author: MORRISON, Judge.

text:
    Joe DENDY, Appellant, v. The STATE of Texas, Appellee.
    No. 40829.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1967.
    McCown & Sheehan, Louis T. Dubuque, Dumas, for appellant.
    William Hunter, Dist. Atty., Dumas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is the felony offense of wil-fully deserting, neglecting and refusing to provide for the support and maintenance of minor children; the punishment, two years in the Department of Corrections, probated.

This felony conviction cannot De sustained because the indictment alleges that appellant had been duly and legally convicted of the misdemeanor offense of “abandonment of children” in the County Court, whereas the information in the cause 'described alleged that the defendant did “unlawfully and wilfully desert and neglect and refuse to provide for the support of his wife Doris Dendy and children,” naming them, without any allegation as to their ages, and the judgment found the defendant guilty “as charged in the complaint and information.”

The judgment is reversed and the cause is remanded.


source: Caselaw Access Project

author: MORRISON, Judge. WOODLEY, Presiding Judge. DICE, Judge.

license: Public Domain

text:
    Lecil Edward ACKER, Appellant, v. The STATE of Texas, Appellee.
    No. 40602.
    Court of Criminal Appeals of Texas.
    Oct. 18, 1967.
    Rehearing Denied Dec. 6, 1967.

      Spruiell, Lowry, Potter, Lasater & Guinn, by Charles F. Potter, Tyler, for appellant.
    Hunter B. Brush, Dist. Atty., Milton G. Mell and Kenneth D. DeHart, Asst. Dist. Attys., Tyler, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is murder; the punishment, IS years.

Soon after the return of an indictment charging appellant with the offense for which he is here convicted, appellant filed a motion with the Judge of the Court in which the indictment was returned asking for a speedy trial in which it was alleged that the State declined to agree upon a speedy trial without any valid reason.

Shortly thereafter the case was set for trial and on such date of trial the State filed a motion for continuance alleging that their only eye witness to the shooting was the wife of appellant and she was in the process of securing a divorce from him, upon the granting of which she would cease to he an incompetent witness and would be available to testify against appellant. This motion for continuance was overruled by the Court, whereupon the State filed a motion to dismiss the indictment in which the same ground as set forth in the motion for continuance was urged. In his order of dismissal, the trial judge gave the following as his reasons for dismissing the indictment:

“Lack of sufficient evidence at this time to obtain a conviction by virtue of the fact that the State’s chief witness is incompetent to testify at this time; which have been heard by the Court; the Court is satisfied that the reasons so stated are good and sufficient to authorize such dismissal.”

Some five weeks after the dismissal of the indictment, Mrs. Acker filed a motion to dismiss her divorce action against appellant and said motion was granted.

Some three months later, another indictment was returned in another District Court charging appellant with the same offense as' was charged in the earlier indictment.

One month later, Mrs. Acker filed another petition for divorce against appellant, and the same was granted in due time.

During the next interval of time appellant was tried upon an indictment charging him with assaulting Mrs. Acker with intent to murder her, (The date alleged was the same date as set forth in the murder indictment) and was by a jury acquitted.

In less than two months thereafter, the instant trial began. After appellant had plead to the indictment, a petition for writ of error and bond were filed in the divorce court in order to perfect an appeal of such judgment of divorce to the Court of Civil Appeals.

By motion in limine and by strenuous objection throughout the trial, appellant challenged the competency of Mrs. Acker to testify against him, alleging that the divorce judgment was not final, as the same was on appeal.

No new question is presented here. In Davis v. State, 96 Tex.Cr.R. 367, 257 S.W. 1099, the identical fact situation was before this Court and judgment was reversed because of the incompetency of the wife as a witness at the time of the trial.

The holding of this Court in Davis v. State, supra, seems to be in line with a well established rule. We quote from 97 C.J.S. Witnesses § 80, as follows:

“Where a decree of divorce is not final, as where there is a writ of error pending, the status of husband and wife continues as far as concerns their competency to testify. During the period after rendition of the decree and before a divorce becomes effective to change the status of the parties, the parties are husband and wife with respect to their competency to testify for or against each other.”

See also Ex parte Hodges, Tex., 109 S.W. 2d 964.

We overrule the State’s contention, not supported by authority, that since Mrs. Acker was a competent witness at the time appellant plead to the indictment, she remained competent throughout the trial.

We decline appellant’s plea that this conviction be reversed and the prosecution dismissed. Only 14 months elapsed between the return of the first indictment and the jury verdict in this case. There is no statute of limitation for the offense of murder in this State, and the reasoning of the Supreme Court of the United States in Klopfer v. State of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1, has no direct application here.

