*1 n CO., Appellant,
SOUTHWEST AIRLINES JAEGER, Appellee.
J.J.
No. 08-93-00067-CV. Texas, Appeals
Court
El Paso.
Nov.
Rehearing Overruled Jan.
826 *3 court’s failure to and the trial Appellee,
ed to prosecution. dismiss want of the case for the trial court. judgment of affirm the THE OF EVIDENCE I. SUMMARY em- Jaeger, Appellee, was J.J. agent by provisioning Southwest ployed as a employment, of his At the time Airlines.1 and the Airlines contract between Southwest of Machinists International Association (LAM)governed the em- Aerospace Workers *4 fleet service em- ployment of customer and agents. including provisioning ployees, promoted to “Chief In in Agent,” supervisor’s position Operations a Midland, job Appellee’s title was Texas. “Operations Super- subsequently changed to visor,” change not af- although the title did He contin- his classification or duties. fect position until his termination ued this Appellee’s during the term of In operations supervisor, employment as an ramp agents, operations agents, Southwest’s decertify provisioning agents voted and (the IAM). left these This vote their union bargaining a collective employees without Thereafter, agreement with Southwest. Dallas, employment con- Chaussee, appellant. offered a written Southwest John agents, ramp agents, operations tract to its Brockett, Jr., & Linde- C.H. Hal Brockett agents. This contract was provisioning and Midland, mood, appellee. employees for a presented to the affected vote, contract was ratified. and the Appellee participated OSBORN, C.J., shows that record and KOEHLER Before ratify the contract with Southwest the vote to BARAJAS, and JJ. Airlines. OPINION agreement entered into between BARAJAS, Justice. employees, above Airlines and the Southwest Book,” contained also known as the “Blue judgment appeal is an from a entered This following provisions: Co., Appellant, against Airlines Southwest $108,068.89, plus interest for the sum of ARTICLE TWO jury attorney’s following a trial of fees contract case. employment breach SCOPE OF AGREEMENT error, attacks the points eleven employees Agreement covers all A This sufficiency of evidence estab- admission and ramp agent, provi- in the classification party lishing Appellee was agent. agent, operations sioning contract, amount employment written damages and interest award- and measure of the aircraft. employee ages and snacks aboard agent who is provisioning is an
1. A stocking responsibility of bever- tasked with the ARTICLE failed, FIVE when efforts to secure reinstatement against filed suit Southwest for wrongful termination and breach of contract. CLASSIFICATIONS
The central issue the trial court below was Appellee, whether operations agent as a chief operations supervisor, was covered OPERATIONS AGENT provisions of the Blue Book. The found Operations Agent The work of an includes was covered historically the functions and that which have been Southwest Airlines had terminated performed by just his Operations Agents at without South- cause. includes, west Airlines stations but is to, any following: limited or all of the II. DISCUSSION Employment
A. The Contract ARTICLE EIGHT One, In Point of Error No. contends that the trial court erred admit
SENIORITY *5 ting establishing evidence was party employment the written contract I. ... Employees occupying while su- operations, between Southwest and ramp, its pervisory positions will not be considered provisioning agents, because such evi working as Agree- under the terms of this parol dence violates the evidence rule. purpose ment for accruing the of seniori- ty.... “employment
Texas adheres to the at doctrine, gives will” employer which an the right discharge employee an with or with ARTICLE TWENTY-FIVE employee party out cause unless the is a to a provision contrary. contractual to the East AND DISCHARGE DISCIPLINE Scott, 70, Line & R.R.R. Co. v. 72 Tex. 10 99,102 (1888); S.W. Schroeder v. Texas Iron A. employee passed pro- No who has his Works, Inc., 483, (Tex.1991); 813 S.W.2d 489 bationary period disciplined will be to the Co., Winters v. Houston Chronicle Pub. 795 pay discharge extent of loss of without (Tex.1990); S.W.2d 723 v. Casas Wornick just cause. Co., 466, 818 (Tex.App. Corpus S.W.2d 469 — denied). Thus, Christi writ order to termination, sustain an action for ARTICLE THIRTY-ONE discharged employee the has the burden to prove employment relationship that the DURATION AND AMENDMENTS based on the existence of a contract that specified employment that the was not ter Agreement This ... shall remain effect Stores, minable at will. Wal-Mart Inc. v. by until March 1989 or until amended Coward, (Tex.App.— 829 S.W.2d 342 proper authority Company of the and re- denied); Beaumont writ Lee-Wright, ceipt and notice thereof has been received Hall, Inc. (Tex.App.— v. 572 S.W.2d by employees. affected 1992, writ); Lumpkin [1st Houston Dist] Communications, Inc.,
v. H & C
755 S.W.2d
The record shows that
was dis-
denied).
