*1 language when the accusation the clear of is on bail “(b) If the defendant commences, enactment, a requested he shall have but continuance the trial during the either the part to remain on bail on the of accused in right same return into case and until the or will result in accusation indictment trial (60) under after the days the verdict he had for sixty court of denial of bail trial commences.” the continuance. day law before last of however, State, calls attention bail denying The order of trial amend- Article 44.04has been fact that said is affirmed. (Acts 1977, Leg., p. 65th
ed and rewritten 234, 1, 29, 1977), and Aug. eff. ch. § DAVIS, J., in result. concurs W. C. longer is no quoted provision above that the in elsewhere found in statute or be Hence, of Criminal Procedure. Code no stat- that there is now reasons State It is during bail trial.12 authority for
utory quoted provision has the above
true that deleted, design or over- whether
been be that
sight, may tell.13 It well we cannot the 1977 amendment the drafters HOLMQUEST Donald L. et provision out of eliminated thought the al., Appellants, pend- place dealing a statute with bond in ing appeal. PRIESMEYER, Appellees. Larry Lynn interpretation may eventu- be Whatever No. 17174. right pending ally placed on to bail 44.04, amendment to Article in view of the Appeals Court of Civil supra, question is not now before (1st Dist.). Houston denied in the instant court. The court bail I, 11a, provisions Sept. Article 1978. case under the § appellant requested supra, because Rehearing Denied Nov. 1978. not “continuances.” Trial had and obtained Rehearing Denied Dec. Second We the tri- today been commenced. affirm al action on basis. We do court’s proffered by the State. question
reach the we hold this court has summary, I,
jurisdiction appeal under Article Constitution where 11a of the State
§
right is denied thereunder because to bail We sought has a continuance.
the accused used in that “continuance” as
further hold means enactment
the said constitutional its rather than
any delay postponement meaning. We further conclude legal
strict under the held without bail
that an accused con- provision the said situational
second to a trial enactment entitled
stitutional the accusation and indictment both (60) days of incarceration sixty
within however, 17.09, (a) cf., appears V.A.C. that former of said Article § 12. See and Article (a) (1965) (b) C.P., Special Commentary into §§ thereto. 44.04 re-drafted and the (b) § former amendment and the was left out.
finding that the architect had obtained the perform- before ing the the construction documents work on for this suit. constitutes argue points Under these right to *3 prove failed to recovery under the contract any monetary that he had and that he also failed to precedent specified performed a condition that he obtain the requiring in the contract draw- approval preliminary owners’ ings proceeding before with the work on the construction documents. Holmquests resided in In late 1974 area of Brazos Bryan College Station — County, where Dr. Donald L. Holm- employed as an Associate Dean quest University. of Medicine at Texas A & M According Dr. testimony, to Raymond mentioned to Mr. Reed, the Dean of the of Architec- School ture, that he and his wife wished to obtain an architectural for a house which they on some land they planned construct Reed owned that area. Mr. transmitted information, together with Dr. Holm- Houston, Belilove, Dorsa, number, John quest’s telephone Morris E. to the architect appellants. for Holmquest. who then contacted Dr. After discussionsbetween preliminary several Dillon, Giesenschlag, Sharp Delaney, & concerning and the architect Holmquests Youngkin, Bryan, Bill Delaney, John general size of the house the type and appellees. Holmquests designed, wished to have architect a written contract which EVANS, Justice. parties January executed on 1975. brought by Larry Priesmey- This suit was er, architect, the terms of this contract the ar- compensation to recover Under allegedly performed agreed perform chitect certain basic (1) contract with the defendants Holmquests: under written services on behalf of the wife, Ann J. Holmquest and agreed Donald L. He to consult with them to ascertain trial, non-jury the trial Holmquest. After a requirements prepare their and to schemat- in favor of judgment court entered designs (2) ic for their He approval; studies $2835.00,represent- sum of architect for the agreed prepare working drawings due of the amount ing unpaid balance specifications for their and to as- contract and under the for his services (3) bidding property; sist them in attorney’s fees. the sum of with them agreed He to advise and consult bring appeal. representative as their in the and to act project. construction of the For points of error first four In their agreed that the these services the factual challenge legal and would receive as his support the evidence to sufficiency of the equal a sum to 9% total construction for the value monetary award trial court’s implied project payable cost of the as follows: services and its the architect’s payable upon execution to the preparation of the construction or “work- agreement, such sum to be deducted ing” drawings, and he and the Holmquests from the final payment upon comple- continued meetings throughout to have tion of construction. summer early fall of 1975. In the upon completion part 35% latter meeting October design. architect, held between the the Holmquests engineers and two discuss 3. 50% of the construc- details and tion documents. costs. At this meeting the received certain information upon completion 4. 