As the Court did in Davis v. State, supra, we point out certain guidelines in the event of a future trial of such cause. Appellant’s defense was that he was justified in shooting the deceased under Article 1220, Vernon’s Ann.P.C., the adultery statute. He denied that he had ever threatened his wife (Mrs. Acker) or the deceased.

Mrs. Acker testified without objection on direct examination that during her marriage to appellant and long prior to the shooting, he had threatened to kill her and her former husband if he ever caught them together. She testified at this trial that appellant came to her home, found her former husband seated on the sofa in the living room, returned to his pickup, secured a .22 rifle and shot the deceased, causing his death. She was also shot in the melee, but apparently was not seriously injured. It will thus be seen that her account of how the homicide occurred coincided exactly with the threats she had attributed to appellant. Appellant’s version of the shooting was diametrically opposed to such version.

On cross examination she was questioned about reconciliations she had had with appellant, all of which she admitted. She was then questioned about what fear had been engendered in her heart by these prior threats. She testified consistently throughout her lengthy cross and redirect examination that she feared appellant and had been under the influence of such fear for a long time prior to this shooting. Not once did she vary, nor was any evidence adduced from any other source indicating that she had voiced any lack of fear of appellant as the result of his threats.

After appellant had rested, the State was permitted over timely and strenuous objections to introduce into evidence portions of her petition for divorce filed after the shooting, in which it was alleged that appellant was a man of wild and ungovernable temper, was a vicious and mean person, had threatened her with serious bodily harm and placed her in great fear of her life. It was the State’s position that the petition was admissible in rebuttal of the attempted impeachment “that she was in fear of the defendant.”

Such bolstering testimony was not admissible because she had not been impeached. This Court in Morton v. State, Tex.Cr.App., 71 S.W. 281, held that it was. error to bolster the testimony of a witness who had been subjected to vigorous cross examination and had not varied from his original account of what had transpired. No other evidence of an inconsistency in his utterances was offered.

In Satterwhite v. State, 77 Tex.Cr.R. 130, 177 S.W. 959, this Court said:

“If appellant had shown she had made contrary statements to her testimony on the witness stand, they might then introduce testimony sustaining her statement made at other and different times under legal principles. But that was not the case. * * * A rigid cross-examination of the witness does not authorize corroboration of the witness. She must be placed in the attitude of having changed her testimony or testified differently now from what she had formerly stated.”

In the relatively recent case of Ballew v. State, 161 Tex.Cr.R. 579, 279 S.W.2d 336, we said in reversing that conviction:

“It will thus be seen that the State was permitted over strenuous obj ection to bolster the testimony of the only other witness present by proving that he had made a sworn statement two days after the incident and had testified before grand juries about prosecutrix’s outcries. We conclude that this was both an effective and improper method of bolstering the State’s witness and calls for a reversal of this conviction.”

Still more recently in Lyons v. State, Tex. Cr.App., 388 S.W.2d 950, we said: “True, she was fully cross-examined by appellant * * * but she was not impeached.”

It should also be noted that pleadings in another lawsuit have been held inadmissible as hearsay. Granata v. Mothner, Tex.Civ.App., 44 S.W.2d 817.

There is another reason why Mrs. Acker’s petition for divorce should not have been admitted. Her testimony as stated, was that she had been afraid of appellant for a long time prior to the shooting. If she had in fact been impeached, this petition would still not have been admissible because the petition was not drawn until after the shooting and it was not admissible to corroborate her assertion of fear at an earlier time because the shooting had intervened. We quote from 140 A.L.R., p. 164, as follows:

“In order that the rule admitting evidence of declarations of an impeached witness if consistent with his testimony may be properly applied, and that the evidence admitted under it may furnish the foundation for some rational presumption in corroboration of the witness’ credibility, it should appear that there is real or substantial similarity in facts and circumstances between the sworn and un-sworn statements.”

For the reasons stated, the judgment is reversed, and the cause is remanded.

CONCURRING OPINION

WOODLEY, Presiding Judge.

I concur in the disposition of the grounds of error set forth in the defendant’s brief filed in the trial court, but not in the dicta relating to the admissibility at a future trial of the petition for divorce in rebuttal of impeachment or attempted impeachment oí Mrs. Acker which is set out as a guideline for such future trial of appellant.

Whether a witness is impeached, and whether certain evidence is admissible for impeachment or constitutes improper bolstering, necessarily depends upon the evidence at the trial, not upon the record of a prior trial.

OPINION ON STATE’S MOTION FOR REHEARING

DICE, Judge.

We have examined the record in the light of the state’s motion for rehearing, and remain convinced that a proper disposition was made of the case in our opinion on original submission.

