Robert Scheidt v. State , 2003 Tex. App. LEXIS 2751 ( 2003 )

NO. 07-02-0365-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

MARCH 28, 2003 ______________________________

ROBERT SCHEIDT,

Appellant

v.

THE STATE OF TEXAS,

Appellee _________________________________

FROM THE COUNTY COURT AT LAW OF RANDALL COUNTY;

NO. 2002-1134-L; HON. JAMES W. ANDERSON, PRESIDING _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J. ⁽¹⁾

Appellant Robert Scheidt appealed pro se his conviction of two traffic offenses in the Amarillo Municipal Court, Potter County, Texas, to the Randall County Court at Law. ⁽²⁾ The offenses actually occurred in Amarillo, Randall County, Texas. Nevertheless, the Randall County Court at Law dismissed the appeal for want of jurisdiction.

Appellant's brief in this matter was due to be filed on February 21, 2003. However, he neither filed a brief nor a motion requesting an extension of the briefing deadline. We notified appellant of that circumstance by letter dated March 4, 2003. In that letter, we also informed him that if no satisfactory response was received from him by March 14, 2003, the appeal would be submitted on the record only as per Texas Rule of Appellate Procedure 38.8(b). To date, neither a brief nor response have been received by appellant. Furthermore, appellant is not an indigent; nor has he retained counsel. Thus, under the authority of Rule 38.8(b)(4) of the Texas Rules of Appellate Procedure, we consider this appeal without briefs. ⁽³⁾

This court has jurisdiction to determine whether the Randall County Court at Law properly exercised its jurisdiction. State v. Morse, 903 S.W.2d 100, 102 (Tex. App.--El Paso 1995, no pet.). One appealing from a municipal court of record must generally appeal to a county criminal court, county criminal court of appeal, or municipal court of appeal. Tex. Gov't Code Ann. §30.00014(a) (Vernon Supp. 2003). However, if those courts do not exist within the county, then the appellate court with jurisdiction over the matter is the county court at law. Id. Those courts do not exist within either county wherein lies the boundaries of the City of Amarillo. Thus, by default, jurisdiction would lie in the county court at law. And, because the boundaries of the City of Amarillo lie within the counties of both Randall and Potter, the legislature has expressly declared the county courts at law of both counties as the appellate courts with jurisdiction over an appeal. Tex. Gov't Code Ann. §30.00931 (Vernon Supp. 2003). In other words, the appellant at bar was entitled to appeal from the Amarillo Municipal Court of record to either the county court at law of Randall County or those of Potter County. Here, he chose that of Randall County, as permitted by statute. Therefore, the Randall County Court at Law had jurisdiction to consider appellant's appeal from the Amarillo Municipal Court and erred when it dismissed the proceeding for want of jurisdiction.

Admittedly, a sister court of appeal has held that where a municipal court is located in one county and an offense occurs in another county within the jurisdiction of the municipal court, the county court at law where the municipal court actually sits is the court with appellate jurisdiction. Abouk v. Fuller, 738 S.W.2d 297, 298-99 (Tex. App.--Dallas 1987, no writ). Yet, that case is inapposite for it did not involve the City of Amarillo or §30.00931 of the Government Code. Moreover, it was decided before the enactment of §30.00931, which provision expressly applies to the City of Amarillo and authorizes an appeal to county courts of either Randall or Potter County.

Accordingly, we reverse the order of the Randall County Court at Law dismissing (for want of jurisdiction) appellant's appeal from the Amarillo Municipal Court and remand the cause to the Randall County Court at Law for further proceedings.

Brian Quinn

Justice

Publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003).

2.

We take judicial notice from our records that an appeal was also filed in the Potter County Court at Law. See Trevino v. Pemberton, 918 S.W.2d 102, 103 n.2 (Tex. App.--Amarillo 1996, no writ) (holding that an appellate court may judicially notice its own records in the same or a related proceeding). However, appellant first appealed to the Randall County Court at Law. We dismissed the appeal filed in Potter County because appellant failed to pay or make arrangements to pay for the clerk's record and failed to respond to a directive of this court.

3.

