, for appellant.
    Michael J. Guarino, Galveston Dist. Atty. Richard J. Branson, Miguel Martinez, Galveston, Asst. Dist. Attys., Galveston, for appellee.
    Before HOYT, WARREN and DUGGAN, JJ.
   HOYT, Justice.

This is an appeal of a conviction for burglary of a habitation, on a plea of not guilty. The jury made an affirmative finding that the appellant exhibited a deadly weapon during the commission of the offense. The court assessed punishment at 25 years confinement. The judgment, as reformed, is affirmed.

The complainant, Margaret Garza, testified that on September 21,1983, at approximately 4 a.m., a man entered her home without her consent. After he left, she discovered her wallet was missing.

Galveston police arrested the appellant on an unrelated attempted burglary charge on October 25, 1983. Three days later, the appellant gave a written statement admitting the burglary at the complainant’s home. After receiving the Miranda warnings on three occasions, the appellant signed a consent for the search of his bedroom at his mother’s house. His mother also signed a consent to search form. During the search the police discovered a wallet containing the complainant’s driver’s license on a nightstand in the appellant’s bedroom.

In the first ground of error, appellant contends that it was fundamental error to instruct the jury that the law presumes an intent to commit theft if one enters a habitation at nighttime, because there is no such statutory presumption in Texas.

In the instructions on the applicable law, the court included the following instruction on the intent to commit theft:

You are instructed that our law provides that if it is shown that a person enters a habitation in the nighttime, a presumption is raised that the act was done by that person with the intent to commit theft. Such presumption, however, is rebuttable.
By the [term] “nighttime” is meant any time from thirty minutes after sunset to thirty minutes before sunrise.

Appellant first urges that this presumption is appropriate for appellate review purposes only when the sufficiency of the evidence to prove such intent is challenged. The appellant also contends that the presumption is inappropriate, arguing that presumptions are procedural devices to determine which party must first produce evidence. See Alvarado v. State, 596 S.W.2d 904, 906 (Tex.Crim.App.1980). The second part of appellant’s argument urges that a reasonable juror could have misinterpreted the instruction in such a way that the presumption was interpreted as being a conclusive presumption.

The state contends that because appellant did not object at trial to the constitutionality of the nighttime entry instruction, nothing is preserved for appellate review. The state cites Parker v. State, 649 S.W.2d 46 (Tex.Crim.App.1983), as authority that constitutional and due process claims fall under the contemporaneous objection requirement. Id. at 54-55. The state also relies on Schenck v. State, 652 S.W.2d 509 (Tex.App. — Houston [1st Dist] 1983, pet. ref’d) to support its contention that failure to object to the presumptive instruction waived any error. Id. at 512. It should be noted, however, that Schenck concerned a court’s failure to give instructions to the jury under the provisions of Tex.Penal Code Ann. sec. 2.05(2) (Vernon Supp.1985), and held that a complaint on appeal must be predicated on an objection made at trial. In the instant case, the state urges us to hold that giving instructions under sec. 2.05, as well as failing to give them, cannot be attacked for the first time on appeal. This argument has some merit in general, but is not applicable here because sec. 2.05 does not apply to the facts of this case.

The trial court further instructed the jury on the law of presumption, as follows:

You are further instructed that:
a) the facts giving rise to the presumption must be proven beyond a reasonable doubt;
b) if such facts are proven beyond a reasonable doubt, you may find that the element of the offense sought to be presumed exists (that is, that the person entering the habitation, if any, at nighttime, did so with the intent to commit theft). You are, however, not bound to so presume;
c) even though you may find the existence of said element, the State must prove beyond a reasonable doubt each of the other elements of the offense charged; and
d) if you have a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and you shall not consider the presumption for any purpose.

This instruction tracks the provision of Tex.Penal Code Ann. sec. 2.05 (Vernon Supp.1985).

The appellant urges that sec. 2.05 makes this instruction appropriate only when there is a statutory presumption. The pertinent language of this section provides that, “When this code or another penal law establishes a presumption with respect to any fact, it has the following consequences. ...”

The cases that appellant cites do not support his contention that only statutory presumptions are authorized to be in the charge. See Alderson v. State, 654 S.W.2d 60 (Tex.App. — Dallas 1983, pet. ref’d). As in Alderson, we are concerned with a non-statutory presumption. The state, in its brief, alleges that some courts have permitted the jury to be charged following sec. 2.05 for non-statutory presumptions. It relies upon the Alderson decision where the conviction was reversed when the trial court failed to include the precautionary language of sec. 2.05.

This court has noted that sec. 2.05 does not apply where the presumption involved is judicially created. Schenck, 652 S.W.2d at 512. The issue before us is not whether a court can or cannot charge the jury in accordance with sec. 2.05 in non-statutory presumptions, but whether the trial court committed fundamental error in giving the sec. 2.05 charge. We hold that it did not.

The burden was on appellant to show how the charge given was calculated to injure his rights or prevent a fair and impartial trial. Grady v. State, 614 S.W.2d 830 (Tex.Crim.App.1981). His failure to object to the charge waived any error other than fundamental error. Id. at 831. Appellant did not meet that burden.

We therefore overrule ground of error one, holding that appellant’s failure to object waived any error.

The appellant contends in ground of error four that there was insufficient evidence that a deadly weapon was used or exhibited. Because a knife is not a deadly weapon per se, Limuel v. State, 568 S.W.2d 309 (Tex.Crim.App.1978), there must be proof that the knife was a deadly weapon. Williams v. State, 575 S.W.2d 30 (Tex.Crim.App.1979). The trial court correctly set out the definitions of a “deadly weapon” in its charge as stated in Tex.Penal Code Ann. sec. 1.07(a)(ll) (Vernon 1974):

“Deadly weapon” means: (a) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (b) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

There were no further instructions to the jury regarding a deadly weapon. The state asserts, without authority, that because the affirmative finding was submitted pursuant to Tex.Code Crim.P.Ann. art. 42.12B, sec. 3f(a)(2) (Vernon Supp.1985), and the deadly weapon evidence was not an element of the substantive offense, the finding is not required to be proved beyond a reasonable doubt. The evidence must be sufficient, however, for a rational trier of fact to conclude that the definition of a deadly weapon has been met.

Proof that a knife is a deadly weapon is made by proving that the knife is capable of inflicting deadly wounds. Batro v. State, 635 S.W.2d 156, 158 (Tex.App. —Houston [1st Dist.] 1982, no pet.). The factors that a court may consider in determining if a knife is capable of inflicting deadly wounds include injuries inflicted, the manner in which the knife was used, the length of the blade, and threats. Id. at 158. In the instant case the knife was not introduced into evidence nor did the complainant claim any bodily injuries caused by the knife. There was no evidence of the size of the knife, its blade or even that the blade was open. There was no testimony of threats, fear of death, or serious bodily injury because of the knife. The only testimony on the use of the knife was one statement by the complainant: “He lunged at me with a knife and put it to my throat.”

The state cites two cases as authority that witness testimony that a defendant placed a knife at an individual’s throat is sufficient evidence to support the finding. These cases are inapposite, because other factors were present. In Hudson v. State, 629 S.W.2d 227 (Tex.App. — Fort Worth 1982, no pet.), there was expert testimony that the knife used could cause death or serious bodily injury. In Herbert v. State, 631 S.W.2d 585 (Tex.App. — El Paso 1982, no pet.), there was testimony that the knife had just been used to slice oranges and that threats were made.

The Court of Criminal Appeals has found evidence wholly insufficient to prove that the knife was a deadly weapon where the knife was not offered in evidence and there was no testimony describing the knife or its size. Better v. State, 635 S.W.2d 739, 740 (Tex.Crim.App.1982). In Better, this lack of evidence was sufficient cause to reverse the conviction. Id. at 740. In the instant case, the evidence presented and admitted proves only that a knife was exhibited. The proper remedy is to reform the judgment by deleting the affirmative finding on the use or exhibition of a deadly weapon. Turner v. State, 664 S.W.2d 86, 90 (Tex.Crim.App.1983).

Ground of error four is sustained.

In grounds of error three and five, the appellant contends that the court’s charge was fundamentally defective. He argues that the court failed to instruct the jury that they must find beyond a reasonable doubt that a deadly weapon was used and that the knife used was a deadly weapon. In view of our finding that the evidence was insufficient to show that the appellant used or exhibited a deadly weapon, we overrule grounds of error three and five.