In view of the position taken by the state in its motion for rehearing that in the event of a reversal of the conviction appellant’s plea of former acquittal which the jury found against him at the trial should not at a subsequent trial be again submitted, we point out that the effect of the reversal of the conviction, under the provisions of Art. 44.29, C.C.P., is that “ * * the cause shall stand as it would have stood in case the new trial had been granted by the court below.”

Art. 40.08, C.C.P., provides:

“The effect of a new trial is to place the cause in the same position in which it was before any trial had taken place * * * »

While the jury found against appellant on his plea of former acquittal based upon a jury’s verdict of not guilty at his trial for assault with intent to murder his wife, such would not preclude the plea from being again urged at a subsequent trial.

The state’s motion for rehearing is overruled.


author: WOODLEY, Presiding Judge. ONION, Judge.

text:
    Richard Arland TAYLOR, Appellant, v. The STATE of Texas, Appellee.
    No. 40336.
    Court of Criminal Appeals of Texas.
    June 14, 1967.
    Rehearing Denied Oct. 25, 1967.
    Second Rehearing Denied Dec. 20, 1967.

      Ray & Kirkpatrick, by C. L. Ray, Jr., Marshall, for appellant.
    Charles A. Allen, Dist. Atty., Marshall, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is the unlawful possession of marihuana; the punishment, 10 years.

Trial was before a jury under the 1965 Code of Criminal Procedure.

Appellant declined to enter a plea and the court entered the plea of not guilty for him.

The question which controls the disposition of this appeal is the legality of the search of the automobile appellant was driving and the seizure of marihuana cigarettes, bulk marihuana and cigarette butts found in a coffee can in the trunk.

This search was made at the courthouse immediately after appellant and the other occupant of the car were taken upstairs.

The State Highway Patrolman who drove the car from Waskom, where there was a magistrate, examined and searched the front part of the car before he obtained the keys from appellant and opened the trunk. He closed the trunk and retained the keys until he re-opened the trunk at the county seat and discovered the marihuana.

The search of the automobile at Waskom, as well as the search and seizure at the courthouse, is attacked as unreasonable and illegal.

The facts relating to the examination and search of the car at Waskom, which appellant contends are insufficient to justify the search as incident to the arrest or as reasonable under Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, are these :

Appellant was driving an automobile having California license plates. He was stopped by Texas Highway Patrolmen about eight miles from Marshall, the County Seat, for the traffic offense of passing in a “no passing” zone. He was asked for his driver’s license and said he had none. He was asked if he had other identification or anything with his name on it and he said he did not, and gave as reason that he had been robbed in El Paso (more than 750 miles away).

The automobile was not searched or examined at the scene. There were some clothes hanging in the car and the officers were not aware of the fact that there was a passenger in the back seat.

The Patrolman told appellant that he would be filed on and he was directed to follow the patrol car to the magistrate’s office.

When one of the patrolmen went into the office to wait for the magistrate the other went to appellant’s car, the reason given being: “Well, he didn’t have any identification who he was, didn’t have any identification to show the car belonged to him, and we suspected that it was stolen.”

He looked in the car “to see if there was anything there that might have a name or identification in it” and saw a canvas bag on the front floorboard. He opened the car door and, as he was opening the' bag, a man who “seemed to be groggy, somewhere near the state of intoxication * * * raised up out of the back seat.” Upon seeing that the bag contained “Rolls of money, stacks of money,” the officer drew his pistol, ordered the man out of the car and handcuffed him. He then “flipped the lid off of a box” on the rear floorboard and uncovered two pistols, a .38 caliber revolver and a .32 caliber automatic.

The car keys were obtained by the officer from appellant. He opened the trunk before driving the car to the courthouse where appellant and his companion were taken in other cars.

Relying upon Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, appellant contends that the examination and search of the car after appellant had been permitted to drive it to the magistrate’s office was not a search as an incident to appellant’s arrest for passing in a no passing zone, because a search at another time and place is simply not incident to the arrest.

We are not disposed to extend the rule announced in Preston v. United States, supra, to prohibit an inspection of an automobile after the driver has been permitted to drive it a few miles to a magistrate’s office in cases where the driver has no license or identification and gives an unreasonable explanation therefor.

Aided by the more recent opinion of the Supreme Court in Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730, we are convinced that the search of the car at the magistrate’s office, to where it was driven by appellant, and the continuing search at the courthouse were justified as incident to the arrest of the driver who had no license, registration or identification and who accounted for this by claiming that he had been robbed in El Paso, more than 750 miles away, and also by the Texas Statute, Art. 18.22 Vernon’s Ann.C.C.P. which makes it the duty of officers to prevent the consequences of theft by seizing personal property which they have reasonable ground to suspect was stolen.

