*1 parties not, I, both from and we do I am violate Article 27 or Article § 5154c 6_ (Emphasis supplied.) reluctant to hold that he erred in ab- Sec. briefing argument support sence opinion was advisory. Our It is in I, therefore, judgment. of his respectfully parties’ motion, with accord which was judgment concur of the Court. granted opinion. opinion demon- exactly parties
strates what the asked us to reversing do in and rendering the trial ON OPINION MOTION FOR judgment. doing so, court’s we ex- REHEARING plained why our reasons the motion could NYE, Chief Justice. granted judgment and the should be Appellees have filed a motion for rehear- reversed and rendered. The trial court ing complaining opinion original that our as was entitled to much. should not been issued because the appeal Neither the nor the motion had Instead, they case had been settled. ar- disposed been of before It submission. gue, appeal disposed should have been clearly within our discretion issue agreement signed of “on the basis an opinion in the case. TEX.R.CIY.P. prior all and filed with clerk (Vernon 387a(d) 1985); TEX.R.CIV.P. 452
to submission.” (Vernon 1985). hearing The motion for motion, is overruled. day filed one before submission, this Court had set the case a settlement. Nowhere does it
state as much. motion stated: case, Appellees the facts
Under of this
agree that Summary Motion for
Judgment super- filed CCISD and its supported
intendent by proper in- I, terpretation Article 27 and § CACTUS UTILITY COMPANY Article Sec. and by proper 5154c Hoyte Appellants, Gentry, summary judgment Appel- evidence. agree lees Motion Lew G. LARSON Summary Judgment should have Appellees. Company, & (Em- granted by the trial court.
phasis supplied.) No. 13-85-139-CV. prayer part of the Motion read in Texas, Appeals follows: Corpus Christi. WHEREFORE, Appellants, ... ... and Court, 1986. Appellees, request pursu- March
... 387a, ant to Rule Texas Rules Civil 8,May Rehearing Denied Procedure, to: 29,1986. Rehearing May Second Overruled (1) judgment Reverse the trial court;
(2) declaring Render I, 27 the Texas Con- neither Article §
stitution nor Tex.Rev.Civ.Stat.Ann. art. requires the Board Sec. 6
5154c Appel- grant hearing Trustees grievances regarding wages,
lees’ hours work, work, or conditions that, case, under facts of n Policy No. does not CCISD Board
7H *3 Hatch, Christi, Corpus ap- Richard J. pellants. Harris, Christi, ap- Corpus
James R. pellees. JJ., KENNEDY, plan provid- DORSEY and Cactus would be divided. The
Before subsidiary NYE, corporation ed that would be C.J.
established Cactus under the name of Plumbing Utility Company. Larson OPINION would then Certain assets be transferred DORSEY, Justice. Larson from books Cactus to Plumb- brought by This is a suit on a contract subsidiary. ing Utility Company, Lew Larson Larson & G. Then, transfer and Lew G. would Company plaintiffs against Cac- Utility capital assign all his shares of stock Hoyte Gentry, for Utility Company tus (hereinafter Cactus”) “Old to Cac- Utility of Cactus division assets (hereinafter Company tus “New corporation in Lew Company, a which both Cactus”) exchange for all of the stock Gentry stock- Hoyte G. Larson and subsidiary corporation. After the ex- *4 verdict, jury’s judg- stock, holders. Based on the change of assets and Larson would (Lar- plaintiffs ment Utility was entered for Larson and own 100% son) (Cactus and against Gentry both defendants Company own and would 96% $787,053.00 remaining for of the still Gentry) New Cactus with four shares held Co., $30,000.00 Utility ac- assets of Cactus Richard J. Hatch. fees, counting for attor- and various sums provided agreement implementation The ney’s appeal for and of this fees the trial that, exchange after the of stock and New
