City of San Antonio v. Guido Bros. Const. Co.

• Decision Date: 15 October 1970
• Docket Number: No. 7157,7157
• Parties: CITY OF SAN ANTONIO et al., Appellants, v. GUIDO BROS. CONSTRUCTION COMPANY et al., Appellees. . Beaumont
• Court: Texas Court of Appeals

Page 155

460 S.W.2d 155

CITY OF SAN ANTONIO et al., Appellants, v. GUIDO BROS. CONSTRUCTION COMPANY et al., Appellees.

No. 7157.

Court of Civil Appeals of Texas Beaumont.

Oct. 15, 1970.

Howard C. Walker, City Atty., Crawford B. Reeder, Asst. City Atty., Samuel S. Wolf, Chester H. Johnson, San Antonio, for appellants.

Paul E. Casseb, Sawtelle, Goode, Troilo, Davidson & Leighton, James B. Langham, San Antonio, for appellees.

KEITH, Justice.

Plaintiffs recovered judgment against City of San Antonio, a Home Rule City (hereinafter 'City') and San Antonio Fair, Inc., a non-profit corporation (hereinafter 'Fair'), jointly and severally from which the defendants below have appealed.

1. Plaintiffs' Motion to Strike Briefs

Before we reach the merits of the appeal, as presented by the briefs of the parties, we must first consider the objections of the plaintiffs to the adequacy of the briefs filed by the City and by Fair. Plaintiffs contend that Fair's points are not supported by appropriate assignments in the motion for new trial; and, as to City, the contention is that both the assignments in the motion for new trial and the points themselves are deficient.

We have carefully reviewed the motions for new trial filed by City and by Fair; and, for the purposes of this opinion, we may concede that many of the assignments of error therein contained were insufficient upon which to predicate points of error. On the other hand, many of City's assignments were sufficient under the rules and the decisions. As to those which were deficient, many of the infirmities mentioned in the celebrated case of Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960), are to be found in our record. Some of the assignments are insufficient under Rule 320, as explained and interpreted in Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407, 409 (1943).

However, both City and Fair filed motions for judgment non obstante veredicto which were duly presented, considered, and overruled. Additionally, City filed its motion to disregard many of the findings of the jury as to the special issues contained in the charge. Under these circumstances, City and Fair were not required to include in their respective motions for new trial the grounds contained in their motions N.O.V., and to disregard the answers. Wagner v. Foster, supra (341 S.W.2d at p. 890); Rule 324; Burch v. Southwest Title Company, 450 S.W.2d 752, 753 (Tex.Civ.App.--San Antonio, 1970, no writ); Texas General Indemnity Co. v. Dickschat, 440 S.W.2d 922, 923 (Tex.Civ.App.--Waco, 1969, error ref. n.r.e.); Employers Mutual Casualty Co. v. Poorman, 428 S.W.2d 698, 699 (Tex.Civ.App.--San Antonio, 1968, error ref. n.r.e.).

When we turn to a consideration of the points of City and of Fair, which we will discuss hereinafter, we consider the rule for our guidance to have been laid down by Justice Critz in Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943), wherein he discussed briefing rules, saying:

'Our present briefing rules were adopted for the purpose of simplifying the briefing of cases so that greater attention will be devoted to the presentation of the merits of the appeal, and less attention given to the mechanics of the brief. * * * If a 'point' is sufficient to direct the Court's attention to the matter complained of, the Court will book to the 'point' and the statement and argument thereunder to determine the question of reversible error. Simply stated, the Court will pass on both the sufficiency and the merits of the 'point' in the light of the statement and argument thereunder.'

The more recent cases follow the same trend. For instance, in Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286, 292 (1951), Chief Justice Calvert spoke of 'our liberal briefing rules,' while the late Justice Norvell, in Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99, 132 (1962), said, 'This Court has adopted a liberal rule with reference to the construction of points contained in appellate briefs and applications for writ of error.'

The points of error found in the briefs of Fair and of City which we will consider hereinafter are, in our opinion, sufficient to warrant our attention. Plaintiffs' motions to strike are, consequently, overruled.

