King v. Graham Holding Co., Inc.

• Decision Date: 01 December 1988
• Docket Number: No. A14-87-1006-CV,A14-87-1006-CV
• Citation: 762 S.W.2d 296
• Parties: Robert P. KING and Carol R. King, Appellants, v. GRAHAM HOLDING COMPANY, INC., et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 296

762 S.W.2d 296

Robert P. KING and Carol R. King, Appellants, v. GRAHAM HOLDING COMPANY, INC., et al., Appellees.

No. A14-87-1006-CV.

Court of Appeals of Texas Houston (14th Dist.).

Dec. 1, 1988.

David W. Showalter, Pamela P. Stines, Bellaire, for appellants.

Edna H. Palermo, Craig Smyser, Thomas M. Fountain, Houston, for appellees.

Before J. CURTISS BROWN, C.J., and MURPHY and ROBERTSON, JJ.

OPINION

ROBERTSON, Justice.

Appellants brought various causes of action against Graham Holding Company, Inc., Remco Enterprises, Liberty Sales Company, Liberty Military Sales Company, Jim Graham, David Kinter and Norman Emerson. The trial court rendered a partial summary judgment disposing of plaintiffs' causes of action for negligence and gross negligence, tortious interference with contract, intentional infliction of emotional distress, breach of fiduciary duty and duty of good faith, and conspiracy as to all defendants. The summary judgment also disposed of all of plaintiff Carol King's causes of action against all defendants except for her claim for loss of consortium. Finally, the judgment disposed of plaintiffs' claims against Kinter and Emerson for breach of contract. Trial on the remaining causes of action against the remaining defendants was to a jury. At the conclusion of the plaintiffs' case the trial court granted a directed verdict in favor of Graham Holding Company, Remco Enterprises, Inc., Liberty Military Sales, Inc., and Graham, Kinter and Emerson on plaintiffs fraud claim, alter ego claim and Mrs. King's claim for loss of consortium. Additionally, a directed verdict was granted in favor of Graham Holding Company on the contract claim. The only remaining issue was the contract claim against Remco Enterprises, Inc. and Liberty Military Sales. The jury found no contract, no damages, and no attorney's fees. Appellants bring eighteen points of error challenging (1) the grant of summary judgment, (2) the directed verdict, (3) evidentiary rulings, (4) special issue submission, (5) limitation of voir dire examination, (6) denial of a challenge of cause of a juror and (7) discovery rulings. We affirm.

I. FACTUAL BACKGROUND

This dispute centers around the repossession by GMAC of a 1983 Cadillac Cimarron automobile and appellants' claimed resulting damages. Appellant was employed by Graham Holding Company or some of its subsidiary companies for approximately four years. At the time of the events giving rise to his claimed injury, he was employed by Liberty Military Sales. His duties required considerable travel, much of which was accomplished by his use of his personal automobile, a 1983 Cadillac Cimarron. His testimony was that the travel expenses were great and that in an effort to trim them, he was to be provided a new company automobile and the company would purchase his Cadillac which was financed through GMAC. The claimed agreement was not reduced to writing nor was ownership of the automobile transferred to Liberty. However, appellant did receive a new Peugeot automobile in 1984 and he turned the Cadillac over to Liberty where it was used to some degree by the company employees. Additionally, the company maintained insurance on the Cadillac and did make some of the monthly payments to GMAC; however, when payments were not made and late payment notices were sent, they were sent to appellant. Appellant was transferred from Liberty to Remco Enterprises, another subsidiary of Graham Holding later in 1984 and, eventually in February, 1985, his employment was terminated in force reduction. He returned the Peugeot but did nothing about the Cadillac; GMAC subsequently repossessed and sold it, and notified appellant of the deficiency. Appellant's refusal to pay the deficiency affected his credit and he therefore sought some six million dollars in damages.

II. BRIEFING RULES

As a preliminary matter, appellees challenge our consideration of any of appellant's points of error except points eight and fourteen because the points have not been properly briefed. We agree that appellants' brief is deficient and that such deficiency is extremely serious in this case where the transcript consists of some 870 pages of filed papers and approximately 750 pages of depositions; the statement of facts consists of some 674 pages, with three volumes of exhibits, the pages of which are not numbered. Because there is some confusion in the legal community over the effect of briefing inadequacies, we will discuss the area before addressing appellant's points of error. Our starting point is supreme court precedent.