judgment. for Defendants’ Motion assets, of net val- division of the “increase “pro- Trial was overruled trial court 1, Utility March ue of Cactus Co. between Hundred vided the Plaintiffs file Three 1,1980 shall be divid- 1974 and October ... ($350,000.00) remit- Fifty Dollar Thousand equally companies.” the two ed between Appellants titur.” filed the and remittitur determination of net value was to be The appeal. perfected this Utility possible by Cactus made as soon as accountant, Wayne Rasmussen. Company’s (Larson), a plumber, Larson be- Lew G. Hoyte for gan working Gentry Company exchange of and division stock (Gentry), plumbing Gentry plumber and completed in 1980. equipment was December, 1968, in In contractor 1963. Agreement effective on Oc- Separation was Utility Company, a Gentry formed Cactus 1981, 1, 1, Larson On October tober corporation utility in con- which did work attorney accountant and met with the plumbing contracts. From nection with final that the and was advised for Cactus 1974, 1, incorporation time until March $26,408.36. his interest was distribution to of Cactus Gentry was the sole stockholder 24, 1982, to September on Larson filed suit (Cactus). Company became Utility Larson remaining accounting an and obtain Gentry employee Cactus and both he was Cactus” to which assets “Old Company. days August several entitled. On trial, further Cactus’ calculations before a foreman and Larson became re- entitled to showed Larson accountant as President of Gentry elected Larson $267,439.29. ceive 1,1974, Gentry gave March Cactus. On capital to Larson percent noted, of Cactus stock Lar- previously jury found As attorney, corporation’s Company to percent and 4 entitled Plumbing and son Hatch, retaining $787,053.00 for percent the trial court J. Richard to recover $350,000.00 Gentry can- The old stock certificate remittitur. himself. ordered a appealed, rais- Utility Company issued. new were celled and certificates and Cactus of error. Larson ing fourteen dispose to of his Larson decided two Plumbing replied and raised Gentry of- Larson and in Cactus. interest cross-points of error. other to sell their shares each fered alleges error point first Appellants’ later parties $850,000.00 to no avail. overruling his court erred whereby that the trial plan the assets out a worked plead- point third of error con special exception reference or ing Agree- allowing tends that the trial court erred in based on the Stock Purchase copies Agreement ment. of the Stock Purchase jury. copies distributed to the The trial court is clothed with broad dis pur jury to the for the limited distributed ruling special exceptions. Its cretion pose allowing jury to follow Larson’s ruling appeal in the will not be disturbed on testimony specific to the reference exhib showing of a of that absence of an abuse immediately copies it. The were retrieved Barnard, Mecom, discretion. reviewing jury after the finished the exhib (Tex.App.—Corpus jury only had one Plaintiff’s so n.r.e.); Corpus writ ref 'd City Hubler v. Exhibit Number 4 that went into the Christi, (Tex.Civ.App. room. —Corpus Christi writ ref’d Texas Rule of Evidence authorizes the Stock Appellants contend that the rules the trial court to construe “to by the Agreement superseded Purchase administration, secure fairness in elimina- subsequent agreement unjustifiable expense delay, tion of the division of the increase in the assets of promotion growth development of corporation. pre-trial hearing, At a the end the law of evidence to that, argued appellants because the Stock may proceed- truth be ascertained and the of no force and ings justly The trial court determined.” effect, appellees permitted could not be *5 apparently agreed appellees with Appellants refer to it or base a claim on it. copies distribution of the would facilitate
then conceded the Purchase Stock promote by saving the trial time and would Agreement would come into evi doubtless understanding jurors. clarity of for the during dence Appellants the trial. certainly The trial within its dis- court failed to show abuse of discretion allowing overruling in cretion in the distribution the trial court exception. copies of Plaintiff’s Exhibit Number Appellants’ point first of error Appellants’ point third of error is over- is overruled. ruled. Appellants’ point second of error
complains
through
in
Appellants’
that the trial court erred
admit
fourth
seventh
allege that the trial court
ting
Agreement
the
into
of error
Stock
allowing appellees
expert
in
to ask an
complaints
evidence. “Predicates for
on erred
question that as
appeal
preserved
hypothetical
must
the
a
be
trial court witness
evidence,
by motion, exception,
supported by
in
not
the
objection, plea
sumed facts
abatement,
question
allowing
response
in
the
to that
or some other vehicle.” PGP
Products,
Fariss,
judgment
a
on that
granting
620
and in
based
Gas
Inc. v.