As pointed out by the Supreme Court in Cooper v. State of California, supra, and in Preston v. United States, supra, the question there decided was not whether the search was authorized by state law, but whether the search was reasonable under the Fourth Amendment. Both opinions make it clear that whether a search is reasonable depends upon the facts and circumstances of each case.

Though the legality of the search on probable cause may not be determined from its fruits or after-acquired facts, it is interesting to note that the investigation of which the inspection of the car was an integral part disclosed: (1) that the car being driven by appellant did not belong to him; (2) that appellant gave his name as James Dewayne Waade, while his true name is Richard Arland Taylor; (3) the man who raised up out of the back seat gave his name as Rod Carlton Lawrence, which was fictitious; (4) the car was not a stolen car but the money in the canvas bag had been obtained in the robbery of a bank.

Unlike Preston, supra, the car was not taken into custody to keep it for the driver or whomever he sent for it, but to prevent the consequences of theft.

Also, as pointed out by the Supreme Court in the cases cited, the relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.

This test is in effect the same as that required under Art. 18.22 C.C.P. of the Texas Statutes to justify the seizure of stolen property—there must be reasonable grounds to suppose the property to be stolen.

Under the facts and circumstances of this case, we conclude that the evidence obtained as the result of the search of the car was lawfully obtained and the trial court did not err in overruling appellant’s motion to suppress and exclude it.

The judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR REHEARING

ONION, Judge.

In a scholarly presented motion and brief, appellant’s able court-appointed counsel vigorously challenges the conclusion reached in our original opinion as to the reasonableness of the “second” warrantless search at Marshall of the automobile involved without appellant’s consent.

The Fourth Amendment is enforceable against the States through the Fourteenth Amendment and renders inadmissible in a State court evidence seized in violation of its provisions. Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; See Article 38.23, Vernon’s Ann.C.C.P.

The relevant test, in cases like that at bar, is whether the search was reasonable under all of the circumstances, for it is only unreasonable searches that are prohibited by the Fourth Amendment. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; and that which is reasonable cannot be determined by a fixed formula; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, nor can it be stated in rigid and absolute terms. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098,91 L.Ed. 1399. In short, whether a search and seizure is reasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case. Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730.

Applied literally, the decision in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, would seem, at first blush, to render inadmissible the fruits of the search in question. In dealing with the search of an automobile in Preston, the United States Supreme Court said, “Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.” In Preston, the Supreme Court did not hold a search without a warrant can be reasonable only if it is made as incident to an arrest. It pointed out that there the search was sought to be sustained solely upon that basis and that the effort failed because (1) the offense for which the defendant was arrested in Preston was vagrancy and since there could not be an instrument, fruit, or evidence of that offense in the vehicle, there could not be a search upon that premise, and (2) insofar as the protection of the arresting officers and prevention of an escape are concerned, there was no need for a search long after the defendant was jailed.

For these reasons it would not appear the search at Marshall (when the officers found the marihuana) can be justified as incident to the arrest for traffic offenses.

This does not mean, however, that the search at Marshall was unreasonable. The arrest for the traffic offenses was valid, and was merely the beginning of the unraveling of the legal ball of twine.

Appellant contends that the arresting officers had appellant under illegal arrest when they required him to follow them from the place of arrest to the office of the Justice of the Peace in Waskom. He urges that he should have been issued a notice to appear as authorized by Article 6701d, Section 148, V.A.R.C.S., instead of being taken before a magistrate. He overlooks two important acts. Section 148, supra, is mandatory upon peace officers only in cases where the person is apprehended for the offense of speeding and gives his written promise to appear. It expressly does not apply, even in speeding cases, where the vehicle is licensed in a state or country other than Texas, nor would it be mandatory where the offense is driving a motor vehicle without a license. Article 6687b, Section 13, V.A.R.C.S. It should be recalled that appellant was driving a vehicle licensed in California when he was apprehended, not for speeding, but for passing in a “no passing” zone. He was unable to produce a driver’s license or identification papers.

The surrounding circumstances fully described in our original opinion justified the arresting officer, upon arrival in Was-kom, in suspecting that he was dealing with a situation more serious than a routine traffic offense and he had reasonable grounds for believing that the automobile might be stolen. There is nothing in the record to indicate that the officers suspected the presence of any narcotics. Considering the situation which confronted the officer, his attempt to determine whether the car was stolen was not unreasonable or viola-tive of the Fourth Amendment. See United States v. Owens, 346 F.2d 329, cert. denied, 382 U.S. 878, 86 S.Ct. 163, 15 L.Ed.2d 119 (1965).

