*1 aware an that courts must be noted himself in
attorney may an PHILLIPS, lie even Appellant, Martha Jean attempt to convince himself his mo- nondiscriminatory: a are strike tives PHILLIPS, al., Harry Appellees. et S. or conscious uncon- prosecutor’s “A own easily him may racism lead No. 12-88-00153-CV. scious is prospective juror that a black conclusion Texas, Appeals of Court of ‘distant,’ ‘sullen,’ or a characterization that Tyler. if to his mind not have come a white would June identically.” slip juror Whitsey, had acted Batson, (quoting 476 U.S. at op. at (Marshall, J., concurring)).
106 S.Ct.
Whitsey recognizes that Batson is de- protect against insidious discrimi-
signed as the more direct sort.
nation well unusual, all, it would be after Bat-
After
son, he prosecutor for a to admit struck a the same race as
juror because he shared Thus, requires the Whitsey
the defendant. weight to give to note and subtle prosecutor’s which disclose the con-
clues Latching or unconscious intent.
scious fact
onto the that Jones was member organization predominantly peopled by
an race appears of the defendant’s
members intent. an indicia of invidious Uncriti-
to be acceptance advanced
cal of this reason prohibited by Whitsey prosecutor is Batson. support fails to hold that the record prose-
the trial court’s conclusion that the explanation peremptory
cutor’s
challenge of race-neutral. Jones was
fact, prosecu- record discloses that reason, expressed membership
tor’s
NAACP, race-specific. Consequently, was trial point of error eleven. The
we sustain reversed, and the cause
court’s is prop- remanded for a new trial before
erly jury. selected *2 appeal.” Appellant correctly
missed their doing that erred in so out we be- was, appellees’ cross-appeal cause on their motion, by per opin- own dismissed curiam 28, April ion on delivered Appellant argues assign under her first ment of error that she was entitled to ten damages the times the found be Wilk, Houston, Michael S. for XVI, cause Article 16.2 of the Limited § Carroll, Tyler, appellees. Otis for Partnership Agreement provides. so appellees plead since did not contends that prove provision and that constituted a such ON MOTION FOR REHEARING penalty, entitled those additional she is COLLEY, Justice. law, damages relying as a matter of Appellant Equipment and filed motions Leasing both Robinson v. Granite 633, rehearing. appel- Corp., (Tex.Civ.App.- first address 553 637 for We will S.W.2d 1977, n.r.e.). writ ref’d lant’s motion. Houston [1st Dist.] Although the Houston cites court Stewart 666, Tex. 245 484 Basey, v. I. (1952), ruling, support in of its v. Stewart APPELLANT’S MOTION FOR support for Basey provides no Robinson. Robinson,
REHEARING
provid
In
contract involved
the
“payment
ed for
of all unaccrued rental on
assigns
points of error in
Appellant
four
breach_”
Robinson,
(hereinafter 5069-1.- parties referred to as article right competent of 03), fixed of interest at the rate not unlim- bargains instead is make their own measuring art. 5069-1.- Tex.Rev.Civ.Stat.Ann. rule former ited. The universal 1983, 107, 1, 17, of a contract is (Act May ch. the breach § damage 518-519, by acts for the loss or compensation amended just Tex.Gen.Laws C.S., 3, By operation ch. 1 and actually 1st sustained. ch. § § generally 1). party should be The current ver- that rule ch. acts § nor more than his neither less Tex.Rev.Civ. appears as awarded of this article sion right A has no damages. party (Vernon Supp. actual art. 5069-1.05 Stat.Ann. stipulation Fourth, alleges erred to have a 1990). we enforce underlying principle violates the cross-point which sustaining appellee’s second rule_ really do ... What courts dis- Appellees ... of error “because [had] to as article 5069-1.05. referred 1. Hereinafter cross-point of error. appellate to estimate in second permit parties
is to point damages, provid- Since we sustain the amount advance cross-appeal had principle just agree that the to the error and they ed adhere added.) dismissed, rendered (Emphasis point compensation. been moot. omitted). (citation Id. Basey court con-
