Hill v. Miller
714 S.W.2d 313
Tex.
1986
Check Treatment

*1 place Rule is to a more onerous party burden on relying on the omit- HILL, Petitioner, ted opponent. issue than on the There is nothing in the language to indicate that a MILLER, Respondent. party Ronnie who notes the omission of an issue by relied on opponent his cannot call the No. C-4661. omission to the by court’s attention tendering the omitted issue for submis- Supreme Court of Texas. sion. July 1986. 544 S.W.2d at 794. Rehearing Sept. Denied The issues tendered Defendant Morris were preserve to error under

Rule 279. pleadings, requested Holt re upon theory

lief based a that Morris had agreement

breached an partner form a trial,

ship. At apparently case was

tried consent theory under a that Morris agreement which, breached an oral al

though not constituting agreement an

form partnership, did call for Holt to earn equity interest in the two restaurants.

However, Holt request failed to submission any relating issues to either of these recovery.

theories of Finally, Holt

rely upon jury’s negative answers to

the two submitted defensive issues. The

trial court cannot negative finding use a support defensive issue to plaintiff’s a'

claim for affirmative relief. Grenwelge v. Reconstructors,

Shamrock Inc., (Tex.1986).

S.W.2d 693 jury

Since no answers were obtained as issue supporting Holt’s recovery and only jury answers nega- examined were findings

tive issues, Morris’ defensive

we judgment reverse the

appeals and render that Holt nothing.

take

314 of

questioned by the decision” of Ann. 22.- appeals. Tex.Gov’t Code § (Vernon 1986). Hill, however, 225(b)(4) argue point a of error on the does not Instead, he relies validity of statute. point error raised in the court of on a of appeals by opponent, Ronnie Miller. unnecessary found it to address That court point challenging the constitution- Miller’s Davidson, Houston, petition- Mark D. for it held Miller ality of a statute because for er. Hill, nevertheless, con- grounds. on other point holding on the is not tends that a Lawrence, Thornton, Kling, Chris J. allegation that necessary because the mere Payne, Kling, Bryan, respon- Watson & for a unconstitutional serves as a statute is dent. in jurisdiction an predicate for this court’s disagree. election contest. We CAMPBELL, Justice. Although not essential that a it is appeal This is an of an election contest unconstitu appeals court of hold a statute County. the office sheriff of Brazos for of attaches, the tional before our votes of The trial court found must point error the statute of the outcome change sufficient number to holding a be material to had cast and declared the election been for in this appeals preserved review appeals The reversed the void. court of 555, Williams, Tex. v. 156 Christy court. rendered a judgment of the trial court and (1957); 567 Thomas 298 S.W.2d take-nothing judgment against the contes- Groebl, 70, 212 626- 147 Tex. S.W.2d tant, Hill, Hill holding that Howard (1948). normally in one 27 This will occur illegality or fraud in the failed to ways. The in the court of two The contested election. S.W.2d party to raise appeals ordinarily will be the of the num- court concluded that evidence validity of challenging the point a of error cast ber of If applied by the trial court. some statute not evidence of the number election was appeals rejects the in the contested election illegal votes cast court, judgment of the trial and affirms the county for sheriff. point in his preserve must for a local This is an election contest rehearing present point motion ques- office, first consider the and we must If, on assignment in this court. by proper jurisdiction. our tion of hand, agrees the court the other is conclusive the court invalid, it appellant that the statute with (1) con- unless the contest election contest preserve error appellee who must is the office, Code Tex.Gov’t cerns a statewide holding in a motion challenging the (2) (Vernon 1986); 22.225(b)(4) Ann. § point rehearing by presenting questioned by the statute is of a In either in application. this court decision, Id.; (8) court of justice a stance, a of error there must be question of appeals dissents on a material to the rehearing referable motion for 22.225(c)and law, Ann. Code Tex.Gov’t §§ followed invalidity of the statute validity or (4) 22.001(a)(1)(Vernon 1986); or a conflict in this court. by point opinion of the court of exists between the challenged the validi Hill has never of another prior opinion only argues that any statute. He Supreme ty of Court. court of or the the re appeals has misconstrued 22.225(c) and 22.- Tex.Gov’t Code Ann. §§ Ann. 9.38b 1986). quirements of Tex.Elec.Code 001(a)(2) (Vernon argues Hill § 1986). application (Vernon con- Construction this election we have over “validi- put in issue the a statute will not validity of a statute is test because “the ty” merits, purposes juris- a statute for ion of our on the but reserve construction diction in an election Christy contest. v. of the Election Code and the issues ad- Williams, 298 S.W.2d at 567. Because the dressed for deter- issue, of a statute is not at Hill’s proper previous mination case. Our allegation 22.225(b)(4) under granting order Hill’s Government jur- Code does not invoke our withdrawn, for writ of error is and the *3 isdiction in this election contest. application for writ of error is dismissed jurisdiction. for want of

