City of Shamrock v. Hrnciar, 4373
| Decision Date | 27 March 1970 |
| Docket Number | No. 4373,4373 |
| Citation | 453 S.W.2d 898 |
| Parties | CITY OF SHAMROCK, Appellant, v. Johnny HRNCIAR, Jr., Appellee. |
| Court | Texas Court of Appeals |
McCreary & Huey, Robert M. Huey, Austin, for appellant.
Underwood, Wilson, Sutton, Heare & Berry, Clayton Heare, Amarillo, for appellee.
In the City of Shamrock's suit against Johnny Hrnciar, Jr., for delinquent ad valorem taxes, a judgment was rendered against the City and it has appealed.
Hrnciar pleaded payment and estoppel. He alleged that he paid his taxes by constructing a sewer line for the City; that in 1960, he erected a new home in Vaughn's Hilltop Addition in Shamrock; that he visited with the city council and talked to them about a sewer line to serve him and others in his neighborhood; that the City did not have enough money in the till to construct the line; that the City orally agreed with him that if he would advance the cost of construction, the City would refund the advancement if the City had the money when the construction was completed; that if no money was available, then said amount would be applied, from year to year, upon city taxes assessed by the City against his property not to exceed $2,000.00; that he constructed the line at a cost of $1,895.93; that the City refused to reimburse him for this amount or to credit his tax account; that the city accepted the benefits from this construction; that the city is estopped from not applying the funds he expended to the payment of his taxes; and that by this method of payment, he paid his taxes before delinquency.
He further pleaded in the alternative that if no formal legal agreement was made with the City for the construction of the sewer line, the City by the acts and conduct of the members of the council led him to believe that he would be reimbursed or given credit on his taxes; that he acted in good faith and the City is estopped to deny liability for a refund or credit on his taxes.
The jury found in favor of Hrnciar on all issues and judgment was rendered that the City take nothing.
By its first point the City says:
'The Court erred in granting Judgment for the Defendant because affirmative answers to any or all of the Special Issues in favor of the Defendant will not support judgment for the defendant.'
The point does not inform the court to what assignments of error it is germane in its motion for new trial or elsewhere in the record. In its supplemental brief it says:
'In response to the inquiry from the Bench during oral argument, Appellant's First Point of Error is addressed specifically to the Errors of the Trial Court in overruling Plaintiff's Special Exception Number I, VII, VIII, XI, XII; Plaintiff's Motion for Judgment Non Obstante Veredicto and Motion for New Trial--'
A motion for a new trial in a jury case shall be filed as a prerequisite to appeal. Rule 324 Texas Rules of Civil Procedure. One of the exceptions to this requirement is in cases where the court renders or refuses to render a judgment Non Obstante Veredicto . The court's order overruling the City's special exception to the pleadings will not form the basis for points of error on appeal, unless such ruling is brought forward in the manner set forth in said Rule 324. We do not find them in the City's motion for new trial or in their motion for judgment Non Obstante Veredicto.
In the City's motion for a new trial, we find five assignments; namely, (1) the court erred in overruling its first motion for summary judgment, (2) its second motion for summary judgment, (3) its motion in limine, (4) in granting appellee's motion in limine, and (5) in assessing cost against the City.
The City made no objections to the court's charge. However, after the return of the verdict and before judgment was rendered, it filed a motion for judgment Non Obstante Veredicto and therein sets forth special issue number one and proceeded to set forth ten objections to the submission of the issue. Under its objection number three, it lists seven reasons why said issue is multifarious. Under number four, it gives four reasons why said issue assumed facts and was a comment by the court on the weight of the evidence. The other issues submitted are likewise set out in the motion, and objected to in the same manner. The City failed to object to the charge before submission and it thereby waived its objections under Rule 274, T.R.C.P., Texas Employers' Insurance Ass'n v. Neuman, 379 S.W.2d 295 (Sup.Ct.1964).
The court's action in overruling the City's exceptions to appellee's pleadings and the objections to the issues contained in its motion for judgment non obstante veredicto will not form the basis for a point of error in the City's brief. In its second point the City asserts that there is no evidence to support the jury's answers to issues one, two, four, five and six. Points number one and two do not comply with Rule 418(b), T.R.C.P. which requires that the points be 'germane to one or more assignments of error when assignments are required.' These points are multifarious in that the points complain about more than one specific error. For these reasons we cannot consider these points. However, if the Supreme Court finds that we erred in this conclusion we will proceed to consider the points as presenting no evidence points so that it will not be necessary to remand the case to this court for that purpose.
'* * * In seeking to determine whether there is any evidence to support the judgment and the implied findings of fact incident thereto 'it is proper to consider only...
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