Once a bona fide stop or arrest has been made for a traffic offense, the police can make an additional arrest for any other offense unexpectedly discovered during the course of the investigation. If, while questioning a motorist regarding the operation of his vehicle, an officer sees evidence of a criminal violation in open view, or in some other manner acquires probable cause on a more serious charge, he may arrest for that offense and incident thereto conduct an additional search for physical evidence. See Goodwin v. United States, 121 U.S.App.D.C. 9, 347 F.2d 793; Busby v. United States, 9 Cir., 296 F.2d 328; Rig-gins v. United States, D.C., 255 F.Supp. 777; United States v. Barnett, D.C., 258 F.Supp. 455; United States v. Clark, D.C., 247 F.Supp. 958. Under these circumstances, neither the arrest nor the search is tied to the traffic charge, but rather to the violation later discovered. Brown v. United States, 125 U.S.App.D.C. 43, 365 F.2d 976; United States v. One Cadillac Hardtop, D.C., 224 F.Supp. 210. This is true even if no specific statement of fact of the second arrest is made. Brown v. United States, supra.

The officer entered the automobile at Waskom in an effort to ascertain its true owner as was his duty. It was then he discovered the presence of a “groggy” individual hiding in the vehicle, as well as the rolls and stacks of money (in wrappers of the 1st National Bank of Ft. Worth). This discovery rendered inconsistent appellant’s statement that he had been robbed. It also rendered the source of this quantity of money carried in such a manner highly s.ispect, more especially since two loaded pistols were found near the money. It was at this point that appellant and his companion were detained or re-detained, not because of the traffic offenses, but upon the apparent offense or offenses uncovered.

A search of an automobile might be expected to take place when and where the arrest occurs. While the record does not disclose why the officers could not have made a thorough search at Waskom, it is obvious they concluded under the circumstances confronting them to go immediately to the county seat for a more thorough and accurate search. It is doubtful if Preston should be interpreted to mean a police officer must under all circumstances search or complete the, search of the vehicle at the moment of arrest when an equally prudent course of action would be to move the vehicle to a more convenient or suitable location for the search. It is shown that upon their arrival at Marshall, approximately one hour after appellant’s original traffic arrest at 8:45 a. m., the officers, still not suspecting the presence of narcotics, immediately continued the search of the automobile to determine who the appellant was, why he was in possession of two pistols and a large sum of money still in bank wrappers, whether more money still remained in the vehicle, and whether the vehicle was stolen. The record does not support appellant’s claim that the officers had in fact learned that the automobile was not reported stolen prior to the search at Marshall. The search properly commenced at Waskom was continued at Marshall after a slight delay with the same continuity of purpose by the arresting officers. We are inclined to believe that the holding in Preston turned upon the lack of continuity in purpose by the arresting officers there. See State v. Wood, 197 Kan. 241, 416 P.2d 729; Price v. United States, 121 U.S.App.D.C. 62, 348 F.2d 68; Arwine v. Bannan, (6th Cir.) 346 F.2d 458.

It is our view of the evidence in the case at bar that the arrest of appellant and his companion following the limited search at Waskom, the removal of the automobile to Marshall, and the subsequent search were a series of events constituting one continuous happening. Under such circumstances the search at Marshall occurred substantially contemporaneous with and incidental to the arrest at Waskom itself. The fact that the appellant was not present at the Marshall search did not prevent such search from being incidental to his arrest. Crawford v. Bannan, (6th Cir.) 336 F.2d 505, cert. den., 381 U.S. 955, 85 S.Ct. 1807, 14 L.Ed.2d 727, reh. den., 382 U.S. 873, 86 S.Ct. 12, 15 L.Ed.2d 116.

Since such search was reasonable, then the finding of the contraband (marihuana), totally unrelated to the purpose of the search, would be admissible. Seizable items such as instruments of crime or contraband which come into the possession of an officer lawfully searching in connection with another crime or for another purpose may be retained and used in the prosecution of the crime to which they relate. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668. See also Carroll v. United States, supra; Heffley v. State, Nev., 423 P.2d 666.

Appellant’s motion for re-hearing is overruled.


author: PHILLIPS, Chief Justice.

text:
    STATE of Texas, Appellant, v. JASCO ALUMINUM PRODUCTS CORPORATION et al., Appellees.
    No. 11547.
    Court of Civil Appeals of Texas. Austin.
    Nov. 8, 1967.
    Crawford C. Martin, Atty. Gen., George Cowden, 1st Asst. Atty. Gen., John R. Grace and Thomas M. Thurmond, Asst. Attys. Gen., Austin, for appellant.

      Coleman Gay, Joseph Latting, Austin, for appellees.
   PHILLIPS, Chief Justice.

