Swinney v. Winters
| Decision Date | 31 December 1975 |
| Docket Number | No. 15374,15374 |
| Citation | 532 S.W.2d 396 |
| Parties | William A. SWINNEY, and William A. Swinney, Inc., Appellants, v. Walter L. WINTERS, Jr., Appellee. |
| Court | Texas Court of Appeals |
Dibrell, Dotson & Dibrell, Edward R. Woolery-Price, San Antonio, for appellants.
Luther E. Rutherford, San Antonio, for appellee.
Appellants, William A. Swinney and William A. Swinney, Inc., hereinafter called 'Swinney,' appeal from an adverse judgment awarding appellee, Walter L. Winters, Jr., hereinafter called 'Winters,' damages in the sum of $22,640.00 in a suit pertaining to the construction and sale of a house and lot by Swinney for Winters. Trial was to a jury who found, in answer to the only special issues submitted, (1) that Swinney had not completed the construction of the house in accordance with the plans and specifications on or about March 1, 1973; (2) that on or about March 1, 1973, subject only to such completion of construction, Winters was ready, willing, and able to close the deal as buyer of such residence and lot; (3) that the market value of the residence and lot on or about March 1, 1973 was $70,000.00.
Winters is an architect and Swinney builds and sells homes. Winters desired to build a home for himself and had prepared some plans but was looking for a desirable lot. Winters found a lot, which was owned by Swinney, which he deemed suitable. Winters tried to purchase such lot but was told by Swinney that he would not sell the lot unless Swinney built a house on it. After some negotiations, Winters and Swinney entered into a contract dated February 15, 1972, in which they agreed that Swinney would construct a residence on the lot according to certain agreed plans and specifications prepared by Winters, and would sell and convey such property to Winters for a consideration of $49,370.00 with the deal to be closed within 130 days. Winters put up $5,000.00 earnest money. It appears from the record that considerable delay thereafter ensued. Swinney contends that the delay was caused by Winters' changes in house plans, weather problems, and some unusual features in the house; while Winters contends that, basically, the delay was the fault of Swinney. In any event, several extensions of time were agreed to and Swinney and Winters also agreed to an additional $3,000.00 consideration to cover Winters' changes. Finally, according to Winters, Swinney told him that the house could be completed in a week or two and that he could go ahead and schedule a closing date, and February 22, 1973 was agreed to. On February 20, Winters went by the house and was of the opinion that it could not be completed in two more days. He then called Swinney, who somewhat reluctantly agreed to change the closing date to March 1. On February 28, Winters visited the site, and according to Winters, a large number of things were yet to be done. He called Swinney again and told him that he would not close until they were completed. Swinney said that he was tired of messing with the house, and that if Winters didn't want to close the sale, he would sell it to someone else. Swinney put up a for-sale sign on the lot, a realtor noticed it, found out the sale price, and immediately sold it to a customer. The sale price was $62,500.00.
Swinney asserts 21 points of error which can be broken down into the following categories: (1) points of error with regard to the pleadings; (2) points of error complaining of the admission or exclusion of certain testimony; (3) a point of error complaining of certain remarks made by the trial court; (4) points of error complaining of the failure of the court to submit certain special issues; (5) points of error pertaining to the award of damages; (6) error of the trial court in denying Swinney judgment non obstante veredicto.
Swinney's first point of error complains that the trial court erred in overruling his motion to strike pleadings because the first paragraph of Winters' first amended petition is a paraphrasing and restatement in different language of the same paragraph previously ordered stricken by the court. In this connection, he asserts the amended pleading was filed within seven days of the date of trial without leave for filing first being obtained, in violation of the rules of civil procedure.
This point is without merit and is overruled. Rule 63, Tex.R.Civ.P., pertaining to amendments of pleadings, has been given a liberal interpretation by our courts and the rule itself provides that leave Shall be granted by the judge unless there is a showing that such amendment would operate as a surprise to the opposite party. Swinney's motion to strike the pleading does not contain an allegation of surprise. Swinney has not asserted here any surprise or prejudice; and therefore, any irregularity of failure to comply with the rules of civil procedure was cured by the trial court's action in considering the amended pleading. Consolidated Furniture Company v. Kelly, 366 S.W.2d 922 (Tex.1963); W. C. Turnbow Petroleum Co. v. Fulton, 145 Tex. 56, 194 S.W.2d 256 (1946); Lucas v. Hayter, 376 S.W.2d 790 (Tex.Civ.App.--San Antonio 1964, writ dism'd).
Moreover, the record here does not show whether leave was had or not and since the amended petition was considered by the court, leave is presumed. U.S. Letter Carriers Mutual Benefit Association v. Sypulski, 364 S.W.2d 840 (Tex.Civ.App.--Ft. Worth 1963, no writ). Swinney's point of error number one is overruled.