10,1988.
charged by
May
Southwest on
Ef-
company
forts at reinstatement with the
agreement
Appellant
The
between
and cer-
pursuant
procedures
i.e.,
Book,
were commenced
to the
employees,
tain of its
the Blue
is
17,1990,
May
question
set forth in the Blue Book.
On
without
contract.
determination,
examining
contract
after
states
agreement
itself
preamble
existing
circumstances
light
as a whole
one
“... contracts with each
signed. Coker
time the contract was
at the
disputed
not
that the
you....”
It is also
(Tex.1983);
Coker,
R
v.
discharge for cause
contains the
agreement
LaGuarta, Gavrel &
Enterprises v.
& P
contention,
how-
only provision.
(Tex.1980).
Kirk, Inc.,
596 S.W.2d
among the
ever,
Appellee was not
is that
if,
applying the
ambiguous
after
A
is
Book.
by the Blue
employees covered
construction,
meaning
uncer
its
is
rules of
of the
provisions
that the
Appellant asserts
reasonably suscepti
or it is
tain and doubtful
Two,
Book,
Scope
particular
Article
Blue
Coker,
meaning.
to more than one
ble
unambiguous
Agreement, is clear
of the
at 393.
employees covered
description
in its
ramp agents, provisioning
agreement:
contract,
construing
the trial
operations agents. The Blue
agents, and
objective
intent
court should ascertain
responsi-
the duties and
Book also describes
writing itself.
expressed in the
parties
job
of these
classifications.
bilities of each
Madeley,
Sun Oil Co.
agent or
operations
of chief
position
(Tex.1981).
by examining
It
do this
should
not listed in the
operations supervisor is
instrument, harmonizing
giv
the entire
clause,
any
and the
scope clause or
other
possi
provisions
all
to the extent
effect to
any-
position are not described
provisions
duties of this
will be
that none of the
ble so
Coker,
Book.
asserts
at
meaningless.
in the Blue
where
rendered
unambiguous language
clear and
It is
after a determination
that the
ambigu
in fact
that the contract is
trial court
establishes
admissible,
parol
evidence becomes
ous
among
employees covered
*6
only
the fact finder
and then
to assist
agreement.
subjective
the
determining
the
intent of
what
trial,
objections
At
over
they
into the
the time
entered
parties was at
parol evi-
testimony
in violation of the
was
contract.
Id.
rule,
permitted to intro-
Appellee was
dence
states
that Article Two
The record shows
operations
to show that
duce evidence
ramp, provi-
agreement applies to
that the
operations agent he was a
supervisor or chief
suggesting
operations agents,
sioning, and
agreement.
in-
party to the
This evidence
under the
supervisors are not covered
Appellee’s testimony as to how the
cluded
gives a non-inclu-
agreement. Article Five
adopted and the fact that he
Blue Book was
operations agents,
duties of
sive list of the
supervisor
given no indication that as a
was
oper-
employees classified as
suggesting that
Book.
under the Blue
he was not covered
duties, such
agents may perform other
ations
functions,
Article
supervisory
as well.
as
precludes
rule
parol
The
evidence
employees
supervisory
are
Eight states that
to contra
consideration of extrinsic evidence
agree-
the
working
as
under
not considered
dict,
an unam
vary, or add to the terms of
only, suggesting
seniority purposes
ment
fraud, ac
agreement,
biguous written
absent
purposes they are to be
other
all
cident, mistake. Hubacek v. Ennis State
agreement.
falling
the
as
under
considered
30,
(1958);
Bank,
166,
32
Tex.
