*1 court, Finally, appellant contends the cir plea guilty punishment surrounding pleas, assessed ten his denial years. at cumstances sentencing deprived him of due bail and In his ground appellant first of error primarily relies on the process. He argues that the indictments in the theft Broggi in v. history this case described fundamentally cases are defective. No mo 940, by Curry, Tex.Cr.App., 571 S.W.2d quash tion to was filed. The indictment appeals. We do not which he secured these ease, there, except each for the name of the com having see how the events described witness, plaining part appellant’s guilty pleas in relevant occurred after convictions, appellant have vitiated on the stated date: after his could pleas those so as to render the convictions deprive “. . . with intent ground process. violative of due owner, namely: Schaumburg, Earl error is overruled. property, namely: money lawful America, unlawfully United did convictions judgments States in the theft affirmed, (causes 60985-60987) and the appropriate property said which had a unregistered securities ($10,- conviction for sale of value of over Ten Thousand Dollars agent (cause is unregistered an 000.00), without the effective consent of prosecution ordered dis- set aside and the owner . . .” missed. Appellant acknowledges opinion that our State,
Hughes Tex.Cr.App., contrary position, urges to his
we overrule that case. This we decline to ground
do. The of error is overruled. ground appel
In his second argues
lant that his in cause convictions
numbers 60987 and 60988 violate the consti prohibition against jeopar
tutional double VALLEY SUGAR RIO GRANDE dy. The conviction in 60987 is for theft GROWERS, INC., Appellant, Klamper, from Leona and the conviction in unregistered 60988 is for sale of securities CAMPESI, Appellee. Ross unregistered agent to the same Leona Klamper. The same evidence was received No. 1335. case, support guilty plea in each Texas, Appeals of of Civil Court decep shows the theft was committed Corpus Christi. perpetrated by tion that was the scheme of selling unregistered by appellant, securities Rehearing Feb. 1979. On unregistered agent. The State confess Rehearing On Motion Second agree es we that both its brief and March 1979. The theft case convictions cannot stand. number, our was the earlier cause so under Calderon,
holding parte Tex.Cr.App., in Ex presumed to be the it Accordingly, the convic
first conviction.1 obtained in viola
tion in cause 60988 was prohibition
tion constitutional jeopardy and must be set double
aside. proceeding appeals pleas show which oc- records do not
1. The show the records these plea in the theft cases and the in the securities curred first. day. same but case were received
«53 *4 covering primary question both. The con- validity liquidated damage cerns the of a marketing agreement clause contained in a Valley Sug- between appellant, Rio Grande Growers, (Association), appellee, ar Inc. plaintiff Campesi. Campesi, Ross be- low, filed Association suit seek- ing moneys the Association al- recover legedly wrongfully withheld from him. counterclaimed dam- Association ages resulting from agreement. breach of trial court granted motion for holding that the judgment, liqui- damage provision dated in the contract was proceeded to invalid. then trial on The case counterclaim the Association’salternate damages. single special to a response issue, the jury found Association’sactu- al than the amount of to be less money the had Association withheld from Campesi. The trial court entered *5 $68,- of awarding Campesi net sum 173.64, ($129,- which was the total Ewers, Ewers, Toothaker, 349.50) Association, Norquest, plus Neil by withheld Abbott, Talbot, Jarvis, Hamilton & ($26,516.64) McAl- prejudgment interest on such len, appellant. amount, damages ($87,- less the amount 692.80) due to Associa- jury found Atlas, Hall, Schwarz, Murray, Charles brings appeal, this tion. The Association Mills, Bland, McAllen, appel- Gurwitz & certain brings while forward cross- Campesi lee. points of error. non-profit is a stock co- OPINION ON MOTION FOR The Association association operative marketing formed REHEARING Cooperative Market- pursuant Texas to the NYE, Justice. Chief ing Act. in 1971 It was formed for the well as the appellant appellee as have sugar a cane purpose establishing indus- rehearing. appellant filed motions for Valley by harvesting, in the try Rio Grande has raised matters in its motion for rehear- marketing milling, sugar processing and ing partial summary that relate to the produced products sugar cane cane from arguments judgment grouped with concern- and the Association delivered to ing portion of jury-tried this case. Be- used members. of the means One appellant’s cause of the confusion raised by its creditors ensure a Association and brief, attempted reply brief and the to such repayment source of and to secure revenue we our original opinion have withdrawn which was bor- large money of a sum opinion original. and substitute this for the require rowed Association was The judgment of the trial court is affirmed year market- each a ten member to execute part part. and reversed rendered in the members ing agreement. required This rehearing Both motions for are overruled. sugar tonnage of cane grow specific a damages in the event the appeal partial interlocutory year pay is from a each This or produced. The summary judgment jury specified tonnage rendered to a was not provided court’s that the Association trial and the trial final illegal void and because autho- proceeds each mem- ment was pay would the net due items, deducting, among provision a ber after other of such rization the inclusion agreement sum to cover the fixed over- Association’s Association’s expenses year’s by- for each head costs in the Association’s was not contained operation. required laws as Tex.Rev.Civ.Stat.Ann. 15(a) (1958); 2) paragraph art. 5753 Appellee Campesi a member became autho- Article 5753 illegal void and because inception Association at its and exe- marketing associations cooperative rizes 10-year marketing agreement a cuted damage only in the liquidated clauses utilize Campesi agreed and to whereby to raise provisions specific a breach event of 26,250 tons deliver Association sale, withholding delivery regarding sugar “grinding cane on 625 acres each had whereas the Association products, obligation was season.” total ton only be- Campesi such sum from withheld 26,121.9 later reduced tons in accordance cane; sugar to grow of his failure cause During production quotas. with federal liquidated damage provision was season, through grinding first October force it void and of no or effect because April Campesi produced only 252 tons a than as operated penalty to collect rather gave Campesi on six acres. The Association damages approximate attempt actual grown credit for the six acres sugar cane that are difficult ascertain. then, May following year, $129,349.50 damages deducted liquidated Campesi’s supplemental motion Campesi sugar from the amount due for the Marketing effect Agreement “the (second) produced cane he in the 1974-1975 plaintiff May between defendant grinding season. provision allowing de- contains no damages or liquidated duction for actual brought then this suit plaintiff is