This is a suit for the collection of delinquent franchise taxes, penalties and interest due by a foreign corporation for doing business in the State-of Texas under a certificate of authority granted it by the State. Fireman’s Fund Insurance Company, the maker of a surety bond guaranteeing the payment when due of all fees and franchise taxes to the State of Texas, was also joined as a defendant.

The trial court rendered a take nothing judgment against the State and the State has perfected its appeal to this Court.

We affirm.

Appellee Jasco Aluminum Products Corporation is a New York corporation which acquired its Certificate of Authority to do business in Texas for a ten year period on January 5, 1962. Appellee Fireman’s Fund Insurance Company wrote a surety bond in the amount of $500 in accordance with the provisions of Vernon’s Ann.Tex.Rev.Civ. Stat. art. 12.06(3), Title 122A, Taxation-General. Under the provisions of Article 12.09, Title 122A, Jasco Aluminum Products Corporation became obligated to make its First Year Franchise Tax Report on or before May 1, 1963. No such report was ever filed.

In accordance with Article 12.16, Title 122A, Jasco Aluminum’s right to do business was forfeited on July 16, 1963 and proper notification was sent to both appel-lees.

The State is before us on two points of error, the first being that of the trial court by rendering judgment that it take nothing by its suit after it had established a prima facie case against appellees; that the State, upon submitting to the trial court certain official documents and the trial court’s action in admitting same into evidence, established a prima facie case and shifted the burden of going forward with evidence to appellees.

We overrule this point.

The State sued Jasco Aluminum Products Corporation and Fireman’s Fund Insurance Company, the surety on its franchise tax bond, for $500, not because there was any contention that this amount was due and owing for taxes and penalty, but because this is the amount of the bond. Admittedly, the amount sued for bears no relation to the franchise tax and penalty actually due and owing.

The State contends that it is entitled to judgment for the $500 because the Comptroller’s “Certificate of Franchise Tax Status” in which he states that he asserts a claim for this amount should have been considered to be prima facie evidence that said amount was due and owing, and the burden of going forward with the evidence should thereby have been shifted to the defendants.

We do not agree with this. Here the Comptroller’s Certificate says nothing with regard to the amount due except that the corporation did not file the required franchise tax return and that he “is, therefore, asserting a claim for the tax in the amount of $500.” (Emphasis added.) This is not a certificate that any amount is due.

The State also contends that the appellees should have had the burden of proving that their liability was less than $500 because “public policy demands the shifting of such a burden to the defendant, because * * * it would be impossible for the State to prove any other tax liability aside from that related in the certificate as quoted.”

This argument, conceivably, might appeal to the Legislature. However, we know of no statute or rule shifting the burden as recommended. When the State files a suit, as it did in this instance, or when it is sued with its consent, it occupies the same position as any other litigant. State v. Stanolind Oil & Gas Co., 190 S.W. 2d 510, (Tex.Civ.App. Beaumont 1945, writ ref’d). Thus, the State was before the court as any other plaintiff and was under the burden of proving its case. Little Miami, Columbus & Xenia Railroad Company v. United States, 108 U.S. 277, 2 S.Ct. 627, 27 L.Ed. 724 (1883).

The State of Texas has at all times had plenary power to examine the principal’s books and records to secure the information necessary to compute the tax. Art. 12.12, Title 122A, gives the Secretary of State and the State Auditor this power. In addition, Art. 139 of the Penal Code, Vernon’s Ann. makes it a criminal offense for any person required by law to file a franchise tax return to fail to return it within the time specified by statute. There was, apparently, no attempt made to use depositions, request for admissions', or other discovery procedures to secure the necessary information.

We hold that the State did not make a prima facie case by introducing the Comptroller’s Certificate, that the burden of proof did not shift, and that the trial court correctly rendered judgment in appellees’ favor upon the State’s failure to prove that any amount was due by Jasco Aluminum Products Corporation for franchise taxes and penalties.

Appellant’s second point of error is that of the trial court in failing to construe Article 12.06(3), Taxation-General, Title 122A, to allow the face amount of bond to be forfeited as liquidated damages in the instance where a foreign corporation files no franchise tax returns and franchise tax liability is unascertainable.

We overrule this point.

Here appellant takes the position that Article 12.06(3), Title 122A, should be construed as requiring a forfeiture of the principal amount of the bond merely upon proof that the principal failed to file a return from which its liability for franchise taxes could be ascertained.