317 S.W.2d
159
Thus,
agreement
Blue Book
when the entire
940,
NHA,
Jones,
944
Inc. v.
whole,
reasonably suscepti-
it is
is read as a
1973,
ref d
writ
(Tex.Civ.App.
Worth
— Fort
meaning.2
one
to more than
ble
n.r.e.).
that the thresh
It is well established
above,
the contract
ambigu
light
is
of the
since
question whether a contract
old
Appellee was
ambiguous as to whether
for the trial court’s
question
ous is a
of law
adoption
court,
negotiations prior
mony
as to the
allowed
trial
after it had
adopted
testimony would
testify
agreement
agreement
and
to how the
the
because such
given
agreement.
indication that he was
that he was
no
vary
terms of the written
the
by
agreement,
to allow testi-
the
refused
covered
among
employees
by
the
agree-
Judgment
covered
the
tion for
Notwithstanding Verdict
ment,
helpful
the evidence admitted was
because there was no evidence or insufficient
jury in determining
subjective
the
intent
support
jury’s
evidence to
answer to
parties
at the time of contract forma- Question
Number which asked if the em-
helped
tion.
clarify
This evidence
and
ployment relationship
between
and
explain
present
an essential term
in the con- Appellee
was covered
employ-
written
tract, i.e.,
parties
which
were covered
agreement. Appellant
ment
contends that
agreement. The evidence admitted did not
language
since the
of the Blue Book is clear
contract,
add to the terms of the
it
since
is a
unambiguous
coverage,
in its
evidence
interpretation
reasonable
of the contract
aas
modify
tended to
the terms of this
operations supervisors
whole that
or chief
parol
violated the
evidence rule
operations agents were included within the
and could
not be considered
the fact
operations agents.
classification of
finder.
In considering
legal
a “no evidence” or
The admission or exclusion of evi
insufficiency point,
appellate
court con
dence is a matter within the trial court’s
only
siders
sup
the evidence which tends to
Dean,
Syndex Corp.
discretion.
v.
port
jury’s findings
disregards
all
(Tex.App.
S.W.2d
— Austin
evidence
contrary.
and inferences to the
denied); Dudley
Hosp. Corp.,
v. Humana
Alviar,
(Tex.1965);
v.
Garza
(Tex.App.
Arias,
Worsham
writ).
Steel Co.
831
establishes
The record
province of the court to interfere
the
within
Blue
schedule
the
paid according to the
in the
jury’s resolution of conflicts
with the
Book,
gov-
sick leave were
his vacation and
weight or credibili
pass
or to
on the
evidence
Book, and his overtime
by
Blue
erned
the
testimony. Benoit v.
ty of the witnesses’
by the
governed
likewise
pay
were
work
(1951);
Wilson,
273, 239
792
150 Tex.
S.W.2d
Further,
the record shows
Blue Book.
Kessler,
801, 807
Reynolds v.
to all
posted a memo addressed
writ).
1984, no
Where
(Tex.App.
Paso
— El
holiday
the
schedule
employees that
listed
evidence,
jury’s ver
conflicting
the
there is
covered
collective
employees
all
not
regarded as
generally
matters is
dict on such
Appellee testified
agreements.
bargaining
Montgomery
& Co. v.
conclusive.