entitled to alleging the Associa- from the amounts wrongfully Agreement.” Campesi tion had withheld such sum receive under said pled from him. The is not entitled Association defended on further “defendant liquidated basis that to make deductions for or actual deduction was authorized liquidated damage plaintiff to a clause con- from sums due under *6 paragraph 15(a) marketing Marketing Agreement.” tained in In accordance of the allegations, Campesi prayed that agreement parties. between The Asso- with these the seeking grant filed a to the to him immediate control ciation also counterclaim $129,349.50 withheld possession actual that of damages recover its in the event and date as de- Association “until such the trial court found that the Association judgment may obtain a improperly had withheld the sum from fendant damages.” liquidated or actual Campesi. Plaintiff for As- trial, supported by for Campesi Prior to filed a motion were These motions interrogato- summary judgment para- that to certain on the basis sociation’s answers 1) 15(a) ries, graph marketing agreement of the the Association admitted: wherein a total Campesi was void and He also filed that was entitled to receive unenforceable. $388,713.06 supplemental judgment proceeds a motion from the of summary of season; 2) requesting (second) control of sum un- that the deducted 1974—1975 $259,363.56 this only entry judgment paid til of a final on the basis had been amount; 3) $129,349.50 marketing agreement per- that the difference that the did not Campesi’s result of breach any mit the Association make deductions was the marketing agreement in the 1973—1974 marketing for an breach season; 4) difference agreement. Campesi’s original (first) motion for and that such stated, effect, ($129,349.50) was withheld summary agree- 15(a) marketing right paragraph he a the unauthorized had recover rele- 1) 15(a) Paragraph provides, deduction as a matter of law because: ment. 15(a) marketing agree- follows: paragraph part, of the vant as “Inasmuch as law be The Association’s first remedy at would of the trial court’s action inadequate complains it now which inasmuch as is summary granting motion extremely ever will be impractical keep in mind the requires us to damage determine the actual difficult judg concerning summary rules familiar resulting to Association should Grower Supreme Court: ments established our any sugar fail to deliver cane as herein 166-A, Proce Rule Texas Rules of Civil provided, agrees pay hereby Grower dure; Valley Stockyards Company v. Kin sugar Association for cane deliv- all such sel, (Tex.Sup.1963); 369 S.W.2d Gaines ered, sold, consigned, withheld or market- Hamman, him, ed or for or which he réfuses to Penn, (1962); Gulbenkian v. grow, other than in accordance with (1952). hereof, terms FIVE sum of DOL- ($5.00) per LARS liquidated ton as dam- question First consider of whether we ” ages for the breach of contract . . required or not the Association to include liquidated damages in both: provision
a 1) marketing agreements, the Association’s hearing, After the trial court entered fol- by-laws. an partial judgment. order for lowing language contained in Article 5753 granted The order Campesi’s motion for important: summary judgment 15(a) Part and declared by-laws marketing “The contract marketing It agreement void. also fix, may liquidated damages, specific denied supplemental motion for paid by or stock- sums to be the member summary judgment, and refused him the upon to the the breach holder association temporary recovering relief control any provisions him of the market- judgment. the deducted sum final prior to ing regarding the sale or deliv- proceeded The case then to trial before a ” ery withholding products; or . . jury on Association’s counterclaim for added). (Emphasis damages. response special actual issue, jury found Association The the above Association contends had damages incurred in the amount of to mean that language should construed $87,692.80 by Campesi’s failure plant chooses) his may (if provide it association sugar cane. liquidated by-laws in its and it (if chooses) may provide it for them in its The Association brings forward several agreements, not neces- but it is appeal, primarily complaining on sary provide by-laws in both the them granting Campesi’s trial court’s order marketing agreement. Campesi, and in the partial summary judgment, but also com- hand, that the above other contends plaining of the court’s failure to allow the in- language requires which any association plead attorney’s Association to prove *7 clause, liquidated damage tends to utilize a provided marketing agree- fees as for in the the provide (specifically) to for such in both ment, and the failure of the trial court to marketing contract. by-laws and prejudgment allow the Association interest damages the total or to allow such dam- dominant The fundamental and ages against controlling as offset the amount with- the of the stat rule construction held to inter- the inten computing prejudgment ute is to ascertain and effectuate brings est awarded to v. Texas Campesi. Campesi Legislature. tion of the Calvert 777, forward cross-assignments Company, of error com- Line 780 Pipe 517 S.W.2d 6, plaining of the failure to allow Art. (Tex.Sup.1974); trial court’s 10 Tex.Rev.Civ. § him plead prove attorney’s (1969). Leg to and fees and The intention Stat.Ann. taxing in action not be or derived court’s islature should determined ques entire cost of the him. portions suit Neither from of the Act in isolated $87,- party complains Company, award of Line jury’s Pipe tion. Calvert v. Texas 777, (Tex.Sup.1974); City of 692.80 as due the Association. 517 781 S.W.2d
857 marketing This sen- contract. only to the 150 Tex. Mason v. West Texas Utilities liq- including a Flato, provisions, 18, (1951); 273 Maddox v. tence lists three 237 S.W.2d may damage provision, which (Tex.Civ.App. Corpus uidated — and e.). marketing contract writ ref’d n. r. Because Christi included in both presumed is to is every Again, word the statute the association in the by-laws. give used we must purpose, have been for a required provide to not authorized but clause, sentence, phrase each and However, effect to believe we liquidated damages. if reasonably possible. word Eddins-Walch a chooses to establish that if an association Calvert, Company er Butane contract, the clause in liquidated damage its (1957). S.W.2d an as- require to such Legislature intended provisions in both out such sociation to set are Articles 5753 and 5762 interre- marketing contract. by-laws its and in together and should in lated be considered ascertaining Legislature’s Arti- intent. says: by-laws and “The The statute pertains marketing cle 5753 contracts ” . marketing may contract fix and and authorizes an association its mem- rule, “or” general the words “and” and As a year marketing bers to enter into ten terms, are interchangeable they but are not require agreements which would the mem- language used in of our the structure specified portion bers to sell all any “and” entirely purposes. The word variant agricultural products exclusively their to or strictly conjunctive generally is used for a through the The language association. is purpose, the use of word “or” while specifies article