Opinion
Nos. 1155, 1175.
May 14, 1975. Rehearing Denied June 4, 1975.
Appeal from the District Court, Harris County, Paul Pressler, J.
Charles A. Easterling, City Atty., Pasadena, for appellants.
Charles E. humphrey, Jr., B. J. Walter, Jr., Jesse R. Pierce, Foreman, Dyess, Prewett, Rosenberg Henderson, and James C. Calaway, Houston, for appellee.
This is a consolidated appeal of two causes of action involving identical parties and interrelated issues. Appellants, the City of Pasadena, Texas, the Pasadena Civil Service Commission and its Director, and the Pasadena Chief of Police, appeal from the judgment of the district court granting a writ of mandamus in favor of appellee, E. D. Richardson, and from the granting of his motion for summary judgment.
On June 12, 1972, appellee, E. D. Richardson, was indefinitely suspended from the Pasadena Police Department by then Chief of Police Ellis Means on the grounds of insubordination for allegedly refusing to obey Means "order to submit to a polygraph test. Richardson was duly served with the charges against him and he timely gave notice of appeal to the Pasadena Civil Service Commission. The Commission held a hearing on the matter within thirty days of Richardson's appeal. The only witnesses at the hearing were Means and Richardson, and there was a conflict in their testimony as to whether Means had only requested or had actually ordered Richardson to submit to a polygraph examination. Six days after the formal hearing had ended, the Commission received affidavits corroborating Means "testimony from three policemen who had been present at the meeting between Means and Richardson but who had not been called to testify at the hearing. Neither Richardson nor his attorney was notified of the receipt of this evidence so that they were deprived of the opportunity of rebutting it. On July 17, 1972, the Pasadena Civil Service Commission issued its final order upholding the action of Chief Means and permanently dismissing Richardson solely on the grounds of insubordination for his refusal to obey Means "alleged order to submit to a polygraph test.
Richardson appealed this decision to the district court where, after a trial de novo, the Commission's order was sustained. The district court's judgment was affirmed by this Court. Richardson v. City of Pasadena, 500 S.W.2d 175 (Tex.Civ.App.-Houston (14th Dist.) 1973). Writ of error was granted by the Texas Supreme Court, and the judgments affirming the order of dismissal were reversed and the Commission's order was set aside. Tex.Civ.App., 513 S.W.2d 1 (1974). The Court based its reversal on the Civil Service Commission's action in considering evidence which was not offered at the hearing. This, it was held, constituted a denial to Richardson of procedural due process. The opinion of the Court was handed down July 24, 1974, and the City's motion for rehearing was denied September 24, 1974. The mandate of the Supreme Court, directing that its ". . . decision be certified to the District Court of Harris County, Texas, for observance', was issued on October 7, 1974.
Richardson then made demand upon appellants to be reinstated on the police force to the position or class of service from which he was suspended, with accrued back pay for the period of his suspension. This request was refused. On November 8, 1974, the Pasadena Civil Service Director notified Richardson that a new hearing would be held on November 27, 1974. Richardson's counsel replied by letter that Richardson was ready, willing and able to resume his duties and demanded that he be restored to the police force with back pay and that the notice of rehearing be withdrawn. Richardson then filed in the district court a petition for writ of mandamus that he be reinstated with back pay. He also asked the court to restrain appellants from holding the November 27 hearing.
On Richardson's petition a hearing was held before the district court on November 25, 1974. Richardson testified that at all times since the Supreme Court's decision was handed down, he had been ready, willing, and able to return to work on the police force. Appellant B. B. Storey, the Pasadena Civil Service Director, testified that he intended to hold a hearing to determine whether Means ordered Richardson to take the lie detector test and whether to suspend Richardson or to reinstate him with back pay. The district court took the matter under advisement pending the outcome of the November 27 rehearing of the suspension. After the rehearing on November 27, 1974, the Commission issued its final order permanently dismissing Richardson from the police force. In this order the Commission found that Chief Means "charge of insubordination based on Richardson's refusal to submit to a polygraph examination was true and that the suspension should be upheld.
The district court then rendered its final judgment in the mandamus proceeding on December 4, 1974. Richardson was granted a writ of mandamus directing the appellants to restore him to the position from which he was suspended on June 12, 1972, an to pay him $24,082.74 accrued compensation for the period of his suspension. Appellants gave notice of appeal from that judgment and have perfected their appeal to this Court.
On December 6, 1974, Richardson filed a petition in the district court to set aside the Commission's November 27 order on the grounds that it violated the Firemen's and Policemen's Civil Service Act, Vernon's Tex.Rev.Civ.Stat.Ann. art. 1269m (1963), as well as his rights under the federal and state Constitutions. Richardson in that case moved for summary judgment, which was granted by the district court. A final judgment was rendered on January 28, 1975, setting aside the Commission's order of November 27, 1974, and reinstating Richardson as a member of the police force with back pay from November 27, 1974 until the date on which he is reinstated. Appellants gave notice of appeal from that summary judgment and have perfected their appeal to this Court. On March 12, 1975, we granted the parties "joint motion to consolidate the two appeals for submission and decision.