Ward
enjoy
that,
not
supervisor,
a
he did
Scharrenbeck,
146 Tex.
rule. As discussed
the evidence does
A refusal
rule;
of discretion
trial is
the abuse
parol
there
new
tested
not violate
evidence
Winkle, 660
Jackson v. Van
fore,
standard.
Appellant’s no evidence claim must fail.
(Tex.1983);
Eikenhorst
insufficiency claim like-
factual
Eikenhorst,
(Tex.App.—
falls short. When all of the evidence is
wise
writ).
*8
appel
An
Houston
examined,
that
was sufficient
it is clear
there
court for
reverse a trial
late court should
jury
Ap-
competent
before the
evidence
only
“after search
of discretion
when
abuse
pellee
included within the classification
was
record,
trial court’s
it is clear that the
the
agent.
indicates
operations
The record
arbitrary and unreasonable.”
decision
all
Appellee
performed
that he
testified
Co., Inc.,
Rigging
v. York Crane &
Simon
enumerated in Article Five of
of the duties
(Tex.1987).
we
795
Since
S.W.2d
supervisory
the Blue Book in addition to his
competent evi
that sufficient
have found
supports Appellee’s
duties. This evidence
jury
support
its
was before the
dence
language Article Five
that the
contention
trial
Question we find that the
answer to
agent
stating
operations
of an
that the duties
in overrul
not abuse its discretion
court did
include,
to,
limited
the enumer-
mo
but are not
motion for new trial and
ing Appellant’s
duties,
notwithstanding the ver
judgment
include within that classification
ated
tion for
Point of Error
agent
op-
Accordingly, Appellant’s
position
operations
of chief
dict.
the
No. Four is overruled.
supervisor.
erations
Three,
In Points of Error
jury.
question
Nos. Two and
Issue
to the
Three
This
is of
Appellant complains
Appel-
of the trial
the nature of an inferential
court’s sub-
rebuttal to
by
lee’s claim that he
jury
mission of
Number 1 to the
was covered
the Blue
agreement,
Book
since
could not
Requested Special
and the refusal to submit
be
employee
by
both an at-will
and be covered
Issue Three.
agreement. An
the
inferential rebuttal is a
theory
disprove
defensive
seeks
a
Three, Appel
In Point of Error No.
theory
upon
recovery by
claim or
relied
lant asserts that
trial
the
court erred
proving
contrary
position.
or inconsistent
submitting Question
jury.
Number 1 to the
Boucher,
Select Ins. Co. v.
561 S.W.2d
questions
jury
Submission of
to the
is a
Const.,
(Tex.1978);
Weitzul
Inc. v. Out
matter within the discretion of the trial court.
(Tex.
Environs,
door
277;
Dept,
See Tex.R.Civ.P.
Texas
Human
1993, n.w.h.);
App.
McDonald v.
E.B.,
(Tex.
— Dallas
Services v.