this several matters for Sometimes, purpose. for a how- disjunctive which the marketing “may pro- contract ever, in effectuate intention of order to regard liquidated damage vide.” With Legislature, the word is some- “and” clauses, however, Article 5753 states that con- times construed to mean “or.” This by-laws marketing and the “[t]he struction, however, only is resorted to fix, liquidated may damages, specific our limited As stated circumstances. any provisions sums . . . such construction, Supreme “This how- Court: shall be valid and enforceable the courts ever, except strong is never resorted of this State.” states: Article 5762 ” reasons . . of Insurance . Board “. . . nor marketing shall the con- of Texas Life Commissioners v. Guardian agreements tracts or between associa- Texas, 630, 180 Insurance Co. members, its any agree- tion and nor (1944). chapter, ments authorized be con- illegal sidered or in restraint of trade.” purpose requiring One obvious provision This of Article evidences liquidated damage provision appear Legislature’s possible concern with a marketing con by-laws both and the conflict between the anti-trust laws approval. tract necessitate shareholder powers regulate broad control 5746, a vote of the sharehold Under Article production marketing agricultural adopt by-laws, but necessary ers is products upon conferred associations necessary for approval is shareholder not Marketing Act. State Standard Oil Com promulgation of a contract. (1937). pany, 130 Tex. language of a is unam Where the statute permissive. provides Article 5753 It clear, meanings we biguous “may” the association include its mar according give should effect statute keting contract etc. . . . Commis to its Board Insurance terms. *8 Life Insurance sioners Texas v. Guardian Article of 5753 contains five sentences. Texas, Company of The first permits sentence association (1944); Vaughan v. products contract with to sell South members long Surety western Ins. exclusively the association as the opinion (1918). We are of the not S.W. term of such contract does exceed ten pro- required to was years. again The refers that the Association second sentence summary Campesi’s judg- for liquidated damage ing vide for a clause in its motion by-laws any provision arguments pertaining in order to such to all make The ment. marketing agreement By grouped in valid. hav- its then points of error were three ing authority everyone “B,” in by-laws, (“A,” “C,” such major headings under four summary protected. thus be The arguments. would “D”), one for set of and each judgment evidence established that the As- heading arguments listed under “C” provide sociation had failed to for the use of specifically only arguments men- liquidated damage by- such in its clause 7(b). (See points of error tioning paragraph The trial properly laws. court concluded above). Heading “C” states two and three liquidated damage provision that was as follows: void and had no force or effect. Paragraph 7(b): In addition “C. liquidated assess dam- right Appellee The trial reached court could have was ages, Appellant en- [the Association] the same conclusion another reason. yet titled, 7(b) of the Paragraph under mar- expressly provides Article 5753 that from keting agreement, Ap- to withhold marketing liquidat may prescribe contract pro- sugar proceeds his pellee’s 1974 cane any provision ed breach of organization’s operating of the rata share “the regarding of the year for the expenses and maintenance prod delivery withholding sale or of the 1973.” (Emphasis added). express ucts.” This (to
language presupposes availability specif- arguments under this contained member) in breaching product of the heading ic are to the effect that trial withholding his question wrongful and granting Campesi’s erred in motion court or his to sell or deliver product failure summary judgment because the Associ- product in accordance with the terms 7(b) paragraph was authorized under ation Here, sugar ques the contract. cane in marketing agreement to deduct Cam- of the Campesi. tion was not available to He did pesi’s pro portion rata of the Association’s portion any sugar not withhold of the cane grinding for the sea- fixed costs 1973-1974 grow. six from the acres seed cane he did (first year) and that these costs exceed- son sugar sell or cane which He did not deliver deducted ed the amount the con was available in contravention of damage pursuant liquidated clause Organi Compare tract. National Farmers 15(a). The Associa- paragraph contained in Smith, (Tex.Civ. zation to certain tion then directs our attention 1975, writ). App. Corpus Christi — in the statement of testimony contained pro effect rata facts to the points The Association’s error two and exceeded the portion of such fixed costs three are as follows: withheld amount the Association (2) refusing “The trial in court erred 15(a) concludes that Cam- paragraph 7(b) give effect to of the Mar- Paragraph to a pesi was therefore “not entitled Sum- refusing keting Agreement, in pay Judgment the association mary intent of construe it to reflect the true it had any moneys to him which with- over parties.” proceeds.” The crop from its 1974 held (3) refusing to “The trial court erred argues also that the Association 7(b) Mar- Paragraph declare that when, during the trial further erred keting Agreement ambiguous and was motion remaining after issues refusing testimony to admit granted, it refused Art John Hard- witnesses Beckwith and relating to testimony to admit certain al- purpose resolving for the such wicke ambiguities paragraph leged contained ambiguity.” 7(b). by the points grouped These of error are argument authority pur- It is
appellant for evident arguments au poses with which com- two and three error one do not meet grant- contained thereunder plained of the trial court’s action thorities
«59 pursu- the trial comí that were before briefing sues the minimal rules. See Rule The As- original motion. Argu- of Civil Procedure. ant to Texas Rules interrogato- answers to certain pertaining ments than of sociation’s more one disputed clearly that the ries establish grouped they ger- error where may be $129,349.50 by the As- was made deduction points mane to one another. These of er- solely upon paragraph in reliance ror, sociation however, complain 1)of errors the trial summary 15(a). Campesi’s judg- for motion granting court in allegedly committed Cam- grounds predicated on the ment was pesi’s summary judgment, motion for paragraph Association’s reliance the allegedly errors the trial court committed paragraph 15(a) misplaced was because the during course of trial of remain- the At the time was void and unenforceable. ing Although argu- issues in the case. hearing, the As- summary judgment of the tri- paragraph 7(b), ments both concern including its answer to pleadings, sociation’s in granting summary al court’s action summary judgment, motion judgment during action the course applicability paragraph did not raise the separate trial are ac- distinct 7(b). answer The Association’s addition, tions. In arguments contained 15(a) valid and enforceable. paragraph was under general these of error are so alleged, in The Association’s counterclaim it is difficult to precise determine the effect, court that even