S.W.2d
that,
(Tex.1981);
contend
be
response. Appellants
560
O’Shea v. Coronado
(Tex.
inad
Co.,
question
the
and answer were
Transmission
tributive witness, Expert accountant Dorothy Fowler, selling testified that when or dis questions re should be Hypothetical tributing put company parties, to various stricted to the facts evidence or to be prevent usually “market used to into evidence in order to mislead value” is deter However, confusing jury. mine the ing or “it is value of the assets. Ms. Fowler assume, province of within the counsel to defined market value as the value obtain evidence, willing within the limits of the a state of able an asset or the amount justi buyer willing facts which he contends pay would and a seller would accept. assumption fies and which enables witness to form find that We number from as- intelligent answer the facts one had a basis the evidence. sumed_” Law, Roth v. Assumption number two states that (Tex.Civ.App.—Corpus Seven, inventory Plaintiffs Exhibit necessary ref 'd “It is writ equipment, represents stock and fair question propriety of such a it market of the items listed. value all include a reference to of the relevant testified that he wrote the value of the facts in evidence nor that confined to they items amount based on the could be proven certainty. with facts mathematical for, bought the figures or sold and that may reasonably It include inferences represented the fair market value *6 proved....” from other facts drawn support assumption items. has in the This Bridge Cory., 465 Engineering Burns v. evidence. (Tex.Civ.App.—Houston S.W.2d 432 Assumption three number states that writ ref d There [14th Dist.] $1,700,000.00. In Cactus’ value was fore, assumptions must look at the chal we Gentry agreed that net and Larson lenged they had a to determine whether $1,500,000.00. worth Cactus was in the evidence. basis Gentry each Larson and offered Assumption number one states $850,- the other for sell their shares to in paragraph as defined six “market value” assumption support 000.00. finds This Agreement Purchase should the Stock the evidence. corpo- be used to calculate division four Assumption number states that parties. The Stock rate assets between liability equally would be shared for taxes Agreement, which admitted Larson, and between evidence, defines “market into value” Gentry and Utility Company, Cactus. price” the assets. purchase “the and sale Eleven, Implementa Exhibit Plaintiff’s argue that this measure of Appellants Sep Division Corporate tion of Plan of Pur- inapplicable because the Stock value is 5(b), Cactus, clearly aration Section superseded by the Agreement was chase liability tax would be shared states that the for Divi- subsequent Plan named. as equally by This Implementa- Separation and the sion and by the sumption supported evidence. is Sep- Corporate Plan of Division and tion of and six are not dis- Assumptions five Imple- the Plan aration. Neither nor puted. expressly incorporate cancel or mentation
715
seven,
Assumption number
on the
The trial court may refuse to sub
hand,
very hotly
other
disputed by appel
is
mit
only
an issue
if there is no evidence to
assumption
lants. This
states that the net warrant
its submission. Brown v. Gold
stein,
worth of Cactus
1974was zero\ In
(Tex.1985).
640
If there
Gentry gave 48
shares of Cactus stock to
probative
evidence of
support
force in
Dorothy
Larson. Accountant
issue,
Fowler stated
the trial court is required to
that she assumed a zero value because the
submit the
Franco,
issue. Gomez v.
677
gift.
addition,
stock was a
Fowler noted S.W.2d
234-35 (Tex.App. Corpus—
the book
$95,-
value of
Cactus was
Christi
no
proba
Evidence is
783.33 which included a Certificate of De
tive when it is more than a surmise or
posit belonging Gentry.
$113,-
After
suspicion
and it
prove
tends to
proposi
684.85 Certificate of Deposit was deducted
Gray,
tion.
