Wolf v. Fernandez, 04-86-00015-CV

• Decision Date: 30 June 1987
• Docket Number: No. 04-86-00015-CV,04-86-00015-CV
• Citation: 733 S.W.2d 695
• Parties: Bruno WOLF, Appellant, v. Jesus Diez Sollano FERNANDEZ, et al., Appellees.
• Court: Texas Court of Appeals

Page 695

733 S.W.2d 695

Bruno WOLF, Appellant, v. Jesus Diez Sollano FERNANDEZ, et al., Appellees.

No. 04-86-00015-CV.

Court of Appeals of Texas,

San Antonio.

June 30, 1987.

Rehearing Denied July 24, 1987.

C.M. Zaffirini, Julio Garcia, Guadalupe Castillo, Laredo, for appellant.

J.G. "Bumper" Hornberger, Jr., Dallas, for appellees.

Before CADENA, and DIAL and CHAPA, JJ.

OPINION

DIAL, Justice.

This is a breach of contract and fraud suit arising out of an alleged five year oral employment contract. Appellant Bruno Wolf sued six (6) corporations and three (3) individuals. The trial court granted appellees' motion for summary judgment as to the breach of contract issue based on the statute of frauds. TEX.BUS. & COM. CODE ANN. § 26.01 (Vernon 1968 & Supp.1987). The fraud issue proceeded to trial before a jury. After Wolf rested his case, the trial court granted the corporate defendants' motion for instructed verdict and denied same as to the three individual defendants, Jesus Diez Sollano Fernandez, Jesus Diez Sollano Sada, and Luis Torres. Ten special issues were submitted to the jury on the fraud theory. The trial court initially entered judgment on the verdict awarding Wolf $250,000.00 actual damages and $100,000.00 exemplary damages. This judgment was subsequently vacated by the trial court, and a take nothing judgment entered. The grant of summary judgment was not memorialized until the order granting motion to vacate judgment was signed by the trial court.

Appellant raises three points of error. In his first point appellant claims that the trial court erred in granting summary judgment in favor of all of the defendants on his breach of contract claim on the basis of subsection (b)(6) of the statute of frauds. This provision requires that an agreement that is not to be performed within one year of the date of making the agreement must be in writing and signed by the person to be charged with the agreement in order to be enforceable. Appellant claims that the contract in the instant case is not within the statute of frauds because the employment was to cease on a contingency which might happen within one year. He claims that appellees had the right at any time to purchase all of his stock in the corporation to be formed under the terms of the alleged oral agreement and that upon such purchase, his employment would cease.

Appellees recite in their brief that the summary judgment proof in this case included the oral depositions of Jesus Diez Sollano Fernandez, Jesus Diez Sollano Sada, Bruno Wolf and H.C. Hall, III. The record before us contains only the deposition of Luis Torres Arias which was read into evidence during the trial. There is no concession by appellees or other indication in the record that this deposition is part of the summary judgment proof.

We cannot decide from the incomplete record before us that the grant of summary judgment is erroneous. In an appeal from the granting of a summary judgment, if the appellant fails to bring forward the depositions before the trial court, it is presumed that the omitted depositions establish the correctness of the judgment. Cliff Management Corp. v. Lovell, 695 S.W.2d 301 (Tex.App.--Waco 1985, no writ); Hassell v. New England Mutual Life Insurance Co., 506 S.W.2d 727 (Tex.Civ.App.--Waco 1974, writ ref'd). ¹ There being no summary judgment proof before us of any contingency by which the alleged oral contract might be removed from the operation of the statute of frauds, appellant's first point of error is overruled.

Appellant asserts in his second point of error that the trial court erred in granting an instructed verdict in favor of the corporate defendants because such corporations are a sham and the alter ego of Jesus Diez Sollano Fernandez. Appellant has cited no legal authorities in support of this claim. He does not assert it to be a case of first impression. Consequently, the point is insufficiently briefed and has been waived. Beaty v. Bales, 677 S.W.2d 750, 758 (Tex.App.--San Antonio 1984, writ ref'd n.r.e.); TEX.R.APP.P. 74(f).

Appellant contends in his last point of error that the trial court erred in setting aside the final judgment in his favor and subsequently entering a take nothing judgment because the jury's findings support and entitle him to judgment as originally entered.

In response to special issues submitted, the jury found that: (1) representations were made...