should the trial find nature Association’s contentions. deducting in that the Association’s action Nevertheless, in view of the con- liberal disputed paragraph amount given struction that should be to the brief- did, invalid, 15(a) was that the Association ing rules, we consider the Association’s fact, damages, actual includ- in suffer some points of two in light and three ing Campesi’s share of several enumerated arguments and there- authorities contained fixed costs as the result of his failure to under them. as we understand specified grow and to amount of deliver First argu- we consider the Association’s sugar during grinding cane the first season. concerning ments the trial court’s action in Campesi’s supplemental motion sum- granting Campesi’s summary motion for mary judgment purpose was filed for the then, judgment and the trial court’s action obtaining previously control of funds during remaining the trial issues. withheld Association until such time Paragraph 7(b) provides, part, in relevant damages claim for was as follows: refused. The adjudicated. The sell, agrees “Association either in the judgment specifically over- summary court’s state, processed sugar natural or such Campesi’s supplemental motion for ruled e., cane sugar cane raised and [i. doing, the court summary judgment. so together with grower], delivered specifically: stated the sugar cane delivered other Grow- ORDERED, AD- “IT IS FURTHER ers, pay ratably net and to over that the De- DECREED JUDGED AND received payment therefrom authority without to make fendant was Grower, making full to after deductions for the al- any deductions .(b) organization, oper- to cover . . by Plaintiff for leged breach of contract ating expenses and maintenance . .” Defend- payable amounts Plaintiff $129,349.50 ant and that said deduction of problems There concerning are several authority wrongful and without but argument Association’s as to the applicabili- a matter of not entitled as Plaintiff is ty paragraph 7(b) the trial court’s temporary to recover control relief action granting Campesi’s original mo- dis- deducted sum final cause, denying tion issues posing all the therefore, Campesi’s supplemental Supplemental motion for summa- Mo- Plaintiff’s ry 7(b) Judgment mar- be and it is judgment. Paragraph Summary tion for added). keting agreement hereby (Emphasis was unrelated to the is- overruled.” *10 addition, explicitly rec- In the trial court apparently The Association bases its con- paragraph 7(b) existence of tention that the determinations ognized other factual precluded summary judg- have the should judgment, summary the remained. emphasized portion upon ment the of the stated, part, follows: trial court in court’s order. appears “It further to the Court that was tried to the amend- This case cause, pending there in this . remains recognize ments Rule 166-A. We defendant’s Counter-Claim.” general rules cited the Association and in Associa- allegations contained The Supreme stated our Court in Womack v. included those items the tion’s counterclaim Allstate Insurance 156 Tex. properly were de- Association contended (1956),as follows: 7(b) of the paragraph pursuant ducted normally look to the “The trial court will Marketing Agreement. pleadings to determine the issues that case, depo- but when the may exist of underlying purpose Rule The sitions, or affidavits disclose admissions patently unmeritori 166-A to eliminate an amendment to facts which show that defenses, and the ous claims or untenable opposite party will pleadings of the litigants deprive rule is not intended moving party position render the of hearing on the merits right of their to a full law, insupportable under substantive it of fact. In re Price’s any of real issue cannot be said that the latter has estab- Paso, 375 Nat. Bank of El Estate v. State right judgment lished his as a matter (Tex.Sup.1964); Gulbenkian v. of law.” Penn, (1953). case, however, In this even an amendment Thus, summary judgment will motion to the which pleadings asserted that of a dis the existence not defeated was val- deduction made immaterial. 4 pute upon issues that are 7(b) have paragraph id would Practice, 17.26.12, McDonald, Texas Civil § validity no effect on the of the trial court’s Here, (1971). proceeded to summary p. 171 the case granting action in the motion for 15(a) judgment paragraph on the basis remaining fact issues. only trial on the language was invalid. The in the trial court’s sum- the trial We conclude that summary judg- granting court’s order proper, and that the mary judgment was (to that the Association had ment the effect issues of properly trial court delineated authority any provision under jury’s considera- fact that remained for the deductions), contract to make the 7(b), or paragraph tion. The existence view, our is no more than a statement marketing paragraphs in the other similar If opinion the trial court’s on the matter. summary to the agreement, were unrelated had stated that Cam- the trial court’s order trial court’s refer- judgment issues. pesi’s summary motion for supplemental authority lack of ence to the Association’s be overruled on the basis should marketing any under the to de- to make deduction that the Association was authorized paragraphs not to be damages pursuant surplusage, duct to other and is agreement is Marketing Agreement, the result any portion interpreted as a construction remaining and the summary judgment than agreement other would have been the fact issues the case 15(a). paragraph 1) Campesi same: would not be entitled accordingly affirmed. final so deducted until a control amount argu- Association’s next to the We turn cause; disposition the amount of error two and applicable ments be entitled money the Association would trial of the they three as relate would to retain from the amount withheld case, including remaining fact issues (because specific be a fact issue against Cam- cross-action withheld, own admis- by the Association’s complains pesi. The Association sion, solely upon the void computed parol refusing to admit trial court erred 15(a)). paragraph
«61 injury by apparent effort to show In an regarding an al- testimony during the evidence, Associa- the exclusion of this 7(b). The leged paragraph ambiguity exclusion suggests that generally tion of facts portion of the statement relevant *11 final probably affected the of this evidence only argument appellant’s contains the pre- that it was case and outcome evi- substance of the counsel not the special con- submitting a issue cluded from sought introduce. dence the Association to operat- Campesi’s of the fixed cerning share counsel, the According to the Association’s (first year) expenses ing for the 1973-1974 para- concerning issue the fixed under costs sup- record does not grinding season. The 7(b) graph they going was: “when to are port this contention. paid.” Paragraph 7(b) have to be contained court, However, to the expressed During argument Associa- his the time. at acknowledged that it, Association’s counsel position, as we was tion’s understand witnesses, including had Campesi, least two paragraph 7(b) that authorized Associa- testified, effect, that it was their under- to deduct member’s such tion a share of obligated standing that each member was expenses in