By his 12th point of error, Swinney urges that the judgment entered exceeds the relief sought by Winters, and that the prayer is deficient in several respects. 1
The thrust of Swinney's contention in this regard is that the prayer is not specific enough to determine the relief sought. An examination of the petition on which Winters went to trial discloses that he seeks damages on two alternate theories: (1) damages for false and fraudulent conduct of Swinney in an amount in excess of $100,000.00; (2) in the alternative, damages for wrongful breach of contract, under which he asserts that because of such wrongful breach of contract, he is entitled to recover the difference between the reasonable market value of the property, which he alleges to be $85,000.00, and the contract price.
It is clear that the jury's award was based on damages for breach of contract. The judgment awarded Winters damages in the amount of $22,640.00. The jury found the market value of the property to be $70,000.00. An earnest money payment of $5,000.00 was made by Winters. The parties agreed on an additional consideration of $3,000.00 for extras.
$70,000.00 -- Jury finding of market value
-$49,370.00 -- Contract price
$ 5,000.00 -- Partial payment of earnest money
-$ 3,000.00 -- Additional consideration for extras
-----------
$22,630.00 -- $10.00 less than judgement awarded
by court
Apparently a typographical error of $10.00 was made in typing the judgment, and the court's award should have been $22,630.00 instead of $22,640.00.
As it can be ascertained from the entire pleadings, the relief and damages sought by plaintiff, the pleadings are sufficient to authorize the judgment entered.
By two points of error Swinney complains that the trial court erred in: (a) permitting opinion testimony of plaintiff's witness, Slater, as to the market value of the property because such opinion testimony constitutes secondary evidence, and the market value was conclusively established as matters of law by testimony which showed that the house and lot were actually sold to a third party for $62,500.00; (b) permitting testimony by Winters as to the market value of the house and lot because (1) his opinion was secondary evidence, (2) was self-serving, (3) was not based upon knowledge of sales in the area or other real estate values.
Swinney testified that the house and lot were sold to a third party for $62,500.00. Slater, a licensed real estate broker and realtor, testified that the fair market value of the property involved as of March 1, 1973 was between $70,000.00 and $80,000.00; that he had inspected the property, and had also checked some comparables. The only objections to his testimony were (a) that he was not qualified as a licensed appraiser; (b) an objection to the inclusion of the date--March 1, 1973; (c) an objection that such testimony was a comment on the weight of the evidence; (d) an objection to his testimony as to comparable sales, because it is not shown that it was related to this specific house. All such objections were overruled. It is to be noted that there was no objection to the testimony on the ground that it was not the best evidence, or that it was secondary evidence, which is the only thing complained of in Swinney's point of error. Swinney makes no complaint on the appeal as to the matters on which his objections were based.
With regard to Winters' testimony, Winters testified that he is an architect and that it is a part of his training and duties to prepare construction costs. It is further evident from his testimony that he is familiar with the area and the particular house here involved. Winters further testified that he estimated the cost of the house and land right at $70,000.00 as of February 1972, and that he secured other bids on the construction and that they were in line with his estimate. Defendant's objection to such testimony on the grounds of its relevancy was overruled. Winters also testified that the fair market value of the property as of February 15, 1972, was approximately $70,000.00 and as of March 1973, approximately $85,000.00. There was no objection to this testimony.
As a general rule, the failure to make a timely and proper objection to proffered evidence will prevent a party from subsequently complaining on appeal of its admission by the trial court. State v. Landers, 377 S.W.2d 777 (Tex.Civ.A...
To continue reading
Request your trial
-
Rio Grande Valley Sugar Growers, Inc. v. Campesi
...excluding the testimony, and in addition, preserve the substance of such testimony in the record. Swinney v. Winters, 532 S.W.2d 396, 402 (Tex.Civ.App. San Antonio 1975, writ ref'd n. r. e.); Texas Associates v. Joe Bland Construction Co., 222 S.W.2d 413 (Tex.Civ.App. Austin 1949, writ ref'......
-
Gutierrez v. County of Zapata, 04-95-00720-CV
...follow such procedure and insists on making group requests of a number of such issues cannot complain of the trial court's refusal. Swinney, 532 S.W.2d at 404; Demler, 836 S.W.2d at 698; Crisp, 586 S.W.2d at 616. Moreover, even if Gutierrez had properly brought her requests to the trial cou......
-
Rubio v. State, 58370
...S.W.2d 110 (Tex.Cr.App.1936); Dallas Ry. and Terminal Co. v. Farnsworth, 227 S.W.2d 1017 (Tex.1950); Swinney v. Winters, 532 S.W.2d 396 (Tex.Cr.App.-San Antonio, 1975, writ ref'd n. r. e.); Davis v. Zapata Petroleum Co., 351 S.W.2d 916 (Tex.Civ.App.-El Paso, 1961, writ ref'd n. r. e.).8 Or ......
-
Armellini Exp. Lines of Florida, Inc. v. Ansley
...or was already included in the charge. Edwards v. Gifford, 155 S.W.2d 786, 788 (Tex.Sup.1941); Swinney v. Winters, 532 S.W.2d 396, 404 (Tex.Civ.App.-San Antonio 1975, writ ref'd n.r.e.); Griffey v. Travelers Insurance Company, 452 S.W.2d 725, 727 (Tex.Civ.App.-Amarillo 1970, writ ref'd n.r.......