*1 effect, Mr. and wit- both from Tedford think, merit point, has no
nesses. This we HOSPITAL, INC., PARKVIEW GENERAL Appellant, accordingly it overruled.
v. EPPES, Appellee. Paul G. Rules of Civil
Rule Texas op an Procedure, affords No. 461. any instruction portunity issue or to submit Appeals Court of Civil of Texas. necessary or proper. might Corpus Christi. entirely silent as to here is record refused, any instruc or Oct.
requested that was Further, denied. requested tion that was Rehearing 26, 1969. Denied Nov. submitted all it held that has been requested considered shall be trial court having been found as Parrish, judgment. Dee v.
support
Appellant
auctioneer induced Tedford to purchase not a bona fide bid and to well, and our tract of land another abundantly opinion clear Tedford made purchase all he could not at times that either It is also get tract unless he loan. could the ear clear that the “loan” did not mean money $18,000, a sub payment of nest seventy eighty thousand stantial loan of day dollars. It known on the up with auction that Tedford could come meeting money. Therefore, earnest Seminole, Texas day called for the next at obviously se attempt Tedford to large payment, in which ven cure a down unsuccessful, thereby bringing ture he was delivery” play full “conditional point writings It is the checks. also actually ed appellants out that the were not they damaged, as sold their land for $1.50 they price an acre than more the minimum placed upon it. appellants in this case find that the We presented any error. have not reversible over- appellants’ All of are therefore ruled, trial court the decision of
is affirmed.
Stone, Dyer, Stone, Luther & Hubert Christi, appellant. for Howard, Howard, & Virgil Wade Cor- Christi, pus appellee. for
OPINION
NYE, Justice. fees This a suit al- for architectural per- leged owing to be due for work and preparation formed in drawing plans specifications the construc- for tion of certain Parkview Gen- additions to Hospital City Corpus eral located Christi, agreement Texas. The between parties a written con- covered project tract. The constructed never dispute and a between the arose owing to the amount due under performed for upon architect. The written contract sued accompanied letter making the con- written the architect upon tract getting conditional permission loan commitment City Corpus project. Christi build The trial of the had before a case was numerous which answered total issues and found in effect that the compensation that the archi- be would due tect based $27,062.- costs would been the sum of subject amount to an 00. This $10,980.00 offset of had previously paid. also found that one of the set forth at least met agreement, letter had not been that such condition not been waived. had court, upon The trial of the archi- motion tect, disregarded these and other certain jury findings and rendered for 16, 1965, $18,522.00 services was executed amount the architect only at- thirteen later the as reasonable months which included $2500.00 the appellant billed the entire torney fees. 15% completed time. fee work he had to that existing Parkview appellant built the September 1966 a loan commitment Hospital in 1961-1962. archi- General application this same obtained. About *3 work on the the architectural tect did City Planning was made Zoning and 25-room addi- hospital upon and a original change zoning. for Commission a of Since appellant decided to tion in In 1965 hospital the it in a residential area was put hospital the a second to on addition necessary was for the a to seek executed a con- negotiated with and and AB change zoning of from residential the do the architect to archi- tract with and zoning Zoning classification. The addition. The for the new tectural work Planning approved appellant’s Commission appellant’s by the was executed appli- application the as submitted. When only the architect had administrator after City zoning came the cation for before certain con- setting a letter forth delivered upon Zon- Council recommendation of the The the architect reads ditions. letter from Commission, ing Planning applica- the and as follows: study. tion was for further tabled “April The quite shows that a contro- Hartgraves, Mr. Harold Administrator versy the and City existed between Council Hospital Parkview General applicants the and zoning change for the 4626 Weber building There were a number of permit. Christi, Corpus Texas Af- general objections public. the