Finally, the Stewart case, “it would *3 un- in that be cluded that III. principle violation of the and a reasonable rehear- appellant’s motion for sustain We stipu- compensation to enforce just of [the in Part I of this ing explained to the extent ” Hence, stated, they “the .... lation] correcting of purpose for the opinion, and stipulated [liquidated] dam- in errors, opinion former withdraw our our penalty.” treated as a ages be should on March and cause delivered this at 487. following opinion. therefor the substitute persuaded that section 16.2 of remain We 9, 1976, appellant Martha Jean April On law, pro- a of Agreement, as matter Harry Phillips, then Phillips appellee S. and penalty, and is therefore unenforce- vides a wife, “Marriage executed a husband and Basey. Appellant’s first able. Stewart Agreement” and a “Limited Settlement rehearing in her point of error motion By these instru- Partnership Agreement.” overruled. partner- parties created a limited ments the Upon appellant’s reconsideration of (here- Phillips, LTD. ship Phillips & named point appeal, error now ad- on partnership), and contributed inafter called assignment in her third of error dressed of their com- partnership the bulk to that rehearing, we set forth in her motion for part- Under the munity property estates. assigned point of error conclude that that partner general is the sole nership, appellee point sustained. This will be should be partner. limited appellant is the sole and following opinion. in the discussed further 13, 1976, parties were divorc- April On Judge of the signed ed a decree Therefore, to her motion for in reference in and for Smith Domestic Relations Court first rehearing, appellant’s overrule we County, Texas. error, second, her third point of but sustain points of error. We will correct and fourth by appellant suit was filed present The opinion in the that follows. those errors On November on November Amend- filed her “Seventh appellant
II. By pleading [Original] Petition.” ed part- appellee’s appellant answered APPELLEES’ MOTION FOR alleged that nership’s counterclaims. She REHEARING Partnership breached in assign points of error Appellees three thereby respects, Agreement in several First, rehearing. they con- their motion for Ap- to causing actual reversing the trial erred “in tend we alleged pleading in that pellant also ap- did not award judgment” court’s which against appel- judgment she is entitled to attorney’s stipulated fees pellant the lee, his intentional individually, for several $235,302.14. remain convinced sum of duty. further fiduciary She breaches matter was original ruling on this that our alleged that: Second, point is overruled. correct. the Part- 16.2 of In accord with Section for “clari- understandably, asked appellees, [appellant] is entitled Agreement nership regarding when the opinion of our fication” individually [appellee] damages from award on prejudgment interest (10)times all losses of ten in the amount begin run. That damages should In the alterna- by [appellant]. suffered granted and will be addressed request is recover ex- tive, is entitled to [appellant] as- opinion. By their third following indi- damages against [appellee] emplary error, seek clarifica- signment appellees $5,000,- of at least vidually in the amount ruling on their effect of our tion of the $235,302.14 fiduciary duty by against appellee, individually, 000 for the breaches of damages in the sum of in addition to the [appellee]. $300,000 clearly determined which were sought an award of attor- Appellee also represent pecuniary losses other fees, ney’s partnership, dissolution fees, attorney’s by appellant than sustained interest, and court post- Phillips’ appellee Harry from S. various against appellant, individually. costs fiduciary duty. of contract and breaches The case went to trial before a of error 1 and 2 are sus- Points numbers November, 1987, 19, 1988, February and on tained. signed in favor the trial Appellant point her third claims jury’s verdict. recovery to a of error that she is entitled Appellant appeal presents limited individually, of ten times against appellee, By four of error. her first two jury. damages found the actual complains that the court erred points, she that Article of the Partner contends XVI2 $235,302.14 in attor- to award her *4 provision for ship Agreement constitutes a damages ney’s fees in addition to the liquidated damages. ($300,000) by jury against appel- found the that, appellee has failed argues since lee, point of individually. By her third plead the affirmative defense that such to erred in error she contends that the court and is there penalty constitutes a failing “to award ten times the dam- [her] unenforceable, he has waived that de fore required by the ages jury found the fense, citing Equip Robinson v. Granite Finally, by Partnership Agreement....” 