This statute, which also requires that the bond be given, negatives this contention as it expressly provides that if the corporation’s right to do business in Texas is forfeited,

“* * * Attorney General shall bring suit upon such bond * * * against the surety or sureties thereon for the amount of such delinquent fees, franchise taxes, and penalties due and owing the State of Texas, * * *” (Emphasis added)

Another part of the same statute negativing a legislative intent to require a forfeiture of the amount of the bond is Sec. (2) of Art. 12.06 which immediately precedes the section mentioned above. That section provides for the deposit by a foreign corporation of $500 in cash with the Secretary of State, to be held in trust during the time it does business in the State. Sec. (2) provides expressly that if the corporation’s right to do business is forfeited the Secretary of State shall apply said sum,

“ * * * to the payment of all fees and franchise taxes and penalties which may become due by such corporation to the State of Texas.”

and that after that portion of the deposit has been so applied,

“ * * * such deposit or the balance thereof, if any, shall be paid by the Secretary of State to the legal agent, * * * of such foreign corporation in this State.”

Thus, under Sec. (2) of Art. 12.06 the State is permitted to retain only so much of the cash deposit as may be necessary to pay the delinquent fees, franchise taxes and penalties, and the foreign corporation is entitled to have the balance returned to it. In like manner, if a surety bond is given instead of a cash deposit, the only amount the State is entitled to recover in suit on the bond is the amount of the delinquencies.

The judgment of the trial court is affirmed.

Affirmed.


author: MASSEY, Chief Justice.

text:
    Raymond STANFORD, Jr., Appellant, v. LINCOLN TANK COMPANY et al., Appellees.
    No. 16868.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 10, 1967.
    Arch Dawson, Wichita Falls, for appellant.
    Stanley Kirk, Wichita Falls, for appel-lee Lincoln Tank Co. in trial court.
    Bean, Ford, Schleier & Dickerson, Kil-gore, for appellee James S. Person in trial court.
   OPINION

MASSEY, Chief Justice.

This is an appeal by writ of error from a default judgment granted on the theory that defendant Raymond Stanford, Jr., failed to file an answer.

Suit was filed by plaintiff, Lincoln Tank Company, against defendant Raymond Stanford, Jr. and James S. Person on a verified account, alleging an agreement to pay 8% interest after sixty days, alleging demand (but not alleging the demand was 30 days prior to filing suit) and asking for attorneys fees. Both defendants answered by general denial. On the 11th day of October, 1966, default judgment was rendered against both defendants for $3,289.62, the account in full, plus interest at 8% and the full attorney fees prayed for. Basis for the default as set out in the judgment, was that “the Defendants being duly served with citation herein failed to answer or appear in their behalf and wholly made default.” As stated in the findings, defendant Stanford did not appear in the trial, but he was not in default, having an answer on file in the cause since January 24, 1966. On April 7, 1967 he filed his petition for writ of error, and his bond was approved on said date. The transcript' of the record was filed in this court on May 15, 1967.

The Court’s basis for his action was Texas Rules of Civil Procedure, Rule 239, “Judgment by Default”, which authorizes a default judgment at any time against any defendant who has been duly served with citation and fails to answer when required to do so. But the authority is conditioned, “if he has not previously filed an answer.” On that basis, of no answer filed and a complete default, there was no necessity for compliance with Rule 330, “Rules of Practice and Procedure in Certain District Courts”, (b) “Setting Cases for Trial, etc.”, with reference to setting the case for trial, “with notice to the parties” of the trial date, and there can be no basis for an inference that the procedure was by T.R. C.P. Rule 330(b). The judgment recites merely the cause “came on to be heard” and does not find that it was set for trial and the defendants notified and that their default consisted in failing to appear for the trial. The findings and conclusions that the defendants failed to answer or appear and wholly made default though made in the judgment are nevertheless to be treated as findings and conclusions made in accordance with T.R.C.P. Rule 296, “Conclusions of Fact and Law”. Stahl v. Westerman, 250 S.W.2d 325 (San Antonio, Civ.App., 1952, no writ hist.).

Supplemental findings, which may be sometimes presumed, cannot be indulged here because the express findings disclose the basis for the judgment. Burford v. Pounders, 145 Tex. 460, 199 S.W.2d 141 (1947).

This defendant was not in default, and it was error to render this default judgment against him. 33 Tex.Jur.2d 640, “Judgments”, § 119, “Effect of answer or plea of privilege”.

The erroneous finding of no answer and default was an error of law apparent on the face of the record. The statement of facts is unnecessary for its determination. 3 Tex.Jur.2d 696, “Appeal and Error — Civil”, § 448, “Effect of no statement (of facts)”.

The fact that the suit was on a sworn account and the answer was unverified did not warrant the rendition of the default judgment. 33 Tex.Jur.2d 642, “Judgments”, § 120, “Sufficiency of pleading to prevent default”.

Judgment is reversed and the cause remanded.


author: RENFRO, Justice.

text:
    Jack CARPENTER, Appellant, v. GLOBE LEASING, INC., Appellee.
    No. 16864.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 3, 1967.