15% of construction. engineers from the concerning proposed provided that the architect’s foundation expec- which did not meet their was to be determined tations, also indicated some con- from “the total cost or the estimated cost” cern opinion, with the architect’s designed specified by of all work *4 upon “guesstimate” of a builder who architect and that for work not constructed had working reviewed his drawings, that such cost was to be “the lowest bona fide the current cost of construction had risen to qualified any bid received from a bidder for foot, per square resulting $30.50 in a total all of such and work.” The contract con- cost $91,000.00. estimate of approximately provision stipulated tained a further in the that event termination “due to the The testimony disputed concerning architect, fault of other” than the he was to the discussions which occurred between the compensation be entitled to for his services October, parties after meeting. performed to the date of termination. The architect testified that approximately 3 weeks after the meeting he received a The architect testified that after the exe- phone call Holmquest, from Dr. advising sought cution of the contract he to deter- that there had been change a in his wife’s mine from the their “likes and professional plans they and that were they prepare dislikes” so that could better no longer big hurry in a concept which he construct the house. graphically communicate to them The architect was advised that he would design drawings means and take his time with the of the During spring models. the working drawings long so as construction drawings architect worked on the schematic begin 1976, and, could about the summer of prepa- which later served as a basis accordingly, the architect continued with ration of a three dimensional model of the his work Holmquest and did not contact Dr. During period that concept. again May until 1976. At that time he had extending early time and into the summer difficulty some reaching Dr. Holmquest, 1975, meetings were held between the calls, who failed to return his finally but architect and the to discuss the urging friend, of a mutual he made a work. get concerted effort in touch with Dr. Holmquest and was able to do so. He ad- pre- July having completed Holmquest vised Dr. that the interior eleva- work, liminary design phase of the the ar- tions were available for review and that the submitted his statement chitect plans could be finalized within the next $2,205.00, amount of Holmquests in the week. Dr. then advised him represented 35% of 9% of an which sum bought that he had a house in Houston $70,000.00. construction cost of estimated Bryan property up had for sale. appar- The estimated cost was construction computed approxi- on the basis of an ently The Holmquests testified that after the factor per square foot cost mate $25.00 meeting, October told them to be the which the then considered that he would contact them “within 3 probable cost of construction. weeks”, they and that when did not hear from completed the sche- him until May they After the architect assumed work, began project. he that he had abandoned the phase matic directly by the challenged that and is not Holm- Holmquests’ contention is the justified was quests. was not constructed since the house figure as the “total cost adopting a bid architect did not obtain because the designed by cost” of the work estimated builder which could serve qualified from a termination, to the date of computing a the construction a using computing it as a basis for reasona- did that he project, he not cost of the customary paid to be ble and recover any entitled performed to the architect his services for the construction document to that date. overruled. work. This contention will be testimony There that the archi- was also provision determining charge for similar regular tect’s cost a bid the total construction hour per and that he ex- contemplates $15.00 builder qualified of a pended somewhere between 800 completed would be construction documents project. upon compu- hours Based delivery to the to the architect for available per multiplied by tation of hour time the ad- builder. At the hours, the value of the architect’s services longer no vised the architect were $12,- been in the amount of work, would have proceed him to with willing for he The architect testified that 000.00. only 90% documents were seeking recovery in the amount of only complete, and the architect testified which amount included sum documents were since the construction *5 had he received for the sche- complete, did not obtain a builder’s bid he work, design matic and this was the amount on the work. to Dr. Mr. Holmquest. he had billed Carroll The trial court found that the archi registered a and Claycamp, engineer archi- in a personal tect services performed had tect, rate testified that his minimum was a good workmanlike manner and within per per hour that a hour $15.00 period of time. No additional reasonable charge rate would be a “fair” in Brazos either findings requested by were or filed County, Texas. He also testified the party. support judg court’s plans the architect had for finding presumed ment will be that the a Holmquests expert quality. were of work to “fault termination of the was due liberty The trial court was to consider others” than architect. testimony as some evidence of reasona- stipulates that the ar customary for ble similar to for serv chitect is entitled in the Bryan—College architectural services termination, performed to the ices date of area at the Station time is to no fault when such termination due performed, were and its award was him, a specify to but it attributable does range well within the of the evidence ar determining particular method presented. compensation under such circum
