Albright v. Texcellere Corp.

• Decision Date: 29 December 1977
• Docket Number: No. 1089,1089
• Citation: 561 S.W.2d 533
• Parties: G. Phillip ALBRIGHT, Appellant, v. TEXCELLERE CORPORATION, Appellee.
• Court: Texas Court of Appeals

Page 533

561 S.W.2d 533

G. Phillip ALBRIGHT, Appellant,

v. TEXCELLERE CORPORATION, Appellee.

No. 1089.

Court of Civil Appeals of Texas, Corpus Christi.

Dec. 29, 1977.

Rehearing Denied Jan. 31, 1978.

Richard B. Stone, Stone, Berryman & Giles, Corpus Christi, for appellant.

Howard F. Sudduth, Corpus Christi, for appellee.

OPINION

NYE, Chief Justice.

Appellant G. Phillip Albright, a real estate broker, appealed from a judgment non obstante veredicto rendered against him on September 8, 1975, in his suit to recover real estate commissions from appellee, Texcellere Corporation. A detailed explanation of the posture of this case is necessary to clarify the setting in which the merits are here considered.

The case was submitted to the jury on only one special issue, which was answered favorably to Albright. In his motion for judgment, Albright asserted his right to recover his brokerage commissions based on this favorable jury finding. Texcellere argued in its motion for judgment non obstante veredicto that the special issue was not a controlling issue, and that Texcellere should prevail as a matter of law, setting forth several grounds therefor.

Albright perfected his appeal to this Court. The transcript was filed November 5, 1975, along with appellant's first motion to extend time to file the statement of facts. Between the date judgment was rendered and the expiration of 60 days, the court reporter, Mrs. Florene Smith, became ill. Her recovery was gradual, and additional extensions of time were requested and granted. On three different occasions the case was set for submission and oral argument, but postponed because the statement of facts was not completed.

Through extended delays, the attorneys, as well as the court reporter, were confident that the statement of facts could be completed. Mrs. Smith recovered sufficiently to be able to transcribe her notes on a limited, but regular schedule. A conference was held by this Court and the attorneys on September 3, 1976, to discuss appellant's sixth motion to extend time. The appellants reported periodically on the progress of Mrs. Smith, and reassured this Court that the statement of facts would be completed by November 30, 1976. The Court granted the motion with the stipulation that the statement of facts must be filed on or before November 30, 1976, or the Court would entertain a motion to reverse the judgment and remand the cause for a new trial so that the appellant might obtain a statement of facts.

The seventh and last motion to extend time was filed November 30, 1976. This motion reported that significant progress was being made on the statement of facts, that Mrs. Smith believed she could complete her work by January 31, 1977, and that both parties desired to exhaust all means available to have the statement of facts prepared and filed rather than have the case reversed. To avoid a possible unnecessary retrial, this Court granted the seventh motion to extend the time.

In late January of 1977, Mrs. Smith suffered a severe relapse and subsequently died. Although efforts were made, it was determined that it was impossible for another court reporter to complete the statement of facts because Mrs. Smith used a unique individualized style of shorthand. No tape recording had been made during the course of the trial, and therefore there was no back-up source from which the record could be transcribed by another person.

Appellant Albright then filed a motion to reverse and remand the entire case for a retrial. On March 3, 1977, a hearing was held on this motion by this Court. The attorneys were asked to discuss their respective positions as to the actual need for a statement of facts now that it was certain that the partially completed statement of facts could never be finished. After the hearing, the Court asked the attorneys to determine whether they could prepare an agreed statement of facts (See Rule 378) or whether they could agree that the case could be submitted on law questions only, in which event the Court could then take the case under submission without the original completed statement of facts. At such hearing it was agreed by the parties and the Court that if it developed that evidentiary issues were involved so that a statement of facts would be necessary, the case would be remanded for new trial. ¹

It was determined however, that appellant did not file a motion for new trial, thereby limiting the need for a statement of facts. Appellee agreed that there was ample evidence to support the only jury issue submitted. (For the results of such a situation, see: Saldana v. Garcia, 275 S.W.2d 563 (Tex.Civ.App. San Antonio 1955, aff'd 155 Tex. 242, 285 S.W.2d 197 (1956); Jamison v. City of Pearland, 489 S.W.2d 636 (Tex.Civ.App. Houston (1st Dist.) 1972, writ ref'd n. r. e.); Gulf Collateral, Inc. v. Edwards, 467 S.W.2d 690 (Tex.Civ.App. Houston (1st Dist.) 1971, no writ); Permian Corp. v. Trumbull Asphalt Co. of Del., 472 S.W.2d 555 (Tex.Civ.App. Corpus Christi 1971, no writ); Abbott v. Earl Hayes Chevrolet Company, 384 S.W.2d 782 (Tex.Civ.App. Tyler, 1964, no writ).