In ground of error two, the appellant argues that due process should limit the affirmative finding on use of a deadly weapon to cases where the state has provided notice of intent to offer such evidence. At trial, the objection to the affirmative finding was that appellant had not been indicted for an aggravated charge. This objection was properly overruled in as much as complainant’s ground of error on appeal differs from this trial objection, nothing is presented for review. Mitchell v. State, 650 S.W.2d 801, 810 (Tex.Crim. App.1983).

The judgment of the trial court is reformed to delete the following:

We, the Jury, further affirmatively . find that the Defendant, Anthony Fitzgerald Turner, used or exhibited a deadly weapon during the commission of the offense alleged in the indictment.

The judgment of the trial court as reformed is affirmed.

For publication. Tex.R.Civ.P. 452.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Leethard Talley DAVIS, Appellant, v. STATE of Texas, Appellee.
    No. 11-84-092-CR.
    Court of Appeals of Texas, Eastland.
    April 4, 1985.
    Rehearing Denied April 25, 1985.
    C.R. Kit Bramblett, Bramblett & Bram-blett, El Paso, for appellant.
    Steven W. Simmons, Dist. Atty., El Paso, for appellee.
   ON STATE’S MOTION FOR REHEARING

PER CURIAM.

The State has now brought to this Court’s attention the fact that appellant did not give timely notice of appeal, miss the appeal. We dis-

Appellant gave oral notice of appeal in open court at the time he was sentenced on April 29, 1983. The record also shows that, later on that same day, appellant attempted to withdraw the oral notice of appeal by an oral announcement in open court (in order to receive the additional time for preparation of the record which is automatically allowed by filing a motion for new trial). The oral attempt to withdraw the notice of appeal was ineffective. TEX.CODE CRIM.PRO.ANN. art. 44.08(a) (Vernon Supp.1985) allows an oral notice of appeal, but it requires that a withdrawal of the notice of appeal “shall be in writing, signed by the defendant, and filed in duplicate with the Clerk of the Court of Appeals.”

However, the filing of the motion for new trial automatically invalidated the original notice of appeal. The Court of Criminal Appeals stated in Ex parte Drewery, 677 S.W.2d 533 at 536 (Tex.Cr.App. 1984):

This Court has repeatedly held that a notice of appeal which was filed prior to the overruling of a motion for new trial was untimely or prematurely filed and as such was ineffective. (Emphasis added)

Appellant’s motion for new trial was timely filed on May 26, 1983. The motion for new trial was overruled by operation of law on July 13, 1983 (75 days after the date of sentencing). See TEX.CODE CRIM.PRO. ANN. art. 40.05(c) (Vernon Supp.1985). Notice of appeal was due to be filed on or before July 28, 1983. See TEX.CODE CRIM.PRO.ANN. art. 44.08(b) (Vernon Supp.1985) which requires that: “Notice of appeal shall be filed within 15 days after overruling of the motion or amended motion for new trial.” Consequently, the written notice of appeal which was filed on July 29,1983, came one day too late [unless the concurring opinion in Drewery is adopted by a majority of the Court of Criminal Appeals]. There was no request for permission to file a late notice of appeal pursuant to TEX.CODE CRIM.PRO.ANN. art. 44.08(e) (Vernon Supp.1985). Since a timely notice of appeal is essential to confer jurisdiction upon this Court, the appeal must be dismissed.

The State’s Motion for Rehearing is granted, our prior opinions are withdrawn, and the appeal is dismissed.

      . This appeal was transferred from the El Paso Court of Appeals to this Court on April 17, 1984, pursuant to TEX.REV.CIV.STAT.ANN. art. 1738 (Vernon Supp.1985).


author: DIES, Chief Justice. BURGESS, Justice,

text:
    BINSWANGER GLASS COMPANY, Appellant, v. Mildred SUTTON, Appellee.
    No. 09 84 272 CV.
    Court of Appeals of Texas, Beaumont.
    April 4, 1985.
    Rehearing Denied April 18, 1985.

      Curry Cooksey, Orgain, Bell & Tucker, Beaumont, for appellant.
    Ernest J. Browne, Jr., Beaumont, for ap-pellee.
   OPINION

DIES, Chief Justice.

Plaintiff below, appellee herein, brought suit against defendant below, appellant herein, for damages resulting from a vehicular collision. A jury answered special issues favorable to the plaintiff as to compensatory and punitive damages. From a judgment given plaintiff, defendant has perfected appeal to this Court.

Defendant’s first point of error complains of the judgment including an award for exemplary or punitive damages.

Before trial, the parties entered into the following stipulation:

“That the Plaintiff and Defendant hereby stipulate and agree that the amount of property damage done to Plaintiff’s vehicle resulting from the collision made basis of this suit is Three Thousand Eight Hundred and No/100 ($3,800.00) Dollars. Further, that if there is any finding in favor of the Plaintiff on the issue of liability, that the figure of Three Thousand Eight Hundred and No/100 ($3,800.00) Dollars shall be used as the total figure of damages suffered by Plaintiff proximately caused by the collision made basis of this suit and shall be thereby used in determining the amount to be awarded in any judgment herein.” (emphasis supplied)

It was after the execution of this stipulation that plaintiff amended her pleadings seeking exemplary damages. The stipulation was drawn by plaintiff’s attorney.

This stipulation seems unambiguous to us and, therefore, the writing alone should be deemed by us to express the intention of the parties. Sun Oil Company (Delaware) v. Madeley, 626 S.W.2d 726 (Tex.1981). The words “total figure of damages” seem, inescapably, to include exemplary damages and, thus, excludes plaintiff’s argument that only actual or compensatory damages were intended by the parties. In 28 TEX.JUR.3d, Damages sec. 1, at 74-75 (1983), we find:

“The term ‘damages’ is defined as the sum of money the law awards as pecuniary compensation, recompense, or satisfaction for an injury done or a wrong sustained as a consequence of either a breach of a contractual obligation or a tortious act....
“Damages are either compensatory or exemplary.... ”

We, therefore, sustain appellant’s first point of error. This makes it unnecessary to address the other points of error assigned by appellant, as well as the two crosspoints assigned by appellee, and they are overruled.

We now enter judgment the court below should have entered.

The plaintiff shall recover of and from the defendant the sum and amount of Three Thousand Eight Hundred and No/100 ($3,800.00) Dollars, together with costs, and legal interest.

Affirmed as reformed.

BURGESS, Justice,

concurring.

I concur in the result reached by the majority but for a different reason. I do not believe the stipulation between the parties included exemplary damages. The stipulation speaks only to “... total figure of damages suffered by Plaintiff proximately caused by the collision _” (emphasis supplied). The words “total figure of damages suffered by plaintiff” seem, inescapably to me, to include only compensatory damages. In 28 TEX.JUR.3d Damages sec. 1 (1983), at 74-75 we further find:

“Damages are either compensatory or exemplary. They are compensatory if they are awarded as the measure of the actual loss sustained and are exemplary if they are awarded as punishment with the aim of preventing similar wrongs in the future.” (emphasis added)

To me, the words “suffered” in the stipulation and “sustained” in the definition are synonymous. Thus, the stipulation did not preclude the awarding of exemplary damages.

I concur in the result because I also do not believe there was any evidence to support the finding of gross negligence. While the evidence showed simple negligence, there is a difference. The often quoted case of Burk Royalty Co. v. Walls, 616 S.W.2d 911 (Tex.1981), at 922, discussed the difference and degree of ordinary and gross negligence.

“What lifts ordinary negligence into gross negligence is the mental attitude of the defendant; that is what justifies the penal nature of the imposition of exemplary damages. The plaintiff must show that the defendant was consciously, i.e., knowingly, indifferent to his rights, welfare, and safety. In other words, the plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrated that he didn’t care.”

There is no evidence in this case from which the jury could infer a conscious indifference to the welfare of others. The judgment should be reformed to exclude the exemplary damages.


author: FENDER, Chief Justice.

text:
    Buddy ROBINSON, Appellant, v. SURETY INSURANCE COMPANY OF CALIFORNIA, Jo Nell Thornton and Harry Meetze, Appellees.
    No. 2-84-112-CV.
    Court of Appeals of Texas, Fort Worth.
    April 24, 1985.

