European Crossroads' Shopping Center, Ltd. v. Criswell

• Citation: 910 S.W.2d 45
• Decision Date: 08 August 1995
• Docket Number: No. 05-93-01771-CV,05-93-01771-CV
• Parties: EUROPEAN CROSSROADS' SHOPPING CENTER, LTD., et al., Appellants, v. Harold CRISWELL, Appellee.
• Court: Texas Court of Appeals

Page 45

910 S.W.2d 45

EUROPEAN CROSSROADS' SHOPPING CENTER, LTD., et al., Appellants, v. Harold CRISWELL, Appellee.

No. 05-93-01771-CV.

Court of Appeals of Texas,

Dallas.

Aug. 8, 1995.

Robert M. Greenberg, Legal Services, P.C., Dallas, Gary W. Sibley, Law Offices of Gary W. Sibley, P.C., Dallas, for Appellant.

Joe D. Gregory, Gregory & Gregory, Grapevine, for Appellees.

Before BAKER, BARBER and WHITHAM ¹, JJ.

OPINION

BAKER, Justice.

This is the second appeal of this case. ² On the second trial, the jury found Criswell had performed the services agreed upon in the parties' contract. The jury also found thirty-five percent of Criswell's recovery as reasonable attorney's fees for Criswell's attorneys. The trial court entered judgment for the fee due under the contract, prejudgment interest at ten percent per year, and attorney's fees based on the jury's finding.

Crossroads contends there is no evidence or insufficient evidence to support the jury's answers to the questions submitted in the jury charge. Crossroads contends the trial court erred in overruling its objection to the transfer of the case from one district court to another. It contends the trial court erred in denying it leave to amend its pleadings. It contends the trial court erred in submitting a jury instruction on prevention of performance. Finally, it contends the trial court erred in awarding Criswell prejudgment interest at ten percent per year from September 17, 1981.

We conclude there is enough evidence to support the jury's answers to the questions submitted. We also conclude, with two exceptions, that the claims of trial error are either without merit or harmless. However, we hold the trial court erred in submitting the jury instruction excusing Criswell from performing if Crossroads prevented his performance under the contract. We hold this error was harmful. We also hold the trial court erred in awarding prejudgment interest at ten percent per year. The correct rate of prejudgment interest is six percent per year as provided by article 5069-1.03. ³ Accordingly, we reverse and remand the cause for a new trial.

FACTUAL BACKGROUND

Criswell is a registered engineer and surveyor. Ginsberg was general partner for Crossroads, a limited partnership. Ginsberg and others formed Crossroads to build a shopping center. Crossroads hired Criswell in 1970 as a structural engineer for the center. After operating for several years, the center was a financial failure. In 1979, Ginsberg asked Criswell to help him prepare the center for sale. Ginsberg wanted to divide the center into condominium units.

In 1980, Criswell agreed to prepare the requested plans. Criswell drafted an agreement that stated:

I will compile and prepare all information necessary for real estate agents to show and sell the above property on a condominium basis; i.e. to be able to sell each individual building (Building # 1 through Building # 9) as a separate item with necessary information to form an association to accommodate maintenance, taxes, necessary exterior utilities and any other community expenses; or as a whole project.

I will also prepare and have available any and all necessary information that a proposed owner or owners would deem pertinent or desirable and/or prepare the information that he may desire at his request.

For the above services, the European Crossroads will compensate to [sic] me at my office, presently in Suite # 141, 2829 W. Northwest Highway, Dallas, Texas, a fee of one percent (1%) of the total sales price of each building, buildings, or entire project at the time of closing.

Ginsberg signed the agreement for the center.

Criswell spent five months preparing data on the shopping center. At his own expense, Criswell prepared the data in a booklet and delivered several copies to Ginsberg. Ginsberg asked the center's mortgagee for approval to sell the center as condominium units. The mortgagee refused. Ginsberg relayed this information to Criswell. Criswell heard nothing from Ginsberg about payment for the booklet or his services. In 1981, Crossroads sold the entire shopping center under a contract for deed for $12,850,000. Ten months later Criswell learned of the sale. Criswell requested his fee. Crossroads refused to pay Criswell's fee.

PROCEDURAL BACKGROUND

1. The First Trial and Appeal

Criswell sued Ginsberg and Crossroads for breach of contract and attorney's fees. Criswell asserted the agreement was enforceable, whether Crossroads transferred the center as condominium units or as a whole project. Criswell claimed he provided information useful in the sale of the property. Criswell contended Crossroads could use the information he compiled either to sell the center as condominium units or as a whole project.

Ginsberg and Crossroads argued the agreement was unenforceable because Crossroads sold the center as a whole unit. They also asserted Criswell's data was useless because they did not sell the center as condominium units. Neither party contended the contract was ambiguous.