Under Rule 38.8(b)(4), the appellate court must act appropriately to ensure that the appellant's rights are protected. Furthermore, if the appellant is not indigent, as the trial court found at bar, and has failed to make the necessary arrangements for filing a brief, the appellate court may consider the appeal without briefs, as justice requires. Tex. R. App. P. 38.8(b)(4). Admittedly, this procedure is unorthodox for it places the appellate court in the position of being the appellant's advocate to some extent. So too does it implicitly deny the appellee (i.e. the State of Texas) opportunity to file a brief illustrating why the order appealed from should be affirmed. Yet, we note that the State is not left without opportunity to present its argument for it may file a motion for rehearing via Texas Rule of Appellate Procedure 49.1. That vehicle may be utilized to inform the appellate court of error, if any, in its decision.

W.2d 252, 256 (Tex. App.--Houston [1st Dist.] 1991, writ denied) (stating that parties to a contract may agree on remedies for breach and that the agreed remedy is exclusive). And, that is what they did here. Again, they restricted Limestone's redress to two options, and the one pertaining to specific performance required that the purchaser not be in "default."

Next, in determining what the parties meant by "default," it is clear that we must afford the word its plain, everyday meaning. See GT & MC, Inc. v. Texas City Refining, Inc., 822 S.W.2d at 256 (requiring that language in a contract be afforded its plain, grammatical meaning). And, at least one court has held that "in everyday usage" the term can mean "'omission,' 'failure,' or even 'breach.'" Alaniz v. Yates Ford, Inc., 790 S.W.2d 38, 40 (Tex. App.--San Antonio 1990, no writ). This interpretation of the word comports with that afforded it by the dictionary; there, it is defined as the "failure" to do an act. See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED 950 (1976). Moreover, appended to none of these definitions are words of qualification requiring a certain measure or quantum of omission, failure, or breach before an omission, failure or breach can be a default.

Thus, because the plain meaning of the word connotes a mere failure, omission, or breach, we must read it in like vein when assessing what the parties meant by using it in their agreement. ⁽²⁾ And, in so reading the term, we eschew attempt to affix words of qualification or measure to it, such as substantial or material. In short, the parties omitted words from the contract modifying the degree of default needed. Because they did, we may not now incorporate them into the agreement and thereby change it. See Cross Timbers Oil Co. v. Exxon Corp., 22 S.W.3d 24, 26 (Tex. App.--Amarillo 2000, no pet.) (stating that the parties to the contract are the masters of their words and that we may not rewrite the contract to mean something that it does not because one party may now find the agreement distasteful).

Finally, and given our interpretation of "default," Limestone's failing or omitting to pay the entire earnest money as required by the contract was and is a default. Simply put, it did not perform an obligation required under the contract. Having so defaulted, the purchaser did not satisfy one of the conditions prerequisite to the invocation of its contractual right to specific performance. So, the trial court did not err in denying Limestone that relief.

Sai Thong's Points

Next, through four issues, Sai Thong contends that the trial court erred in awarding Limestone damages and in denying it attorney's fees. We overrule them.

Damages

As to the matter of damages, they were improperly awarded, according to Sai Thong, because 1) there was no or insufficient evidence to support them and 2) Limestone did not plead for them. We disagree.

In its judgment, the trial court expressly "ordered, adjudged and decreed that Sai Thong . . . pay to Limestone . . . the sum of $25,000 as damages." In its findings of fact and conclusions of law accompanying the award, the $25,000 was described as the sum of earnest money that Limestone actually paid. That is, the trial court concluded that Sai Thong also breached the agreement by failing to give Limestone 1) reasonable notice of the end of the suit initiated by those who did not want development upon the parcel of land and 2) opportunity to "tender the final earnest money before" repudiating the contract. Because Sai Thong failed in this regard, the trial court determined that ". . . Limestone's request for equitable relief should be granted and Sai Thong must return . . . the last earnest money payment in the amount of $25,000." So, while the trial court referred to the $25,000 sum as "damages," it is clear that it was merely ordering the return of the earnest money that had been paid. Furthermore, and upon our reading of the judgment as a whole, we conclude that the trial court so ordered it because Sai Thong too breached the agreement. See Stettner Clinic, Inc. v. Burns, 61 S.W.3d 16, 18-19 (Tex. App.--Amarillo 2000, no pet.) (holding that a judgment is construed like other written documents and that the intent of the court is determined by viewing the document as a whole). Therefore, the trial court implicitly invoked and applied the rule of law holding that a party to a contract cannot enforce it unless he shows that he has performed the obligations imposed upon him. Carr v. Norstok Bldg Sys., Inc., 767 S.W.2d 936, 939 (Tex. App.--Beaumont 1989, no writ); Acme Pest Control Co. v. Youngman, 216 S.W.2d 259, 263 (Tex. Civ. App.--Waco 1948, no writ). Or, stated differently, one cannot enforce a contract he breached. See Dobbins v Redden, 785 S.W.2d 377, 378 (Tex. 1990). And, while the rule is normally applicable to dependent promises or indivisible contracts, Acme Pest Control Co. v. Youngman, 216 S.W.2d at 263, Sai Thong does not assert that the agreement at issue falls outside those categories. ⁽³⁾ Nor did Sai Thong proffer an issue expressly contesting the determination that it also breached the contract. ⁽⁴⁾ So, there is some evidence supporting the trial court's decision to order the return of the earnest money.