At least as early as 1853 the supreme court held that it would not consider matters which the appellant had failed to present properly. Mosely v. Gainer, 10 Tex. 578 (1853). Hardly a novel proposition, this principle of appellate review was repeatedly stated by the high court through the years. E.g., Burgess v. Sylvester, 143 Tex. 25, 182 S.W.2d 358 (1944); Ackerman v. Huff, 71 Tex. 317, 9 S.W. 236 (1888). Occasionally the court exercised its discretion to order a point rebriefed, e.g. McManus v. Wallis, 52 Tex. 534, 541 (1880), but in so doing it pointed out that such a failure was nevertheless reason for dismissing the appeal. Id.

One might wonder whether the 1941 adoption of rules of civil procedure changed matters. However, appellate courts had long operated under their own rules of procedure. See, e.g. RULES FOR THE COURTS OF TEXAS, 104 Tex. 643 (1912). There is no reason to believe the supreme court's historical requirement of minimal briefing suffered any abrogation by the collection of the 1941 rules. Those 1941 rules contained directives to the supreme court and courts of civil appeals not to dismiss an appeal on purely formal grounds. TEX.R.CIV.P. 504, 437. But that principle never created a right to disregard the other rules. As Justice Spears wrote for a unanimous court in 1983, "Points of error must be supported by argument and authorities, and if not so supported, the points are waived." Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex.1983).

When the rules governing appellate practices were segregated into a separate corpus, former rules of civil procedure 504 and 437 carried over as TEX.R.APP.P. 185 and 83. During the transition this court faced a summary judgment case involving poor briefing. In Inpetco, Inc. v. Texas Am. Bank/Houston, 722 S.W.2d 721 (Tex.App.--Houston [14th Dist.] 1986), writ ref'd n.r.e. per curiam, 729 S.W.2d 300 (Tex.1987), we encountered an appellant's briefing with a single point of error, namely that the trial court erred in granting summary judgment because material fact issues existed. We found waiver of the complaint because of deficient briefing, scant references to the record, and inadequate supporting argument. Id. at 722. The supreme court refused the writ on the merits but disapproved our treatment of the procedural question. 729 S.W.2d at 300. The court said we should have ordered a rebriefing in that cause.

Our opinion failed to recognize that the appellant had in fact complied with the supreme court's express specification for stating a point of error in a summary judgment case. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970). Nothing in the per curiam opinion in Inpetco purported to question Justice Spears' statement for the Trenholm court that unsupported points of error are waived; indeed Inpetco relied on TEX.R.APP.P. 83, which was in full force during Trenholm (as TEX.R.CIV.P. 437 and in its supreme court analog, TEX.R.CIV.P. 504). See also TEX.R.APP.P. 74(f) (requiring supporting argument).

Any lingering doubt about Inpetco 's scope was surely put to rest by Justice Kilgarlin's opinion for the court in Davis v. City of San Antonio, 752 S.W.2d 518 (Tex.1988). There he rejected the argument that a litigant was "entitled to correct its procedural deficiencies." Id. at 521 (emphasis added). Neither the rules nor Inpetco creates a substantive right to amend briefs. To the contrary, disposition of an appeal may be "based, at least in part, on defects or irregularities in ... appellate procedures." Id. at 522. It would be intolerable for an appellate court to be forced to spend an inordinate amount of time preparing for submission of a case, to hear oral arguments without the benefit of proper study, and then to be required to send the cause back to the beginning of the process for rebriefing--and perhaps reargument. Although the wheels of justice turn slowly, they need not roll over the same ground twice.

At bottom, the rules recognize a degree of discretion in reviewing courts. We construe points of error liberally, see Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986), and we will entertain a motion to amend a brief, see 8 Tex.B.J. 49-50 (1945), but an appellate court must have the discretion to deny such a motion. See Davis v. City of San Antonio, supra.

III. THE MERITS

In their first two points of error appellants contend the trial court erred in granting summary judgment against them on their negligence and gross negligence claims against all appellees. Appellants argue their negligence action does not arise out of the breach of contract to purchase their automobile. We disagree. In International Printing Pressmen and Ass't Union v. Smith, 145 Tex. 399, 198 S.W.2d 729 (1946) the supreme court recognized that while there was no "universally accurate or acceptable definition" of when a cause of action sounds in contract or tort, the court stated:

However, generally speaking, "actions in contract and in tort are to be distinguished in that an action in contract is for the breach of a duty arising out of a contract either express or implied, while an action in tort is for a breach of duty imposed by law." It is sometimes said that "if the action is not maintainable without pleading and proving the contract, where the gist of the action is the breach of the contract, either by malfeasance of nonfeasance, it is, in substance, an...