Horton v. Dental Capital Leasing Corp.
649 S.W.2d 655
Tex. App.
1983
Check Treatment

*1 impact on beverage industry the alcoholic large

but that a manufacturer sub

stantially affect the industry. Busch has

not demonstrated the absence of a reasona

ble basis for the legisla enactment of the

tion. reasons,

For largely the same rights

Busch’s contention that its under

Fourteenth Amendment to the U.S. Consti

tution were violated A state lacks merit.

may reasonably classify its citizens and

treat them distinctly according to those protec

classes without violating equal

tion clause of the Fourteenth Amendment. Miller,

Railroad Commission of Texas v.

supra. Furthermore, the states have wide regulating aspects

latitude in economic beverage

the alcoholic vio industry without equal protection

lation of the Jo clause. Hostetter,

seph Seagram E. & Sons 35, 86

U.S. S.Ct. L.Ed.2d 336

Busch also urges that the trial court

erred in refusing to set aside the order

because the Commission acted in an arbi manner,

trary capricious and that

abused its discretion. We find no arbitrary capricious action or abuse of discretion. judgment.

We affirm the trial court’s HORTON, D.D.S., Appellant,

DENTAL CAPITAL LEASING

CORPORATION, Appellee. *2 Russell, Rolston,

Sam W. Russell & Pleasant, appellant. Mount for Seward, Farmersville, ap- Richard B. pellee.

CORNELIUS, Justice. Chief judg- Horton appeals from a awarding Leasing ment Dental Cor- Capital $31,668.64 poration for breach par- of an rental contract. The into an agreement whereby ties entered supply Dental would Dr. Horton prac- with certain for use in his tice. Dr. Horton was to make six payments In payments and $52.50 $790.36. Dr. August stopped Horton Dental payments. Leasing brought suit for installments. Dr. coun- Horton ter-claimed, alleging fraud in the induce- practices, trade deceptive and was a agreement transaction a lease agreement. rather than The verdict returned a favorable to Leasing and was entered on assigns verdict. Dr. Horton error because support was insufficient to evidence jury’s failure find that Dental party, and that such fact a secured established; issue because no conclusively on was submitted to money he was denied the jury; and because close and sup Evidence port jury’s failure to find an affirma fact, since Dr. Horton had tive and lease on his claim that the burden of can reality security agreement, he was in only if complain on that basis successfully conclusively, or fact was established against to so find is jury’s failure evi preponderance of the great weight Traylor Goulding, dence. Marshall, (Tex.1973); Visage v. 667 (Tex.App. Tyler conclusively n.r. to be such as establishes e.). agreement The question in here is de instrument as lease, nominated a but it contains an security, or that a failure to so find is purchase the equipment at the end of against great weight preponder- term. If the such an ance of the evidence. issue dam point that an *3 constituted in law a security interest. Tex. ages necessary is not well taken. The was 1.201(37) (Vernon Com.Code Ann. § only would be uncertain if the 1968); Davis Leasing, Brothers v. Misco security agreement constituted a Inc., 508 S.W.2d 908 (Tex.Civ.App . —Amar of equipment and evidence the value the 1974, illo writ). no Two alternative tests the of default at time became relevant. are used to option price determine if the is failed to find the jury Since the instrument nominal. The compare first is to option the agreement, to be security price to the market value of the equipment rentals, were the amount of option at the time the is If exercisable. undisputed. and their amounts were An option price is substantially less than the undisputed issue on an fact need not be value, market the option price is nominal. Barnett, jury. submitted to the v. Sullivan The second determine test is to (Tex.1971); Wingfield 471 39 S.W.2d v. terms of the option do not leave the lessee Bryant, 614 643 (Tex.Civ.App.— S.W.2d with any sensible alternative but to exercise 1981, n.r.e.). Austin writ ref’d the option. The two tests are not cumula Dr. Horton contends he should tive, but are alternative. See Woods-Tuck given right have to open been and close er Leasing Corp. v. Hutcheson-Ingram, 626 argument. In order for a defendant (5th Cir.1980); F.2d 401 Brokers close, right open have the he must Corp. v. Pipeline Coating Co., Standard 602 have the of proof burden on the whole case S.W.2d 278 (Tex.Civ.App. 1980, — Dallas under the pleadings or have the burden of n.r.e.); Outpa Southwest Park proof on all issues submitted. Walker v. tient Surgery, Ltd. v. Chandler Di Money, (1938); 132 Tex. 428 S.W.2d vision, 572 S.W.2d 53 (Tex.Civ.App . —Hous Macarena, (Tex.Civ. Cano v. 606 718 S.W.2d 1978, ton writ). If the evi- [1st Dist.] 1980, App. Corpus dism’d); Christi writ — dence shows the option price nominal, is not Andrews, Public Community Service Co. v. is not conclusively deemed a 590 563 (Tex.Civ.App. S.W.2d [1st — Houston security agreement. Here, the instrument n.r.e.); writ ref’d Meece v. Dist.] itself provides that option Wade, 512 372 (Tex.Civ.App S.W.2d . —Aus fair market value at the option time the n.r.e.) (holding tin ref’d writ Walker Indeed, exercised. parties both concede 269(a)); Money, supra, applicable to Rule that is not nominal. The 269(a). Tex.R.Civ.P. instrument, therefore, has not been conclu- plaintiff, had the burden of on the sively established to be a security agree- attorney’s issue of fees. Since Dr. Horton ment. Even test, under the second issues, did on all not have the burden agreement would not be conclusively properly request trial court denied his deemed a security interest. There tes- open and close timony from which could conclude that at the time the Additionally, there has been no exercisable well be or showing obsolete that the denial state, a deteriorated possible probably thus and close was calculated to and that Dr. Horton improper judg would not want to exercise did cause the rendition of an for those reasons. denial Other facts as is to constitute the may 574 Stanley, establish intended the a reversible error. Francis v. to be security instrument interest even though Mudd, the consideration but Seureau v. issue here there was considerable S.W.2d 746 [14th — Houston evidence, and we do not find that evidence Western Fire writ Dist.] Insurance Company Reyna, (Tex.Civ.App. Corpus Christi ref’d n.r.e.); Tex.R.Civ.P. 434. judgment of the trial is af- court

firmed.

BLEIL, Justice, concurring.

I agree trial court’s

should be affirmed. Horton’s that he claim

showed conclusively that the lease consti

tuted a interest lacks merit. Be provided

cause the lease that he could be

come the owner of for additional consideration,

non-nominal the détermina

tion of whether lease was intended question. was a fact Sign Federal

and Signal Corp. Berry, 601 writ); — Austin Co., Tackett v. Refrigerator Mid-Continent Davis Brothers v. Inc., (Tex.

Misco

Civ.App. Tex. — Amarillo Ann. 1.201(37) Com.Code §

The jury’s failure to find the that the fact

lease was for security makes dis

cussion of is nomi

nal unnecessary. LaCHANCE,

James G. Deborah A. La

Chance, Welsh, Jr., Margaret A. Mark

Welsh, Aubrey Edinburgh, C. Mar

garet Edinburgh, Appellants, M. Jr., Associates, McKOWN,

O.B. Ltd. McKown, Associates,

and O.B. Jr. &

Ltd., Appellees. 1983.

Rehearing Denied March