*1 ENTERTAINMENT, KONDOS INC. Jay Snyder, Appellants,
QUINNEY ELECTRIC, INC., Appellee.
No. 04-96-00251-CV. Texas, Appeals
San Antonio.
April 1997.
Rehearing May Overruled 1997. *2 Socks, McCamish, Deely & Buddy
H. L. P.C., Antonio, Vaughn, K. Rapp, San Lisa L.L.P., Antonio, Boone, for Haynes San Appellants. Antonio, Janssen, Appellee. for
R. M. San C.J., HARDBERGER, Before DUNCAN, JJ. RICKHOFF OPINION HARDBERGER, Chief Justice. Quinney of contract case. This is a breach Electric, (Quinney) Enter- Inc. sued Hondos (V- (Hondos), V-Ball, tainment, Inc. Inc. Ball), non-pay- Jay Snyder (Snyder) for with electrical ser- ment of fees associated Quinney performed a contract vices under with the the defendants connection with nightclub. of a V-Ball construction the suit. bankruptcy and was severed from against Hondos Quinney proceeded to trial court, Snyder. The ease was tried to the Quinney. in favor of which found judgment against Hondos court entered Snyder. and render. We reverse
FACTS Quinney to do electrical work was retained in San nightclub construction of a for the Antonio, Tejano currently Texas called agreement covering the The letter Rodeo. by a performed to be was executed work representative of Hondos. Hondos, person at with whom
contact ney regular regarding on a basis dealt Quinney project. Snyder told that he was partner project in the and that he owned in- Quinney submitted part of the business. performed for work it to Hondos. voices Quinney payment The checks received issued from an account the invoices were V-Ball, signed Inc. and were the name of Snyder. Snyder approached
During project, place Quinney requested its account with General of items on number time for Hon- there was no Electric because Electric. get an account with General dos to Quinney that Hondos would Snyder assured directly, which it never did. pay the account thereafter, Shortly support single stopped finding receiv- of a business enter- (3) ing performed. Quin- work it prise partnership, finding single cheeks for the or busi- Rondos, ney ultimately filed suit V- enterprise partnership ness or when V-Ball Ball, (4) Snyder seeking damages trial, for the participate failing at did invoices, plus attorney’s unpaid interest and *3 grant a new trial because failed to fees. legal mitigate damages. We will address the sufficiency of the evidence because it is rele- Approximately four months after suit was appellants’ vant to our discussion of the col- filed, bankruptcy. Quinney V-Ball filed filed claim, upon lateral which we base $83,991.32 proof a of claim for with the bank- our reversal of this ease. Because the collat- ruptcy Quinney copies court. attached estoppel point dispositive, eral is we do not contract with the invoices sub- Rondos and remaining points of error reach the asserted objection to Rondos. V-Ball an mitted by Snyder. Rondos and Quinney’s proof asserting to of claim that Quinney’s deficiencies in work forced V-Ball
to hire another electrical contractor to finish SUFFICIENCY OF EVIDENCE job. V-Ball also contended that Snyder in Rondos and claim their fourth ney’s proof fully of claim had not been sub- point in of error that the trial court erred by stantiated invoices. The in failing grant to a new trial or ultimately allowing entered an order insuffi- their favor because the evidence was general claim as a unsecured claim support finding they cient to a that were $83,724.76 in the amount ordering of partnership single in a or business involved payment Quinney of the claim. received enterprise reading with V-Ball. Because our payment cheeks in full of its claim allowed findings of of fact and conclusions the court’s against V-Ball. court concluded of law indicates that the partnership-by-estoppel relationship Quinney pursued in that a its claim state court V-Ball, Rondos, Snyder, Snyder. Rondos and The trial court existed between ultimately sufficiency of to in favor of we review the the evidence entered $83,991.21 Quinney, Quinney support only in that and do not ad- awarding ac- conclusion $18,839.13 sufficiency in- dress the of the evidence as to damages, prejudgment tual in terest, $20,000 fees, attorney’s in in whether Rondos constituted a and V-Ball $978 Post-judgment single enterprise. court costs. interest on the business foregoing sums was also awarded. The court challenges We review to the suffi $83,724.76previous- further ordered that the ciency of the in a bench trial under evidence ly paid Quinney to with connection the V- reviewing the same standard used Ball of be credited amount sufficiency jury in a trial. of the evidence end, Sny- judgment. In the Rondos and (Tex.Civ. Levy, v. 941 Okon