Bookout v. Pugh

• Court: Texas Civil Court of Appeals
• Writing for the Court: BISSETT
• Citation: Bookout v. Pugh, 513 S.W.2d 281 (Tex. Ct. App. 1974)
• Decision Date: 29 August 1974
• Docket Number: No. 879,879
• Parties: Thomas H. BOOKOUT, Appellant, v. Billy PUGH, Individually and d/b/a Billy Pugh Company and Billy Pugh Company, Inc., Appellees.

Page 281

513 S.W.2d 281

Thomas H. BOOKOUT, Appellant, v. Billy PUGH, Individually and d/b/a Billy Pugh Company and Billy Pugh Company, Inc., Appellees.

No. 879.

Court of Civil Appeals of Texas Corpus Christi.

Aug. 29, 1974.

Jack E. A. White, North & White, Corpus Christi, for appellant.

Ernest F. Bogart, Jr., Kleberg, Mobley, Lockett & Weil, Corpus Christi, for appellees.

OPINION

BISSETT, Justice.

This is a breach of contract case. Thomas H. Bookout, hereinafter called plaintiff, sued Billy Pugh, individually and d/b/a Billy Pugh Company, and Billy Pugh Company, Inc., hereinafter called defendants, to recover money allegedly due him for breach of a written employment contract. Following a jury trial which commenced on October 23, 1973, a take nothing judgment was rendered for defendants on November 6, 1973. Plaintiff has appealed. We affirm.

Three separate questions are presented by the appeal. First, did the trial court err in overruling plaintiff's motion for judgment? Second, was it reversible error to submit Special Issue No. 5? Third, should the trial court have admitted evidence of defendants' acknowledgment that they were indebted to plaintiff in the sum of $5,000.00?

Plaintiff and the defendant Billy Pugh entered into a written agreement, dated May 29, 1967, whereby it was contemplated that a business organization would be formed for the purpose of developing and manufacturing air-sea rescue equipment. Defendant Pugh was to furnish the financing for the business, and was responsible for the design, development and manufacture of the products. Plaintiff was to devote his full time to the business. In addition to provisions for reimbursement for expenses and compensation to plaintiff in a sum equal to 25% Of the net profits from the business, the contract, in paragraph 6, further provided:

'6. It is understood and agreed that twenty-five percent (25%) of the net profits of the concern shall be reserved in a separate account (either actually or by bookkeeping entry as may be the most desirable practice) and be utilized solely for Research and Development, as that term is generally understood in industrial circles. Any surplus remaining in such Research and Development fund, that is, any amounts therein in excess of the actual requirements therefor, shall be deemed to belong equally to Pugh and Bookout and distributed to them equally as additional compensation for services rendered; with such distribution, if any, to be made at a time or times agreed upon by them.'

The business, subsequent to the execution of the contract, was incorporated under the name of Billy Pugh Company, Inc. Plaintiff worked for the company until May 18, 1972, when he was fired.

Insofar as is pertinent to the judgment that was rendered and to this appeal, the jury found: 1) that as of May 18, 1972, there was not any surplus remaining unspent out of the sum which was to be allocated for research and development under the contract of May 29, 1967 (Special Issue No. 5); 2) the action by the defendant Pugh in firing plaintiff on May 18, 1972 was with good cause (Special Issue No. 7); and 3) that prior to May 18, 1972, plaintiff failed to devote his full time to the business (Special Issue No. 10).

The jury returned its verdict on October 29, 1973. Plaintiff filed a motion entitled 'Motion for Judgment' on November 6, 1973. It was averred in Paragraph I thereof that it was undisputed that the defendants did not comply with the provisions of paragraph 6 of the contract, and that the failure to do so rendered defendants 'liable to plaintiff' in the total sum of $12,357.22. In Paragraph II of the motion, it is alleged that it was undisputed that in the year 1971 the defendants charged the cost of a lathe ($5,722.00) as an expense which should have been capitalized, and that such action reduced the net profit for that year to plaintiff's damage (3/8ths of the cost of the lathe). Alternatively, it is averred that defendants are indebted to plaintiff in the sum of $3,500.00 for accrued wages', plus 1/4th of the net profit for the year 1971, plus $1,732.00 'that should have been set aside in the research and development special account.' The prayer was that 'the Court enter judgment for plaintiff'. The motion was expressly overruled on November 16, 1973.