      Lollar & Phillips, and Philip D. Phillips, Fort Worth, for appellant.
    Vial, Hamilton, Koch & Knox, and Robert M. Hoffman, Attys. for Surety Ins. Co. of California, Dallas, Brantley Pringle, Atty. for Jo Nell Thornton & Harry Meetze, Fort Worth, for appellees.
    FENDER, C.J., and BURDOCK, J.
   OPINION

FENDER, Chief Justice.

This case involves an interpretation of a guaranty agreement. In three points of error, appellant Buddy Robinson (the guarantor), contends that the trial court erred in interpreting the guaranty agreement. In a fourth point of error, appellant claims that the trial court erred in awarding attorney’s fees to appellees.

We reform and affirm in part and reverse and render in part.

The case arises out of the sale of leasehold interests in, and the physical assets of, the Clover Club, a night club located in Fort Worth. The Clover Club was and is owned by Odell Allen. On December 3rd, 1979, Odell Allen gave a leasehold interest in the club to Jo Nell Thornton and Harry Meetze, husband and wife. To operate the bar, Thornton and Meetze needed a mixed beverage permit from the Texas Alcoholic Beverage Commission, (TABC) and to get such a permit, it was required that Thornton and Meetze have a surety to guarantee their payment of fees, taxes and penalties to the TABC in case of default. Accordingly, Thornton and Meetze entered into two surety agreements with Surety Insurance Company of California, one of the appellees (Surety). Two surety agreements were signed, one in 1979 and one in 1981. The agreements provided that Thornton and Meetze would indemnify Surety if Surety was ever called upon to make a payment on its surety bond to TABC.

In January, 1981, Meetze sold his one-half leasehold interest in the Clover Club to a third party. In February, 1981, this third party sold his one-half leasehold interest in the Clover Club to W.H. “Skip” Caywood. On April 8, 1981, Thornton, as seller, Cay-wood as purchaser, and appellant, as guarantor, entered into a written agreement which provided for the sale of Thornton’s one-half interest in the Clover Club to Cay-wood. Under this April 8th agreement Caywood agreed (1) to pay Thornton $10,-200 in weekly installments of $250; (2) to pay all of the unpaid accounts payable owed by the Clover Club; and (3) to pay the unpaid portion of the third party’s debt to Meetze. The agreement also provided that appellant would guarantee Caywood’s payment of the purchase price. This guaranty was limited to the amount of the gross income collected from amusement machines which appellant had had in the Clover Club when it was operated by Thornton and Meetze and which he agreed to keep in operation under Caywood.

Appellant’s first three points of error relate to the scope of his guaranty under the April 8th agreement. Before we examine the agreement, we recount the background which brought Surety into this lawsuit. An audit conducted by the TABC covering the period January 4, 1980, to May 26, 1981, disclosed that the Clover Club owed approximately $14,000 in back taxes. When demand upon the Clover Club proved unsuccessful, the TABC made demand upon Surety. Surety paid the delinquency. Surety then intervened in a breach of contract action based on the April 8th agreement which Thornton and Meetze had brought against Caywood and Robinson. Surety contended that Thornton, Meetze, Caywood and appellant were all liable to it for the $14,418 it had paid the TABC. It argued that Thornton and Meetze were liable because under the surety agreements of 1979 and 1981 they had agreed to indemnify Surety; that Caywood was liable because under the April 8 purchase agreement he had agreed to pay all accounts payable of the Clover Club; and that appellant was liable because under the April 8 agreement he had agreed to guarantee all of Caywood’s obligations.

The case was tried to the court without a jury. Caywood failed to appear. The judgment in effect made Surety the primary judgment creditor and authorized it to collect the first $14,019.39 recovered from any of the judgment debtors. (In essence, this allowed Surety to garnish the debts which Caywood and appellant owed to Thornton and Meetze). Thornton and Meetze also got a judgment against Caywood for $36,-122.66 based on the underlying contract action, and they also got a judgment against appellant for $9,232.00, the amount the court found to be the gross income of appellant arising from the operation of his machines in the Clover Club. Finally, Surety was awarded attorney’s fees of $5,163.00 against Caywood, Thornton, Meetze and appellant, and Thornton and Meetze were awarded attorney’s fees of $5,000.00 against Caywood and appellant.

In point of error number one, appellant claims that the trial court erred in interpreting the April 8th agreement to mean that appellant was liable for the discharge of all accounts payable and debts of the Clover Club. Appellant also argues that the trial court erred in ruling that appellant is obligated by this guarantee to pay Surety $14,019.00. Appellant urges that the guarantee only applied to Caywood’s promise to pay Thornton $10,200.00.

Appellant’s argument under this point of error reflects that he has misread a significant aspect of the judgment. While the judgment does hold that the scope of appellant’s guaranty included Caywood’s promise to assume the accounts payable and debts of the' Clover Club (which would include taxes), the judgment nonetheless limits appellant’s liability under the guarantee to $9,232, the gross income received by the amusement machines. The judgment does not obligate appellant to pay Surety $14,-019.00.

Although the appellant has misread the judgment to mean that he was obligated to pay Surety $14,019, appellant’s contention that the trial court erred in finding that his guaranty included accounts payable does have the following monetary significance. It is undisputed by both appellant and Surety that (1) Caywood owes a balance of $8,900 on his promise to pay Thornton $10,-200, and (2) appellant’s guaranty, regardless of whether it includes accounts payable, applies to this $8,900 balance. Considering the judgment in light of this undisputed $8,900 figure, the only way to justify the $9,232 liability adjudged against appellant is to reason that it is composed from (1) the $8,900 balance and (2) $332 from the approximately $14,000 liability based on accounts payable tacked on to reach the $9,232 liability ceiling.

Thus, as we read appellant’s first point of error, the judgment of $9,232 is in error in the amount of $332, the amount tacked on as a result of appellant’s liability for accounts payable. Consequently, whether the trial court erred in holding that appellant’s guaranty included the discharge of accounts payable has significance, not in the amount of $14,019, but only in the amount of $332.

Although the impact of the alleged error is not as great as argued by appellant, we nonetheless agree with the appellant that the trial court did err in holding that the guaranty included accounts payable.

We first note that a guaranty agreement is to be strictly construed and may not be extended beyond its precise terms by construction or implication. Reece v. First State Bank of Denton, 566 S.W.2d 296 (Tex.1978); McKnight v. Virginia Mirror Company, 463 S.W.2d 428 (Tex.1971). Bearing this rule of construction in mind, we now examine the agreement.

The agreement is contained in three pages. It contains a preamble composed of seven recitals and a body composed of ten paragraphs. There is no question that the agreement fails to contain any explicit promise on the part of appellant to guarantee Caywood’s obligation to pay accounts payable (which would include taxes). Instead, the agreement contains the following expressions relevant to appellant’s guaranty:

“Whereas, W.H. Caywood desires to purchase Jo Nell Thornton’s interest in the Clover Club for a purchase price of $10,-200.00, payable at the rate of $250.00 per week;
“Whereas, Buddy Robinson ... is willing to guarantee payment by W.H. Caywood of the note and debt owing to Jo Nell Thornton ...

II

“The Purchaser, W.H. Caywood, hereby promises and agrees to pay to Jo Nell Thornton as the agreed value of her one-half interest in the Clover Club, the sum of $10,200.00. Such purchase price shall be payable ...

III

“Purchaser, W.H. Caywood, hereby promises and agrees that he will pay all of the unpaid accounts payable owed by the Clover Club, ...

IV

“W.H. Caywood hereby promises and agrees, and assumes to pay, the unpaid portion of the purchase contract and debt heretofore owed by Billy W. Smith to Harry E. Meetze for his one-half interest in the Clover Club....

VI

“Buddy Robinson further hereby promises and agrees to pay to Jo Nell Thornton all of the coin income and revenue on such amusement coin machines at the Clover Club as a credit on the purchase price owing by W.H. Caywood to Jo Nell Thornton until such purchase price is paid in full, and Buddy Robinson hereby guarantees the payment by W.H. Cay-wood to Jo Nell Thornton of the purchase price for her interest in the Clover Club up to the amount of the gross income of the amusement coin machines ....

VII

“However, the guaranty agreement of Buddy Robinson, as Guarantor, is limited to payment by Buddy Robinson to Jo Nell Thornton all [sic] of the gross income of the coin amusement machines located at the Clover Club from the date of this contract, and until the purchase price to Jo Nell Thornton, with interest, is paid in full.”