As jurisdic an additional basis for tion, argues Hill present opinion that the KILGARLIN, J., dissenting opin- files a the court of conflicts with Deffe RAY, JJ., ion in join. which SPEARS and Chapel bach v. Independent Hill School District, (Tex.App. Tyler 650 S.W.2d 510 — KILGARLIN, Justice, dissenting. 1983, writ) Wise, no and Goodman v. 620 I respectfully dissent. This court has (Tex.Civ.App. Corpus S.W.2d 857 Christi — jurisdiction of this case because “the validi- 1981, n.r.e.). ref jurisdic writ d When the ty of a statute questioned by the deci- depends tion of this court upon a conflict of appeals. sion” of the court of Tex.Gov’t decisions, the apparent conflict must be 22.225(b)(4); Groebl, Code Thomas v. 147 from opinions, the face of the must relate 70, (1948). Tex. 212 S.W.2d 625 In Thomas law, question to a and must concern Groebl, v. this court held jurisdiction it had essentially the same state of facts so that in an election contest where a statute’s the decision in one case is conclusive of the “constitutionality was attacked three decision the other. Rogers Rogers, v. appellants’ of error in the brief and 172, (Tex.1978); 561 S.W.2d 173 Torrez v. appeals] court opinion of civil in its [the Co., Maryland 235, Casualty 363 S.W.2d gave serious consideration to them. The (Tex.1963). 236 The two cases cited here Appeals decision of the Court Civil for conflict do not meet require these therefore, questioned validity the ments. statute, about’, as question it ‘raised a case, In this the trial court declared the question’, ‘called in subject- its election void after determining that more question judicial ed the examination.” illegal votes were general cast the 212 S.W.2d at margin tion than the victory in the race case, county present In appellant sheriff. in the The court of appeals, Miller, reversed challenged Ronnie of the trial court holding constitutionality that it was of article 9.38b of the to show the number of Texas Election Code. In his cast Instead, election. ap- argued the court of number Miller “the trial court peals held it was the contestant erred for the that Hill’s bur- reason Tex.Elec.Code, den in a multi-race election to art. 9.38b unconstitu- show was the number of actually cast in tional.” Miller asserted that article 9.38b the contested race county applied sheriff was unconstitutional if it could be was greater margin victory than the to lessen a in that contestant’s burden specific specific race. are votes were cast in the Goodman Deffebach distinguishable because contested. the ballot in those election cases single involved a race or issue—a clearly challenged Miller bond election in city school and a Deffebach Although ap- article 9.38b. commissioner’s election in Goodman. peals expressly did not consider Miller’s Therefore, present unlike the constitutionality argument, it was faced legal voting unquestionably in the occurred challenge accepted with the the inter- being election contested. pretation argued by of article 9.38b Miller jurisdiction interpretation.

This court does not have over as the correct constitutional express opin- this election contest. We had the constitutional- 316

ity point obviously it and constitutionality argument, before sustained it would have holding pass upon act as valid. Under our review all Groebl, arguments this Thomas v. should be sufficient raised before it. Thomas Groebl, Thus, give jurisdiction. appel- 212 S.W.2d at 627. nothing lant has to lose and will be sure to Thomas v. Groebl should not be read to raise a constitutional in the court require that a court of must in (and the more frivolous the bet- every constitutionality case write on in or- ter). If wins jurisdiction. der court to for this appeals, our today ap- decision means the Williams, Christy v. Tex. pellee rely cannot appellant’s on constitu- (1957), again S.W.2d 565 this court con- argument tional jurisdiction; to obtain but sidered whether it had loses, if the simple fact that ground election contest on the he raised a argument constitutional insures appeals ques- decision of the court of civil *4 supreme review. validity tioned the of a statute. This court manipulation Such is not intended nor man- appeals concluded that the court of civil decisions, by prior dated our nor does it “ques- had construed statutes but not good make sense. statutes, validity the tioned of such either ap- Jurisdiction arises when the court of by affirming denying validity.” or their peals questions by a statute either affirm- pointed The court then out that that “[f]or ing denying validity. matter, or Who raises the petitioners had before the Court of prevails point on the Appeals who do point challenging Civil no of error not and should not affect this result. This the of such statutes” and cited court has on based Thomas v. Thomas v. Groebl. may consider the raised Groebl significant The fact in this case is that by Howard Hill. challenged constitutionality Miller the Having jurisdiction, we should address appeals. article 9.38b in the court of The single presented issue in this case: appeals’ opinion affirms the validi- requires a contestant article, whether article 9.38b ty accepting of that Miller’s inter- prove illegal that votes were cast in the Miller, pretation. It is irrelevant that specific race or whether it is suf- contested appellant below, respondent is now the prove ficient for the contestant to that il- requires only here. that Thomas Groebl general in legal votes were cast by of a statute be attacked general In tion. election held on No- appellant appeals. in the court of It does 6, 1984, Ronnie Miller was elected vember require. appellant appear not that as County. sheriff of Brazos Miller received petitioner require- in this court. Such a 22,146 21,- Hill received votes fact, purpose. ment would serve no 984 votes. under the court’s decision in this in the court of can con- claiming Hill filed an election contest jurisdic- trol whether this court will have illegal that votes altered the outcome of the contest, assuming tion election judge illegal election. The trial held that in the court of or lack of dissent were cast in the election and conflict with decisions of other courts. illegal votes was suffi- that number change the of the election cient to outcome If an raises a for the office of sheriff. The trial court constitutionality of a stat- the election for the office of declared that ute, always right he will have the to seek sheriff was void and ordered that another right in review this court. He will have the held for the office at the earli- election be though to that review even statutory special date for elections. est not address his constitutionali- does though argument the decision of ty argument appealed and even his Ronnie Miller held is frivolous. And this court would have the trial court. contest, contestant only appellant’s that in an election jurisdiction not over the prove that in illegal assuming they must votes were cast Even could be found and specific being subpoenaed, race contested and that a do what assurance we they they different result would have been reached that would remember for whom voted, counting specified they certain votes af- if or voted the contested race illegalities. fected The court con- at all? How credible are we to consider proved illegal persons already cluded that Hill had not in violation of the law? were cast the election for the of- To follow the decision fice of sheriff and reversed the trial court virtually impossible will make it judgment. 698 S.W.2d at 375. prevail. an election contestant ever to problems particularly