judgment against der were left with a them n.r.e.). App. In con writ ref'd — Dallas $40,083.58,plus of the unsatisfied amount insufficiency sidering legal a “no evidence” or interest, post-judgment represented which point, only the evidence favor we consider interest, primarily prejudgment attor- of fact able the decision of the trier fees, ney’s court costs not included in the disregard all evidence and inferences to the bankrupt- paid amount in connection with Antonio, contrary. City San Davis cy. (Tex.1988). the evi S.W.2d “When Snyder appeal Rondos prove a fact is so weak dence offered to vital points claiming of the trial court in six no more than a mere surmise as to do create by error that claims are barred existence, suspicion the evidence is or of its remedies, the doctrines of election of res and, effect, legal is no more than a scintilla estoppel, judicata, and collateral and that the Inc., Con/Chem, no evidence.” Kindred v. (1) finding agen- trial that an court erred (Tex.1983). cy relationship Rondos and existed between (2) V-Ball, light Viewing the evidence Snyder failing grant a new the trier of most favorable to the decision of the evidence is insufficient to equally suffi evidence find the fact, legally We that the evidence was we find finding that support the trial court’s conclu cient to support the trial court’s sufficient to partner Kondos, denying his Snyder, estopped V-Ball were from sion that Snyder held estoppel. trial court found V-Ball. partners by ship with dealings did not partner Kondos and V-Ball his that because out to be himself independence from each cheeks submit signed maintain sufficient Quinney. He with other, estopped corporations were per the two work payment for as ted they partners. The denying that Further, expressly represented he formed. Snyder held that because court also found partner and inves he was a two partner with the himself out to be piece that he owned project, in the tor denying estopped from corporations, he was Snyder’s relied of the business. First, with partnership existed. that such on its placing materials representations *4 corporations, the two the evidence regard to the Snyder’s assurance that credit based support finding that Kondos is sufficient to by paid directly the busi would be account estopped denying that were from and V-Ball provided has Legislature Texas ness. The partners. partnership they were To find by spoken or person, words that “[w]hen (1) met: by estoppel, two elements must be conduct, ... represents himself byor written representation that the one must be a there existing partnership or partner in an as a partner is a member of a sought to be bound part not actual persons more with one or (2) represen the ship; and the one to whom ners, any person such to whom is liable to he rely representa must on the tation is made made, has, who representation has been such partnership. by giving credit to the tion representation, given of such on the faith Ctr., Taylor Rental Paramount Petroleum v. partnership.” apparent or credit to the actual 534, (Tex.App. 712 537 S.W.2d — Houston (Ver § 16 Ann. art. 6132b Tex.Rev.Civ. Stat. n.r.e.). 1986, writ ref'd Both [14th Dist.] 1977). Snyder’s meet this crite actions non in elements are met this case. Kondos finding ria, supports a that the evidence partners represented themselves as V-Ball denying that he was estopped is from he in of by contracting with the name in business. partner paying with cheeks by Kon- point of error asserted rep The fourth account. further from V-Ball’s Kondos Snyder is overruled. partner by providing dos and resented that it was V-Ball, charge, space to free of office V-Ball,
providing
free of
clerical staff
ESTOPPEL
COLLATERAL
corporations
charge. Both
had the same
error,
point of
Kon
In their second
treasurer,
majority
president and
the same
spe
that because the
Snyder claim
dos and
shareholders,
registered agent,
same
Quinney’s
claims were
address,
cific issues central
incorporator, shared the same
same
court,
adjudicated
bankruptcy
previously
employees.
paid
and had
Kondos
common
collaterally
have been
es-
should
Both
for V-Ball out of its own account.
bills
issues in the
topped
relitigating those
applications
corporations
assumed-name
the defense of collat
suit.1 When
Tejano
Kondos
state court
under
the name
Rodeo.
court
in a state
$500,000
estoppel
is asserted
loans to V- eral
over
unsecured
made
proceeding
federal
proceeding after a related
Ball,
signed the notes
persons who
and the
concluded,
collateral
law of
the federal
in the corre
loans were officers
for these
Pipeline
applied. Shell
estoppel should be
Quinney relied on
sponding corporation.
