Otto Vehle & Reserve Law Officers Ass'n v. Brenner

• Decision Date: 05 September 1979
• Docket Number: No. 16136,16136
• Citation: 590 S.W.2d 147
• Parties: OTTO VEHLE & RESERVE LAW OFFICERS ASSOCIATION, Appellants, v. Emery BRENNER, Individually and d/b/a Brenner Printing Company, Appellee.
• Court: Texas Court of Appeals

Page 147

590 S.W.2d 147

OTTO VEHLE & RESERVE LAW OFFICERS ASSOCIATION, Appellants, v. Emery BRENNER, Individually and d/b/a Brenner Printing Company, Appellee.

No. 16136.

Court of Civil Appeals of Texas, San Antonio.

Sept. 5, 1979.

Rehearing Denied Oct. 3, 1979.

H. David Peeples, Tinsman & Houser, Inc., San Antonio, for appellants.

Robert I. Kahn, Raymond E. Taylor, Phillip R. Spicer, Jr., San Antonio, for appellee.

OPINION

KLINGEMAN, Justice.

This is a suit on an overdue account. Plaintiff Emery A. Brenner, individually and doing business as Brenner Printing Company, sued American Police Publications, Inc. (sometimes hereinafter referred to as APP); Leon Schumacker; and Otto Vehle on a sworn account. Vehle's answer consisted of a general denial and a sworn denial under Rule 185 of the Texas Rules of Civil Procedure. APP and Schumacker did not answer after due citation, and an interlocutory default judgment was taken against them. Brenner then filed a first amended petition which was the same as his original petition in most respects, except that it named "Otto Viehle (sic), d/b/a Reserve Law Officers Association" as a defendant in lieu of Otto Vehle as an individual defendant. Vehle's first amended answer consisted of a general denial and sworn pleas that, as to him, the account was not just or true in whole or in part, pursuant to Rule 185; that the action was barred by the Statute of Frauds; and that he was not liable in the capacity in which he was sued. There was no service of citation on Reserve Law Officers Association, and only Vehle was cited. American Police Publications, Inc., and Schumacker did not appear at trial.

Trial was to a jury, which, in answer to Special Issue No. 1, found that "Otto Vehle, doing business as Reserve Law Officers' Association," agreed in advance to pay for the work represented by the bill for $9,207.21. Special Issue Nos. 2, 3 and 4 pertained to attorney's fees, and the jury awarded the plaintiff $2,500, $2,500 and $2,000, respectively, as attorney's fees for legal services in preparation for and at trial; for appeal to the court of civil appeals, if necessary; and for appeal to the Supreme Court of Texas, if necessary. Reserve Law Officers Association (sometimes hereinafter referred to as the Association) filed an appeal by writ of error, and Vehle timely perfected his appeal to this court, both of which have been consolidated in the cause before us. Neither APP nor Schumacker perfected an appeal.

It is apparent from the record that a number of different entities were involved, or alleged to be involved, in this lawsuit. American Police Publications, Inc., a corporation, was engaged in the publishing business and was here involved in the publication of a magazine known as Reserve Law. As publisher it did not always do the actual printing of the magazine, however, and in the present dispute Brenner performed the printing on which this action is predicated. About sixty per cent of the magazine was comprised of advertisements sold by APP, from the sale of which APP kept the receipts, and the remaining forty per cent of the magazine's composition consisted of stories and articles that dealt generally with police work of various law enforcement organizations around the nation. APP was required to print the magazine (or to see that it was printed) and to pay for all the expenses in connection therewith; to sell the advertisements; and to pay for all expenses and costs incurred in connection with the publication of the magazine; Leon Schumacker was APP's agent for service and was active in the publishing activities previously outlined.

The Reserve Law Officers Association, a non-profit law enforcement association, consists of a large number of members who reside in forty-nine states and who pay yearly dues. The national headquarters are located in San Antonio. Some of the members volunteer to accompany regular law enforcement officers during the assigned tours of duty of such officers. Some Association members attend law enforcement programs where they receive various types of training. There is no common membership between APP and the Association. The Association members receive the magazine hereinbefore discussed as a benefit derived from their membership. The Association has at least five directors.

Otto Vehle is one of the directors of the Association and is also employed by the Association to travel over large areas of the United States meeting with and speaking to law enforcement groups, addressing state legislatures, and similar types of activities. For such work he received a salary from the Association.