ployment, you Jaeger do find that J.J. employed by only Southwest Airlines Two, Appel Point of Error No. period an indefinite of time at the ofwill lant asserts that the trial court erred in Southwest? refusing Requested Special to submit its Is jury. requested jury sue Three to the This We, Jury, answer the above issue question inquired whether was an employee although at will. note that this Appellant’s Requested Special Issue Three requested jury question is included in the incorrectly places proof, as the burden of transcript, the record does not indicate that general given jury require instructions ruling request. secured on said yes/no “yes” question that a be answered requested question appear not does preponderance if based on a charge jury, as submitted to the but the evidence. does have the bur- sign request trial court did not as “re *9 by prove preponderance den to a of the Therefore, Appel fused.” Tex.R.Civ.P. Appellee employ- evidence that was an at-will properly preserved point lant has this claim; Appellee’s order to ee in defeat appeal. error for prove by is on Appellee prepon- burden to employment derance of the that evidence his if Appellant properly Even had by employment governed was an contract. preserved point appeal, this of error for we reasons, find that the trial court did not err in refus For the above we find the trial Appellant’s Requested Special refusing Appel- to submit court did not err in to submit of the old a continuance by lapse of time is Ac- Requested Special Issue Three. lant’s matter of law. as a employment contract Error No. cordingly, Appellant’s Point of (Tex. 844, Jacobe, Fenno v. is overruled. Two 1983, refd writ App. Co., n.r.e.); Rotary Engineering Thames v. Damages B. 589, (Tex.Civ.App. Paso — El trial court n.r.e.); shows that the Brew record Houston Ice & refd objec (Tex.Civ. Appellee testify, Nicolini, to over the permitted ing Co. v. S.W. earnings refd). to his Appellant, tions of in this The record App. 1906, error — 1, 1989, the date from March period of time 1989 the that after March case indicates terminate, to agreement Book the Blue of the covered em employment conditions charge In the that was by to the date of trial. Book governed the Blue ployees were jury, Question Number Thus, agreement submitted to the the Blue Book agreement. damages from jury to determine asked the matter of law and contin was extended as a May Appellee’s discharge, date of em Appellant and the covered ued to bind of trial. Number to the date ployees after March damages only from jury figure 5 asked the discharged be- The fact 1,1989. discharge to March the date of preclude him 1989 does not fore March 4 in jury Question Number answered damages contract as accruing under the from $108,068.89 amount of Number record demonstrates by extended law. The $6,711.97. upon in Based the amount termination, Appel- his that but for answers, judg the trial court rendered these employment have continued his lee would in assessed ment favor of dam employment Appellant. This continued with $108,068.89, ages plus inter the amount by Book governed the Blue would have been attorneys fees. est Therefore, find that evi- agreement.3 we Five, Appellant as- In Point of Error No. damages Appellee’s that accrued dence of that the trial court abused its discretion impermissible serts 1989 was not after March concerning admitting the evidence dam- damages post-contractual evidence. 1, 1989, the ages that accrued after March 17, 1990, employ- May the fleet service On Agreement Blue Book was to termi- date the adopted a Appellant negotiated and ees of Appel- that even if nate. contends (the agree- employment contract ROPA new agreement, lee was covered the Blue Book ment), until the date of which was effect testimony of im- this constituted evidence the ROPA trial. The record shows damages, proper post-contractual and that substantially the same as agreement was probably caused the rendition of the evidence agreement in all material prior Blue Book improper judgment. Book aspects. Since the Blue 1,1989, law after March in Texas that a continu was extended It is well settled agreement was in effect an amended relationship in accor ROPA ance of the Book, contemplated employ of the Blue of a written version dance with the terms Consequently, Blue Book.4 expired Article 31 of the after the contract has ment contract Thus, stating did con- concurring correctly with Southwest Airlines. opinion, while 3. The Appellee, been proof been if he had not was or should have sider evidence burden terminated, prove by preponderance wrongfully would have continued on Appel- expira- Appellant past would have continued in working evidence that he the contract expiration employ past the March lant's tion date. date, Appellee’s testimony ignored that his has objective seeking proceed- goal or arbitration