Surety argues that a reading of paragraph VI in conjunction with paragraph III indicates that appellant’s guaranty of the purchase price included Caywood’s obligation to Thornton to discharge the unpaid alcohol taxes.

We disagree. We base our decision on a construction of the two-word phrase “purchase price,” found in paragraph VI. To ascribe to this phrase a global meaning, so that it includes not only the $10,200 note, but also accounts payable, conflicts with the rule of construction announced in Reece and McKnight that a guaranty agreement must be strictly construed and may not be extended beyond its precise terms. In this regard, it is significant that Caywood’s obligations to Thornton were set forth in three separate paragraphs (paragraphs II, III and IV). While the obligation set forth in paragraph II (the $10,200 note) is described as “such purchase price,” the obligations set forth in paragraph III (accounts payable) and paragraph IV (unpaid debt to third party) are not described as such. Thus, while the paragraph II obligation is explicitly linked to the phrase “purchase price,” the obligations in paragraphs III and IV are not. The absence of such explicit links convinces us that appellant’s promise in paragraph VI to guarantee Cay-wood’s payment of the “purchase price” to Thornton extends only to the $10,200 note. Thus, the trial court was wrong when he held that appellant’s guaranty included accounts payable and the judgment should be reformed to find that appellant is only liable for $8,900.

Appellant’s second point of error has to do with another aspect of the scope of his guaranty. In paragraph VI, the agreement states that “Buddy Robinson hereby guarantees the payment by W.H. Caywood to Jo Nell Thornton of the purchase price for her interest in the Clover Club up to the amount of the gross income of the amusement coin machines in the Clover Club.” Appellant contends that the trial court erred in finding that the sum of $9,232, which was the total amount of money collected by the machines, was the “gross income.” Appellant urges that the trial court should have construed the “gross income” to mean one-half of the total amount of money collected by the machines.

Appellant offers the following rationales to support his argument. First, appellant urges that the term “gross income” is inherently ambiguous, so that the trier of fact (in this case the court) should rely on extrinsic evidence to construe it. The question of whether a contract is ambiguous is one of law for the court. See City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518, (Tex.1968). The test of whether a written instrument is ambiguous is whether it is so worded that a court may properly give it a certain or definite legal meaning or interpretation. Commercial Union Insurance Co. v. Martinez, 635 S.W.2d 611, 613 (Tex.App. — Dallas 1982, writ ref d n.r.e.). Applying this test to the guaranty agreement, we hold that the term “gross income” is not ambiguous. Our reading of the agreement fails to disclose any language which might support the view that “gross income” means something other than the total amount of money collected by the machines. Although appellant notes that the definition of “gross income” contained in two different dictionaries and a 1040 tax form differ slightly from each other, that observation fails to convince us that the term is ambiguous. We hold that it is not.

Appellant also notes that Thornton testified at trial that in her understanding of the agreement, appellant was liable on his guaranty only to the extent of one-half of the monies collected, and not to the total take. Appellant contends that this testimony either amounted to a “judicial confession,” or established that Thornton and appellant had stipulated that the term “gross income” would mean one-half the take. We disagree. We first note that Surety did not object to this testimony, and thus, any error to its admission on the ground that extrinsic evidence should not be admitted to vary an unambiguous contract, was waived. Thus, given that the testimony was admitted into evidence, it might have some probative value. Nevertheless, we do not find any such probative value to be conclusive. Based on the unambiguous nature of the agreement, the trial court’s construction of “gross income” was not error.

In his last argument under this point of error, appellant contends the evidence introduced at trial established that there had been an oral modification of the agreement. We have examined the record and find no evidence of a modification. Appellant’s second point of error is overruled.

In his third point of error appellant argues that the guaranty agreement expired when the operation of the Clover Club changed hands in October, 1981. The Clover Club, as operated by Caywood, closed October 7, 1981. In December, 1981, the New Clover Club opened with different operators, who allowed appellant to continue to operate his machines.

We disagree that appellant’s post-default income should be insulated from claims based on the guaranty agreement. There is no provision in the agreement terminating appellant’s guaranty upon Caywood’s default. On the contrary paragraph VI states that “Buddy Robinson hereby guarantees the payment by W.H. Caywood ... until the purchase price owing to Jo Nell Thornton, including accrued interest, is paid in full.” Furthermore, the testimony at trial established that the conditions under which appellant operated the machines in the club after Caywood left were nearly identical to the previous conditions. Appellant has not shown that he was harmed by the change. Appellant’s third point of error is overruled.

In regards to appellant’s second and third points of error, it should be noted that appellant never pled nor argued for a reformation of the contract based on a mistake in the written contract. In our view of the situation, a defense predicated on such a theory would have had a greater chance of success. It is perhaps not coincidental in this regard that appellant drafted his own answer (a general denial) and represented himself at trial pro se. While appellant was entitled to represent himself pro se, he is certainly not entitled to special treatment, and that he has perhaps foregone a viable defense because of his ignorance of the law is a consequence he must bear.

In his fourth point of error, appellant attacks the following two separate awards of attorney fees rendered against him: (1) an award of $5,163.00 for Surety’s attorney fees rendered against Caywood, Thornton, Meetze and appellant, and (2) an award of $5,000 for Thornton’s and Meetze’s attorney fees rendered against Caywood and appellant. Appellant contends that a guarantor will only be liable for attorney fees in his capacity as a guarantor when he has expressly agreed to pay attorney fees. See Blume v. National Homes Corp., 441 S.W.2d 176 (Tex.1969); Ganda, Inc. v. All Plastics Molding, Inc., 521 S.W.2d 940 (Tex.App.—Waco 1975, writ ref’d n.r.e.). Since appellant did not expressly agree in the April 8th agreement to pay attorney fees, appellant urges he should not be liable for them.

Although we reject appellant’s underlying rationale, we hold for independent reasons that the award to Thornton and Meetze was proper while the award to Surety was not. First, we find that it is no longer necessary that a guarantor expressly agree to pay attorney fees. We base this conclusion on the fact that in 1977, TEX.REY.CIV.STAT.ANN. art. 2226 (Vernon Supp.1985) was amended to provide for attorney fees in “suits founded on oral or written contracts.” Because this amendment expressly broadened the applicability of art. 2226, we hold that it overruled the common law rule set forth in Blume, which was based on the pre-1977 statute. We hold therefore that in a suit brought against a guarantor “founded on oral or written contracts,” a guarantor is liable for attorney fees even if he did not expressly agree to pay them.

With that preface in mind, we now examine the two awards of attorney fees at issue here. In regards to the award in favor of Thornton and Meetze, there is no question that Thornton’s and Meetze’s action against appellant was predicated upon the April 8th agreement. Significantly, both Thornton and appellant were signatories to that contract, and thus they were in contractual privity. Consequently, we overrule appellant’s point of error in regards to the $5,000'award of attorney fees to Thornton and Meetze. In doing so, we note that, at least in theory, Thornton should have presented evidence showing an apportionment of her attorney fees to reflect those costs attributable to (1) her claim against Caywood; (2) her claim against appellant; and (3) Meetze’s claims against Caywood and Appellant. (Although Meetze was not a signatory to the April 8th agreement, the agreement nevertheless provided that Caywood would pay off the unpaid portion of the purchase price which Meetze owed to the third party. Thornton and Meetze were represented by the same attorney). See Harmes v. Arklatex Corp., 615 S.W.2d 177, 180 (Tex.1981). However, since Caywood did not appear at trial, and since appellant did not raise this point himself, we hold that any error presented by the absence of an allocation has been waived.

We cannot find, however, that Surety’s position in this lawsuit is one which entitled it to the relief under art. 2226. Specifically, we do not find that Surety’s claim against appellant is one founded on an oral or written contract, as required by art. 2226. Significantly, Surety has never been in contractual privity with appellant. See Trinity Universal Ins. Co. v. Drake, 587 S.W.2d 458, 462 (Tex.Civ.App.—Dallas 1979) affd in part and reversed in part, 600 S.W.2d 768 (Tex.1980). Although Surety relies on the April 8th agreement as the ultimate basis for its claim against appellant, in the absence of contractual privity between Surety and appellant, Surety’s suit cannot be said to be founded on the April 8th agreement. Therefore, the judgment against appellant for Surety’s attorney fees in the amount of $5,163 was improper and should be reversed.