the operating fixed incurred pro part operat- of the fixed pay his rata to previous year proceeds from the otherwise facts is ing expenses. The statement of next growing due members for the sea- concerning replete with evidence other without to a a having son file suit to collect 7(b), including the measure paragraph year member’s fixed share for the in which year costs the Association’s fixed for the grow crop. he failed a The trial court question. proffered testimony. refused to hear Thereafter, note not except Association We that the Association did failed court, way, complain any that trial ruling such preserve, any or to man- permit present the Association to ner, refused testimony the substance of the it concerning fixed evidence the amount of its sought to introduce. expenses during the operating costs and rule, period question, As of time in nor general a error is not concerning special share thereof. issue shown in the exclusion of the un One evidence recovery measure of was the Association’s complaining party less the brings before jury. to that response submitted to the appellate clearly court that a record shows issue, jury awarded only not what the evidence have would $87,692.80. The damages in amount of admitted, relevancy. been if also but its complain that the trial Association does not complaining party except The must damage any court refused to submit other ruling excluding testimony, trial court’s requested by were jury issues to the addition, and in preserve substance Nor does the Association the Association. testimony Swinney such in the record. legal or complain jury’s answer on Winters, (Tex.Civ.App. S.W.2d grounds. Associa- sufficiency factual e.); Antonio —San writ ref’d n. r. tion, jury to convince the apparently, failed Texas Associates v. Joe Bland Construction including pro damages, its Co., 222 (Tex.Civ.App. S.W.2d 413 - Austin costs the 1973— portion of fixed rata e.); writ ref’d n. r. Rule Texas (first were year), grinding season complaining Rules of Civil Procedure. The the amount the Associ- equal to or exceeded party has the to show reversible burden previously deducted ation had by demonstrating error exclusion 15(a). paragraph reasonably calculated evidence was cause probably cause and did the rendition carefully We have considered improper judgment. of an per verdict Go arguments each of the Association’s State, (Tex. mez Leon v. as two three taining to Lines, Sup.1968); Ryder them, they Tank v. Bent Inc. and conclude we understand reason, ley, (Tex.Civ.App. yet without merit. There is another — Fort however, e.). why points of Worth writ ref’d n. r. rulings, including ruling con- numerous two three must be overruled. order, pretrial ap- new The Association’s amended motion for tained first 7(b) paragraph does not trial mention the attor- proved signed to form and agreement it complain nor does ap- not neys parties, but it was for both parol trial failure to court’s admit judge. There proved signed trial testimony alleged ambiguity explain nothing in to indi- the record absolutely paragraph. of that This case went to trial this second judge cate the trial intended 11,1977, signed trial April and the court ruling. pretrial order to be trial court’s its final on October 1977. does not recite that the final timely The Association filed motion for rulings par- on the made certain trial, new filed an mo timely amended exception. ties’ special *12 18, tion for new trial on November 1977. rule, reversible error must general As a times, At all of these Rule 324 the Texas case be the record a disclosed provided Rules of Civil Procedure that a Railroad appeal. Texas & New Orleans Co. contention in a new pre motion for trial is 148, 484, 486, Hayes, v. Tex. 293 156 S.W.2d requisite any appeal except in specified (1956). ruling court’s on the 487 A trial (none applicable instances which are should pleadings sufficiency of case). recognize Although we that encompassed separate order or shown a dispense 324 has amended to Rule now been on the min and entered necessity with the for a motion for new Lofstedt, 144 Paving utes. Co. v. Gulf instances, trial in most the effective date of 17, 155, (1945); 159 Texas Steel 188 S.W.2d 1,1978, January this amendment was which 111, v. 533 117-118 Douglas, Co. S.W.2d subsequent to the time Association 1976, writ ref’d (Tex.Civ.App. Worth required perfect — Fort Sausage, Country e.); n. r. v. Owens appellate by filing a for Owen review motion Inc., 653, (Tex.Civ.App.— new trial. We that the Association has 493 654 hold S.W.2d right complain 1973, writ); waived its these al Pozzolan no American Amarillo leged errors on that appeal Co., the amend 450 Corp. Trucking Desert S.W.2d v. application ed Rule 324 has no to this case. 1970, writ (Tex.Civ.App. 433 Antonio — San Foster, 333, Wagner v. 341 S.W.2d e.); v. ref’d Alcazar Bell n. r. Southwestern (1960). Lloyds 887 See National Ins. Co. v. (Tex.Civ. 933 Telephone 353 S.W.2d McCasland, 565, (Tex.Sup. 566 568 S.W.2d 1962, writ). Special ex App. no — Austin 1978). Appellant’s points of error one called ceptions pleadings that are not through three are overruled. court and on trial attention show the trial which record does not In cross-point of error number Co. v. are waived. Texas Steel acted one, Campesi complains that the trial court 111, (Tex.Civ.App. 118 Douglas, 533 S.W.2d special in sustaining erred 1976, e.); writ ref’d n. r. Pure —Fort Worth exception to fees. attorney’s his claim Fowler, 461 six, Company v. point also Oil Association n. ref’d r. complains (Tex.Civ.App. trial court in sus writ erred — Dallas (Tex. taining Campesi’s exception to its 646 special e.); Jaynes, 366 Cook v. S.W.2d 1963, writ); There is attorney’s claim for fees. no show Rothchild no Civ.App. — Dallas however, ing, Bank, (Tex.Civ. in the record before us that 878 v. Fannin ruling e.). trial court is com made the ref’d n. r. App. writ — Texarkana plained byof Both the Associa parties. if we were to consider the Even Campesi special tion and filed several ex contention, cross- Campesi’s merits of his ceptions. pretrial two orders There are general a overruled. As would be transcript. pretrial contained One rule, by parties to attorney’s fees incurred spe order sustained of the Association’s one against an litigation not recoverable Campesi’s exceptions pleadings. cial provided right is party, unless such complain does not this order. adverse by a between pretrial The second order which contains or contract statute re ordinary in an not found tions Casualty Compa Amsterdam parties. New These subject matter. same Industries, Inc., lating to the v. Texas ny that, from if omitted are such provisions is no Inasmuch as there (Tex.Sup.1967). contract, will never the law ordinary parties for in the contract of the provision Buttgen, 450 S.W.2d supply. Eisenbeck by the Association of attor payment 1970, no all, 696, (Tex.Civ.App. fees, claim, if allowed at ney’s — Dallas Miller, California, writ); Inc. Tex.Rev.Civ. Pines governed by Article (Tex.Civ.App. (1971). which was S.W.2d Article Stat.Ann. — Eastland 10, p. tried, writ); § 17 C.J.S. Contracts in effect at the time this case was part, (1963). provides, in relevant follows: having a valid claim
“Any person
Campesi’ssuit
opinion
We are of the
...