Inc.,
Trading,
788
Corp. v. Coastal States
relationship be
representations of the
these
(Tex.App.
[1st
842-43
Accordingly, the S.W.2d
tween Kondos and V-Ball.
— Houston
denied);
Eagle Properties,
writ
support
Dist.]
the court’s
sufficient to
evidence was
Scharbauer,
915
part Ltd. v.
V-Ball were
finding that Kondos and
1988),
rev’d
part
(Tex.App.
Paso
by estoppel.
ners
aff'd
— El
claim, however,
that
judicata
as we And
the res
claim in their second
1.
also
Kondos
estop-
by
Quinney's
are barred
collateral
Quinney’s
claims
point
claims are barred
of error that
pel.
judicata. We
not reach
of res
do
the doctrine
part
grounds,
proceeding
on other
were the same issues
(Tex.1990).
provides
Federal law
ney
that three
litigated
bankruptcy
court.
In both
elements must be met for the
doctrine
col- proceedings, Quinney
that it
claimed
had
apply
subsequent,
lateral
to a
re-
paid
agreed upon
been
the fees
for the elec-
(1)
proceeding:
prior
lated state court
pursuant
trical services rendered
to its con-
federal decision must have resulted in a final
agree-
tract with Kondos. The same letter
(2)
merits;
judgment on the
the fact issues ment and invoices were attached as exhibits
sought
litigated
to be
in the second action
Quinney’s petitions
in state court and its
“actually litigated”
must have been
in federal
proof
bankruptcy
Clearly,
of claim in
court.
(3)
court;
disposition
of those issues
litiga-
the contract at issue in this state court
“necessary
must have been
to the outcome”
very agreement
tion is the
formed
prior
litigation.
federal
Parklane Ho-
bankruptcy
basis
claim
court.
Shore,
siery Co. v.
326 n.
U.S.
proceedings
simply
The issues
both
(1979).
S.Ct.
649 n.
fying the third element collateral es- estop- test, toppel validity because the amount their affirmative defenses of collateral defenses, only judicata of claim were issues nec- those pel not and res waived essary bankruptcy on the for the court to determine cannot be reversed and the claim, they in entering its order on respectfully the dis- I basis of either. therefore the consid- only the issues court sent. estoppel of are
ered. All elements collateral collaterally estopped met and op Summary Facts Relevant relitigating the of contract issue breach the court as to V-Ball decided findings and The trial court included its subsequent in a state action contrary court judgment, in its final conclusions Snyder. Hondos include findings These not Rule 299a.1 do Sny- any on element of Rondos’ findings reach recognize that result we We estop- of collateral der’s affirmative defenses unjust may there was no today seen Thereafter, judicata. Rondos pel and res end, recovery in this case—in double findings of Snyder request filed a for of his Quinney received the total amount law, they failed conclusions of but fact and claim, from two sources albeit different it had However, court that policies point out courts. two different affirmative estoppel findings to these made relative the doctrine collateral behind noted, are the Texas Rules CivilProcedure. 1. otherwise all rule references Unless Appellate defenses, whether their initial request, V, a Advanced Practice Course request (1996) (also findings for additional under Rule noting contrary authority V-21 however, appeal, or otherwise. On Kon- Ap- from the First and Thirteenth Courts of Snyder dos and seek to peals); reverse the trial County Black v. Dallas Child cf. Unit, (Tex.1992) court’s on the basis of their affir- 835 S.W.2d Welfare defenses, (in majority context, mative and the does so supreme a different court estoppel their collateral defense. “[a]ppellate give stated that courts must ef-
fect to the findings intended of the trial court Discussion supported evidence, record, if by the judgment”). When the trial court findings makes of fact and conclusions of law that “do not establish 1990, however, In supreme any defense], element of [an affirmative 299a, adopted provides: Rule which party relying upon that defense must file a Findings of fact shall not be in a recited request findings for additional such as to judgment. If there is a conflict between avoid waiver of that appeal.” defense on findings of fact in a recited Sears, Nichols, Roebuck & Co. v. violation of this rule findings of fact (Tex.App. [14th Dist.] — Houston pursuant made to Rules 297 and denied), writ cited in Levine v. Maver findings latter appellate will control for County ick Improvement Water Control & purposes. Findings of fact shall be filed Dist., (Tex.App. — San with the clerk of the court as a document denied). Antonio writ separate apart or documents from the case, judgment.
