Herold v. City of Austin

• Decision Date: 22 January 1958
• Docket Number: No. 10536,10536
• Citation: 310 S.W.2d 368
• Parties: Amos L. HEROLD, Appellant, .v CITY OF AUSTIN, Appellee.
• Court: Texas Court of Appeals

Page 368

310 S.W.2d 368

Amos L. HEROLD, Appellant, .v CITY OF AUSTIN, Appellee.

No. 10536.

Court of Civil Appeals of Texas, Austin.

Jan. 22, 1958.

Rehearing Denied Feb. 5, 1958.

Second Motion for Rehearing Denied Feb. 26, 1958.

Alfred M. Scott, Austin, for appellant.

Doren R. Eskew, City Atty., Robert J. Potts, Jr., Asst. City Atty., Austin, for appellee.

ARCHER, Chief Justice.

This is an appeal from a summary judgment.

Appellant on March 12, 1957, filed a suit against the City of Austin for $14,683 as claimed compensation for alleged personal services rendered, sketches prepared and delivered and ideas sold and furnished by Herold to the City and adopted and used by the City and its architects in the improvement of plans for the erection of The Austin Municipal Auditorium and for attorneys' fees.

On April 2, 1957, the City filed a motion for summary judgment verified and accompanied by an affidavit, alleging that there was no genuine issue as to any material facts and that the City was entitled, as a matter of law, to a judgment denying Herold any relief.

The motion states that the City had executed contracts with certain architects to execute plans and specifications for the construction of an auditorium and that if any idea or claim for compensation made by appellant is to be found in the final plans such was procured by the architects, for allegation was made that appellant had not pleaded that he is licensed to practice architecture under the provisions of Article 249a, Vernon's Annotated Civil Statutes.

The affidavit made by the Assistant City Manager referred to the contract with the architect, and as to public hearing.

There is attached to the motion an excerpt from the Minutes of the City Council on June 9, 1955, as follows:

'Mr. Amos Herold submitted a plan to the Council whereby he believed would add 1000 additional seats in the proposed Auditorium, increasing the seating capacity to 8,000, and effecting a savings of $300,000. His plan involved moving the stage forward 12-16 and widening the auditorium 8' on each side. The matter was deferred until the afternoon meeting with the Architects.'

At 2:30 P.M. on the same day:

'The Council resumed its meeting with the architects for the Auditorium. * * * Mr. Amos Herold submitted his plans in detail to the Architects. Mr. Page, after going over the plans, explained difficulties encountered in the accoustical problems--structural rearrangements--safety in a certain amount of passageway. * * * With the promise that the Architects will consider the Jaycee's suggestion in regard to the kitchens, and they had Mr. Herold's suggestions to consider and exchange ideas with Dr. Boner, Mr. Lane, and the Drama Departments Councilman Pearson moved that they instruct the Architects to proceed with the plans and consider the suggestions. The motion, seconded by Councilman White, carried by the following vote. * * *'

On April 4, 1957, plaintiff filed a counter affidavit in rebuttal to defendant's motion for summary judgment, which is long but states that there are material controverted issues of fact as alleged in his petition; that plaintiff stated to the City Council that he would reveal his proposals to the Council and the architects solely upon the condition that the City would pay him 5% of the cost of the salvaged space if his ideas were adopted and used and resulted in monetary saving to the City, and that the City Council did approve the contract with plaintiff and accepted his proposal of compensation equal to 5% of savings to the City for divulging his ideas and suggestions by passing the resolution (hereinabove set out); that the cause has been set for hearing and a jury fee paid, and an answer to the merits had been filed with several special exceptions, none of which had been ruled on prior to the hearing on the motion for summary judgment and an opportunity afforded plaintiff to amend his pleadings.

On April 25, 1957, defendant's motion for summary judgment and plaintiff's reply thereto were heard and the Court granted the motion and ordered that plaintiff take nothing by his suit, such order having been made on the 29th day of April, 1957.

The appeal is based on sixteen points assigned as error and are to the tenor that the Court failed to rule on appellee's seven special exceptions to appellant's amended petition, and thereby preventing an opportunity to amend; in failing to give effect to appellant's oral deposition, request for admission of facts; in coercing appellant's counsel to admit appellant was not a licensed architect; in sustaining the appellee's motion for summary judgment; in depriving appellant of a jury trial on the controverted issues of fact; in failing to specify what facts were with appellee; in qualifying appellant's bills of exceptions; in rendering judgment that appellant take nothing and finally in sustaining appellee's motion for summary judgment on any or all grounds set forth in such motion.

The prime question before us is the propriety of the granting of the summary judgment when there were controverted fact issues to be determined.

In the motion for summary judgment filed by the City the statements are made that at no time have specific detailed requirements been laid upon the architects so as to inhibit their free choice of the means to execute their commission to design a municipal auditorium and that the City retained no right of direction in the execution of the work.

'That 'if any idea contained in any plan, or any professional services, or any other claim for compensation or for damages made by plaintiff herein in his petition is to be found, directly or by derivation, in the final plans for the auditorium furnished the City by the architects named herein, same was procured by the said architects to their own ends and not by or under any instruction given by the City as owner or by any agent thereof to the architects in the execution of their professional services under the contract hereinbefore mentioned.

'As an alternative ground for summary judgment in favor of defendant herein, defendant would respectfully show the court that plaintiff's claim is for 'proposals of mine to revise the architectural plan for the Auditorium' (p. 5, line 17 of Amos L. Herold's deposition). Whereas, plaintiff has not pleaded that he is licensed to practice architecture under the provisions of Article 249a, Vernon's Revised Civil Statutes, and therefore has no standing to charge or collect architect's fees.'

The affidavit of W. T. Blodgett in part is:

'The first contact with the architectural firms who have designed the auditorium was made by a committee which had been appointed by the City Council in 1950. The committee had laid down certain basic requirements of an auditorium in a previously published report. The committee and the architects filed a report with the City Council on April 30, 1953 which represented their combined thinking as to the facilities which should be included. The Council took this report under advisement and on July 15, 1954, a formal contract was signed with the architects. No further requirements or instructions were given to the architects at this time. In May or June of 1955 the Council held several meetings with the Auditorium Committee, the Chamber of Commerce, the architects and others going over the preliminary plans of the auditorium. In June of 1955 two public hearings were held at which the general public was invited to and did offer criticisms and suggestions of the preliminary plans. The Council, by resolution, instructed the architects to consider all of these suggestions.'

Appellant Herold by counter affidavit stated that he had a contract with the City to be paid 5% as reflected by the Council action in its resolution of June 9, 1955, and that he did not claim to have been engaged as an architect for a fee or other direct compensation for his alleged services and submission of his ideas and proposals to the Council, in the planning or designing, or supervision of the construction of buildings, by or for other persons, as a business or profession, or represent or advertise himself as an architect as is regulated by Article 249a, V.A.C.S., and especially in section 10(a) thereof, but was within the exceptions provided in section 14, subdivision 3 of Article 249a.

The affidavit further recited that the Council did approve his contract as alleged in his petition; that the cause had been set for trial and jury fee paid prior to the hearing on the City's motion.

Appellant in his deposition set out the proposed changes suggested and of his claims for compensation and the action of the Council.

In granting the motion for summary judgment the Court, without passing on the City's special exceptions, and if sustained, in granting appellant an opportunity to amend, was in error as there...