or
person
corporation
or
spe
on a
was based
against the Association
upon a
suits founded
sworn account or
account.
not a sworn
cial contract and
accounts,
present the same to such
may
essence,
alleged,
petition
if,
person
corporation
.
.
. and
with
wrongfully
had
that the Association
(30)
expiration
thirty
days
$129,349.50
at
pursu
him the sum
held from
thereafter,
paid or
the claim has not been
damage
liquidated
ant to an unenforceable
satisfied,
finally
he
obtain
should
the written
clause contained in
any
thereof as
parties.
The Asso
agreement between
*13
presented
payment
person
liqui
to such
or
that the
defended on the basis
ciation
recover,
corporation, may
he
also
in addi-
and en
damage provision was valid
dated
costs,
alternative,
and,
his claim and
a reasonable
counter
tion to
forceable
fees,
represented
if
based on its
attorney’s
amount as
for actual
claimed
Campe-
right
attorney.”
contractual
to recover
expenses for the
portion of its fixed
si’s
character,
penal
Article 2226 is
and must
provision of
year
question on still another
strictly
be
construed. Van Zandt v. Fort
provisions
the contract. The contractual
Press,
(Tex.Sup.
Worth
359
893
S.W.2d
would not
dispute
such that a court
1962).
that his suit
Campesi contends
C.f.,
they
if
were omitted.
supply them
suit on a sworn
the Association a
42,
Tex.
344
Bouknight, 162
Langdeau v.
and, therefore,
account
the trial court erred
affirming, 333
435,
(1961),
S.W.2d
441
sustaining
special
ex
1959);
(Tex.Civ.App.
670
S.W.2d
— Austin
ceptions directed toward his claim for attor
(Tex.
Faulkner,
209
422 S.W.2d
Robinson v.
agree.
ney’s fees. We do not
1967,
e.);
n. r.
writ ref’d
Civ.App. — Dallas
It has
said that a sworn account is
been
Inc.,
413 S.W.2d
Cooper-Stanley
Ball v.
according
popular
defined
to its
sense and
writ).
no
(Tex.Civ.App.
467
— Dallas
applies only to:
prior to
This case was tried
persons,
“transactions between
in which
to Article
of the amendment
effective date
upon
pur-
side and a
there is a sale
one
of at
recovery
2226 which now authorizes
other, whereby
upon
chase
title
party in a
prevailing
torney’s fees to
passes from one to the
personal property
or written
brought suit on an oral
properly
other, and the relation of debtor and
art.
Tex.Rev.Civ.Stat.Ann.
contract.
thereby
by general
creditor is
created
give
do not
(Supp.1978). We cannot and
dealing (which may
only
course of
include
ef
statutory
retroactive
this
amendment
It
parties).
one
between the
transaction
Mutual Life
Personnel
fect. Government
par-
does not mean transactions between
Wear,
Tex.
Ins.
Co.
contract.”
resting upon special
ties
Hankamer,
Corp. v.
Gas
(1952); Texas
Biskamp, 159 Tex.
Meaders v.
(Tex.Civ.App.
- Houston
origi-
(1958). (Emphasis in
e.).
n. r.
writ ref’d
nal).
Associ
hand,
also overrule the
contract,”
We would
A
on the other
“special
same
complaint if we considered
stipula
ation’s
particular provisions
one with
compensation for detention
the fact
attorney’s
recovery
because
on the merits
injury
account
of that
due on
included in the Association’s
which is
fees was not
damages neces-
by Article
is an element
by-laws
required
as
inflicted
indemnity of the
(1958). Campesi’s
complete
cross-
sary
Rev.Civ.Stat.Ann.
overruled. The Associ-
point of error one is
injured party;
the additional
failed to include
ation’s sixth
(in
paragraph
The Association
new trial.
event that
15(a) of the
reason that
pled
complaint
the trial court
error is overruled
in its counterclaim
marketing agree-
the Association
in its motion
found
Interest,
upon unliquidated
arise out
a tort.