On March 18, 1977, another hearing was held. At this time this Court announced its proposal to the effect that: the partial statement of facts and the exhibits were to be filed; the appellant was to file his brief setting forth his points of error and all relevant facts that he believed were necessary for a proper consideration of the appeal; appellee could file any reply and cross-points in its brief which it chose to bring before the Court; and that statements in either brief regarding facts of the case would be accepted as true by the Court unless refuted by the opposing party or were fully developed by evidence. See Rule 419, T.R.C.P. The attorneys for both parties agreed to the Court's proposed order, and subsequently filed their briefs and offered oral argument at the time the case was submitted on June 23, 1977.

At this point, appellant's motion to reverse and remand this case was still pending. It was clear, however, that remanding the case in order to obtain a statement of facts was a remedy available to appellant only if he showed that a material fact issue was unresolved by stipulations, admissions, exhibits, or testimony in the partial statement of facts, and that he had preserved his right to have such fact issue reviewed on appeal. Remand to secure a statement of facts was a remedy available to appellee if the case was not affirmed and if appellee preserved cross-points in his brief which required a statement of facts for proper appellate review.

Appellant Albright prayed for reversal and rendition, or for remand in the alternative. Appellee Texcellere prayed for affirmance, or if the judgment could not be affirmed, for remand. Appellee argues in its cross-points that, with an incomplete statement of facts, the case cannot be fully developed or reviewed, and therefore rendition against him would be improper without such a complete statement of facts.

The record available for review consists of the transcript, exhibits, partial statement of facts, and unchallenged facts set forth in the briefs. Our first question to decide is whether a complete statement of facts is needed for a proper determination of the validity of the judgment n. o. v. If the judgment n. o. v. can be reviewed without a complete statement of facts and if it was proper, we can affirm. If the judgment n. o. v. was improperly granted, it would then be necessary to determine the proper disposition of the appeal based on appellant's point of error and on appellee's cross-points.

Broker Albright sued purchaser Texcellere Corporation for two hundred and fifty thousand dollars ($250,000.00) real estate commission stipulated for in the real estate broker's contract between Albright and Texcellere. In addition Albright sued for the sum of three hundred and sixty thousand dollars ($360,000.00) for the loss of Albright's exclusive right of resale of the Petroleum Tower Building called for in the real estate broker's contract. Texcellere answered alleging that the consummation of the purchase of the Petroleum Tower Building by Texcellere was a condition precedent to Texcellere's brokerage obligations to Albright and that Texcellere was justified in refusing to purchase because, among other things, the building encroached onto property owned by the City of Corpus Christi. Albright replied that Texcellere entered into a supplemental agreement to accept title to the building if the Corpus Christi City Council issued a permit to use, (for the life of the building), that area of the City's property upon which the building encroached. Texcellere replied that it did not agree to accept the building with its encroachment even though a permit was actually issued by the City Council subsequently.

Trial was to the jury which answered the following special issue:

"Do you find from a preponderance of the evidence that purchaser Texcellere Corporation agreed to accept title to the Petroleum Tower property based upon the permit passed by the City Council?

To which the jury answered, 'Yes'."

Appellant Albright contends that this single issue submitted to the jury was the controlling issue for the disposition of the entire case.

Appellant Albright argues here on appeal that the trial court erred in failing to grant his motion for judgment on the verdict because Texcellere was obligated to pay him the $250,000 brokerage commission based on the jury's answer to the special issue. Texcellere argues that the provision in a letter agreement between Texcellere and Albright with respect to payment is subject to an unfulfilled condition precedent to the effect that the sale must be consummated and only when Texcellere purchases the Petroleum Tower is the commission due. Therefore since Texcellere did not purchase the building, it argues that it is not liable for the commission. The relevant portion of the letter agreement...