*1 BAR, INC., ZUIDER ZEE OYSTER Appellant,

v. MARTIN, Appellee.

Bill G.

No. 17433. Appeals Texas,

Court of Civil

Fort Worth. 12, 1973.

Oct. Rehearing

On Nov. 1973. Rehearing

On Second 1973. Dec.

Rehearings Denied Dec. *2 premise judg- trial court’s

Basic for the there ment such a verdict was ef- probative no evidence of force raising fect the matter an issue justifiable of the contract termination *3 any con- Zee because of breach of Martin, duty by tractual owed that there any by breach Martin. no evidence of only language The material relative to in Para- issues contained contract, graph employment which 5 of the reads, as follows: employment here- “During period of Wynne, Tinsley George and & H. under, Jaffe ex- Employee be an (Martin) shall Harrison, Dallas, and ap- Kolb B. employee Company (Zuider Joe ecutive pellant. Zee) ef- and his full time and shall devote forts and affairs of business Cantey, Gooch, Hanger, Cravens & Company, Fish Great Southwest Wholesale and Munn William David and Estil B. Oyster Company, (“Southwest”) & Inc. Vance, Jr., Worth, appellee. Fort Advertising Corp. (“M&M”) and M&M

(allowing vacations) a reasonable time for perform shall such services consistent OPINION position may assigned with MASSEY, by Chief him the Com- Board of Directors Justice. pany. Employee an consents to serve as Bill G. Martin his former employer sued Company, officer or director South- Bar, Inc., Oyster corporation, a salary west and M&M further without wrongful employment. from discharge compensation.” or employment, written contract al- provision An additional contractual breached, legedly peri- effective for a that should writing constitute years April 16, od of five from 1968. agreement parties, whole and that discharged 31, Martin was on December any qualification or variation therefrom Special Trial was to a jury. issues writing. should be in There was no such inquired merely the money amount of Mar- writing. tin could have earned in the exercise of diligence reasonable from date of his dis- .ever any Neither was there time charge 16, until trial on October by “assigned” services to Martin Board amount proba- would in reasonable Zee. 3A Directors Vernon’s bility money earn in from that date until Act, Corporation Ann.Texas Business St. IS, April (being 1973 day the last Directors”, 2.31, provides Art. “Board year period contemplated five by the em- corpora- the business and of a affairs ployment April 1968). contract of by tion shall managed a board of direc- 2.36, tors. In the Code Art. same “Execu- jury findings Based Committee”, provides tive that in the event wages the contractual amount of under the precedent of certain condition two or more contract, matters, and other incidental a might corporation directors aof damages was awarded to Mar- committee, constitute an executive which Bar, appealed. tin. Zuider Zee Inc. committee, provided req- the extent a Judgment and remanded for reversed a uisite resolution of the whole board or corporation’s reformation by-laws, trial court. should

295 subsidiaries, in re- authority the Foods or one may all of exercise stated request sponse which af- the business and of directors in board such with reached agreement had been except ac- an corporation where fairs of the willing they were but that franchisees specified entire board tion of the state- agreement, their applica- to abide Corporation Act or other Business During the untrue? 9.10, Martin was “Ac- ment the same Code Art. ble law. In 30, 1970 to December April period Meeting”, provides Without a tions harmoniously with fail to work articles did Martin unless otherwise restricted In the latter re- Cecil Hammonds? incorporation by-laws, any action fail to take early did Martin at meet- 1969and be taken a quired permitted Mi- steps open additional necessary execu- ing of the board of directors or Did food restaurants? Italian may without nos tive committee be taken *4 Gotthelf & work with cooperate fail to board or meeting of the members such Dal- Inn in at the Executive Associates if a in writ- executive committee consent which During period within taken, is las ? the ing, setting forth the action so neces- he fail to take Martin did by or worked signed all the members of the board requested fran- sary prepare to the action might as be of the executive committee re- the time chise literature within sought sales requisite the official action to quested at ? taken. All these articles effect were

all material times hereto. specially re many other These and foregoing readily apparent From it is the by quested tendered and issues were Zee, with Zuider when confronted it simply court refused. Zuider Zee found be- Martin’s for breach suit of contract on materi without material evidence a self employee cause of his as there- termination concerning anything al Martin had issue position exposed under found itself in an failed do a breach of which constituted liability. sought by This it to counter It fol duty owed under the contract. alleging justification discharge for the part lows that there no error on the Alleged, proved, Martin. but not were submit refusing the trial court in issues various actions or omissions to act on the things inquiry done or made amounting Martin to a breach failed to be done. duties Zuider Zee been considered to have obligations. Martin’s sought Such as was facts in the instant make it one proved necessarily