[******]
[******]
of a breach of
damages, may be
demands,
whether
or out of
allowed
they
horse of
void
damage
possession
to be
one takes
[liquidated
ment
If
clause]
owner,
unenforceable),
another,
it from the
it had suffered
withholds
Campesi’sfail-
of the use of
damages by reason of
for the value
compensation
actual
acreage
sugar
legal right,
his allotted
time is a
produce
during
ure to
the horse
(first) grinding sea-
cane for the 1973-1974
hesitate to instruct
no court would
issue,
single special
find,
to a
response
son.
we can see
to so
jury
actual
jury
right
found that the Association’s
be com-
difference between
$87,692.80. The trial court
damages were
worth
detaining a horse
pensated for
awarding
entered its final
Cam-
$100,
right
compensated
to be
and the
$68,173.64.
In arriv-
pesi a net amount
$100,
the value
the detention of
judgment,
ing at this amount in the final
horse,
converted
was killed or
in case he
princi-
the trial court awarded
of the taker.”
to the use
pal
amount withheld
discussion, the court
a full
After
with interest on that
($129,349.50)together
should
that interest
laid down the rule
($26,516.64) computed from
*14
measure of
where the
damages
allowed as
judgment was
withholding until
date of
existing
conditions
by
fixed
recovery is
rendered,
the Association
and awarded
In
injury is inflicted.
that the
at the time
damages
by
as found
principal amount
recover
case,
entitled to
person
such a
without interest.
jury
but
compensation for
right to have
has also the
four, the Association
point
In
to which he is
money
the detention of the
in re-
contends that
the trial court erred
wrong done to
by
entitled
reason of
interest
fusing
prejudgment
to award it
Junker,
584, 40
90 Tex.
Watkins v.
him.
damages
by
found
upon the amount of
have
11,
(1897).
principles
These
12
S.W.
jury.
Supreme Court.
by the
been reaffirmed
the rules set forth
parties rely
Both
Petrole
v. Stahl
Co.
Phillips Petroleum
See
Junker,
v.
90
Supreme
(Tex.Sup.1978);
in Watkins
Co.,
Court
480
569
um
S.W.2d
case,
(1897).
Co.,
584,
11
In that
786
40
478 S.W.2d
S.W.
Hayek v. Western Steel
State,
damages in a
v.
cross-plaintiff
Company
recovered
Texas
(Tex.Sup.1972);
failing
(1955).
of contract
If the
494,
cross-action for breach
281 S.W.2d
in the
dredge
stipulated
boats as
at
to furnish
is determinable
damages
measure
objected
properly
and the cross-defendant
interest
injury,
time of the
injury
of interest before
recovery
to the
of such
the time
awarded from
unliq-
damages were
that the
amount of dam
ground
on the
by the court
added
Court,
holding
v.
Supreme
McDaniel
rendering judgment.
uidated.
ages in
543,
(Tex.Civ.App.
to interest before
cross-plaintiff
Tucker,
entitled
520 S.W.2d
writ);
said:
damages,
1975,
Reed
part
of his
no
—Corpus Christi
(Tex.Civ.App
Fulton,
interest,
384 S.W.2d
strictly speaking,
“It is true that
. —Cor
e.); Metal
r.
ref’d n.
law,
writ
pus
it is
Christi
but
only by statutory
exists
Textiles,
v. Plains
Corporation
recognized
have
Structures
likewise true that courts
proportion-
his
in fact owe
Campesi, he did
Inc.,
(Tex.Civ.App.
470 S.W.2d
— Amarillo
fixed
Lawler,
ate contribution
e.);
n. r.
Beck
writ ref’d
season
grinding
1973—1974
expenses for the
Worth
(Tex.Civ.App.
acquired case, suit, plaintiff if estab- which the FOR REHEARING existing the lishes a claim at commence- Sugar Valley Rio Appellant Grande suit, he his ment the shall recover Growers, appellee Campesi Ross Inc. and costs.” In rehearing. have filed second motions case, In ac this the Association’s cause of Campesi’s rehearing, he second motion for tion asserted in the existed counterclaim again complains the trial court erred the commencement of by failing prejudgment to calculate interest suit. Gateley Humphrey, v. 247 See S.W.2d 1975, 1, September due him after at 1952), (Tex.Civ.App. 919 certified — Dallas per per rate of nine cent annum. answered, questions 588, 254 151 to, (1952), question S.W.2d 98 conformed opinion, above trial As stated 254 (Tex.Civ.App. 571 — Dallas judgment awarding court entered its final 1953); Clark, 565 Duvall v. $68,173.64. recovery of Campesi a net 1941, (Tex.Civ.App. writ w. o. ref’d — Waco amount, trial determining this net court m.); F. Masterson v. W. Heitmann & principal amount Campesi awarded 476, (1905, 227 writ Tex.Civ.App. S.W. ($129,349.50) withheld Association Hatter, ref’d); Downey S.W. together prejudgment interest on that with writ); (Tex.Civ.App.1898, no Brown v. computed from the date with- Montgomery, Tex.Civ.App. 47 S.W. holding judgment was ren- until date ref’d). (1898, writ ($26,516.64), and deducted from the dered judgment We reverse the of the trial awards, the Associations sum charges Campesi insofar as it with damages as found principal amount of trial, judgment di costs render jury ($87,692.80). appeal, On we sus- recting that the Association instead of Cam- tain the Association’s contention pesi charged be with such costs in accord failing trial court erred to allow as an Brewer, Siepert ance 303. See with Rule damages as offset found (Tex.Civ.App. — Texarkana e.). principal writ r. from jury ref’d n. Rule T.R.C.P. amount due summary Campesi judg- recapitulate: We To affirm the trial calculating pre- recovery ment before judgment in favor court’s entered upon judgment Campesi due interest of Campesi. portion judg- That of the final Pursuant to our remaining balance alone. prejudgment which Campesi ment awarded $129,349.50 prior holding, Campesi interest on the sum entitled receive became $87,692.80 deduction of the prejudgment interest on the balance judg- due the Association reversed and Thereafter, $129,349.50. $41,656.70,and not is here rendered that ment Court, upon pur- it became incumbent pre only on the awarded interest Texas Rules Civil suant to Rule $41,656.70 with interest at balance owed of Procedure, enter 6% to date day May, from the 15th respect. have entered in this court should judgment, of the trial court’s 9% there- rehearing, we his motion for could Until portion of final judgment after. That absolute assurance what not determine with against Campesi also assessing all costs *16 trial court had utilized rate interest rendered that judgment reversed here interest compute prejudgment sum. adjudged such costs the trial court computed on annu- We awarded interest against In all re- the Association. other spects, judgment per pursuant of the trial to Tex.Rev. al rate of six cent appeal affirmed. costs on are assessed (1971) on the art. 5069-1.03 Civ.Stat.Ann. against 80% appellant, 20% Campesi (pursuant to a written basis that Campesi. the appellee, contract), seeking to recover the sum $129,349.50 wrongful- which the Association PART, RE- AFFIRMED IN AND 15, 1975, from a total ly PART. on March AND RENDERED IN withheld VERSED