Article 9.38b of the Texas Election Code are exacerbated provides part: this case. Hill states that of the 40% legal voters could not be found in order to any

In an election contest ... voter who subpoena alleges roughly them. Hill fraudulently illegally or casts ballot or one-half of the voters resided who casts a fraudulent or ballot at County voting precincts Brazos 20 and any general, special, primary or election testimony encompass which trial indicates required compelled, be after the campus. Assuming the Texas A & M illegality fraud or has been established part voters in those two by competent evidence before a tribunal precincts moved, transferred, graduated, competent jurisdiction, to disclose in quit, how does Hill case? Since testimony having before the jur- tribunal subpoenas limits Tex.R.Civ.P. 176 to one isdiction of the matter the name of *5 miles, Hill hundred to travel about the candidate for whom he and the voted state, beyond, in hope or even that he way any question he voted on at the election_ voters, depose may may can who or contest, In an election in- anything. remember If it the intent were stead undertaking to determine how of judicially abolish voted, individual voters the tribunal require- by instituting election contests may declare the election void and order rarely met, proof ments of that can be another election the number if opinion surely accomplish case will this legal votes is change goal given oppor- until this court is outcome the election. tunity to write on the matter. Amended, 24, 1985, May Act of ch. 221.009, 1985 Tex.Sess.Law Serv. 1641 illegal In this case the number of votes (Vernon) added). (emphasis by the trial court found was 246. There clearly support is evidence to the trial duty of a trial court under this arti- finding persons court’s that 218 who never cle is clear. Instead determining how regis- made a valid for a voter election, individual voters voted tration in the certificate voted trial court declare an election void if persons gener- tion and that 28 voted in the illegal proved by number of votes applications reg- al election whose for voter changed contestant is sufficient to have postmarked istration certificates were outcome of the election. Under the court deadline, received on or after the October person decision in this separating 1984. The number of prevail an election can without producing testimony. precise- Miller and Hill the sheriff’s race was voter This is ly Obviously the number of the situation article 9.38b allows a trial changed court to avoid. was sufficient to have the out- The trial come of the sheriff’s election. appeals requires The court of a contes- judge was therefore within his discretion produce tant trial voters at declaring the sheriff’s election void and get testify each to that he voted for the ordering another election. opponent. contestant’s if But what those decision, appeals’ voters cannot be found? What if those insofar as subpoena? judge voters are not it amenable to holds that the trial abused his determining number discretion votes was sufficient

changed the outcome of the sheriffs elec- language

tion with the clear conflicts

article 9.38b of the Texas Election Code. I

Accordingly, the decision would reverse remand

cause consideration of court for er- insufficiency

Ronnie Miller’s

ror. RAY, JJ., join in this dis-

SPEARS

sent. HOLDER, ux, Relators,

Roy et WOOD, Judge, Sharolyn

The Honorable al., Respondents.

et

No. C-5267.

Supreme of Texas. Court

July 1986. Rader, Rader, League Kivell Marvin L. & City, for relators. Rehearing Sept. 1986. Denied Speed E. and Mr. Michael D. Rob-

Robert ins, Houston, respondents. WALLACE, Justice. proceeding. original mandamus

This bought and Ola Holder Roy Relators May, 1983. After discover- mobile home home, the Hold- ing several defects seller, Homes Mobile Sales ers sued the manufacturer, Fleet- Corporation, and November, Texas, wood Homes alleged suit breach of warranties misrepresentation in the home sale Deceptive Texas Trade pursuant to the & COM.CODE Practices Act. TEX.BUS. 1986). (Vernon seq. ANN. 17.41 et § a Plea Abate- Fleetwood Homes filed amendment on the 1985 ment based Housing 17(d) Stan- of the Manufactured dards Act. TEX.REV.CIV.STAT.ANN.