The judgment below is reformed and affirmed in part and reversed and rendered in part. Appellant is not liable for accounts payable, and thus the judgment against him is reduced from $9,232 to $8,900. Furthermore, while appellant is not liable for Surety’s attorney fees, he is liable for Thornton’s and Meetze’s attorney fees. Costs of appeal are to be charged one-half

to appellant and one-half to Surety, Thornton and Meetze.


author: JOE SPURLOCK, II, Justice.

text:
    SEABURY HOMES, INC., Appellant, v. Lonnie D. BURLESON, et ux., Sheryl Burleson, Appellees.
    No. 2-84-171-CV.
    Court of Appeals of Texas, Fort Worth.
    April 25, 1985.
    Fillmore, Purtle & Spurgers, Stephen Briley, Wichita Falls, for appellant.
    Clayton Kramer, Wichita Falls, for appel-lees.

      JORDAN, ASHWORTH and JOE SPUR-LOCK, II.
   OPINION

JOE SPURLOCK, II, Justice.

The appellant, Seabury Homes, Inc., appeals from a judgment in a deceptive trade practices case awarding damages to appel-lees, Lonnie Burleson and his wife Sheryl. Based upon the jury’s verdict on special issues, the trial court entered judgment against Seabury for $6,000 ($2,000 in damages trebled) and $15,000 in attorney’s fees. Seabury has raised four points of error; the Burlesons have responded with two cross-points. Alleging that the questions on appeal are based upon legal issues only, the appellant has omitted a statement of facts in accordance with TEX.R.CIV.P. 371. The appellees did not furnish a statements of facts.

We affirm.

In its first point of error, Seabury complains that the court erred in entering judgment for damages for the $2,000 cost to repair the Burleson’s home, when Seabury had proved and received a jury finding that one measure of the Burleson’s damages was zero. Seabury’s point of error two is that the court erred in overruling Sea-bury’s motion for judgment based on the same jury verdict of zero damages. In point of error three, Seabury argues that the court erred in awarding the Burleson’s their attorney’s fees as those fees are not recoverable where actual damages are zero. In point of error four, Seabury argues that awarding judgment for attorney’s fees in the amount of $15,000 is excessive where the amount of damages awarded by the court was only $2,000, trebled.

The Burleson’s allege in their cross-points that the trial court erred in overruling their motion for judgment for damages of $1,500 ($500 jury verdict trebled) for Sheryl Burleson’s past mental anguish. In their cross-point number two, they allege the trial court erred in overruling their motion for judgment for damages in the amount of $9,360 ($3,120 jury verdict trebled), in lieu of the judgment of $6,000 ($2,000 trebled), because the trial court selected the wrong alternative measure of damages found by the jury upon which to base the judgment.

This case arose from the purchase by the Burlesons of a new home constructed by Seabury. In reviewing the Burleson’s petition on file, it is apparent that they purchased the home relying upon certain representations of the builder. After the purchase of the home, difficulty arose concerning the construction of the home and repairs necessary to the home. Not receiving adequate satisfaction concerning the repairs, the Burlesons timely filed this lawsuit and the matter was submitted to the jury upon special issues. The question on appeal is to decide what legal effect to give to the jury’s answers to the special issues.

The key special issues answered by the jury upon which the court based its judgment are paraphrased as follows:

1) Did Seabury Homes expressly warrant to the Burlesons that the house had been built in a skillful, workmanlike manner?
Answer: Yes.
2) Was the home constructed in a skillful, workmanlike manner?
Answer: No.
3) Was the failure to build the home in a skillful, workmanlike manner a producing cause of:
a) economic loss to the Burlesons? Answer: Yes.
b) physical pain suffered by the Burle-sons?
Answer: No.
c) mental anguish suffered by any of the Burlesons?
Answer: Yes.
4) Did Seabury Homes expressly warrant the home was suitable for habitation?
Answer: Yes.
5) Was the home suitable for habitation? Answer: Yes.
6) Did Seabury Homes represent that the house was of a particular standard, quality or grade when it was of a lesser degree?
Answer: Yes.
7) Was that representation a producing cause of:
a) economic loss of the Burlesons? Answer: No.
b) physical pain suffered by the Burle-sons?
Answer: No.
c) mental anguish suffered by any of the Burlesons?
Answer: Yes.
8) Did Seabury Homes promise to cure any defects in material or workmanship in the home for one year? Answer: Yes.
9) Did Seabury Homes fail to cure a defect or defects in material or workmanship within such a year?
Answer: Yes.
10) Was such a failure a producing cause, if any, of the following:
a) economic loss suffered by the Burle-sons?
Answer: Yes.
b) physical pain, if any, suffered by the Burlesons?
Answer: No.
c) mental anguish, if any, suffered by the Burlesons?
Answer: Yes.

In the above answers, the jury found that Seabury had warranted that the house was built in a skillful and workmanlike manner, but had in fact failed to do so. This failure was a producing cause of some economic loss and some mental anguish suffered by the Burlesons. Although the jury found the home was suitable for human habitation, they nevertheless found that Seabury promised to cure any defects in materials or workmanship within one year’s period of time, but had failed to do so. This failure likewise resulted in economic loss to and mental anguish suffered by the Burlesons. The jury also found the Burlesons suffered some mental anguish because of the misrepresentation about the standard, quality or grade of the home. The jury did not find the Burlesons suffered any physical pain.

Based upon their findings of some economic loss and some mental anguish, the jury answered the following special issues asking about the amount of damages suffered by the Burlesons. Those issues are paraphrased as follows:

What amount of money, using the following measures of damage, would fairly compensate the Burlesons for their economic loss, if any, which they suffered as a result of the representations, breaches of warranty or failures of Seabury which were a producing cause of such loss:
1) The difference between the value of the residence as it stood at the time of purchase and its value at the time of purchase if it had been constructed in a good and workmanlike manner and in accordance with the plans and specifications?
Answer: Zero.
2) The difference between the value of the residence as it stood at the time of trial, and its value at time of trial if it had been constructed in a good and workmanlike manner and in accordance with the plans and specifications? Answer: $3,120.
3) What amount of money now paid in cash would compensate the Burlesons for their economic loss, if any, with respect to any necessary repairs, if any?
Answer: $2,000.

In its point of error number one, Seabury argues that the trial court selected the wrong measure of damages in granting judgment in this case. The court awarded damages based upon the answer of the jury regarding the cost of repairs of $2,000. Seabury argues that the court should have selected “zero” damages, and that it based its trial tactics on, and relies in this case on appeal on, the rule of law announced in the case of Greene v. Bearden Enterprises, Inc., 598 S.W.2d 649 (Tex.Civ.App. — Fort Worth 1980, writ ref d n.r.e.). The particular language from Greene is as follows:

A plaintiff is entitled to recover for breach of a construction contract the lesser of reasonable cost of remedying the defects or deviations from the contract, or the difference in the value of the structure contracted for and the value of the structure in its defective condition.

Id. at 652 (emphasis supplied).

Further, Seabury relies on this language: “If [the builder] was dissatisfied with the remedial cost measure of damages [alleged against it] it had the duty to show there was no difference in the value of the [building] as contracted for and as received, or that the difference was less than the remedial cost.” Id. at 653. Seabury argues it complied with this duty and proved to the jury and received a verdict that any difference in value at the time of purchase was zero. Seabury insists that we must apply the lesser value (zero) in awarding damages as Greene mandates this. We do agree that Greene correctly states Texas common law on construction contracts, but believe that the holding in Greene is not applicable in this particular case.

On first analysis there appears to be a conflict between the jury’s two findings of “zero” dimunition in the value of the home as of the date of purchase and “$2,000” cost to repair. However, without a statement of facts we cannot consider any question of sufficiency of the evidence, or the like. The rule in a cause submitted on special issues, is that the trial court must reconcile apparent conflicts in the jury’s findings where reasonably possible, in light of the pleadings and the evidence, the manner in which the issues were submitted, and in view of the other findings when considered as a whole. Perkins v. Mitchell, 153 Tex. 368, 268 S.W.2d 907, 909 (1954); Ford v. Carpenter, 147 Tex. 477, 216 S.W.2d 558, 562 (1949). We note that the entire charge must be considered by the court to reconcile the findings. Vouras v. 3525 Turtle Creek, Inc., 369 S.W.2d 819, 822 (Tex.Civ.App. — Dallas 1963, writ ref’d n.r.e.).