Appellants by their first point of error contend that the trial court lacked jurisdiction to issue a writ of mandamus directing them to reinstate Richardson to the police force with back pay for the period of his suspension through November 27, 1974. Appellants argue that Article 1269m vests in the Pasadena Civil Service Commission the exclusive responsibility of administering personnel problems of the police department, and that for a court to direct the Commission to reinstate an employee by means of mandamus would interfere with its statutory authority.
Appellants "first point of error is overruled. In Bichsel v. Carver, 321 S.W.2d 284, 287 (Tex.Sup. 1959), it was held that ". . . mandamus is a proper remedy in the situation presented." In that case the Civil Service Commission was threatening to hold a hearing on charges against a policeman. The charges upon which hearing was to be held had been amended in violation of the procedural provisions of Section 16 of Article 1269m.
Appellants "principal argument here, in both the mandamus case and the appeal from the Commission's order of discharge wherein the district court rendered summary judgment, is that the Supreme Court, in reversing this Court's and the district court's former judgments, did not order that Richardson be reinstated with back pay. The Supreme Court said, at 513 S.W.2d 4, that "(t)he judgments of the courts below are reversed and the order of the Commission is set aside." The mandate that the Supreme Court then issued recited that ". . . the judgments of the Court of Civil Appeals, and District Court be, and hereby are, reversed and . . . the order of the Pasadena Civil Service Commission be, and hereby is, set aside." The mandate also said that "(i)t is further ordered . . . that this decision be certified to the District Court of Harris County, Texas, for observance."
The Supreme Court apparently did not deem it necessary to order that Richardson be reinstated. It did, however, clearly set aside the Commission's order of dismissal. In Fire Department of City v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664, 667 (Tex.Sup. 1949), the Court, in discussing the constitutionality of Section 18 of Article 1269m, which provides for appeal to the district court from an order of dismissal, said: "Reinstatement of the employee necessarily ensues from vacating the order dismissing or suspending him." We believe that by that language it is meant that, upon the vacation of the Commission's order of dismissal, Richardson was restored to his position of employment with the Pasadena Police Department. It would be futile to restore him to the status of a policeman under temporary suspension and charged with offenses by the Chief of Police, the status he was in immediately before the Commission issued its 1972 order discharging him. It had been more than two years since his suspension and appeal to the Commission. The Commission could not issue a valid order dismissing him unless it did so within thirty days of his notice of appeal. Todd v. City of Houston, 508 S.W.2d 140 (Tex.Civ.App.-Houston (1st Dist.) 1974, writ ref'd n.r.e.). The only effective thing the district court could do in "observance "of the Supreme Court's decision, as ordered by the October 7, 1974 mandate issued by that Court, was to determine the amount of Richardson's back pay and order that he be reinstated with such back pay. That has now effectively been done.
The judgments of the district court, both in issuing the mandamus and in granting Richardson's motion for summary judgment in his appeal from the Commission's second order of dismissal, are affirmed.
Affirmed.
Macphee v. Kinder, 523 S.W.2d 509 (Tex.Civ.App.-San Antonio 1975) 523 S.W.2d 509 James MACPHEE, Appellant, v. Gilbert E. KINDER, d/b/a Gilbert E. Kinder Company, Appellee. No. 15405. Court of Civil Appeals of Texas, San Antonio. May 7, 1975.
Appeal from the 45th District Court, Bexar County, Richard J. Woods, J.
Joseph F. Sage, Dean Sage, Inc., San Antonio, for appellant.
Charles M. Jefferson, Davis O'Conner, San Antonio, for appellee.
BARROW, Chief Justice.
Appellant appeals from a take-nothing summary judgment in his suit to recover for breach of an employment contract whereby appellant was to be paid commissions for the sale of lots and houses in a subdivision owned by appellee. Appellant sought to recover past due commissions, damages for wrongful discharge and, in the alternative, damages for appellee's fraudulent representations that a real estate license was not required of appellant. The trial court concluded that the Real Estate License Act, Article 6573a, Vernon's Tex.Rev.Civ.Stat.Ann. (1969), barred a recovery by appellant because he was not licensed and granted appellee's motion for summary judgment.
Appellant entered into a written contract with appellee whereby appellant was to be paid a fifteen percent commission on land sales and a three percent commission on house sales of property owned by appellee in Bulverde Estates, a subdivision being developed by appellee. These commissions were based on the percentage of the total sales price received by appellee. Appellant worked under this agreement for six or seven months when he was discharged by appellee. Appellant received certain commissions for sales made by him, but brought this suit for the balance allegedly owed him, as well as for the loss of other commissions by reason of his wrongful discharge. Appellant alleged that it was not necessary that he be licensed under Article 6573a because he came within the exemptions provided in Section 6, Subdivisions (1) and (4); but that if a license was required, he sought damages in the alternative for appellee's fraudulent representations that a license was not required.