filed study, ter decided considerable Council Dear Harold: grant zoning permit a council bring ‘Agreement an between I will Own- This form of a ordinance. you er Architect’ tomorrow. This and applicants that the ordinance stated foremost, purposes: first and two special permit the con- a can cash a borrow some on so I project, struction of but contract, officially being second execut- subject accepting would be job. that I recognize agreement between ing indemnification City the Park- of Christi and there I realize are several hurdles Hospital, Inc., was view General which First, you City’s cross. must obtain part the ordinance. attached and made of build, Second, permission to usual. as de- The indemnification was you committment from must obtain a any and all signed protect from Life, to be Aetna which I understand liability building arising out of of substantially than will need more we sanitary fill project on these the second addition. Neither of hospital location site of addition- course, obstacle, pro- is a real never agreement was indemnification your hereby recognize tect interests: accepted by appellant. signed or either city grant does not that if evidence shows sometime between build, permission you if fail October, part latter when committment, a satisfactory obtain agreement, received the indemnification ‘Agreement our between Owner December, part notice and the first shall Architect’ be null and void. given to the architect to discontinue Sincerely, At Decem- plans. work on least from thereafter, ber 2 and no additional work Eppes” (Emphasis Paul supplied) G. performed by the nor were project $10,980.00 getting previously slow in started. than sums other though paid, Even contract for architectural remitted to him. void;
Plaintiff’s case theory was tried architectural contract was null and that the architect was entitled that the specifically contract was condition- 100% the total architectural fee. This was precedent based ed on certain as project construction cost. agreed by plaintiff letter in his dated 6% The architect up IS, had billed the owners which was made a dispute until arose on the basis of contract; conditions, out- that such completed at the rate of an lined in Al- the letter had not been met. 6% project estimated cost. This was consider- though found that ably permitted less than actual cost satisfactory permit obtained under the agreement between the owner City Corpus Christi for the Although architect. undisputed and had not waived completed only architect had precedent, ignored 69% conditions the trial court work, of the total judgment was entered for 18, 22 jury findings (Special Issues *4 cost, of the project construction less 100% 23) plaintiff the previously amount paid, plus attorney based aon of contract and awarded breach fees. appellee the that he amount of the 100% project would have been entitled had the jury response The special per- fully completed and all work found hospital administrator who appellant, a formed. The number had executed the various contracts was that the trial court of error contends scope operating within the of his author- plaintiff judgment erred in the granting ity agent hospital the and did in fact disregarding non obstante veredicto enter into employment the contract of and 23 the issues 18-22 jury’s the plans. jury architect to the draw The ultimate de- the reason that the issues were further found the amount of the suffici- that there was fensive issues and cost, percentage archi- findings. jury ent these support completed, tectural com- rate of agree. We pensation based on the construction cost. Additionally jury (Spe- refused find upon the ar The was based case #18) cial hospital Issue that the defendant agreement letter chitect’s contract and the precedent owners waived conditions con subject to the that made the contract stated the architect in his letter to architect’s letter dition set forth in the hospital owners. The found that a (1) conditions were: the owners. These hospital satisfactory had obtained loan a per satisfactory (2) loan commitment (One commitment. of the stated conditions project. City to build mission from However, precedent). Special Issue 22 of a contract acceptance if Ordinarily found that the Parkview General fu a happening is conditioned Hospital did per- not obtain a event, performed must be the condition ture City Corpus mit from the Christi for forth, before as set exactly or fulfilled Park- construction of second addition