provides perti- 31 of the Blue Book 4. Article back, ings get job wanted to was to his that he part nent as follows: correspondence keep job, his that he sent Kelleher, AND AMENDMENTS DURATION Air- the President of Southwest Herb lines, *10 back, Agreement until ... shall remain in effect This requesting job that he never con- his by proper or until amended templated any job than March other other career Appellee was to present entitled the benefits of the be the cash value of the contract to from ROPA the same manner that the date of termination through March 1989. he was entitled to the benefits the extend- agreement. ed Blue Book again although requested We note that this appear instruction charge does not in the as Having determined that was enti- jury, submitted to the the record does not tled to the benefits of the extended Blue Appellant ruling indicate that secured a on Book agreements, and ROPA we find that request. requested This instruction is the trial court did not abuse its discretion in transcript, signed included in the but it is not admitting Appellee’s damages evidence of af- Therefore, the trial court as “refused.” Accordingly, ter Appellant’s March Appellant properly preserved has not this Point of Error No. Five is overruled. point of appeal. error for Six, In Point Appellant of Error No. as- overruling
serts the trial court erred in Even if properly had preserved error, Judgment Notwithstanding point its Motion for this we find that the trial court refusing did not err in to Verdict and Motion for submit New Trial because requested instruction. Texas Rule of there was no evidence or insufficient evi- provides Civil Procedure 277 that “The court $108,- support jury’s finding dence to shall submit such instructions and definitions damages. Appellant’s 068.89 in actual argu- proper jury as shall be to enable the to ment Appellee’s assumes that the evidence of return a verdict.” Tex.R.Civ.P. 277. A trial damages that accrued after March court has broad discretion in implementing improper post-contractual damages and rule, this and the requested refusal to submit competent is support jury’s answer upheld instructions will be the court unless above, Number As discussed Magro Ragsdale abused its discretion. v. Appellee’s we find that the evidence of dam- Bros., Inc., (Tex.1986), 721 S.W.2d ages permissible after March 1989 was Ins., Riggs Sentry 704-05 damages. evidence of his actual [14th Dist.] denied). explanatory An prop instruction is examining After the record we find er when it is a correct statement of the law support jury’s sufficient evidence to find applicable Riggs, to the facts. $108,068.89 suffered in ac at 704-05. damages tual from discharge the date of his to the date of trial as a result of his above, As stated the Blue Book contract Thus, termination. we find that the trial beyond was extended as a matter of law 1, 1989, overruling court did not err in March Appellant’s Requested so In- struction No. 5 Judgment Motion for is not a correct statement of Notwithstanding Ver present the law as related to the facts of the dict and Motion for New Trial on no based case. find that the trial court did not support evidence or insufficient evidence refusing abuse its discretion in this instruc- jury. Accordingly, this award Point tion, and overrule Point of Error No. Seven. of Error No. Six is overruled. Seven, Appellant In Point of Error No. Eight, Appel Point of Error No. complains of the trial court’s refusal to sub- lant asserts that the trial court erred in jury Requested mit to the Instruction No. submitting Question jury Number which employ- instructed the that the inaccurately it because reflects the measure ment contract Appel- between damages employ for breach of a written 1,1989, expired lee would have on March ment contract. Number 4 and the damages accompanying the correct measure of would instruction read as follows: authority Company receipt ployees. and no- tice has been thereof received em- affected *11 565, 566 Murphy, 658 Inc. v. Question’s Number sol. Int’l answering [sic] In Inc., (Tex.1983); Lee-Wright, at you follows: are instructed as and 4, cou Question Number find that 581. We wrongfully has employee An who been instruction, accompanying accu pled with employment, from and seeks terminated jury to calculate this rately requests the result, recov- damages as a cannot recover amount. in of rea- for losses which the exercise er able diligence he should have been sonable above, the Blue Book As noted through.other employment. to earn beyond March by law was extended effect, through the amended