Finally, that Limestone may not have expressly requested damages matters not. Again, Sai Thong was the party seeking to retain the earnest money deposit per the terms of the contract. It was the one who expressly placed before the trial court the issue of who was to keep it. Since Sai Thong was not entitled to the sum, the trial court was entitled to order its return to the depositor. And, we find no injustice or wrong in that.

Attorney's Fees

Next, Sai Thong argues that the trial court erred in denying it attorney's fees. This was so because it was a "prevailing party" under the contract. We again disagree for the following reason.

As evinced by its findings of fact and conclusions of law, the trial court held that "[u]nder the circumstances of this matter, an award of attorney's fees pursuant to the Texas Civil Practice and Remedies Code Section 37.009 would not be equitable or just." (Emphasis added). Sai Thong does not attack that specific finding on appeal. Instead, it posits that it was entitled to recover attorney's fees under the terms of the contract, as alleged in its live pleading against Limestone. Yet, recovery under the contract was not a matter addressed by the trial court in its findings of fact and conclusions of law. Nor does the record indicate that the matter of recovering fees under the contract, as opposed to the statute, was a topic broached in any request for additional findings of fact or conclusions of law. This is fatal since Sai Thong was obligated to request such additional findings and conclusions to preserve its complaint for review.

Simply put, if a trial court's original findings do not address a ground of recovery or a defense, then the party relying on that ground or defense must request additional findings in proper form. Levine v. Maverick Cty. Water Control, 884 S.W.2d 790, 796 (Tex. App.--San Antonio 1994, writ denied); Sears, Roebuck & Co. v. Nichols, 819 S.W.2d 900, 907-08 (Tex. App.--Houston [14^th Dist.] 1991, writ denied); accord, Smith v. Smith, 22 S.W.3d 140, 150 (Tex. App--Houston [14^th Dist.] 2000, no pet.) (noting that Mr. Smith had the duty to request additional findings of fact and conclusions of law in connection with the disproportionate division of the community or in connection with the trial court's calculation of the community portion). By failing to do so, one waives his complaint about the unmentioned ground or defense. Smith v. Smith, 22 S.W.3d at 150; Sears, Roebuck & Co. v. Nichols, 819 S.W.2d at 907-08. Given this, Sai Thong waived its contention that the trial court erred by not awarding it fees as a prevailing party under the contract, as opposed to the statute.

Having overruled all points of error or issues raised by all the parties, we affirm the judgment of the trial court.

Brian Quinn

Justice

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003).

2. Neither party argues that something other than what we have held the definition to be was intended.

3. This is significant because we rebuttably presume that all stipulations in a contract are dependent. Acme Pest Control Co. v. Youngman, 216 S.W.2d 259, 263 (Tex. Civ. App.--Waco 1948, no writ).

4. Sai Thong does state under point four that "these conclusions [i.e. the finding that Sai Thong breached the agreement and was not entitled to attorney's fees under §37.009 of the Texas Civil Practice and Remedies Code] were inappropriate in light of the Contract. . . ." It also asserts that they "were not supported by the evidence." Nevertheless, neither explanation nor citation to authority accompanied these conclusions. Thus, they preserved nothing for review. Tex. R. App. P. 38.1(h); In re Williams, 998 S.W.2d 724, 730 (Tex. App.--Amarillo 1999, no pet.).