to be failed because no pertinent principles to which consid- of law action of Zuider Board of Directors Zee’s Cardinal Petroleum ered Maxwell v. acting executive committee Corp., 1971), (Tex.Sup., 785 471 S.W.2d prescribed such board ever “services” principles application. Indeed the required perform. which Martin was dispose here as a serve to law, matter of thus unlike Maxwell where Examples of defenses to be necessary it was and remand reverse by raised Zuider Zee are to be found another trial because of of a fact existence Special requested some of specially Is- question upon employer’s a selection court, presented by sues and refused discharge reason for which either was Did consumption viz: Martin’s of alcohol- contemplation con- without the beverages ic period April during tract. af- materially 1968 December upon ability Many grounded perform points fect his duties of his of error are employment? matter requested by a Zuider Zee’s erroneous belief that Was Martin litigation in member of the the case some charac- Board of Directors of Zui- der Zee ter of fraud in Martin’s negotiate Bar to inducement with Foods, acquire stock in the San Antonio and Ward Inc. to Austin franchisees for purchase corporations. of their by restaurants Ward What trans- action merely least, amounted to was not ac- rendered court on the er- quisition stock, acquisition but the theory roneous continued to be companies Ward the Zuider employed Zee period for some agreement themselves. The pursuant after his discharge on December which the accomplished transaction was If judgment was theory rendered on such contained a making clause acquisi- Ward’s it is observable reference and to thereto conditional executing answers returned jury to the April 16, employment 1968 contract of special issues submitted that it would have words, Zuider Zee. other Ward absolutely made difference complete would not its transaction with amount for which was ren- agreed unless Martin em- points dered. The are therefore overruled. ployed by years. Zuider Zee for five A point of error is founded complaint failing that the court erred in Though Ward became control give requested specially instruction relat- ling Zee, stockholder of Zuider with in ing to the two issues which were submitted terests thus apparent, the legal situation jury. presented As and refused it Ward, no different from one which “ you . read: . . are instructed that as an individual from disassociated you may into consider and take account the Zee, urged Zuider to employ Martin. *5 reasonable value of Martin’s services to ei- might Ward have done this because any person ther company himself or to some fraud perpetrated upon (or him) it for whom has in performed he services by Martin but that fact would have no employment.” nature of upon bearing privity of contract be and, tween Martin law, and Zuider Zee in jury inquired The issues submitted would not in the controversy instant result jury the amounts Martin (1) could any in right in Zuider Zee rights to assert have in the earned exercise reasonable might defenses which be the entitlement diligence employment in (including other of Ward. This is particularly true since expens- self employment), necessary above Ward was never party made a to the suit. es, 31, from December 1970 until October 16, 1972; would, (2) Martin in which That fact was observed by the trial probability, all reasonable earn in the exer- court, Zee, but not and accounts cise of diligence reasonable in other em- for the complaints numerous for exclu- ployment (including employment), self sion of evidence on action antedating the necessary expenses, above from October “whole” contract of employment 17, 15, April 1972until on April 1968. There was no error in the exclusion. That evidence was immate- specially requested Obviously the