The Real Estate License Act generally binds any person who engages in, or any business enterprise which engages in, the real estate business. Specifically, if a party engages in any or all of the multitude of acts enumerated in Section 4(1) of the Act, whether full-time or part-time, he comes within the purview of the Act and must be licensed. Included under Section 4(1) is
". . . any person who, for another or others and for compensation or with the intention or in the expectation or upon the promise of receiving or collecting compensation:
(a) Sells, exchanges, purchases, rents or leases real estate;. . .
(1) Subdivides real estate into two or more parts or tracts which are to be sold, leased, exchanged or rented to others, or for the purpose of erecting buildings for residential or business purposes to be sold, leased, exchanged or rented."
Under Section 4(2) the term "Real Estate Broker "includes any person employed by or on behalf of the owner of real estate at a stated salary or upon a commission to sell, exchange or offer for sale such real estate.
Appellant concedes that he was not licensed as a broker or salesman, but urges that he was exempt under the provisions of Sections 6(1) and (4) of the Act. Under Section 6(1) the Act does not apply to the sale of real estate by a person when such person does not engage in the activities of a real estate broker as an occupation, business or profession on a full or part-time basis. The obvious intention of this exemption is to exclude any individuals who engage in any one or more of the emumerated acts but who are not acting in the capacity of a real estate agent. For example, an advertising agency that prepares and places in the newspapers real estate advertisements is not within the act. Van Zandt v. Fort Worth Press, 353 S.W.2d 95 (Tex.Civ.App. — Fort Worth), affirmed, 359 S.W.2d 893 (Tex. 1962); Avent v. Stinnett, 513 S.W.2d 89 (Tex.Civ.App — Amarillo 1974, no writ); Amdur, The Real Estate License Act — Synopsis, Elaboration and Comments, 12 S.Tex.L.J. 269, 277. Here appellant was directly engaged in the sale of real estate as an occupation on a full-time basis. The exemption in Section 6(1) has no application to appellant's acts.
Section 6(4) provides:
"This Act shall not apply to the sale, lease, or transfer of any property when such sale, lease, or transfer is made by the owner, or one of the owners, or the attorney for said owner or owners, or his or its regular employees, Unless the owner or owners or the attorney for said owner or owners is engaged wholly or in part in the business of selling real estate." (Emphasis ours)
The theory behind this exemption is that a person has a right to sell his own property without having to be licensed, or without having to obtain the services of a real estate agent. Appellant urges that the Texas Real Estate Commission (TREC) does not require licensure of builders who sell their homes or of agents solely employed by a builder. See Amdur, The Real Estate License Act — Synopsis, Elaboration and Comments, 12 S.Tex.L.J. 269, 280 — 281 (1970). Appellee owned all of the subdivision and appellant asserts that, as a full time employee of appellee, no license was required of appellant.
The summary judgment proof establishes that although appellee owns the property being sold by appellant, appellee is engaged wholly or in part in the business of selling real estate. Therefore, the provisions of the Real Estate License Act apply to the sales by appellant of the houses and lots in the subdivision being developed by appellee. The construction placed on this unambiguous provision by the TREC is immaterial to appellant's rights under the Act.
Section 19 of the Texas Real Estate License Act prohibits an unlicensed person from bringing or maintaining any action for the collection of compensation for the performance in this State of any of the acts set out in subdivision (1) of Section 4 of the Act. Our courts require a strict compliance with the terms of the Real Estate Dealers License Act if a broker or salesman is to use the courts for recovery of his fees or charges for his services. Hall v. Hard, 160 Tex. 565, 335 S.W.2d 584 (1960); Struller v. McGree, 374 S.W.2d 256 (Tex.Civ.App. — San Antonio 1963, writ ref'd n.r.e.). Since appellant was unlicensed and did not come within any exemption, he is prohibited from bringing a suit to collect compensation for said sales. This prohibition applies not only to his claim for past due commissions, but also to his claim for loss of future compensation.
Appellant asserts in the alternative that he is entitled to recover damages by reason of appellee's fraudulent representation that a license was not required. A similar contention was made and rejected by the Supreme Court in Breeding v. Anderson, 152 Tex. 92, 254 S.W.2d 377 (1953). In rejecting a claim for conspiracy to defraud plaintiff of his commission, the Court pointed out that the Act precludes recovery of any compensation for services rendered by an unlicensed person in making a sale of real estate. A suit for fraudulent representation, as to the need for a license, while sounding in tort, is an attempt to recover compensation for sale of real estate which is prohibited by the Act. See also Collins v. McCombs, 511 S.W.2d 745 (Tex.Civ.App. — San Antonio 1974, writ ref'd n.r.e.).
The trial court did not err in granting appellee a take-nothing summary judgment in appellant's suit to recover compensation for sale of appellee's houses and lots in Bulverde Estates.
The judgment is affirmed.