Welch v. Overton

• Decision Date: 09 May 1967
• Docket Number: No. 7807,7807
• Citation: 416 S.W.2d 879
• Parties: Louie WELCH et al., Appellants, v. John W. OVERTON et al., Appellees. . Texarkana
• Court: Texas Court of Appeals

Page 879

416 S.W.2d 879

Louie WELCH et al., Appellants, v. John W. OVERTON et al., Appellees.

No. 7807.

Court of Civil Appeals of Texas Texarkana.

May 9, 1967.

Rehearing Denied May 30, 1967.

Wm. A. Olson, City Atty., Homer T. Bouldin, Trial Supervisor, Houston, for appellants.

Will Sears, Sears & Burns, Houston, for appellees.

DAVIS, Justice.

Plaintiffs-appellees, John W. Overton, William E. Averyt and Paul B. Kennedy, sued defendants-appellants Louie Welch, Mayor of the City of Houston, Henry Kriegel, Director of the Treasury and Treasurer of the City of Houston, Roy B. Oakes, City Controller of the City of Houston, A. T. Krook, Director of Public Utilities of the City of Houston, W. B. Barfield, Clerk of the Corporation Courts of the City of Houston, and the City of Houston, a Municipal Corporation. In plaintiffs' verified petition, they alleged that they were the holders of classified civil service positions of the City of Houston; that they wre unlawfully discharged, or laidoff, by Mayor Welch in violation of Art. Va of the Charter of the City of Houston. The parties will be referred to as plaintiffs and defendants.

Plaintiffs prayed for judgment for their restoration to the employment under the civil service laws, for their salary, for a writ of mandamus compelling Defendant Welch to set aside his order dated January 22, 1962, discharging them from their employment and commanding him to direct that all administrative action be taken to restore each of the plaintiffs to their respective positions, and for a writ of mandamus against each of the defendants requiring them to issue vouchers and warrants to pay plaintiffs their salaries from the date of discharge.

Plaintiffs also sought a writ of injunction enjoining and restraining Defendant Welch from terminating each plaintiffs' employment with the City of Houston, except in strict accordance with the provisions of Section 3 of Art. Va of the City Charter of the City of Houston.

Plaintiffs also sought judgment against the City of Houston determining and declaring that the orders made by Defendant Welch on January 22, 1964, were wholly null and void and ineffective to separate the plaintiffs from their civil service employment with the City of Houston and determining and declaring that each plaintiff is entitled to be paid the salary appertaining the salary to his position from and after January 29, 1964.

Plaintiffs alleged in their sworn petition that only the City Council, when acting in good faith, was empowered to abolish their civil service positions and that no such abolition had ever taken place.

Plaintiffs' petition was filed in the District Court on February 27, 1964. Defendants only filed a general denial on March 11, 1964. On October 17, 1965, defendants filed their first amended original answer in which they filed a general denial, special denials and a special answer.

The case was tried before a jury. During the trial, after the plaintiffs had offered all of their evidence, the defendants asked leave of the court for permission to file their trial amendment No. 1 in which they sought to allege the provisions of an excerpt from the '1958 Code of Ordinances of the City of Houston Charter, 8 Civil Service, Art. II, Rules, Section 8--88, 'What Constitutes a Lay-off" . Section 8--88 reads as follows:

'When a position is abolished through re-organization of a department or reassignment of duties, or is discontinued by reason of lack of work or funds, or other good cause, the incumbent of that position shall be so notified and at the stated time his salary and work shall cease. This shall constitute a layoff. It shall be for reasons not reflecting discredit upon the employee and The department head shall so notify the employee in writing at least five days in advance of the layoff, and a copy of the layoff notice forwarded promptly to the director. A suspension, dismissal, or discharge shall not constitute a layoff and vice versa. Every layoff shall be subject to review of the commission.' Emphasis added.

The trial court denied the request and the defendants excepted. After all the plaintiffs' evidence was in and Mayor Welch had testified for defendants, the defendants requested permission to file their trial amendment No. 2, in which they pled Ordinance 64--1289. The ordinance was passed on July 14, 1964, and approved by Mayor Welch on July 14, 1964. This case was called for trial on June 21, 1966, almost two years after this ordinance was passed. The defendants were given permission to dictate a motion to file trial amendment No. 2 in the absence of the jury. The following took place:

'THE COURT: Mr. Bouldin, you may go on and dictate whatever motion you want to dictate.