As there is no statement of facts before us, we have no authority nor burden to determine the sufficiency of the evidence to support any of the jury’s findings or the court’s action thereon. It follows therefore, that without a statement of facts, the reconciliation of the apparent conflict in the jury’s findings must be based upon logic and reason. From the judgment granted, it is apparent the trial court reconciled these findings. We believe there is in fact no conflict between the lesser of the two measures of damage (zero or $2000), and no choosing of the “lesser amount” of damages needs to be made as required by the rule in Greene.

In the case on appeal, we have the jury finding no diminished value of purchase at the time of purchase. Another way of stating the lack of any diminished value of purchase is to state that the Burlesons got the value they bargained for on purchase of the property. What we have here is a failure to comply, after purchase, by Sea-bury with its promise to cure any defects in material or workmanship (damages measured as “necessary repairs”). After Sea-bury failed to perform its obligation, this suit was filed and the jury verdict rendered. The measure of damages for this breach is the value of the repairs which became apparent as defects appeared. The “zero” loss of value of purchase is not to be compared with the later cost of repairs. This case therefore is distinguishable from Greene on its facts, and does not require that we otherwise distinguish Greene nor any other eases cited by Seabury in its brief.

We find the trial court was not required to choose between “zero” and “$2000” because the answers were based upon different considerations. The jury verdict of “zero damages” means that the Burlesons got the benefit of their bargain on purchase. The “$2,000 cost to repair”, is the measure of damages due to breach of the promise to repair. Each jury answer can therefore be given effect without there being a conflict and further no question exists of which one to choose. The trial court did not commit error in awarding judgment for the $2,000 in damages. Accordingly we overrule Seabury’s points of error one and two.

Having found that the trial court correctly awarded recovery for damages to the Burlesons, we also overrule Seabury’s point of error number three complaining of the award of any attorney’s fees. See Deceptive Trade Practices — Consumer Protection Act (DTPA) TEX.BUS. & COM.CODE ANN. sec. 17.50(d) (Vernon Supp.1985).

Seabury contends in its point of error number four that the award of $15,000 as attorney’s fees is nevertheless excessive where the court only awarded judgment for $2,000 in damages, trebled to $6,000. We disagree. We note at the outset that no motion for remittitur was filed by Seabury and accordingly the trial court did not reduce the amount of the jury’s award of $15,000 and this court will not either, having no statement of facts upon which to determine the evidence supporting the jury’s award.

We find that it was the trial court’s ministerial duty to render judgment upon the jury’s finding, and we find that such an award is not excessive. See Jack Roach Ford v. De Urdanavia, 659 S.W.2d 725 (Tex.App. — Houston [14th Dist.] 1983, no writ) and see Tate v. Wiggins, 583 S.W.2d 640, 644 (Tex.Civ.App. — Waco 1979, no writ). Accordingly, we overrule Seabury’s fourth point of error.

The Burlesons in their cross-points of error complain of action by the trial court taken upon evidentiary matters. They complain the court improperly disregarded two answers of the jury in awarding the Burlesons judgment only for the repair cost. Seabury did not reply by brief to these cross-points. The court did not grant judgment based on the jury’s verdict of the $500 in mental anguish damages suffered by Sheryl Burleson, or the $3,120 damages in loss of value of the residence at time of trial. The Burlesons’ arguments, while interesting, and which could lead to a major analysis of DTPA cases if considered, are of no avail. We have no statement of facts to review the evidence the jury considered in answering the special issues.

Both parties moved for judgment. Sea-bury asked the court to disregard the finding of damages for physical pain and mental anguish because there was no evidence any of the Burlesons suffered physical injury or pain. The Burlesons argue on appeal that the effect of the jury’s other answers is to supply the missing element of “knowing conduct”, which can support the award of damages for mental anguish in DTPA cases where physical injury or pain is absent. See Miller v. Dickenson, 677 S.W.2d 253 (Tex.App. — Port Worth 1984, writ ref’d n.r.e.); and North Star Dodge Sales, Inc. v. Luna, 672 S.W.2d 304 (Tex.App. — San Antonio 1984, writ dism’d). They asked the court for judgment on this amount.

The Burlesons also asked the court for judgment on the finding of loss of value of the home at time of trial of $3,120, and complain of the court’s failure to do so. The court made no ruling on any motion of either party. However, the trial court obviously disregarded the two answers of the jury for it did not award any damages for mental anguish nor the damage for loss of value of the home at time of trial.

The trial court’s disregarding of jury findings may only be sustained where there is no evidence of probative force to support such findings. Overstreet v. Gibson Product Co., Inc., Etc., 558 S.W.2d 58 (Tex.Civ.App. — San Antonio 1977, writ ref’d n.r.e.). The burden is on the appellant, or other party seeking review, to see that a sufficient record is presented to show error requiring reversal. TEX.R. CIV.P. 413. The absence of a statement of facts in the present case makes it impossible for this court to review the evidence. In a case where there are jury findings to special issues, and the court disregards certain findings, but no statement of facts is brought forward, it will be presumed on appeal that there was no evidence of probative force to support those findings the court disregarded, but that sufficient evidence was introduced to support the other findings of the jury, and the judgment based thereon. For analogous reasoning see Catlett v. Catlett, 630 S.W.2d 478 (Tex. App. — Fort Worth 1982, writ ref’d n.r.e.); Texas Emp. Com’n. v. Bell Helicopter Intern., 627 S.W.2d 524 (Tex.Civ.App. — Fort Worth 1982, writ ref d n.r.e.) and Mays v. Pierce, 154 Tex. 487, 281 S.W.2d 79 (1955).

Accordingly, we find the trial court did not commit error in disregarding the two jury answers, and overrule the Burlesons’ cross-points of error.

The judgment is affirmed.


author: COOPER, Judge.

text:
    KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION, Appellant, v. John W. STIRRAT, Appellee, and TENNESSEE VALLEY AUTHORITY, Paradise Steam Plant, Appellant, v. John W. STIRRAT, Appellee.
    Court of Appeals of Kentucky.
    March 2, 1984.
    Rehearing Denied July 6, 1984.
    Discretionary Review Denied and Opinion Ordered Published by Supreme Court May 15,1985.
    Phillip B. Hunter, Cabinet for Human Resources, Frankfort, for appellant Kentucky Unemployment Ins. Comn.
    Kenneth B. Kusch, Central City, for ap-pellee.
    Herbert Sanger, Jr., General Counsel, James E. Fox, Associate Gen. Counsel, David W. Miller, James Touhey, Tennessee Valley Authority, Knoxville, Tenn., for appellant, Tennessee Valley Authority.
    Before COOPER, DUNN and MILLER, JJ.
   COOPER, Judge.

This is an appeal from a judgment of the circuit court reversing a decision of the appellant, Kentucky Unemployment Insurance Commission, which held that the ap-pellee was not entitled to unemployment insurance benefits. On appeal, the principal issue is whether the circuit court erred in determining that the commission incorrectly applied the law to the facts of the case. Reviewing the record below, we reverse.

The appellee, John W. Stirrat, was employed as a laborer by the appellant, Tennessee Valley Authority, Paradise Steam Plant, from August 17, 1979 until April 27, 1982. On the latter date, he was terminated for having failed to report to work since April 8, 1982. Thereafter, on May 16, he filed a claim with the Department for Human Resources, Division for Unemployment Insurance. That agency subsequently denied his claim on the grounds that he had been discharged from his employment for “misconduct ... connected with his most recent work ...” KRS 341.370(l)(b).