633, 637 Leasing Corp., 553 S.W.2d ment point, appellant alleges that the her fourth 1977, (Tex.Civ.App.—Houston [1st Dist.] failing pre- her court erred to award n.r.e.). However, section 16.2 ref’d writ prescribed interest at the rate judgment law, face, that on its as a matter of shows appel- article 5069-1.05. We will sustain penalty in the nature of provides it for a 1, 4, 2 and points lant’s of error numbers distinguished from damages, as punitive and remand the judgment, the reverse compensatory damages. There liquidated with instructions. cause not enti appellant that fore we conclude damages provided section tled to the Initially, we will address Tex. 245 Basey, 150 16.2. Stewart undisputed It is first two of error. (1952). Appellant’s third S.W.2d parties, under Tex.R.Civ.P. that the is overruled. point of error appellant if was successful stipulated that under her Finally, appellant claims $235,302.14 action, would in the the sum the trial court point of error that for the trial attorney’s fee a reasonable be pre-judgment erred in to award answer to The its of the cause. by article provided rate interest at the 1 found that Special Issue No. appel- question is no There 5069-1.05. Agreement in nu Partnership breached interest. pre-judgment is entitled to lee respects. merous is entitled only question is whether she The damage issue sole response to the by article prescribed rate interest at the 3), found that (Special Issue No. prescribed arti or at the rate 5069-1.05 contract, and of appellee’s breaches Company v. Roofing Perry cle 5069-1.03. thereunder, caused fiduciary his duties (Tex.1988); Rio Olcott, 744 S.W.2d $300,- in the sum of damages appellant Light, 758 Co. v. Land & Cattle Grande Perry 000. (Tex.1988). Under seeking pre-judgment party us Light, before conclude under the record We prove only need in a contract suit failing to award interest court did err that the “cannot be damages recovered amount attorney’s fees of such loses as a result amount she times the part: reads in 2. Article XVI not be con- shall Errors of breach. partner Damages. general If 16.2 hereunder, of trusts. sidered breaches pay to shall trust he breaches his damages liquidated ten partner as the limited contract,” in from the face of the measured interest at pre-judgment
order recover Light, 5069-1.05. higher rate of article
758 S.W.2d at can record us we
From the before precise basis
not determine sum of finding
jury’s shows
$300,000. undisputed evidence million some 2.4 appellant received than by way less of distributions
dollars Partnership to under the
she was entitled she shorted
Agreement, and that was expenses in the sum personal
payment $127,000. the dam conclude that from be measured
ages recovered “cannot Agreement].” [Partnership
the face of the appellant is
Hence, Perry, Light under interest
entitled to We sus by article 5069-1.05.
rate3 fixed point of error.
tain her fourth found, judg- errors
Because of the remand- and this cause is
ment is reversed *5 entry favor of
ed for the Phillips consistent
appellant Martha Jean opinion.
with this
RAMEY, C.J., participating. not PUBLISHING
HOUSTON CHRONICLE Fair, Relators, Kathy
COMPANY DEAN, Judge Ned
The Honorable Joe County, Court, Polk
the 258th District Texas, County, Re
Sitting in Walker
spondent.
No. 01-90-00454-CV. Texas, Appeals of
Court (1st Dist.). Houston Wiley, Rob L. Ogden and W. William 26, 1990. June Houston, for relators. Price, Atty., Groveton Dist.
Joe L. Huntsville, respondent. Wright, John E. Therefore, us, unable, awarded should be remand, before on the record We are based appropri judge Quality shall conduct Control the trial Cavnar v. to determine under Parking, (Tex. Inc., the amount proceedings 696 S.W.2d 554-555 to determine ate Olcott; 1985); and Rio Perry Roofing Co. v. the rate due interest Light, proper Co. v. Grande Land & Cattle and Cavnar. prescribed article 5069-1.05 pre-judgment interest that dates of the accrual