chitect’s trial court could also have con Thus, properly the trial court stances. cluded from the evidence that Holm- reflecting award evidence its prelimi to quests gave their custom a reasonable and what constituted nary design phase by of the work and their for architectural services ary compensation to conduct authorized the architect continue Baylor nature in that locale. of a similar work on the construction documents. It his Carlander, 316 University S.W.2d undisputed is indicated ref’d writ (Tex.Civ.App.—Dallas 293 very pleased to the architect that were e.). r.n. concept with the architectural demonstrat model, esti his schematic and the by that the ed The trial found ap preliminary statement cost of the house mated work design phase parties proved by the objection Holmquests. paid evidence without finding supported by is Although testimony specified by does indicate that the Home Solicitation Transac- Act, became concerned about tion Article 5069-13.02 Tex.Rev.Stat. cost the work after the October the total Ann. meeting, there is no indication that the The Home Transaction Solicitation Act’s then or thereafter advised the transaction within its coverage as meaning stop to work on the construction architect a “consumer transaction”: until that com-
documents 90% (A) purchase goods, other than does not contain an pleted. The contract * * * equipment, services, farm or limitation and there is evidence express cost payable in installments or in cash where have con- from which the trial court could $25, the consideration exceeds in which Holmquests’ conduct led the cluded that the person the merchant acting or for him to believe that he was authorized engaged personal in a solicitation of the continue his work on the construction to sale to a the consumer at residence and Bolton, Moore v. documents. S.W.2d agreement the consumer’s or offer to (Tex.Civ.App. writ [14th Dist.] purchase given at the residence to the r. ref’d n. him, or person acting merchant but it Moreover, per party pleading does not pursuant include a sale made to precedent of conditions is re formance preexisting revolving charge account or only specifi those which are quired charge agreement, retain or a sale made opposite party. Rule cally denied pursuant prior negotiations between orig Texas Rules of Civil Procedure. In his at a business establishment at alleged the architect that he petition inal a fixed goods location where or services performed precedent all conditions sale; are offered or exhibited for or being payment portion entitled to of a Holmquests proceeded his total fee. The The terms “consumer” and “merchant” general Under this to trial on a denial. are defined in the act as follows: was not pleading, state of the “Consumer” means an individual who of condition required prove performance personal seeks acquires proper- real or *6 Dairyland County Mutual Ins. precedent. services, ty, money, personal, or credit for Roman, (Tex.Civ.App. v. 498 154 Co. S.W.2d family, purposes. or household 1973); Flanagan, v. 446 City of Houston party “Merchant” means a to a consumer (Tex.Civ.App. S.W.2d [1st — Houston transaction other than a consumer.” e.). n. r. The Holm- writ ref’d Dist.] Holmquests’ is the contention points four of error are over quests’ first since the either signed ruled. contract at the apartment, where he also main- points through The of error 5 Holmquest offices, tained Holmquests’ or at the the trial court’s award of complain residence, “personal it was a solicitation” to however, fees, upon oral submis- attorneys a “consumer” . . . “at a residence” cause, counsel sion of and, therefore, a transaction within points the court these announced to meaning of the Act. is, therefore, it urged, not be would them here. unnecessary to consider The Homes Solicitation Transac designed protect Act was points two of error tion residential In their last occupants pressure is allege high that the contract void from door-to-door “cooling-off” period entitled to a salesmen and to allow a is not and that negotiated might the contract in which a contract thus recovery thereon because right Pettigrew, of their be rescinded. McDaniel v. contain a notice does not (Tex.Civ.App. Dallas) and the architect S.W.2d 611 agreement cancel — can- writ ref’d n. r. in right them of their The evidence the case to inform failed bar dupli- compel them with a does not conclusion that provide cel and did not protec are entitled to the completed notice of cancellation cate point This tion of this Act. of error OFFICIALS, Judge
denied. GRAYSON COUNTY al., Appellants, Les Tribble et error, point of the archi In a cross the trial court’s award tect contends that al., Appellees. Billy et DENNARD upon the been based should have estimate, pre rather than the No. 5228. and that liminary estimate Court of Appeals Civil findings in this are respect the trial court’s Eastland. weight preponder against great For the stat evidence. reasons ance of the Oct.
ed, will be denied. point this cross Nov. Rehearing Denied judgment is affirmed.
The trial court’s Rehearing
Motion
EVANS, Justice. Holmquests, rehearing,
The
complain striking trial court’s order because order
their amended answer after the signed
was not until transcript
trial. reflects that the order The judgment prior to final in entered
cause, plain recites that the and the order
tiff’s motion to strike heard day Although of trial.
court on the first of facts reflects discussion
the statement indicating court and counsel
between to strike plaintiff’s motion was over
ruled, entered is to the order contrary and must be considered con
trolling. complain did not
by point ruling error of the trial court’s strike,
on the motion to and since plaintiff’s is raised first time matter *7 it con rehearing, cannot be
motion for Aycock v. Travis by this court.
sidered
County, (Tex.Civ.App.— 225 S.W.2d ref’d.); Advance Loan writ
Austin Mandik, (Tex.Civ. 306 S.W.2d
Service v. ref’d. n.
App. writ r. — Dallas