rial purposes of this case. jury instruction have directed would points add an amount in addition which be Several of error would relate we the value of enured matters consider the benefit which likewise immaterial. anyone Since there be any employing was never him. This would no action of the part competent damages board measure of discharg directors ing in the point trial at case. The benefit derived an em court one dur ing speculated ployer employee the trial his upon question from the services of belongs discharged. employer whether he had and not the em ever been ployee. employer But from the It a former pleadings which follows that trial employee was held there for breach of was no be sued same contract, tried employment such an but plead which issue. Martin he discharged presumed was ac that he and Zuider Zee breach it is to be would knowledged discharged. former working that he have continued for such was Zui- employer, der charges which off-set not entitled an was, of the value against employee rendered in the at because evidentiary effect was having If ment. Also employer. his services to the new his contract with fact that contrary the established of law were to the the rule compete” “non as a Zuider Zee contained employ another servant one would time the up to the extending even profit covenant perhaps from his would not when he During the course of case was tried. pending a he had law- services the event por- stipulated a waiver of suit like this one. Except for such of the contract. tion authority upon which Zuider Zee waiver, it was up the time when Co., Cigar relies is Kramer v. Stores Wolf made, estopped to be Zuider Zee would There (1906). 99 Tex. S.W. 775 should prior thereto contend Kramer, employee, a former sued might employment have which after he employment an contract breach of by Martin of the constituted violation gone for himself. Under had into business compete” contract. Our clause “non that the is obvious those circumstances not construed to include holding should employer former off-set which the released holding that Martin was event it found would be entitled compete” covenant from the “non employ- guilty wrongful breach Zuider Zee breach. salary only would be not ment contract himself, paid in addition the Kramer but Points error numbered 6 and 7 himself) over and (to value of his services testimony concerning relate to a transac corpora- salary. Obviously no above the documentary anticipated tion corpo- formed Kramer evidence connection therewith. Such party. In employed ration him as a third finalized, came al naught was never case Martin formed or caused instant legedly wrongful because of the conduct of corporation be formed a for which Martin, coupled misrepresentation by with employee, salary. went to work on By him relative examination thereto. our corporation owned essence one *6 thereof come we have to conclusion grandchildren promoted by Martin for his even with a concession facts allegation by is their benefit. no There upon sought proved to be these bore involved, any Zee Zuider of fraud or that liability consequent matter of a of Martin any part corporate the profits of from the Ward, any re the matter of Martin; belonged to nor there activities is sponsibility Martin Zee of to Zuider under any evidence thereof to which our atten- employment. the contract of Therefore is directed. these circum- Under there was no error in the exclu reversible refusing stances no error in there was sion of this evidence. requested. instruction complains Zuider Zee of error on the is complaint There of the exclu part failing copy in of the court to retain a testimony deposition sion of to the effect produced of certain Martin documents purposely failed to obtain em Martin examination, thus for the court’s in camera discharge by ployment after his Zuider depriving opportunity of its posed Special 1) Zee. Issue the re (No. Exceptions. perfect its Bill of event, any lated how ultimate issue. in ever, advance of trial Zuider Zee filed attention Well testimony to which our of Documents Motion for Production support in of Zee’s con its is directed Zuider Civil under Texas Rules Procedure tention constitutes more than evidence no “Discovery and Production Documents lips in of Mar already the record from the Copying Things Inspection, tin, cer Martin was himself. Furthermore Oddly premise for Photographing”. tainly purposely re rights his within such, motion, stated as was non-disclo- seeking employment; the ulti frain from facts sure Martin of certain Ward upon what constituting inquiry mate issue of a Foods, alleged inducement sought if had he could have earned against party to file an anti-trust suit employ- third obtaining other been in successful 298 company. sought

said The material to be discharge der Zee failed to req- the burden produced neces- voluminous. Without uisite demonstration reversible sity resolving ap- a it good such as in error that it failed to show cause pears production that what was to of the material desired “fishing expedition” in conduct a the files materiality thereof to this issues attorneys. of Martin’s case. T.R.C.P. 167. have saved for final We consideration Decision the court was never made point of error of Zuider Zee which we any official order or court notation. The constituting sustain as reversible error. attorneys did write the motion Fortunately the error such that curative denied. judgment may reformation of the be made Nothing set out in Motion for New by the trial court which will remove Trial of Zuider Zee referred to action of necessity taint therefrom of anoth- without in refusing discovery court er trial. production documents, If or- etc. denying der the motion had been ever Reversible error lies in the fact placed of record Zuider Zee have would that the trial made a court calculation of Exceptions had its Bill fur- without owing interest ther action on its and without formali- monthly amounts of sal addition, ty perforce provisions ary, obligation pay as Zuider Zee’s said 373, “Exceptions Unnecessary”. T.R.C.P. prior amounts judgment, accrued when nothing Thus done the court could prayer pleadings there prevented right having Zuider Zee from interest, the collection of such complaint appeal if on it had laid judgment. and included in the it premise by insisting that the court’s refusal aIn case like this one such interest is be made a formal order or to be noted on proper for, if prayed just be awarded only after court’s It could docket. proper salary discount future premise such a action was laid that demon- yet lump amounts not but in a due awarded error strative of fact that reversible Eddie, sum advance accrual. Mr. pre-

resulted because some failure to Ginsberg, v. (East Inc. S.W.2d ap- presentation serve material for to this land, Tex.Civ.App., ref., e.). writ n. r. pellate tak- necessary to court would be In the case appears cited there the fol providing evidentiary support en *7 lowing page' at opinion, 12 of the viz: Exceptions. Bill of has “Where there been an for a allowance par future discount in favor of of the one com Zuider Anyway Zee made no appropriate pre ties to the suit is that it plaint action, thereof, the or want on judgment interest should also be allowed in for trial its the court motion party.” the other This ex new was a trial. No jury trial. ception general is The rule evident. Eddie, Ginsberg In Mr. Inc. v. complaint rule is be first made that must Eastland Court stated that defendant motion for new by the trial court should have the discount to it is en 324, Ap “Prerequisites of trial. T.R.C.P. pleadings. in titled the absence of How Thus, peal”. rule by provisions of the ever, opinion nowhere in the there is thereunder, by and the cases annotated holding plaintiff statement or that must be to have waived Zuider Zee held past entitled to on interest due installments complain it any right deprived that was prayer in pleading absence for Ex opportunity perfect a Bill of of an recovery. disagree its with Martin We ceptions. that no reversible exists inter error where holding plaintiff