to Tex.Jur.2d, enforced. promise can be Hospital (the view General other condition Contracts, Am.Jur., Sec. 151; 12 Sec. 23: final precedent). The liability on defendant’s p. When you preponderance find from of the “Do a performance depends the contract by the evidence that there awas waiver precedent, a condition happening or a Hospital of defendant Parkview General prove that allege plaintiff must satisfactory permit a the failure to obtain performed happened or been condition has City Corpus erect from the Christi to perform of the that there was a waiver or Hos- Parkview second addition to General precedent. Where condition ance pital?” jury answered “No.” The contract proposed be effec the contract is de- that plead agreed defendants had various are conditions until certain Primarily, they binding tive fenses. contended im- pellee, was that these new occur, binding performed or no City, did not posed upon the owners specified have will arise until the conditions Evidence to any amount real obstacle. performed. or been occurred Tex.Jur. this however was that from the owners 2d, Contracts, au- Sec. and 390 and council condition set forth cited; Am.Jur.2d, thorities therein Sec. unacceptable. this connec- permit, seq. et p. 749. tion stated that she took Mrs. Connor agreed agree- and the indemnification ordinance accompa- executed the contract her her attorney ment who advised agreement, setting nied with letter side He that agreement. not live with she could out the above conditions. it. accept sign instructed her City further admitted in brief his ac- did that she Mrs. testified Connor passed special Council ordinance granting her cept later instructed the conditions and con- council on a also City. so inform the administrator to dition that sign an indemnifica- tion attached and amade originally undisputed It ordinance. It is conten- owners, joined by the archi hospital precedent tion that the condition (permis- permission tect, obtain went build) sion should not have been modi- re Their addition. to build “satisfactory” fied (permit the term by the turned down presented was quest as *5 build) as 22 Special was worded in Issue to made City proposal was a and counter and therefore issue was such as worded re ultimately City was by them the not an was ultimate or issue. controlling the course of by During fused the owners. Appellee contends further that 22 issues unfolded, issue the evidence the trial as the them, and 23 no support evidence to per council developed whether this only evidentiary and that the issues are at the indemnification mit with and not appel- ultimate issues. Therefore to “satisfactory permission tached was a reasons, lee the trial court was correct this that Appellee contended not. build” or disregarding the issues and entering judg- and an out permit was special council new plaintiff. ment for the build; the that all permit out to all,
First
the appellee architect
the indemnification
was execute
had to do
objection
any special
made no
sub
to
issues
additional
the other
agreement and meet
by
objection
mitted
Any
the
not
they
court.
City, and
the
by
requirements
out
set
presented
made and
to the
shall be
Ap
project.
the
proceed with
then
could
272,
considered
Rule
Rules
waived.
Texas
addi
imposed
this
pellant contended
by
Civil Procedure.
the architect’s
Since
contemplated
not
requirements
tional
contract was
conditioned
owners
per
the
unacceptable
an
parties
it was
obtaining
build,
permission from City
to
permit
build
to
was no
therefore
mit and
Special
we
Is
must next consider whether
parties plain
consent the
By implied
at all.
inquired
22
sue which
as whether
to
to
agreed
apparently
defendant
tiff
satisfactory permit
a
obtained
whether
as to
jury
submit
issue
City
from the
for the construction of
permit” from
“satisfactory
a
or not
proper
addition
It is
was
ultimate issue.
ob
had been
project
City to construct
undisputed
parties agreed
that the
agreed
condition
to
went
tained. This
if the
be null and void
would
the archi
outlined
In
City
grant permission
build.
did not
this was
We hold
letter.
tect’s
permit
project,
get
order to
build
to, and
unobjected
issue
defensive
ultimate
necessary
rezoning.
it
obtain a
was
record
ample
there was
refused,
rezoning
Coun
Since
issue.
this
answer
uphold
jury’s
permit
finally
cil
a conditional
McDonald
ap-
see
evidence,
T.R.C.P.
according Rules
build. The
Co.,
v. New York Central Mutual Fire Ins.
Mrs.
testified that
Connor
she heard Dr.
(Tex.Sup.1964).
