Phillips v. Phillips

ON MOTION FOR REHEARING

COLLEY, Justice.

Appellant and appellee both filed motions for rehearing. We will first address appellant’s motion.

I.

APPELLANT’S MOTION FOR REHEARING

Appellant assigns four points of error in her motion for rehearing. First, she contends that we erred in refusing to reform the judgment to allow her a recovery of ten times the actual damages found by the jury ($300,000) in response to the sole damage issue submitted. Second, she complains, and rightly so, that we erred in concluding the trial court erred in failing to award her stipulated attorney’s fees in the amount of $232,802.14, instead of $235,302.14 (we erred in failing to notice the typographical error in our original opinion). Third, appellant asserts that we erred in holding that she was only entitled to prejudgment interest at the rate of 6% under Tex.Rev.Civ. Stat.Ann. art. 5069-1.03 (Vernon 1987) (hereinafter referred to as article 5069-1.-03), instead of interest at the rate fixed by former Tex.Rev.Civ.Stat.Ann. art. 5069-1.-051 (Act of May 17, 1983, ch. 107, § 1, 1983 Tex.Gen.Laws 518-519, amended by acts 1987, ch. 154, § 1, 1st C.S., ch. 3, § 1 and acts 1989, ch. 626, § 1). The current version of this article appears as Tex.Rev.Civ. Stat.Ann. art. 5069-1.05 (Vernon Supp. 1990). Fourth, appellant alleges we erred in sustaining appellee’s second cross-point of error “because Appellees ... [had] dismissed their appeal.” Appellant correctly points out that we erred in so doing because appellees’ cross-appeal was, on their own motion, dismissed by per curiam opinion delivered on April 28, 1989.

Appellant argues under her first assignment of error that she was entitled to ten times the damages found by the jury because Article XVI, § 16.2 of the Limited Partnership Agreement so provides. She contends that since appellees did not plead and prove that such provision constituted a penalty, she is entitled to those additional damages as a matter of law, relying on Robinson v. Granite Equipment Leasing Corp., 553 S.W.2d 633, 637 (Tex.Civ.App.-Houston [1st Dist.] 1977, writ ref’d n.r.e.). Although the Houston court cites Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484 (1952), in support of its ruling, Stewart v. Basey provides no support for Robinson. In Robinson, the contract involved provided for “payment of all unaccrued rental on breach_” Robinson, 553 S.W.2d at 637. The Robinson court concluded that that language constituted a “provision for stipulated ” damages, but did also write, “[w]here the parties have agreed upon the amount of damages to be paid in case of a breach, the agreement will be enforced by the courts unless the defendant pleads and proves that the provision for liquidated damages is in fact a penalty.” Id. (emphasis added).

In Stewart v. Basey, the Supreme Court wrote very clearly that the courts are not “bound by the language of the parties.” 245 S.W.2d at 486. However, more significantly that court said:

The right of competent parties to make their own bargains is not unlimited. The universal rule for measuring damages for the breach of a contract is just compensation for the loss or damage actually sustained. By the operation of that rule a party generally should be awarded neither less nor more than his actual damages. A party has no right to have a court enforce a stipulation which violates the principle underlying that rule_ What courts really do ... *271is to permit the parties to estimate in advance the amount of damages, provided they adhere to the principle of just compensation. (Emphasis added.)

Id. (citation omitted).

Finally, the Stewart v. Basey court concluded that in that case, “it would be unreasonable and a violation of the principle of just compensation to enforce [the stipulation] .... ” Hence, they stated, that “the provision for stipulated [liquidated] damages should be treated as a penalty.” 245 S.W.2d at 487.

We remain persuaded that section 16.2 of the Agreement, as a matter of law, provides a penalty, and is therefore unenforceable. Stewart v. Basey. Appellant’s first point of error in her motion for rehearing is overruled.

Upon reconsideration of appellant’s fourth point of error on appeal, now addressed in her third assignment of error as set forth in her motion for rehearing, we conclude that that assigned point of error should be sustained. This point will be discussed further in the following opinion.

Therefore, in reference to her motion for rehearing, we overrule appellant’s first point of error, but sustain her second, third and fourth points of error. We will correct those errors in the opinion that follows.

II.

. Hereinafter referred to as article 5069-1.05.