2. Statement of Case

On April 2, 1964, City adopted its Ordinance No. 32214, appointing Fair as its agent to plan, develop, manage, and operate HemisFair with authority to negotiate and execute all lease agreements, etc., with exhibitors, concessionaires, etc. The ordinance required Fair to indemnify City from all liability and contained Section 17 requiring Fair to include in all contracts with third parties for improvements located on the site of HemisFair a provision 'whereby said third party contractor can in no way look to the City of San Antonio for satisfaction of any claims arising out of any such contract.' Thereafter, on April 15, 1965, City adopted its Ordinance No. 33221 authorizing the City Manager to lease the land involved to Fair. The lease also contained the provision with reference to non-liability of City as provided in Section 17 of the original ordinance.

Plaintiffs, building contractors, entered into separate contracts at divers times with Fair to construct certain improvements upon the site of HemisFair. None of such contracts was entered into by any official action of City, nor were such contracts the result of competitive bidding as required by Article 2368a, Vernon's Ann.Civ.St., nor did the contracts contain the non-liability clause required by the two ordinances. Each of the plaintiffs discharged all of their respective obligations under the several contracts and there is no dispute as to the value of the improvements, or the amounts originally due the several plaintiffs by Fair.

Fair, in order to procure funds with which to construct the improvements for use in the conduct of HemisFair, procured underwriting agreements or subscriptions from public spirited citizens and corporations amounting to $6,000,000.00 upon which it obtained bank loans amounting to $4,500,000.00 (hereinafter 'First Bank Loan'). This sum proved to be inadequate and about a month before HemisFair opened, a 'Second Bank Loan' in the amount of $2,550,000.00 was procured upon a new series of underwriting agreements or subscriptions.

HemisFair opened on schedule, but did not prove to be a financial success and within a few weeks or a month thereafter, it was apparent that without massive infusions of new capital, the plaintiffs and other creditors would not be paid from the revenues generated from the operation of HemisFair. Negotiations commencing as early as May, 1968 finally brought about the execution of what is known in our record as the 'Settlement Agreements' dated August 16, 1968, upon which plaintiffs recovered their judgment in this cause.

These Settlement Agreements were identical except for the names of the parties and the amounts of their respective claims and payments. In essence, the agreements provided that Fair would pay the claims of the signatory contractors as follows:

Ten (10%) per cent would be paid by a deferred payment certificate; 'Approximately 65.37% Of the balance remaining after the deduction of the deferred payment certificates shall be paid in cash * * * (and) * * * approximately 34.63% Of such remaining unpaid balance shall be paid in tickets * * *' to HemisFair, which plaintiffs could sell. Each of the several plaintiffs received cash, a deferred payment certificate, and certain tickets. ¹

In summarizing the contents of the Settlement Agreements, we do so as briefly as possible. The preamble recited that there were certain sums due the several contractors by Fair and that 'there are insufficient funds available to San Antonio Fair, Inc. for the payment of such sums in cash at this time, and it is desired that such unpaid contract sums be paid on a proportionate basis.' Provisions in the agreements included: (1) acknowledgment by contractors of the sums due and the method of payment as indicated in footnote, 1, supra; (2) acknowledgment of payment of the cash consideration, and (3) of delivery of the deferred payment certificate; and (4) receipt of HemisFair tickets. ²

Then follows the critical language of paragraph 6, which we quote:

'The undersigned contractor hereby releases and discharges San Antonio Fair, Inc., Fair Syndicate, Inc, and their executive committees, directors, officers, employees and agents, and the City of San Antonio and The Urban Renewal Agency of San Antonio, from all actions, suits, causes of action, claims and demands whatsoever which the undersigned contractor has or may have against one or more of them under or arising out of the contracts between the undersigned contractor and San Antonio Fair, Inc. or any acts in connection therewith; . . . (the remainder of this paragraph, being a proviso, is quoted in footnote 11, infra).'

HemisFair ended on October 6, 1968 with a loss in excess of $4,000,000.00, the exact figure as confirmed later by the auditors being $4,352,701.68.

On October 7, 1968, the day after HemisFair finally closed, the plaintiffs filed their original petition in this cause. Their trial pleading, their First Amended Original Petiton, which added URA ³ as a defendant, sought to impose liability upon these theories: (a) the ordinances previously mentioned created a joint venture between City and Fair, thus making each liable for the acts of the other; (b) the two ordinances, taken with the subsequent conduct of the parties, made City and Fair joint adventurers; (c) alternatively, subdivisions (a) and (b), supra, created a principal-agent relationship between City and Fair, thus making City liable for and bound by Fair's contracts; (d) alternatively, City's requirement in the second ordinance that Fair erect improvements upon the leased premises 'constituted Fair the agent of the City' thus binding City to Fair's construction contracts; (e) still in the...