this notation was Hos- begun instructions to the not have could architect, indemnification pital City give furnishing Administrator ap- subsequent Amended for New agreement and Defendant’s Motion without City. Trial) proval made,’it disposition here In view of THIRD POINT APPELLANT’S necessary appel- consider is not for us to judg- in granting “The Trial erred Court Judgment of points lant’s other of error. Appellee refusing to ment for and in trial rendered that court reversed and grant because the Appellant a new trial 324, T.R. nothing. take Rule on Jury verdict considered and based its C.P. evidence had not been offered and rendered. Reversed trial admitted Court. X, (Germane Assignment of Error No. SHARPE, T. Associate GILBERT Jus- for New Defendant’s Amended Motion dissenting (concurring
tice Trial)” part). judgment trial sets judgment concur in reversal of be- out, among things, other respectively low dissent rendition thereto, and a answers judgment nothing. here that take reading as concerning recitation them fol- my re- view should be lows: appellant’s point versed on the basis of (which three is not mentioned “SPECIAL ISSÜE NO. majority opinion) and the cause remanded new trial. you preponderance of the Do find from a by De- that there was a waiver majority opinion does not set out the by Plain- fendant the conditions stated three appellant’s origi- contained in April 16, tiff 1965? his letter nal brief which read as follows: (Note: date of The correct POINT “APPELLANT’S FIRST April 15, 1965). letter is “The disregarding Trial erred in Court ‘Yes,’ Answer or ‘No’. findings Jury Special Is- WE, THE NO. JURY, ANSWER: Jury sue Number wherein found that Appellant had not factory permit from the received satis- [*] [*] [*] [*] [*] [*] Christi construction of Second SPECIAL ISSUE NO. *7 Hospital, Addition to Parkview General you preponderance Do find from a of in for granting also Plain- evidence that the Defendant Parkview contrary tiff jury finding. (Ger- to such satisfactory Hospital obtained a General V, Assignment mane to of Error No. Corpus City Christi permit from the of Defendant’s Amended for New Motion ad- for second the construction Trial) Hospital? dition to Parkview General POINT APPELLANT’S SECOND ‘Yes’, or Answer ‘No’. Ap- “The granting Trial Court erred in WE, NO. JURY, THE ANSWER: equal
pellee judgment for an amount to percent (100%) one hundred 23 NO. SPECIAL ISSUE architect’s fee due had the work been preponderance you from a find completed equal Do rather than an amount by a waiver that there the evidence sixty-nine percent to (69%) obtain failure the Defendant by Appellee alleged plead- in his done City of permit from ing (Germane the Jury. and found addi- VII, the second Corpus erect Christi Assignment of Error Nos. VI 494
tion to Hospital, implied. Parkview if. General The evidence establishes that the you have so City grant “permission found? did to build” the ad- 5, question. dition in On 1966 the October ‘Yes’, Answer or ‘No’. City passed amending Council an ordinance zoning City ordinance WE, JURY, THE NO. ANSWER: Texas, Christi, special which to the Court “Thereafter Plaintiff moved question, in disregard findings on subject conditions set out. therein 18, special 22 and 23 and it issues Nos. original The evidence reflects that findings that the appearing Court prior and all con- additions were 18, special issues Nos. permits grant- structed under special other have no the evidence support in City ed The Council. special and that issue No. 22 is an eviden- 5, mentioned in ordinance of October tiary ultimate issue of issue and not an complied with easily could have been therefore, may be, disregarded fact and by appellant. provision in There is no by the Court.” contract here that dis- a determination of by appellant’s representatives satisfaction agree holdings I with the trial City’s concerning “permission to build” respects With just court in the mentioned. conclusive, final, or would be or binding inquiry reference to issue “per- appellant’s with dissatisfaction “ob therein is made whether mission build” a basis would furnish City satisfactory permit” tained a appellant’s terminate with in addition the construction of the that on shows architect. unwilling to question. I am unable and Connor, 2, 1966, who November V. C. Mrs. equate inquiry as to the issue with appears driving force been build”, gave “permission whether in project, seriously injured behind the which is the condition stated incapacitated her accident particular, agree not letter. I do first several weeks thereafter. injected “satisfactory” properly word is the con- indication up here issue and would Decem- might proceed struction on rulings court the trial said hold said ber 1966 when Dr. Connor evidentiary only and as submitted was both substance that he wanted to had never Appellee’s support without the evidence. go along with build addition but would letter of 1965 referred Hartgraves Mr. Mrs. Connor