Because the assumptions purpose. Because this supported are limitation as to their evidence, by appellants the trial without court did not err evidence was offered in allowing hypothetical question limiting purpose, appellants are bound or the its calculations in by the facts recited therein. Western Con Plaintiffs Exhibit 17 into evidence. Because Transmission struction Co. v. Valero calculations of Dor- othy admissible, (Tex.App. Corpus Fowler were S.W.2d verdict - 1983, writ). based on Plaintiff’s Exhibit supported by calculations is support and 6 Defendant’s Exhibits 5 sufficient Appellants’ fourth, evidence. fifth, Special Issue Number the submission of sixth and seventh of error are .eighth point of error is over overruled. ruled. Appellants’ eighth, ninth and tenth
points of error contend that there was no inquires Special Issue Number support evidence to Spe- submission of value of as of Au about the market cial Issues inquired and which into 31, 1984, gust Special Issue Number the book value and market value of Cactus the amount due asks the to determine *7 and the amount due to Larson Plumbing as Plumbing under Plaintiff’s Exhib to Larson a result of the division of Cactus. fig Exhibit 17 contains it 11.1 Plaintiff’s value and the amount ures on both market determining whether is therefore, Plumbing, there is to Larson due properly sues should have been submitted probative some support evidence to the jury, we must review the evidence to the Special of Ap submission Issues 2 and 3. in all inferences therefrom and reasonable pellants’ ninth and points tenth of error are light the most favorable to the submission overruled. contrary disregard any and of the issues Caudle, Bounds v. evidence. Appellants’ point alleg- eleventh of error 925, (Tex.1977); Tay Gray v. Baker & failing es the trial court erred in and re- Co., (Tex.Civ. Drilling lor S.W.2d fusing grant judgment to their motion for n.r.e.). App. writ ref’d non obstante veredicto. — Amarillo 1, 1980, “Implementation parties 1. Plaintiffs Exhibit 11 is the of on November to determine the Corporate Separation Plan of Division and dividing of method of "Old Cactus.” Utility Company”: by Cactus entered into the reviewing an order overrul in would have been had the contract been ing judgment veredicto, non performed. obstante fully Darling Corp. Little v. Ald, Inc., must (Tex.Civ. ascertain whether the material jury findings in support App. are without evi no the — Dallas contrary or are to the All dence evidence. recognize that have consist We courts in light the evidence will be viewed the ently expert held and that witness fees findings. jury’s favorable to the Mis most merely expenses expenses are incidental to Shaw, Railroad souri Co. Pacific preparation trial are not for and recovera (Tex.Civ.App. Corpus S.W.2d - damages of or of ble as element costs ref’d After re writ court. Whitley King, viewing according the to this stan (Tex.Civ.App. Worth no - Fort dard, findings jury we that the of the hold writ). However, accountant’s fees in the supported by the adequately are evidence. present expenses case are not incidental to in refusing trial court did err by appel- litigation, but incurred grant appellants’ motion for non appellant’s as a of the breach of lees result Appellants’ veredicto. eleventh obstante contract. point of error is overruled. Appellants’ points twelfth and thirteenth Appellants’ and thirteenth twelfth are of error overruled. $30,000 complain of award of of error point fourteenth of er accounting evi- fees because there complains ror in trial court erred support of this dence submission granting the him judgment against person accounting of fees is issue and the award ally. Appellants judg maintain permissible by law. only granted ment should parties agree- several entered into against in favor Larson Plumb Cactus attempting assets ments divide ing and should not have included individu agreement, entitled Im- Cactus. One such obligations were since the duties and als plementation Corporate Plan Division companies. only between the Co., Utility pro- Separation of Cactus regularly Corporate em- For the accountant The “Plan and vided Rasmussen, Cactus, Utility Wayne Separation ployed of Cactus Division (Plan) binding determine the value Cactus should net that it “be Co.” stated wduld par- as to effect a possible as soon order upon and enure to benefit company. assets ties, representatives, personal division succes- their sors, assigns.” heirs The Plan was found, Special response as President of signed Lew G. Larson Mr. Number Rasmussen Issue Lar- Hoyte Gentry, Lew G. to determine the net value Cactus failed ” Hatch, “Individually. J. son and Richard purpose dividing the assets of company possible, soon as and that as Corporate “Implementation Plan fees for the accountant the reasonable Utility Separation of Cactus of Division $30,- division of Cactus was appellee designated par- (Implementation) Co.” Co., Utility ties Cactus 000.00. G. Hoyte Gentry Lew & By jury’s finding that that Larson, companies and both and made both portion of the breached, contract was a le all work remain- equally liable for gal basis provided damages *8 by equally and performed ing to be
naturally
breach,
flowed from
i.e.,
the
Lew G.
all tax liabilities.