On June 10, 1982, the appellee appealed the denial of his claim with the appeals referee. After a full hearing, the referee affirmed the denial of the appellee’s claim and issued the following findings of fact:

FINDINGS OF FACT: The claimant was employed by the appellee federal agency for two years and eight months as a laborer. He was terminated from his job on April 27, 1982, because the employer assumed he had resigned his job. The claimant last worked on April 8, 1982. He was next scheduled to report for work on April 9, 1982, however, because he had a sore throat, he called in and reported that he would not be working because of his illness. That night, the claimant went to Owensboro, Kentucky to socialize with a lady friend. At 3:55 a.m., April 10, 1982, the claimant was arrested by the Owensboro Police Department for driving the wrong way on a one way street and driving while in [sic] intoxicated. He was released later that morning and advised to appear in court on April 12, 1982. The claimant appeared in court on April 12, 1982, was sentenced to serve 30 days with 27 days suspended and was remanded to the county jail.
It was futher [sic] learned that the claimant allegedly had a previous fine which was unpaid. Because there was no proof that the claimant had paid the previous fine, he remained in the Daviess County jail until May 11, 1982. He could not be released until such time as the fine was paid or he presented proof that he had paid the fine. During the entire time that the claimant was incarcerated, he was unable to contact anyone outside the county jail. The only individual aware of the claimant’s whereabouts was his union steward.
The employer mailed a letter to the claimant’s former address on April 15, 1982, advising him to return to work within ten days. That notice was returned to the employer some four days later because it was mailed to the wrong address. On April 27, 1982, the claimant was terminated from his employment with TVA because it was assumed that he had resigned as a result of his extended absence.
DECISION: The adjusted determination is affirmed.
REASONS: KRS 341.370(l)(b) provides for the imposition of a duration benefit disqualification when a worker has been discharged from his most recent employment for misconduct connected with his work. Misconduct denotefs] acts or omissions which manifest a willful [sic] or wanton disregard for the employer’s legitimate business interests. Every employer has a legitimate interest in maintaining a full work crew. When a worker is absent from scheduled work, the employer must of necessity re-arrange the available personnel in order to compensate for the absent worker. When such absences from work are unreported or are for less than compelling reasons, they constitute misconduct. Absence from work resulting from incarceration for a violation of the law has always been deemed an act of misconduct. The claimant was incarcerated from April 12, 1982, until May 11,1982, because of legal difficulties encountered while in Owens-boro, Kentucky. He was terminated from his employment not because of his incarceration but because of the resulting absence from work. The claimant was discharged from his employment for misconduct connected with his work and may not be allowed benefits following such a separation. (App. 29-30).

Upon a review of the record by the full commission, the findings of fact and conclusions of law of the appeals referee were affirmed. Thereafter, the appellee appealed to the circuit court seeking a review of the commission’s decision. On December 16, 1982, the circuit court reversed, ruling that although it found the findings of the referee to be correct, the latter had incorrectly applied the applicable law. It is from such judgment that the appellants now appeal.

On appeal, the single issue is whether the circuit court was clearly erroneous in ruling that the commission incorrectly applied the correct rule of law to the facts presented to it. See Southern Bell T. & T. Co. v. Kentucky Unemp. Ins. Com’n., Ky., 437 S.W.2d 775, 778 (1969); citing Brown Hotel Company v. Edwards, Ky., 365 S.W.2d 299 (1963); Kentucky Unemployment Ins. Com’n. v. Murphy, Ky., 539 S.W.2d 293, 294 (1976). Stated differently, the findings of fact as determined by the commission cannot be disturbed by the circuit court if they are supported by substantial evidence. See Kentucky Unemployment Ins. Com’n v. Springer, Ky., 437 S.W.2d 501 (1969). Reviewing the record below, we rule that there was sufficient evidence presented to the commission to support a finding that he was discharged from his employment for misconduct connected with his work. See KRS 341.-370(l)(b).

Here, the facts surrounding the appel-lee’s discharge are not in dispute: The ap-pellee was arrested early on Saturday morning, April 10, 1982, for driving under the influence of alcohol and for traveling the wrong direction on a one-way street. Although he was released from custody sometime later the same morning, he was told to appear in court on Monday, April 12. Nevertheless, he failed to notify the employer that he would be absent from work on Monday, April 12. As a result of the pending charge and a previous record of unpaid fines, the appellee remained in the custody of the Owensboro Police until May 11.

The issue confronting the commission and the circuit court was whether the ap-pellee’s misconduct was “misconduct ... connected with his most recent work” justifying dismissal. KRS 341.370(l)(b). Evidently no court in this jurisdiction has addressed the question directly — see the court’s language in Brown Hotel Company v. White, Ky., 365 S.W.2d 306 (1963), where the former Court of Appeals held that an absence from work, coupled with a failure to give notice to the employer, can constitute misconduct justifying a denial of benefits. However, courts in other jurisdictions have held that such misconduct is connected with employment. In Carter v. Caldwell, 151 Ga.App. 687, 261 S.E.2d 431, 432 (1979), a denial of a claim for unemployment compensation benefits was upheld when the employee engaged in conduct which led to his incarceration and, as a result thereof, he was dismissed from his employment. Furthermore, in Grimble v. Brown, 247 La. 376, 171 So.2d 653, 656 (1965), cert. denied, 382 U.S. 861, 86 S.Ct. 123, 15 L.Ed.2d 99 (1965), the court held that an employee is disqualified from receiving unemployment benefits by “any act of misconduct which renders [him] ... unable to report for work and perform the duties of his employment for any unseasonable length of time by reason of his confinement in jail.” See also Betancourt v. Ross, 60 A.D.2d 719, 401 N.Y.S.2d 8 (1977); and Sherman/Bertram, Inc. v. California Dep’t of Employment, 202 Cal.App.2d 733, 21 Cal.Rptr. 130 (1962).

Significantly, in affirming the denial of the appellee’s claim, the appeals referee ruled that the appellee was terminated not as a result of his incarceration, but because of his resulting absence from his work. The appellee’s absence, and corresponding failure to notify the employer of his absence, constituted the requisite misconduct under the language of the statute. In Medina v. Unemployment Bd. of Review, 55 Pa.Commw. 323, 423 A.2d 469 (1980), the Court stated as follows:

We agree that, in this case, claimant’s conviction for assault in a domestic setting does not bear upon his suitability for employment as a sanitation worker. However, we reiterate that claimant was discharged for his extended absence, not for his criminal activity. Thus, his incarceration, and not his criminal conduct per se, rendered claimant unable to perform his job, and his incarceration supports a finding of willful misconduct. A contrary holding could produce ludicrous results. An employer should not be expected to hold a position open for months, or years, until his employee has completed his prison sentence. (Emphasis added) Id. 423 A.2d at p. 471.

Similarly, the Court in Weavers v. Daniels, 1 Ark.App. 55, 613 S.W.2d 108 (1981), rejected the appellant’s argument that he was entitled to unemployment benefits because he was incarcerated for an offense unrelated to his employment. That Court stated as follows:

The Board of Review affirmed the decision of the Appeals Tribunal which held that:
[T]he claimant was discharged from his last employment for misconduct in connection therewith. He was absent from work under circumstances which strongly suggest that he was intoxicated. This was not a situation that was beyond his reasonable control and it must be held that his absences were conduct against the best interest and welfare of the employer.
Mr. Weaver’s actions caused him to be absent from work when he was needed and expected by the employer. His recurring, unexcused absences without advance notice hampered the operation of the employer’s business. “[A]n employer generally has neither an affirmative duty ... nor is required to tolerate a mode of conduct which has the effect of reducing the efficiency of the employer’s operation ...” Coker v. Daniels, 267 Ark. 1000, 593 S.W.2d 59 (Ark.App.1980). The employer had a right to expect the employee to report to work on time on his scheduled work days. His repeated disregard for the employer’s interests justified his discharge. Id. 613 S.W.2d at p. 110.

Reviewing the facts presented to the commission, as well as the language of the statute and the decisions of courts in other jurisdictions construing similar language, we hold that there was substantial evidence to justify a finding that the appellee had engaged in misconduct connected with his most recent work justifying his dismissal and a denial of unemployment benefits. As such, we hold that the circuit court erred in ruling that the commission failed to correctly interpret the law.

The judgment of the circuit court is reversed with directions that its judgment be vacated, and that the decision of the commission be reinstated.

All concur.


author: HAYES, Chief Judge:

text:
    Harry H. RANIER, Algin Nolan, d/b/a Ranier & Associates, Appellants, v. Samuel A. GILFORD, Richard I. Gilford, Ronald M. Gilford, d/b/a Samuel A. Gilford, Co. (Ltd.) a limited partnership, Appellees. and SAMUEL A. GILFORD CO. (LTD.), a limited partnership, Cross-Appellant, v. Harry H. RANIER, Algin Nolan, d/b/a Ranier & Associates, Cross-Appellees.
    Court of Appeals of Kentucky.
    Jan. 18, 1985.
    Rehearing Denied March 15, 1985.
    Discretionary Review Denied and Opinion Ordered Published by Supreme Court May 14, 1985.