commitment”, obtaining “satisfactory loan hos- matter. Mrs Connor still “satisfactory” but it did use word Appellee pital seriously ill that time. at “permission to build” in connection testified on the trial that he had never may City. It that a contract true anyone else connect- told Mrs. Connor or require provisions perform that certain ed with ance shall be to the satisfaction of properly going built. trial to be Corpora Pipeline party. See Delhi other disregarded the answer to *8 Lewis, Inc., (Tex. tion v. S.W.2d 22. Christi, ). w. h. Civ.App., Corpus n. But, (in accord as we held in that case agree appellee evidence with that therein), conclusively with a number of cited appellant cases had establishes that ap operative only “permis- rule is where concerning stated waived the condition express from of the contract pears appellee’s terms sion build” in let- to contained April that it plain language from therein ter of 1965. Some of this 29, 1966, de parties is as four the intention of the follows: On October de person days ap- injured, of the whom before termination to Mrs. Connor was pellee con in attorney final and and his her joined is entrusted would be with cision to clusive; hunting expedition is not a treasure at near such a provision Christi, did not original appellant The brief of Tex- Island south of Padre complaining of the search error prior contain of evening as. to On an- appellee disregarding and trial court action in awas discussion between there 23, nor were appellee special bor- 18 and reference swers to with to Mrs. Connor ap- they specifically of therein. her and mentioned rowing a vehicle from Scout brief, filed some pellant’s post-submission The then on other were matters. com- days argument, appellee had after oral of terms and fourteen friendliest in this stop working plaint not on is made the first been to for advised supplemental points appellant’s project. (in Connor On November 1966Dr. Court trial $1,000.00as of the 5) concerning a for the action wrote check to special payment in appellee’s disregarding account. Decem- the answer to on On court 23; point attorneys appellant is again ber for there no 12 1966 the issue No. error, concerning the mortgage argument broker con- a letter of brief or wrote ap- copy disregarding erning action of the trial court in carbon pellee requested special As I view jury in which the latter was answer to issue 18. matter, to one of of trial prepare plot plan be attached court a action loan agreements concerning disregarding special the written issue answer improvements. appellant in apparent complained It is not for has been findings jury proper is evidence and this Court and there no basis an- largely completed at consideration such action. our not Appellee given special issue 18 does has never swer No. time. ap- finding re- written notice an affirmative termination amount to quired pellant stated agree- under Article 10 of the basic did waive conditions parties; ment in his letter of between IS, a printed is on filled-in form the Ameri- designated
can Institute of Architects and specific consideration we reach When Be- Agreement “The Form of Standard in disregarding the action the trial court percent- tween Owner Architect a 23, it special issue No. answer to age of Construction Costs.” stated, did appellant appears, as above majority opinion states: original its complain that action in However, who appellant’s counsel brief. “In connection with issue 18 the original filed its withdrew from brief jury refused to find that defendant coun- prior its and new case submission hospital owners waived theAt argued the case. sel letter, stated nor the architect in his there (special is- finding of waiver time of submission 23) sue the defendant owners its brief. On supplemented amended or of their failure obtain a appel- leave to day we submission City Corpus from the Christi.” reply brief present lant’s counsel file appellant filed a appellee. Later, that of jury findings each of “no” to complaining for post-submission brief issues 18 and 23 do not amount of the action in this first time Court findings appellant) affirmative favor of (in jury’s an- disregarding the trial did the matters not waive (1) issue No. 23 because: swer Instead, inquired answers about. such “ * * * issue was an ultimate said by the amount to more no than refusal supplemental (appellant’s in the case.” preponderance to find from a * * “* point (2) 4), *9 evidence that there was such a waiver sufficient that the record contains reason appellant. each instance on the of Jury’s support the answers.” evidence to Campbell, 406 Transport, R. v. C. & Inc. 5). supplemental (appellant’s point No. (Tex.Sup.1966). S.W.2d first, appellant’s sup- by hold admitted evidence trial court. plemental points properly 4 and not S are court plans The set identified of before us for not consideration. haveWe reporter plaintiff’s exhibits 1-22 inclu- as leave to assert addi- sive, pages, each separate