After Criswell rested, the trial court granted Crossroads' motion for directed verdict and entered judgment for Crossroads. The trial court ruled the sale of the center as condominiums was a condition precedent to Criswell earning his fee. In an unpublished opinion, we affirmed the trial court's judgment. We held because the condition precedent did not occur, Criswell had no right to performance under the contract.

The Texas Supreme Court granted writ of error on Criswell's petition. The court interpreted the phrases "as a whole project" and "or entire project" as parallel expressions of alternate methods of selling the center. Criswell v. European Crossroads Shopping Ctr., Ltd., 792 S.W.2d 945, 949 (Tex.1990) (op. on reh'g). The court held that the intent of the phrases was not to explain or modify the phrase "on a condominium basis." The court held the agreement did not require a sale of the shopping center as condominiums as condition precedent to Criswell's right to receive his fee. The court reversed our judgment and the trial court's judgment. The court remanded the cause to the trial court for a new trial. See Criswell, 792 S.W.2d at 949.

2. The Second Trial

The case was originally set for trial in the 193rd District Court. However, Judge Leonard E. Hoffman, Jr., senior judge of the 160th District Court, was sitting for the judge of the 193rd District Court. Judge Hoffman transferred this case from the 193rd District Court to the 101st District Court before the second trial began. The presiding judge of the 101st District Court conducted a jury trial for the parties. The trial judge submitted instructions and two questions to the jury. One of the instructions stated:

You are further instructed that if Harold Criswell was prevented from performing the details of his undertaking pursuant to Plaintiff's Exhibit 1 [the agreement] by the acts or omissions of a Defendant, then Harold Criswell is excused from performing the details of Plaintiff's Exhibit 1. As used herin [sic], the term "Defendant" means R.M. Ginsberg, European Crossroads Shopping Center, Ltd., its partners, agents, servants and employees.

The two questions the trial court submitted stated:

Question # 1

Do you find from a preponderance of the evidence that Harold W. Criswell performed the agreed upon services as defined in Plaintiff's Exhibit No. 1?

Question # 2

From a preponderance of the evidence, what is the reasonable fee for the necessary services of Harold W. Criswell's attorneys in this case stated as a percentage of Harold W. Criswell's recovery?

The jury answered "yes" to question one and "35%" to question two. The trial court denied Crossroads' motion for judgment notwithstanding the verdict and granted Criswell's motion for judgment on the verdict. The trial court entered judgment for: (1) $128,500; (2) prejudgment interest at ten percent per year compounded daily from September 17, 1981, totaling $290,881.31; (3) attorney's fees of 35% amounting to $146,783.46; (4) court costs; and (5) postjudgment interest at ten percent per year.

TRIAL ERRORS

A. The Transfer Order

Crossroads contends the trial court erred in overruling its objection to the transfer of the case from the 193rd District Court to the 101st District Court. Crossroads contends the order was void because it did not follow local court rules.

1. Applicable Law

District judges may exchange districts or hold court for each other when they consider it expedient. See TEX. CONST. art. V, § 11; TEX.R.CIV.P. 330(e); DALLAS (TEX.) CIV.DIST.CT.LOC.R. 1.1(f)(5); Ex parte Lowery, 518 S.W.2d 897, 901 (Tex.Civ.App.--Beaumont 1975, orig. proceeding).

The trial court has discretion to decide when to transfer a case. See TEX. CONST. art. V, § 11; TEX.R.CIV.P. 330(e); DALLAS (TEX.) CIV.DIST.CT.LOC.R. 1.1(f)(5); Akin v. Tipps, 668 S.W.2d 432, 434 (Tex.App.--Dallas 1984, orig. proceeding); Floyd v. State, 488 S.W.2d 830, 832 (Tex.Crim.App.1972).

The trial court may exchange or transfer a case on its own initiative. Exchange or transfer does not require a formal order. The minutes of the court do not need to show the reason for the exchange. See Roy v. State, 813 S.W.2d 532, 537 (Tex.App.--Dallas 1991, pet. ref'd); Lowery, 518 S.W.2d at 901; Baldwin v. Leonard, 110 S.W.2d 1160, 1161 (Tex.Civ.App.--Eastland 1937, writ dism'd). A litigant does not have a protected proprietary interest in having his case heard by a particular judge or a particular court. Starnes v. Holloway, 779 S.W.2d 86, 97 (Tex.App.--Dallas 1989, writ denied).

2. Standard of Review

We use an abuse of discretion standard to review the trial court's decision to transfer a case, exchange benches, or hold court for each other. Floyd, 488 S.W.2d at 832. A trial court abuses its discretion when it does not follow guiding rules and principles and reaches an arbitrary and unreasonable decision. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding); Flores v....