Michelle Corp. v. El Paso Retailers Ass'n, Inc., 08-83-00063-CV

• Court: Texas Court of Appeals
• Writing for the Court: Before STEPHEN F. PRESLAR; SCHULTE
• Citation: Michelle Corp. v. El Paso Retailers Ass'n, Inc., 675 S.W.2d 610 (Tex. App. 1984)
• Decision Date: 15 August 1984
• Docket Number: No. 08-83-00063-CV,08-83-00063-CV
• Parties: MICHELLE CORPORATION, d/b/a Michelle's, Appellant, v. EL PASO RETAILERS ASSOCIATION, INC., Appellee.

Page 610

675 S.W.2d 610

MICHELLE CORPORATION, d/b/a Michelle's, Appellant, v. EL PASO RETAILERS ASSOCIATION, INC., Appellee.

No. 08-83-00063-CV.

Court of Appeals of Texas El Paso.

Aug. 15, 1984.

Bruce J. Ponder, El Paso, for appellant.

Stuart R. Schwartz, Scott, Hulse, Marshall, Feuille, Finger & Thurmond, El Paso, for appellee.

Before STEPHEN F. PRESLAR, C.J., and WARD and SCHULTE, JJ.

OPINION

SCHULTE, Justice.

This is an appeal from a final judgment granting a permanent injunction under the provisions of Tex.Rev.Civ.Stat.Ann. art. 9001 (Vernon Supp.1984). This Court has previously affirmed the granting of temporary injunctive relief in this case, Michelle Corp. v. El Paso Retailers Association, Inc., 626 S.W.2d 615 (Tex.App.--El Paso, 1981, no writ), and also denied Appellant's habeas corpus challenge to his criminal prosecution for the same offense, Ex parte Robbins, 661 S.W.2d 740 (Tex.App.--El Paso 1983, no pet.). We affirm.

The due process and equal protection issues raised in Points of Error Nos. Four and Five were adequately addressed in the above-cited habeas corpus case. For the same reason stated in that opinion, we overrule these points of error.

In Points of Error Nos. One and Two, Appellant complains of denial of his motion ofr summary judgment based upon his affirmative defense of charitable purpose sale and of the unconstitutionally vague wording of the defense in subsection (2) of the statute.

Although not pled as an affirmative defense in accordance with Tex.R.Civ.P. Rule 94, the issue was tried by consent. The uncontested evidence reflects that Appellant sold prohibited items on consecutive Saturdays and Sundays and donated twenty-five percent of his net profit to bona fide charities. Point of Error No. One contends that this established the affirmative defense. Point of Error No. Two alternatively alleges that if this does not establish the affirmative defense, then the statute is unconstitutionally vague in failing to adequately define the minimum charitable donation which would characterize a sale as being for charitable purposes.

Nothing in the statute suggests that the affirmative defense may be founded upon a proportional division of sales profits between charitable donation and personal gain. The statute's clear language indicates that the exclusive motivation for the sale or sales must be charitable. The seller may of course deduct immediate overhead costs from his gross proceeds. He may also retain a portion of the proceeds to support the future conduct of charitable sales. The net profit, however, must be devoted to charity to qualify for exemption from the statute's proscriptions or to establish an affirmative defense to civil and criminal proceedings. Points of Error Nos. One and Two are overruled.

In Point of Error No. Three, Appellant contends that the statute is violative of due process in that the descriptive categories of merchandise not to be offered for sale on consecutive Saturdays and Sundays are too vague...