Plaintiff's first point of error complains that 'the trial court erred in overruling plaintiff's motion for judgment'. The point does not meet the requirements of Rule 418, Texas Rules of Civil Procedure. It encompasses any and every error committed by the trial court, and therefore means nothing. McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643 (1957); Humber v. Morton, 448 S.W.2d 494 (Tex.Civ.App.--Amarillo 1969, writ ref'd n.r.e.); Tindall v. Tacconelly, 328 S.W.2d 909 (Tex.Civ.App.--San Antonio 1959, writ ref'd n.r.e.). The point is insufficient to direct our attention to any particular reason why judgment should have been rendered for plaintiff. Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, 941 (1956).

Although we hold that the point is too general to comply with Rule 418, we shall discuss the grounds, as we understand them, on which plaintiff relies as disclosed in his statement and argument to determine whether reversible error is shown. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943); Holzapfel v. Brueggman, 404 S.W .2d 916 (Tex.Civ.App.--Corpus Christi 1966, writ ref'd n.r.e.). Plaintiff's argument in support of a reversal and rendition under his first point is based on a chart which appears in his brief. But, he does not refer this Court to the pages in the record where the figures set out in the chart were offered into evidence. He has not located the source of the items used to construct the chart relied upon by him as evidence to establish his point of error. The brief does not meet the test imposed by Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197, 201 (1956). Such failure, of itself, would justify our refusal to consider the chart in support of plaintiff's contention. Weeks v. Heinrich, 447 S.W.2d 688, 696 (Tex.Civ.App.--Corpus Christi 1969, writ ref'd n.r.e.); Hamon v. Texas & New Orleans Railroad Company, 382 S.W.2d 155 (Tex.Civ.App.--Tyler 1964; writ ref'd n.r.e.).

Rule 301, T.R.C.P. requires that the judgment conform to the verdict, unless that trial court, upon proper motion and notice, renders judgment non obstante veredicto if a directed verdict would have been proper, or, upon like motion and notice, disregards any jury finding that has no support in the evidence. The motion which was filed by plaintiff did not request that the court disregard any jury finding. Consequently, in the absence of any motion to disregard the jury findings in response to Special Issues Nos. 5, 7 and 10, the trial court was without authority to disregard such findings. Cunningham v. R. W. McPherson & Associates, Inc., 392 S.W .2d 145 (Tex.Civ.App.--Waco 1965, writ ref'd n.r.e.); Waters v. Bruner, 355 S.W.2d 230 (Tex.Civ.App.--San Antonio 1962, writ ref'd n.r.e.).

Plaintiff's motion for judgment, if it can be considered at all, can only be considered as a motion for judgment non obstante veredicto. Therefore, plaintiff had to demonstrate that there was no evidence of probative value upon which the jury could have made the aforesaid findings. In determining whether plaintiff has met his burden, this Court may 'consider only that evidence, if any, which, viewed in its most favorable light, supports the jury findings, and we must disregard all evidence which would lead to a contrary result.' Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359, 363 (1957).

Even if we treat the chart and the testimony referred to by plaintiff in his argument and statement as being evidence in support of his point, such evidence does not entitle plaintiff to judgment as a matter of law for any of the sums of money prayed for in his motion for judgment. Plaintiff failed to establish that there was a surplus remaining unspent in any fund that should have been set aside for research and development. He failed to prove the amount of money that was spent on research and development in any given year. Defendants' testimony is that money was spent on research and development in each of the affected years, that such costs were included as an expense item in the year incurred, and that the amount spent on research and development exceeded the amount required by the contract to be set aside for that purpose. The 'net profits' for the years shown by the charts do not, standing alone, afford a means for determining the amount of money, if any, to which plaintiff is entitled pursuant to paragraph 6 of the contract. Until the exact sum of money spent on research and development is ascertained, it is impossible to determine the 'surplus remaining', if any, in that fund.

While it was conclusively established by the evidence that defendants did not set aside, by actual deposit or by bookkeeping entry, a research and development fund, that failure alone did not entitle plaintiff to judgment as a matter of law. He needed to go further. He was required to prove that the failure to create the fund damaged him, and he had to establish by competent proof the amount of his damages. Gulf Coast Investment Corporation v. Rothman, 506 S.W.2d 856 (Tex.Sup.1974). Here, plaintiff failed to prove that he was damaged by defendants' failure to create such a fund, or if damaged by such failure, the amount of his damages. The aggregate of 'accrued wages', if any, owed to plaintiff was not conclusively established. The evidence does not show as a matter of law that plaintiff had not been paid the full amount of compensation due him (25% Of the net profits), with or without taking the cost of the lathe into consideration.

Plaintiff's motion for judgment was properly overruled. The motion cannot be construed as a motion to disregard the jury findings on the ground of no...