867 $388,713.06 by the trial court without a as utilized sum of which the Association of error. payable proper assignment admitted was otherwise due and Campesi at that time in accordance with fundamental rule that It is a marketing agree- the terms of the written court must con judgment of the trial ment. pleadings, form to the the evidence and judgment The trial court’s awarded the 301, verdict, if Rule T.R.C.P. The any. See $26,516.64 specified prejudgment sum of as in summary judgment pleadings requested indicating interest without the annual in- cent, it was per terest at the rate of six compute terest rate it utilized to such sum. error for the trial court to award interest at record shows that in motion reversing portion of higher rate. summary judgment, prayed for he for re- judgment proper based on the trial court’s covery prejudgment interest “at the le- us, before and in en assignments of error gal supplemental petition rate.” In his first trial court should tering judgment supplemental motion for 434, Rule we en have entered judgment, prayed prejudgment he inter- judgment portion to that tered a correct as per est at the rate of six cent. On Novem- necessarily re judgment that was 12, 1976, ber judge trial entered the entering judg such corrected versed. In so granting order Campesi partial summary ment, relegated to this Court should not be judgment specifying without the actual repeating the errors made the trial prejudgment rate at which interest should court, where, here, particularly the error be calculated. About five months after the committed was not evident on the face of 5, entry (April 1977), of this order Campesi entry judgment the record. Our filed his second original petition amended incidentally trial court should have entered which, time, for the first prayed pre- corrected the trial court’s error as to inter interest to be calculated at the est. per 1,1975, rate of six cent September until There is still another basis and at a per rate of nine cent thereafter changing the error. Where such error is until the date judgment. record, courts, apparent on the face of the pleadings The active as of the date the situations, have analogous found funda summary judgment prayed was entered present, particularly mental error to be interest at the rate of per six cent or “at where the entered violates a stat legal “Legal rate.” interest” is defined Miller, ute. See McDaniel v. 317 S.W.2d 5069-1.01(b) Tex.Rev.Civ.Stat.Ann. art. 546, 1958, (Tex.Civ.App. 549 no — Waco (1971) as “that interest which is allowed writ), disapproved grounds, on other Phil parties law when the to a contract have not lips Company Petroleum Petroleum v. Stahl agreed any particular rate of interest” (Tex.Sup.1978); 480 Company, 569 S.W.2d and this rate is six per cent statute. See Gunn, Company ICT Insurance (1971). Tex.Rev.Civ.Stat.Ann. art. 5069-1.03 435, 444, (Tex.Civ.App. — Waco 1956, Now e.); contends that: the trial writ n. r. Texas ref’d South $26,- (Tex.Civ. court’s interest award in the sum Lloyds Bryant, computed dism’d); 516.64 was by utilizing App. a rate of Fort — Beaumont six per per “August Osborne, cent annum until 30 Worth Railway & D. C. Co. v. (sic), 1975”and per Septem- writ); nine cent from (Tex.Civ.App.1894, S.W. 1, 1975, ber judgment; 2) Luttrell, until the date of Stephenson v. 160 S.W. right complain (Tex.Civ.App. waived its Antonio rev’d on — San per nine cent grounds, rate utilized other S.W. compute (1915). (We court to Stephen interest due from 262-263 note that the 1, 1975, September judg- may until the date of son case have been on the basis decided ment, because it proper apparent failed to make a on the face of the record *17 assignment appeal; of error on to the amendment of an enactment by changing error). Court erred the rate of interest Rule 374 and not fundamental Having points considered all deciding rehearing for
in both motions disposed properly
that we now have case,
appeal in this the motions are accord-
ingly overruled. SPARKMAN, Appellant,
Guy pro se. Guy Sparkman, Minton, Potter, Potter, Guinn, Chas. F. Ireland, NATIONAL BANK OF appellees. PEOPLES Tyler, Roberts & al., Appellees. TYLER et RAY, Justice.
No. 8651. Ap- summary judgment case. This is a Texas, Appeals Court of Civil brought Sparkman, (plaintiff), Guy pellant Texarkana. (defendants), appellees suit March 1979. Tyler, Wilton Peoples Bank of National Riter, Jr., Daniel, Frank Wynne, J. Dub C. Rehearing April 1979. Denied Sewell, Jr., Weldon Ralph Parker and McFarland, seeking damages the al- and for leged property conversion of his filed motions parties Both slander. Appellees’ motion summary judgment. granted judgment was Appellant has Sparkman that of denied. appeal submits two perfected his error. point as fol- Appellant’s of error is first lows: granting Bank’s
“The erred trial court Judgment, because Summary Motion for fact issues there were several material dispute.” appellant’s first Appellees contend that be con- general is too 418. The Texas sidered under Tex.R.Civ.P. contrary. has held to Supreme Court Brothers, Napier, Malooly Inc. (Tex.1970). isit point of error appellant’s Under first fore- Bank appellee when contended that under upon appellant’s properties closed not appellant security agreement, that Bank accelerated in default and due cause appellant’s notes without