The case is before us in the following status: Brenner has a default judgment against American Police Publications, Inc., and Leon Schumacker in the total sum of $12,276.28, which includes plaintiff's principal claim for $9,207.21, and attorney's fees of $3,069.07. Plaintiff was also awarded interest from date of judgment. Neither party in default has perfected an appeal.

Plaintiff also has a judgment against "Otto Vehle, d/b/a Reserve Law Officers Association," in the sum of $10,603.85, which includes the principal sum of $9,207.21, and prejudgment interest to the date of judgment in the amount of $1,396.64; plus post-judgment interest at the rate of nine per cent per annum. Plaintiff was also awarded attorney's fees for trial work in the amount of $2,500; an additional $1,000, if the appeal is perfected to the court of civil appeals, and another $1,000, if the appeal is perfected to the Supreme Court of Texas.

By a number of points of error, Vehle on appeal asserts that (1) the trial court erred in submitting Special Issue No. 1 ¹ because (a) the issue assumes the existence of a disputed fact, i. e., whether Vehle was "doing business as Reserve Law Officers' Association" ; (b) the issue commented on the weight of the evidence by telling the jury that Vehle was doing business as the Association; and (c) the issue was multifarious and submitted two separate ultimate fact questions; (2) the evidence is legally and factually insufficient to support a finding in the judgment that Vehle agreed to be liable individually or personally for the debt made the basis of this lawsuit; (3) the evidence is legally and factually insufficient to support a finding that Vehle was doing business as the Reserve Law Officers Association; (4) any cause of action is barred by the Statute of Frauds; and (5) portions of the jury argument made by counsel for Brenner were improper and harmful error.

The Association by three points of error asserts that the trial court erred in rendering judgment against it because (1) no citation was ever requested, issued, or served on the Association, nor did the Association ever make an appearance or waive service of citation; (2) any actual or constructive knowledge of the lawsuit by the Association did not cure the lack of citation and service, and the trial court did not, therefore, acquire jurisdiction over the Association; and (3) the trial court never acquired in personam jurisdiction over the Association.

We will first discuss appellants' contention that the trial court erred in submitting Special Issue No. 1 to the jury. Vehle denied throughout his testimony that he was Reserve Law Officers Association or that he was "doing business as" the Association, and he specifically denied under oath that he was liable in the capacity in which he was sued. He properly objected to Special Issue No. 1 on the grounds previously set forth and tendered two separate requested special issues in support of his position, which were refused. ²

Submission of Vehle's requested special issues would not have unduly complicated or prolonged the case. Special Issue No. 1, as actually submitted to the jury, either assumed the existence of a disputed material fact, or the court found as a matter of law the existence of such a fact. The evidence before us does not support such a holding as a matter of law, and in actuality the evidence is to the contrary. As submitted, the jury was essentially told by the court that Vehle was "doing business as" Reserve Law Officers Association. At the least, it was a comment on the weight of the evidence. We have concluded that the presentation of the issue to the jury in the form in which it was submitted was error and harmful error. City of Wichita Falls v. Gleghorn, 531 S.W.2d 879 (Tex.Civ.App. Eastland 1975), Writ ref'd n. r. e. per curiam, 545 S.W.2d 446 (Tex.1976); Cactus Drilling Co. v. Williams, 525 S.W.2d 902 (Tex.Civ.App. Amarillo 1975, writ ref'd n. r. e.); 3 R. McDonald, Texas Civil Practice §§ 12.03.2, 12.18.1 (rev. 1970). Vehle only asked that there be a separate special issue submitted for each ultimate issue.

We have further concluded that the jury's answer to Special Issue No. 1 is against the great weight and preponderance of the evidence. Vehle consistently denied ever agreeing to pay for the debt here alleged. He testified positively that he never guaranteed the payment of such indebtedness, and that he never agreed to pay for the printing involved or to be responsible for it. He further testified that APP was to be wholly responsible for the printing of the Reserve Law magazine and that Brenner knew this. On the other hand, Brenner's testimony on this point is not entirely unequivocal. Generally, he testified that he had the "impression" that Vehle or the Association would be one of the responsible parties, but in this connection the testimony refers to Vehle's activities as a director of the Association. None of his testimony connects Vehle individually with responsibility for the debt.

Moreover, the documentary evidence supports Vehle's contentions. A large number of statements and invoices for printing jobs were introduced, most of them by Brenner, to establish the claim that is the subject of this suit. None of these statements or invoices were ever billed to Otto Vehle. Brenner's own account...