      Tom H. Pierce, Rouse, Rouse, Combs & Pierce, Versailles, for appellants/cross-ap-pellees.
    Thomas Bell, James H. Newberry, Jr., Fowler, Measle & Bell, Lexington, for ap-pellees/ cross-appellant.
    Before HAYES, C.J., and COMBS and WHITE, JJ.
   HAYES, Chief Judge:

The only issue with substance raised by appellant is whether Kentucky law, specifically the Uniform Commercial Code — KRS Chapter 355 — recognizes a secured creditor’s right for wrongful conversion of collateral against the transferee of the original debtor. In this case of first impression in Kentucky, we hold that KRS 355.9-306(2) permits such an action and we therefore affirm the judgment of the trial court.

Appellee, Samuel A. Gilford Company, loaned money to the C & S Construction Company on June 28, 1978. As security for the loan, Gilford obtained a security agreement which covered a list of equipment as collateral for the loan.

The appellant, Ranier & Associates, bought, on March 26, 1979, certain of the items covered by the security agreement from C & S. This was an unauthorized disposition of the collateral. The record is unclear whether or not C & S was in default on the loan to Gilford at this time; however, by the terms of the agreement between C & S and Gilford, there was a default upon the unauthorized sale by C & 5 to Ranier.

Some time later in 1979, C & S became bankrupt. Gilford, learning of the sale from C & S to Ranier through the bankruptcy proceedings, notified Ranier by letter on April 3, 1980, of its lien on the equipment. A copy of the security agreement and financing statement (filed of record in Kenton County, Kentucky, where C & S Company was domiciled) was enclosed.

Some five months later, in September, 1980, Ranier disposed of the equipment at a dispersal sale held as part of bankruptcy proceedings of an associated company of Ranier. Gilford, undoubtedly because of C 6 S’s bankruptcy and because the equipment was no longer in C & S’s possession, sued Ranier for conversion.

The controversy here involves the interpretation of KRS 355.9-306(2) which reads:

Except where this article otherwise provides, a security interest continues in collateral notwithstanding sale, exchange, or other disposition thereof by the debtor unless his action was authorized by the secured party in the security agreement or otherwise, and also continues in any indentifiable proceeds including collections received by the debtor.

The 1972 “official” comment to the Uniform Commercial Code, 3 ULA-UCC pages 441-442 reads:

3.In most cases when a debtor makes an unauthorized disposition of collateral, the security interest, under prior law and under this Article, continues in the hands of the purchaser or other transferee. That is to say, since the transferee takes subject to the security interest, the secured party may repossess the collateral from him or in an appropriate case maintain an action for conversion.
Subsection 2 codified this rule. (Emphasis added.)

It is clear from the evidence in this case that the disposition by the debtor (C & S) was unauthorized. We believe this to be “an appropriate case” for the secured party (Gilford) to maintain an action for conversion against the transferee (Ranier), especially since the property is in the possession of neither the original debtor nor its transferee, Ranier, and since C & S is bankrupt.

The Banks-Baldwin edition of the Kentucky Revised Statutes lists a 1983 “Kentucky Commentary” as stated above in 3 ULA-UCC pages 441-442. Although this “Kentucky Commentary” is apparently not “official,” we see no reason why it should not be adopted. As the appellee Gilford states in his brief, other jurisdictions recognize the necessity of allowing secured parties to prosecute conversion actions where the disposition of the collateral by the debt- or is unauthorized. White-Sellie’s Jewelry Co., Inc. v. Goodyear Tire & Rubber Co., 477 S.W.2d 658 (Tex.1972); Chemical Bank v. Miller Yacht Sales, 173 NJ.Super. 90, 413 A.2d 619 (1980).

In Ashland Finance Co., Inc. v. Mollett, 252 Ky. 491, 67 S.W.2d 717 (1934), Mollett bought a truck and financed it through Ashland Finance. After defaulting on the loan for not making the required monthly payments, Mollett sold the truck to Ward who received a bill of sale stating the truck was free of any encumbrances. Ashland Finance located the truck in possession of Ward and made demand for its return. The former Court of Appeals determined that Ward’s refusal to surrender the truck when demand for it was made by Ashland Finance was a conversion by Ward from and after that date. We find nothing in Chapter 355 of the Kentucky Revised Statutes that would require a different result.

Appellant cites Commercial Credit Corp. v. W.E. Caldwell Co., Ky., 279 S.W.2d 803 (1955), for the proposition that Kentucky does not recognize an action by a secured party for conversion. Commercial Credit Corp. does not support appellant’s contention. That case was a dispute between two creditors, one of which was claiming title by virtue of an oral conditional sales agreement. The court merely held as between creditors, the creditor with the perfected lien had priority over the other creditor with an unperfected lien.

Professors White & Summers in their treatise on the U.C.C., Handbook of the Law under the Uniform Commercial Code (2d ed. 1980), at page 1103 state:

The creditor’s suit against the debtor for possession of the collateral is relatively simple. However, the situation becomes more complex when the collateral has been transferred to a third party. Assuming that such transfer constituted a default, then under the mandate of 9-201 and 9-306(2) the security agreement is enforceable against third persons unless one of many exceptions come into play (citations omitted). If the purchaser cannot bring himself under one of the exceptions to 9-201 and 9-306, then under the provisions of 9-503 the secured party has a superior right to possession of the collateral. In that case the secured party can successfully pursue a suit for conversion or seek to replevy the collateral.

Here, the transfer was unauthorized; it constituted a default; Ranier does not fall under one of the exceptions to KRS 355.9-201 or KRS 355.9-306; Gilford had the right to possession, and could pursue his claim for conversion against Ranier.

Ranier’s argument that the trial court abused its discretion by not allowing an amended answer to be filed fails because the record contains an amended answer filed by Ranier asserting the defenses of waiver and estoppel. This amended answer was filed with the trial court long before the case was submitted for a decision.

Gilford, in a cross-appeal, complains that the trial court did not allow all costs and expenses incurred by Gilford in the collection of the obligations of the original debt- or, C & S. Gilford is seeking out-of-pocket expenses plus attorney fees.

There is no disagreement with Gilford’s contention as it relates to C & S, the original debtor. The question is whether that right, supported contractually by the agreement between Gilford and C & S and by the provisions of KRS 453.250 and KRS 355.9-504(l)(a), can be extended against Ranier, who was not a party to the agreement nor a defaulting debtor under KRS 453.250 (repealed and re-enacted as KRS 411.195, effective July 13, 1984) or KRS 355.9-504(l)(a).

Gilford was awarded $45,424.19 plus interest at a per diem rate of $8.80 per day from August 12, 1983 to August 17, 1983, plus 12% interest on judgment from August 17, 1983 until satisfied.

Gilford admits the award to it cannot exceed its security interest even though less than the reasonable value of the property at the time it was taken by Ranier. Gilford’s own proof established its interest at $51,637.58. However, this amount included $7,018.15 for attorney fees which the trial court did not allow and we do not allow. Deducting the attorney fees from the security interest leaves an amount of $44,619.43, which is less than that awarded by the trial court and, from the record, we cannot and do not explain the apparent discrepancy. In any case Ranier does not complain about this discrepancy, and Gil-ford received more than asked for except for attorney fees.

Riley v. West Kentucky Production Credit Assoc., Ky.App., 603 S.W.2d 916 (1980), held that a recovery of attorney fees on a suit for collection on a note, even if the provisions of the note therefor was not appropriate. However, the underlying basis for Riley, public policy, has since been eroded by the Kentucky Legislature with the enactment of KRS 453.250, effective July 15,1980, (repealed, re-enacted and amended effective July 13, 1984, as KRS 411.195).

This statute would permit recovery of attorney fees here, except for the fact that the present ease is not based upon a suit to collect a debt owed by a debtor to the creditor but is one for the tort of conversion. On that score the case of Motors Insurance Corp. v. Singleton, Ky.App., 677 S.W.2d 309 (1984) is dispositive. As the court there stated, attorney fees incurred in recovering possession of the property are compensable; attorney fees incurred as a result of the conversion litigation are not recoverable.

The judgment of the trial court is affirmed.

All concur.