and was version, But for the date of trial. at ROPA QUESTION NUMBER termination, Appellee would his any, money, paid of if if now wages pursuant What sum to the con- collected have cash, fairly reasonably com- and would of trial. The trial court up tract to the date Plaintiff, pensate Jaeger, for his dam- Question J.J. submitting did not err in Number ages, any, if that resulted from his dis- Accordingly, Appellant’s Point jury. to the charge Defendant? Eight No. is overruled. of Error cents, separately in and Answer dollars Nine, Appellant In Point of Error No. following any, if for each of the elements of in overrul- that the trial court erred asserts damages. Judgment Not- ing Appellant’s Motion for to Disre- withstanding Verdict and Motion (a) earnings Loss of from the date of the Question gard Special Issue No. because employment to termination of Plaintiffs proper of 4 is not measure Number present. employment damages in a breach of written _ ANSWER: that, as a Appellant contends contract case. (other law, (b) Question which was matter of Number employee of Loss benefits jury, to and answered earnings) of the ter- also submitted than from the date damages. Jury of is the correct measure mination of Plaintiffs as follows: Question Number 5 read present. _ ANSWER: QUESTION NUMBER 5
(c) earnings of that in reasonable Loss probability Plaintiff suffer will money, any, you if find sum of do What future. employ- present cash value of the to be _ the date agreement to Plaintiff from ment ANSWER: employment on the termination of his (d) (other employee Loss of benefits 1989? May through March earnings) proba- than that in reasonable amount, any, if calculating the bility in the future. Plaintiff will suffer any you should reduce Number _ ANSWER: money, if amount the amount such Plaintiff, (a) rea- $103,068.89 any, that in the exercise of part answered (d) (b) (c) $5,000.00. diligence have been able to sonable should part Both were ’ employment. through earn other -0-. answered cents, any. if Answer dollars Appellant correctly points out wrongful discharge damages for measure of _ ANSWER: present value of employee is the cash have been breached, Number 5 would if it less the contract had been damages the Blue should, had proper measure in the any amounts that he or she beyond agreement not been extended to Book diligence, be able exercise of reasonable trial of law. The 1989 as a matter employment. March through other Con earn Gulf *12 836 judgment
court incorporating pursuant entered a this time to Texas Rule of Civil jury’s Question 4, states, answer to perti- Number which Procedure 165a. Rule 165a in proper damages; was the measure of thus part: nent rendering jury’s answer Appear. may 1. Failure to A case be Number 5 immaterial. We find that the trial prosecution dismissed for of want on fail- refusing Appellant’s court did not err in Mo- any party seeking ure of affirmative relief Judgment Notwithstanding tion for Verdict appear any hearing or trial of which 4, Disregard Special and Motion to Issue No. party had notice.... At the dismissal and overrule Point of Error No. Nine.5 hearing, the court shall dismiss for want of prosecution good unless there is cause for
C. Motions to Dismiss for
the case to be
on
maintained
the dock-
Want of Prosecution
et....
The record shows that
filed Tex.R.Civ.P. 165a. The trial court denied
17,
May
suit on
1990.
filed its
both motions for dismissal and reset the ease
3,
August
During approxi
answer on
1990.
20,
July
for trial on
1992.
months,
mately the
next
there was no
judicial
A trial court has
discre
action
in
party.
taken
the case
either
On
dismissing
prosecu
tion
a suit for want of
7, 1992,
April
the case was set for trial on
tion;
discretion,
it is
an
while
not
unbridled
27,
May
Appellant’s
first Motion to
sustaining
trial
court’s action
or refus
Dismiss for
ofWant
Prosecution was filed on
may
to sustain a motion to dismiss
be
16,1992,
April
after the case had been set for
showing
reversed
on a
of clear
of
abuse
trial. This motion was based on
Rule
of
Johnson,
such discretion. Bevil v.
157 Tex.
the Local Rules of the Seventh Administra
(1957);
The burden was or should have been on prove by preponderance
the evidence that in he would have continued
Appellant’s employ past the March (Defendant’s)
expiration date.
Requested Instruction Nos. beside court,
the fact that any, the error of the if
refusing give properly pre them was not
served, do not address the issue. In the Pollak,
much cited case of Dixie Glass Co. v. (Tex.Civ.App.
tional to be exer No. 3-93-033-CV. prior expiration cised six months overruling each term. appellant’s Texas, Appeals Court appellee contention that could recover Austin. damages from the date of his termi expiration nation to the of the first term Nov. options, because he had never exercised his the court said: options think fact there were appellee
the contract favor of is one jury to be
element considered is,
determining damages, probability
could consider the of the exer- options determining
cise of the
length of the term.
refd).
(Tex.Civ.App. 1906,
2.