King v. Lindley
| Decision Date | 30 August 1985 |
| Docket Number | No. 13-84-183-CV,13-84-183-CV |
| Citation | 697 S.W.2d 749 |
| Parties | D.D. KING, El Campo Well Service, Inc., Gary Downing, Texas Farms, Inc., Wilhelm Degen and C.E. Muegge, Appellants, v. R.J. LINDLEY, Jr. and Lindley and Company, Appellees. |
| Court | Texas Court of Appeals |
Michael Connelly, Mayor, Day & Caldwell, Houston, Bill Payne, Lawrence, Thornton, Payne & Watson, Bryon, for appellant.
James R. Leahy, John O. Tyler, Jr., Houston, for appellee.
Before NYE, C.J., and SEERDEN, J.
This suit arose from the non-performance of a contract to sell real estate. Two separate lawsuits were originally filed but were consolidated for the purpose of trial. On November 28, 1983, the date the consolidated cases had been preferentially set for a jury trial, the trial judge announced it was rendering judgment disposing of all matters in controversy except the amount of attorneys' fees to be awarded to Texas Farms, Inc. and R.J. Lindley, Jr. and Lindley and Company, Realtors. The jury was dismissed and, on February 21, 1984, the trial court signed its Corrected Final Judgment. Texas Farms, Inc. and El Campo Well Service, Inc. have each appealed from this judgment.
Texas Farms, Inc.'s appeal is predicated on sixteen points of error. In its first nine points, complaint is made that it was denied a trial by jury and was denied the right to present evidence of its various contentions. Points of error ten through thirteen raise no evidence and insufficient evidence points relating to the judgment, point of error 14 charges an abuse of discretion in ordering funds deposited in the registry of the court disbursed and points of error 15 and 16 charge abuse of discretion in the trial court's action denying it the right to take a partial non-suit.
El Campo Well Service, Inc. appeals on five points of error. Points of error one through four complain of the trial court's awards relating to attorneys' fees; point of error five complains of the court's denial of requested relief without a trial or a consideration of the evidence.
The record before this Court consists of numerous pleadings, discovery matters, a certified copy of the trial docket sheet, the orders which the trial court made in connection with the case, and a statement of facts which is simply a record of a conference between the lawyers for the parties and the judge which occurred after the judge announced that he was going to enter judgment without hearing any evidence. There was no motion for summary judgment or any other motion for judgment, other than one filed by El Campo Well Service, Inc. (called El Campo), on February 17, 1984, which is not pertinent to our resolution of this case.
The following pertinent facts are revealed from the live pleading in this case. R.J. Lindley, Jr. and Lindley & Co., referred to as Lindley, instituted this litigation on April 6, 1981, with the filing of their original petition. In this suit, they alleged that before January 15, 1981, they entered into an agreement with El Campo Well Service, Inc., referred to as El Campo, to obtain a buyer for 2,761 acres of land in Wharton County, Texas. They were to receive $100,000 commission for their services in this connection. They obtained a buyer and a contract for the sale of the land was entered into between El Campo and Texas Farms, Inc. The defendants, Gary Downing, individually and as an officer of El Campo, Wilhelm Degen and C.J. Muegge were charged with fraudulently and tortiously interfering with the commission agreement; and Lindley claimed they had been damaged in the sum of $100,000, were entitled to exemplary damages and attorney's fees. All defendants answered, generally denying Lindley's allegations and making denials not material to this appeal. Later, on October 7, 1983, Lindley supplemented their original petition with claims that the defendants engaged in a conspiracy to defraud them and also made an alternate claim for quantum meruit.
On September 16, 1983, the First Amended Original Petition of Texas Farms was filed complaining of the actions of El Campo Well Service, D.D. King and Wilhelm Degen. Texas Farms alleged that the contract referred to in Lindley's original petition was entered into by Texas Farms, El Campo and D.D. King; that thereafter, on February 7, 1981, these parties entered into an addendum to the original agreement, whereby the sellers, El Campo and King could pay Texas Farms $150,000 by April 15, 1981, and the original contract would be cancelled. The addendum also provided a method by which Texas Farms could reinstate the original contract should sellers not pay Texas Farms the $150,000.
As stated earlier, both the Lindley and Texas Farms cases were consolidated by the trial court.
On October 12, 1983, El Campo filed a pleading entitled "Consent to Judgment." This document alleges that El Campo no longer contests Texas Farms' claim for specific performance of the January 15, 1981, contract and consents to judgment for specific performance of said contract. This pleading also specifically
Thereafter, on November 18, 1983, El Campo filed its First Amended Answer and Counterclaims to the pleadings of both Lindley and Texas Farms. This pleading is essentially the same as the original answer with respect to its response to the claims by Lindley; however, as to the matters plead by Texas Farms, it not only continues its general denial of the matters plead, it continues to insist that Texas Farms is not entitled to relief for any alleged breach of the Real Estate Contract because 1) there was a failure of consideration, 2) Texas Farms breached the contract, 3) Texas Farms repudiated, renounced and abandoned the contract, 4) Texas Farms never intended to perform its obligation and finally, 5) that the contracts were fully performed and there was an acord and satisfaction. El Campo continued to specifically deny it was liable for attorney fees.
Thereafter, El Campo, along with D.D. King and Wilhelm...
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