and consist of tional orig- to those in its contained inches. of dimensions 28 inches brief, requested inal nor have we been only, exhibits, identification so marked for Secondly, supplemental do so. even if A, B, such pro- and D the all relate units C considered, they points may my be in view de- may generally be posed addition and 1-4, are herein- without merit. The discussion floor as follows: Exhibits scribed special above No. 22 is also mate- framing issue 5-9, framing plans; Exhibits roof unwilling rial 23. I am plans; issue 9-14, conditioning No. plans, Exhibits air appellant’s to hold that asserted failure Ex- 15-18, plans; and electrical Exhibits “satisfactory” permit obtain a can be 19-22, There was plumbing plans. hibits equated “permission substituted for involving Plaintiff’s testimony some oral in question con- to build” the facilities in 1-22, appellee’s particularly by Exhibits In question nection with the of waiver. consulting Eppes, witnesses Alvin William addition, I am there was convinced that Mr. appellee, and engineer and brother of set by appellant waiver of the conditions engi- consulting Ben Wagner, a structural 15, 1965, April in letter out many facets However, neer. there were fully is in con- more discussed hereinabove testified these exhibits which were in trial about, jury nection with the action of the room in the presence and their disregarding the answer to evi- undoubtedly additional furnished much Appellee’s April 22. letter of 1965must from other and in a different form dence in be considered connection with the basic had been admitted. evidence which dated contract for architect’s fees for new hearing On the of its motion done, conclusion this is When Mr. E. trial called as witness J. inescapable parties did to me that the Zimmerman, sat jurors one who provide or intend that testimony in substance the case. His compensation for his deprived would be 1-22, being the that Plaintiff’s Exhibits work done under the facts shown exist plans referred to were hereinbefore here. evidence, examined admitted into were were used jurors in detail and my view, appellant’s point No. one In answering is- connection with should be overruled. that such sues. Mr. Zimmerman testified view, have my the trial court could plans were or set only exhibits set of in favor of originally rendered room, drawings jury of architectural an amount additional to although drawings there were some other by appellant based paid him previously papers. juror further said However, I believe jury verdict. plans determining were used in ultimately grant- the trial court should architect, amount done reasons now new trial ed a plans length were examined at stated. question connection per- with either the completion cent juror in sub- or cost. No other point third asserts Appellant’s refusing called as witness and Zimmer- erred Mr. the trial court stance that testimony con- man’s uncontradicted. it a trial because grant new exhibits, record thus reflects that such verdict on and based its sidered by being only plans by ap- set of drawn or admitted offered not been pellee, although returned identified as Plaintiff’s verdict After the the court. 1-22, that Exhibits were not admitted into evi- appellant discovered counsel for trial dence, by ap- way nevertheless found their plans relied complete set of into the nor party room and were used and con- by either not offered pellee were
497 reaching their jurors sidered
verdict.
al., Appellants,
J. KNOFF et
John
v.
a new trial should
It well
is
settled
STATES FIDELITY
UNITED
AND
appears
if
granted in civil case
CO., Appellee.
GUARANTY
juror’s
influenced
the verdict was
intro-
consideration of
document
Co.
Triangle Cab
duced in evidence. See
Appeals of
of Civil
Texas.
Court
Taylor,
(Tex.Civ.App.,
v.
Trial, 145; 50, p. Evi- Texas Sec. dence, Ray, Sec. McCormick & Vol.
1466, p. 324.
It that the set is conceded all plans 1-22 marked Exhibits Plaintiff’s should not to the sent jurors. It room or considered apparent further that these exhibits were highly material in connection with several jury. issues submitted particularly questions
This is as to the true of percentage completion work and the cost of construction. view, probable
In my injury appellant, law, question which is been estab- has lished. The fur- additional information jury by
nished to exhibits which were not probably admitted issues, jurors par-
caused answer the ticularly (construction numbers cost
$430,218.00); (percentage completion work, (rea- 85'%); architectural and 19 services, $18,-
sonable value architectural 762.40), greater amounts than it otherwise find without them. event greatly such exhibits buttressed by appellee other evidence offered probably of an im- caused rendition proper judgment. T.R.C.P. Rule stated, sustain For the I would reasons reverse appellant’s point three and number I, ac- trial. and remand the case for new to rendition respectfully dissent cordingly, appellant. here in favor of