In indisputable this it is that the trial findings court’s any of fact do not include adoption 299a, Since the of Rule this court Snyder’s element of Kondos’ and collateral interplay has not addressed the between judicata and res affirmative defens- However, Longoria. Rule 299a and the ma issue, therefore, es. The is whether the trial (albeit jority apparently has determined sub findings, they court’s contained as are in the silentio) Longoria. that Rule 299a overrules judgment, are effective and thus shift the I, hand, on the other believe the two are burden to request complementary consistent and for two rea findings additional under 298 or Rule are First, construing sons. recog Rule 299a to nullities so that Snyder’s Kondos’ and re- give nize findings effect to contained in a *7 quest findings for is suffi- conclusions judgment implements absent a conflict light judgment, cient. In majority of its anti-sandbagging policy pres underlying all effectively findings holds this case that requirements specifically ervation Rule nullities; included in a judgment are Tex.R.App. there- 52(a), P., party requires which fore, the burden did not shift to Kondos and complaint to make his known to the trial request findings additional ruling complaint. obtain a on that their point affirmative defenses. It is on this Second, interpretation this is consistent with disagree. that I “legislative history” surrounding Rule See, R.K., Ramirez, e.g., 299a. M.D. v. adoption Before the of Rule 299a (Tex.1994) (using S.W.2d 841 n. 6 min that, this “although preferable court held it a Supreme Advisory utes of the Court Com practice [findings to state and conclusions] interpreting mittee as of evi aid rule separately, it required.” Longoria is not dence). Lines, Inc., Greyhound 304-05 ( writ); Tex.App. Antonio initially no Rule 299a was the sub- drafted — San also, Ass’n, e.g., see Farr v. only purpose Sun World Sav. committee with one one (Tex.App. Paso findings mind —to resolve conflicts between — El writ) (citing supporting authority no findings recited in a that are Third, Fifth, separately pursuant and Twelfth Courts of to Rules 297 and Appeals); Minutes, generally see Ann Supreme Advisory Crawford 298. See McClure, 1989). Revisited, Non-Jury Appeals (July 170-217 Committee Howev- er, during Program, the discussion of the subcommit- BaR State of Texas Prof. Dev. “I if stated think proposal, chairman tee’s fact findings of are in the complains, they’re going
nobody that to con- appeal. [They going not to be are]
trol on suggest- at 201. member
nullities.” Id. One otherwise, however, the chairman re-
ed ignored on “[t]hey’re going to be
iterated in— Id. Another member chimed
appeal.” problem raised—
effectively identifying the “only operative rule was to when
that the be a conflict.” Id. at 202. chairman
there’s rule,
agreed proposed as but stated that the drafted, findings judg-
then rendered clarify Id. rule nullities. To
ment conflict, operate in the event of proposed ultimately what was
the chairman
adopted as the first two sentences of Rule id. at 202-17.
299a. See
Conclusion findings
To construe Rule 299a to render judgment nugatory in the absence of
conflict, case, majority as the does in this rule,
contrary purpose contrary rule,
to the intended effect of the and con- Tex.R.App. 52(a),
trary to Rule P. For this
reason, respectfully major- I from the dissent
ity’s judgment reversing court’s rendering judgment on a com-
plaint that was never made known either opposing
the trial court or counsel. *8 TAYLOR, Appellant,
Ted Alan Texas, Appellee.
The STATE of Texas, Appeals
San Antonio.
May 7, 1997.