$30,000
responsible for
in accountant’s fees. Ybarra v.
Presi-
signed
Implementation as
the
Larson
Saldana,
As cal stated earlier damages countant’s fees as element of by August culations Cactus’ accountant 1984, contract. 22, appellants’ for the breach of Larson entitled to receive showed Baxendale, 9 $267,439.29. accountant, Hadley on the Since time of v. Larson’s before, hand, (1854), plain Exch. 341 and even other entitlement calculated Larson’s $787,053.00. has all of Although the calcula tiff been able recover to be during period damages reasonably considered tions were made same that can be time, considerably, consequence breach of figures varied in a defendant’s Texas, general has rule part, due to different of valua contract. methods ways. said accoun stated This Court parties. tion used Larson’s been various injured party “An should for items and for instance: tant used market value some damages or figures given just compensation for value others. When the book actually American compared, will be loss sustained.” North discrepancies are vast (Tex. Allen, Corp. v. 636 S.W.2d two sets calculations. noted between the writ); Co $787,053.00 App. Corpus no award less the re- - penhaver Berryman, 602 S.W.2d $350,000.00 recovery by mittitur of v. allows a $437,053.00; (Tex.Civ.App. Corpus Christi figure — to be damages writ ref’d midway falls be approximately are mea of contract awarded breach figures tween the arrived at each place necessary to the amount sured parties. they position financial plaintiffs light say, in of the evidence We cannot had the contract would have been us, the trial court’s order of before Corp. performed. Darling fully Little manifestly unjust and was remittitur was (Tex.Civ. Ald, Inc., cross- Appellee’s an abuse of discretion. App. — Dallas point number one is overruled. Supreme elementary law and the It affirming light decision of our have said appellate and other courts favor, find appellees’ we judgment damages many times that the measure unnecessary second appellees’ to address compensa is just for a breach of contract refusing court cross-point that the erred actually sus damage tion for loss re- appellees’ Special Issues on confidential Basey, tained. See Stewart lationship dealing. faith TEX.R. and bad (Tex.1952); v. S Regents Board of CIV.P. Construction & G ref’d n.r. (Tex.Civ.App. is AF- writ court trial — Austin e.). FIRMED. *10 case, alleged In the appellees instant in MR. HARRIS: At I’d this time like to their Original First Amended that Petition this Agree- offer Stock Purchase they incurred accountant’s fees result as a ment. failure of Cactus Company’s objection it, MR. HATCH: We have no to accountant to determine the “as net value Honor. Your soon possible,” provided as THE Exhibit COURT: Plaintiff’s Num- required in the contract them. between 4 is ber admitted. Appellees sought and secured is Appellant argues being that Court is this point. jury, sues on this on based “highly technical about a rule evidence evidence, competent found in their favor. procedure in a our time when courts Appellees urged appeal this that have looked to the reasonableness the award of accountant’s fees were Appellant matter than rather form.” con- proper damages, award of not a tax of objection his admissibility tends that to the costs, citing Saldana, Ybarra v. following day the evidence on the (Tex.App. S.W.2d 948 Antonio — San preserve appeal. sufficient to A error proceedings August review on proved Appellees they that following colloquy: reveals damaged by failure appellants No, Judge, MR. HATCH: and let me— perform accounting appellants which further, proceed any before we can we were required to do their contract. Be- backtrack, get objection and I want to an cause appellants’ ap- failure perform, into the record.