'MR. BOULDIN: Now come defendants herein and with leave of the Court first had filed their trial amendment to their first amended answer and would thereby show the Court, in addition to the matters set forth in said first amended original answer, and also in addition to the first defendants' trial amendment, the following:

'In the alternative, the defendants would show and by Ordinance No . 64--1289, which is as follows (see Defendants' Exhibit No. 2 herein) was duly enacted by the City Council of the City of Houston, Texas, said ordinance being No. 64--1289, dated July 14, 1964, passed by the Council on July 14, 1964, and approved by the mayor of the City of Houston on the 14th day of July 1964; that said ordinance, or its contents, was duly passed by the City Council of the City of Houston, Texas, and was approved by the mayor of the City of Houston, Texas.

'Wherefore, defendants pray that this trial amendment, with the leave of the Court, be filed and that this motion or leave to file such trial amendment be granted by the Court. The defendants, each and all, now move the Court to allow the filing of such trial amendment.

'Wherefore, defendants pray that said motion be granted and that plaintiffs take nothing herein and that defendants go hence without day and recover all costs on their behalf expended.'

After the motion was dictated, arguments were presented to the court in which it was pointed out by plaintiffs' counsel that it had been almost two years since the purported ordinance was passed and he told the trial court that it injected an issue that was decided in City of San Antonio v. Wallace (1960), 161 Tex. 41, 338 S.W.2d 153. He tried to point out to the court that the pleading came too late. Be that as it may, the record goes on to show:

'THE COURT: Gentlemen, do you have a stipulation concerning the oral dictation of defendants' motion for leave to file trial amendment?

'MR. SEARS: Yes, sir. The record may show that the plaintiffs have no objection to the defendants' trial amendment No. 2, having been dictated into the record instead of being filed in writing, provided the court reporter transcribes it within reasonable time, counsel signs it and we are furnished a copy.

'THE COURT: Is that stipulation agreeable?

'MR. BOULDIN: Yes, sir.

'I would like for the record to show, or the reporter in drawing it up to show our last trial amendment as No. 2. We have two in the record. I want to be sure that it is clearly identified.

'THE COURT: Defendants' motion for leave to file Trial Amendment No. 2 is granted, and subject to the stipulation the reporter will reduce it to writing and make it a part of the record in the case.

'MR. SEARS: To the action of the Court in granting the leave we formally except, Your Honor.'

Apparently, the court reporter never did transcribe the pleadings, attorneys for defendants never did sign them, they were not filed with the District Clerk, nor brought forward in the transcript, and counsel for plaintiffs were never furnished a copy. Trial Amendment No. 2 cannot be considered by this court. Rule 45, Texas Rules of Civil Procedure; Rule 57, T.R.C.P.; Needham v. Cooney (Tex.Civ.App.1915), 173 S.W. 979, err. ref.; Early v. Burns (Tex.Civ . App.1940), 142 S.W.2d 260, err. ref.; Rio Grande Oil Company v. Barker (Tex.Civ.App.1924), 247 S.W. 967, n.w.h.

The defendants filed a motion for instructed verdict when the plaintiffs rested their case and another motion when all the evidence was in. Both motions were overruled. The plaintiffs filed a motion for the court to withdraw the case from the jury and render judgment in their favor because there were no questions of fact to be decided and the whole case rested upon a proposition of law. This motion was granted. The defendants have perfected their appeal and bring forward 8 points of error.

By their points 1 through 6, defendants say the trial court erred in overruling their motion for instructed verdict because there is no evidence, or insufficient evidence, that any of the defendants unlawfully violated any charter provision of the City of Houston by laying off the plaintiffs from their civil service positions; that the evidence conclusively shows that there was substantial evidence to support the finding of the Civil Service Commission in upholding the action of defendant Mayor Welch, and because the evidence showed Mayor Welch acted in good faith for afficiency and economy and for the best interest of the City of Houston.

Mayor Welch took office on January 2, 1964. On January 16, 1964, defendant Kriegel wrote two letters, identical in content, the first addressed to defendant Barfield, and the other addressed to defendant Krook. In neither of these letters was any mention made of a job or position being abolished. Barfield and Krook, as department heads, were simply directed by Kriegel to notify the plaintiffs that they were no longer on the payroll after January 17, 1964, by virtue of instructions from Mayor Welch.

On January 22, 1964, Mayor Welch wrote letters to each plaintiff, in identical wording, except for the positions that where held by the three plaintiffs. The letter written by Mayor Welch to plaintiff Overton will serve as an example:

'CITY OF HOUSTON

Inter...