Burch v. Southwest Title Co.

• Decision Date: 28 January 1970
• Docket Number: No. 14852,14852
• Citation: 450 S.W.2d 752
• Parties: Edgar T. BURCH et al., Appellants, v. SOUTHWEST TITLE COMPANY et al., Appellees.
• Court: Texas Court of Appeals

Page 752

450 S.W.2d 752

Edgar T. BURCH et al., Appellants, v. SOUTHWEST TITLE COMPANY et al., Appellees.

No. 14852.

Court of Civil Appeals of Texas,

San Antonio.

Jan. 28, 1970.

Rehearing denied Feb. 25, 1970.

Howard Jefferson Gibbs, Joe A. Morgan, El Paso, for appellants.

Scott, Hulse, Marshall & Feuille, J. Sam Moore, Jr., Mayfield, Broaddus & Perrenot, El Paso, for appellees.

BARROW, Chief Justice.

Appellants, Edgar T. Burch and Sun City Apartments, Inc., appeal from the judgment entered on a jury verdict whereby appellees, Foster T. Corporation, James A. Keller and Stuart O. Van Slyke, recovered the sum of $25,000.00 interpleaded into the registry of the court by appellee Southwest Title Company. Appellee Southwest Title was awarded a reasonable attorney's fee in the amount of $1,850.00, which was ordered paid from the interpleaded funds. All other costs were taxed against appellants jointly and severally.

Appellants assert six points of error. Points 1--5 complain of the alleged error of the trial court in submitting Special Issues 2, 3, 5, 6 and 8, respectively, in the 'manner and form' each was submitted. Their sixth point complains of the trial court's refusal to submit an issue on exemplary damages on behalf of Burch against Southwest Title for allegedly converting his assets. Appellees urge, by their first reply point, that since neither appellant filed a motion for new trial appellants waived their right to complain on appeal of such alleged errors. Rules 324, 374, Texas Rules of Civil Procedure; Appellate Procedure in Texas, § 8.2. Appellants by supplemental brief point out that such reply point should be overruled as to appellant Burch, in that he filed a motion for judgment non obstante veredicto and therefore was not required to file a motion for new trial.

Rule 324, supra, authorizes an appeal on the grounds stated in the motion for judgment non obstante veredicto without the necessity of incorporating the grounds in a motion for new trial. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887, 890 (1960). A jury's answer to a special issue may be disregarded only when it has no support in the evidence, or when the issue is immaterial. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.Sup.1966); Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); 1965); Rule 301, T.R.C.P.; McDonald, Texas Civil Practice, §§ 17.30--17.32. Complaints as to the manner and form of submitting a special issue are properly preserved, not by motion for judgment non obstante veredicto but by objections to the charge of the court. Rules 272, 274, supra. Special issues must be requested by the procedure set forth in Rule 273, supra, and not by motion for judgment non obstante veredicto.

Appellant Burch has no assignment of error asserting that there is no evidence to support a finding of the jury, or that any given special issue is immaterial. Therefore, he has no assignment of error complaining of these matters which are properly predicated by the trial court's refusal of his motion for judgment non obstante veredicto. Under the third assignment of error it is asserted in part, by way of argument, that there is no evidence to support the jury's finding to Special Issue No. 5 ¹ to the effect that Foster T. Corporation accepted in writing the proposal made by Burch in his letter of November 16, 1967. While we doubt that any of the assignments of error raise such a point, we shall consider Burch's argument under the third assignment of error that there is no evidence to support the jury finding to Special Issue No. 5. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (Tex.Sup.1943); Ballard v. Associates Investment Co., 368 S.W.2d 232 (Tex.Civ.App.--Dallas 1963, writ ref'd n.r.e.); Lackey v. Perry, 366 S.W.2d 91 (Tex.Civ.App.--San Antonio 1963, no writ). In doing so, we must consider only the evidence and the reasonable inferences therefrom which support the answer. C. & R. Transport, Inc. v. Campbell, supra.

An 'Earnest Money Receipt and Contract of sale' was entered into on November 9, 1967, by and between Foster T. Corp., Seller, Sun City Apartments, Inc., Purchaser, and Stuart O. Van Slyke on behalf of James A. Keller Realtors, a real estate agent, relating to the Cielo Vista Apartments in El Paso, Texas. Purchaser agreed to pay $800,000 cash, including the earnest money, and to assume an existing first lien mortgage in the approximate amount of $1,536,437 .58. As earnest money, purchaser agreed to contemporaneously deliver to appellee Southwest Title Company, the escrow agent, a letter of credit in the amount of $25,000 issued by the Republic National Bank of Dallas or any other bank approved by Seller. The sale was to be closed by December 31, 1967, and the agreement further provided that if purchaser refused to timely complete his part of the contract, the earnest money should be forfeited and divided equally between seller and the real estate agent. Sun City Apartments, Inc., was a corporation formed by William A. Carr, Jr., for the purpose of purchasing this apartment complex, and this corporation was represented in the negotiations relating to this contract by Ray Russell. Russell worked for Carr in several business ventures and admittedly was authorized to represent Sun City Apartments, Inc., at...