pellees go expense hiring had to to the THE COURT: Yes. Utility’s accountant to determine Cactus recall, MR. HATCH: As the will Court net expense value. part That my Special Exception Number one went damages appellees appel- sustained for to the Exhibit their Plain- Number lants’ breach. The award of that is amount Original tiff’s Petition— “just compensation,” necessary and is THE COURT: Yes. place appellees in the position financial they HATCH: now Plain- would have MR. —which is been had the contract been fully performed tiff’s Exhibit which has offered in and not been breached. evidence, which is that Stock agree, I appellants’ points of error twelve Agreement signed between and thirteen should be overruled. January and dated judgment of the trial court should af- My special exception that time ex- firmed. cepted using to them it for the reason force that it was no further and ef- OPINION ON MOTION FOR fect, that no cause of action could be REHEARING based thereon. DORSEY, Justice. I think the Court’s comment—and Only appellants’ points two of on error wrong, if Court will correct me I’m rehearing motion dealing the ad- with correctly what the the record will reflect missibility of a Agreement Stock Purchase feelings Court’s were—the had to merit Appellants further discussion. com- carry along way is no because there plain ruling they pre- of our failed to allegation— to tell whether or not that serve regarding error admission of allegation by me is correct until all they Stock Purchase because in. object failed to it when was tendered erroneously I that fact and overlooked admitted. objec- in the record I had no stated A proceedings review of the reveals that tion exhibit. That exhibit has not to that following transpired August jury yet presented been offered to the — 1984: nor read to the jury, to the has *11 138, (Tex.
jury. stopped Corp., I think that’s where we national App. writ ref’d yesterday. [14th Dist.] - Houston n.r.e.). record, go any So for the before we further, I to state that I do an want Viewing light matter most objection to the introduction of Plaintiffs appellant, objection that favorable subject Exhibit Number which was “superseded” Special Exception my matter of Number really objection an to its relevance and as implicitly suming One. that the trial court over objection, grant the trial court is ruled sjc n n n n n determining ad ed broad discretion record, again object I do So missibility of evidence. The trial court’s Exhibit the introduction of Plaintiffs an decision will not be disturbed absent that, 4 for the reason as stated Number v. Hughett abuse of that discretion. my Special Exception, it is of no fur- (Tex.App.— Dwyre, 624 S.W.2d ther force and effect and no cause of n.r.e.); v. Amarillo writ ref’d Luvual thereon, and that action can be based Pillot, Kroger Division Henke & allegations and references to the Stock (Tex.Civ.App . -Hous Agreement as a of claim basis writ ref’d ton permitted by the should not be Court. record, reviewing carefully After we not abuse conclude that the trial court did record, protect All I to do is want its discretion. don’t later on have the claim that we appellants’ points All on motion claiming my objection I waived rehearing are overruled. superseded by this document has been objecting to it. again, respect ruling I So Court’s previously made that the doc- in, come and reserve the
ument will superseded
ruling on it has been whether appeal, you Number ment forward as to ery. and cannot be made the basis to a later Generally, in order to be considered objections that reflect offered, THE COURT: For the [*] running objection must be made when clearly 4. objection time, [*] [Emphasis after it has been that I am not it is a and I want the record to [*] superseded Plaintiff’s Exhibit [*] the admission of added] record, from this mo- the evidence waiving my Sfc of a recov- received. contract I’ll [*] give SANTA Nos. Maria Maria thavathsalam Wunsch, Individually and as Guardian ually Prem 04-85-00299-CV, 04-85-00300-CV The Honorable and On ROSA MEDICAL Zulema Srivastava, M.D., and La June Villanueva, Deceased, SPEARS, Respondent. Estate of Mattie L. 04-85-00321-CV. Athreya, M.D. and Sudhir Behalf of the Estate Gutierrez v. Carolyn H. CENTER, Bak Snell, Individ York and Relators, Texas, Appeals Shipyard, Montes Lazzara Antonio. (Tex.App. Corpus Christi San — But, assuming that this late ob 31, 1986. March ruling explicit find no jection good, we Rehearing May Denied “An objection. objec by the court on this before it actually be overruled tion must error for our review.” Perez
preserves Packers, Inter A Division Baker
Baker