In the in we thereon is to the with event we err this est allowed hold, pleading merely will assum- Zuider Zee state that we furthermore out because us, Zui- ing to be before that allowed allowed the the same discount right in records in the files inspect certain defendant the case Nowhere cited. attorneys, denying right but its is it inferred that such cited case stated or inspect records which also plaintiff to whom the interest was certain other files, plead- attorneys’ seek it are Zuider awarded had failed to ings. that had been our statement our assume interest correct We recovery opinion of interest had never made an sought by For a that court him. in the relative to the to be sustained must have basis official order or notation spe- production pleadings. Interest be asked must documents. cifically aggregate be embraced in the Sup- deny leave to file the tendered We damages. Tex.Jur.2d, p. amount laid as plemental Transcript. fact Save 200, “Damages”, “Interest”. Sec. an thereby know that there was we require- neither the case before us court, provisions order of the would its Reversibility ments have been met. disposition way alter our former Zee’s therefore demonstrated en- sought or case. No order was ever point error. privileged and were tered documents of the record is such that we state inspection. Zuider Zee’s subject not readily calculate the interest erro- cannot does complaint in for new trial its motion neously judgment, allowed but re- complain failure to of the court’s court, was, judgment it should

trial whose copies tain thereof. necessary finding and be able to make the overrule Zuider motion We also Zee’s may so that there be a deletion calculation rehearing. proper judgment and a reformed therefrom appellee, Bill accept the We remittitur of rendered. remittitur, Martin; and, re- of the view Judgment is remanded to reversed and as of the trial so judgment court form and re-en- the trial court for reformation damages thereby amount of to reduce the try consistent herewith. $53,219.03,plus inter- figure decreed appeal are awarded follows: Costs est. Bar, paid to be 80% judg- may only one final Since there Inc., paid Martin. to be Bill G. 20% in a we therefore withdraw ment pursuant to rendered judgment cancel our REHEARING FOR ON MOTIONS 12, 1973, and in opinion dated October our TO FILE SUPPLE- AND LEAVE judgment place stead decree as our MENTAL TRANSCRIPT of the judgment the reformation filing opinion of October After our of dam- by reducing the amount trial court re- its motion for Zee filed $2,766.51 so ages thereby awarded for leave hearing and also its motion recovered, as damages to be the amount transcript. supplemental file a date As plus interest. $53,219.03, court, shall be denominated an Martin filed instrument *8 affirmed. judgment is so reformed repre- Appellee in which of Remittitur of in- the amount admitted that sented against are taxed appeal All costs from which in the judgment included terest Bar, Inc. Oyster totalled appeal was taken the instant re- instead prayed that $2,766.51, and FOR MOTION ON SECOND reform this Court trial court mand to the REHEARING so as amount by deleting said judgment the judgment the amount to reduce to what pursuant By judgment our figure $53,219.03. Rehearing we Motion for on first written against Zuider appeal all filing taxed costs permit the request that we By the appeal The costs Bar, Inc. Zee transcript containing the supplemental of a are substantial. Zee the granting court’s order trial In Zuider Zee’s Second Motion Rehearing pointed it was out that this

court has judg reversed the court’s

ment insofar as it awards excessive inter pursuant

est and that to our November has charged nevertheless appeal

with the whereby costs of it ob reversal;

tained though it has won accomplished

case in the reduc award of the trial court’s judg

ment improper the deletion of the pursuant

amount of interest to the remitti- consequently (propriety

tur made contested),

amount of remittitur not it is

nevertheless taxed with the incurred costs accomplishment.

in the

We have concluded that Zuider

correct and that it would be unfair to tax appeal

all the it. against costs

It is therefore ordered the court that retaxed, appeal

the costs of and the day

clerk instructed to this enter an or- accord, der in so that costs 80% against Oys-

appeal are taxed Bar, Inc., ap-

ter costs and 20%

peal against are taxed Bill Martin. G. S.,

GULF OIL COMPANY U. Appellant-Appellee,

v. HEREFORD,

FIRST NATIONAL BANK OF Appellant-Appellee.

No. 8395. Appeals Texas,

Court of Civil

Amarillo.

Dec.