      Behan & Leech, and James Behan, Grand Prairie, for appellant.
    Sonfield, Sonfield & Lawrence, and Robert L. Sonfield and Robert L. Sonfield, Jr., Houston, for appellee.
   OPINION

RENFRO, Justice.

A default judgment was entered in the District Court on September 2, 1966, in favor of Globe Leasing, Inc., against Jack Carpenter.

Plaintiff’s original petition alleged that on January 23 and January 29, 1966, Globe and Carpenter entered into written rental contracts wherein Carpenter agreed to pay Globe $15.00 per day and eight cents per mile for rental' of trucks and trailers; that defendant failed and refused to pay the amounts due under the contracts in the amount of $218.40, and further plead that defendant drove one of the trucks under an overpass where there was insufficient clearance, damaging the trailer in the amount of $2,800.00. The petition further alleged that it became necessary for plaintiff to employ attorneys to collect the sums due and that $500.00 was a reasonable attorneys’ fee.

The court entered judgment for plaintiff.

On appeal by writ of error, the defendant claims the proper measure of damages was not used in determining the amount of damages to the trailer, there was no competent evidence or pleadings to support the judgment either as to damages or attorneys’ fee.

Although properly served with citation, defendant did not answer to the suit.

After service, plaintiff served defendant with request for admissions of fact as provided by Rule 169, Texas Rules of Civil Procedure.

Defendant ignored the request for admissions.

Hence the court had before it plaintiff’s pleading, the unanswered request for admissions and whatever evidence plaintiff might have had. Defendant filed nothing and did not appear for trial.

The court entered an order which decreed the request for admissions of fact admitted;

The defendant, by his failure to answer the 16 requests for admission, admitted every fact necessary for rendition of judgment on the rental and damages to the trailer. The requests for admission covered every fact pleaded by plaintiff as to such damages.

In Masten v. Masten, 165 S.W.2d 225 (Tex.Civ.App., 1942, writ ref.), this court, through Associate Justice Speer, wrote at considerable length on Rule 169. It was said: “There were sixteen numbered paragraphs in the written request. They each inquired if defendant admitted some one of the material facts necessary for plaintiff to establish his right of recovery. (Same number and to same effect as in instant case.) * * * Rule 169, Texas Rules of Civil Procedure, which at all times during this controversy had the dignity of a statute, provides, in effect, that in circumstances involved here, the plaintiff can make a request in writing to defendant for admissions by him of the truth of the relevant matters of fact set forth in the request, and unless the defendant, within the time prescribed by the rule, denies under oath the truth of the facts contained in the request, or sets forth specifically why he cannot either truthfully admit or deny them, all such matters will be deemed as admitted by him as true. * * * we think the effect of Rule 169 is comparable to a legal admission made in the applicable pleadings of a party, which will admit of no denial by him.”

The Masten case has been followed or cited with approval in numerous appellate opinions. Typical is O’Connor v. City of Dallas, 337 S.W.2d 741 (Tex.Civ.App., 1960, writ dism.), where the court stated: “The defendant (after having been timely served) wholly failed to make any answer to the request for admission of facts, within the time and as provided by Rule 169, Texas Rules of Civil Procedure, and therefore, the answers called for under the decision of Masten v. Masten, Tex.Civ.App., 165 S.W.2d 225, writ refused, must be taken as true * *

Facts admitted by the defendant by reason of his failure to answer the requests were sufficient to support the judgment rendered.

In addition, the judgment recites that the court heard the evidence in the case. That evidence, except for the admissions with the rental contracts attached, was not brought forward. We must assume such evidence supported the judgment, both as to the truck-trailer and attorneys’ fee.

The points based on the claim of no competent evidence are overruled.

We think, too, the pleadings were sufficient to support the judgment rendered.

Rule 45, T.R.C.P., only requires that a petition consist of a statement in plain and concise language of the plaintiff’s cause of action, and provides that the fact “That an allegation be evidentiary or be of legal conclusion shall not be ground for objection when fair notice to the opponent is given by the allegations as a whole.”

Certainly the petition in the case was sufficient to give defendant fair notice what plaintiff was seeking and the reasons why.

“In order to support a default judgment it is not necessary that a plaintiff set out in his pleadings the evidence upon which he relies to establish his asserted cause of action. * * * it is not requisite that a petition be technically sufficient to state a cause of action in order to sustain a default.” Edwards Feed Mill, Inc. v. Johnson, 158 Tex. 313, 311 S.W.2d 232 (1958).

The court in Sagebiel’s, Inc. v. Sumrall, 358 S.W.2d 251 (Tex.Civ.App., 1962, ref., n.r.e.), discussing the question of sufficiency of the pleadings in a default judgment case, said: “While neither the pleadings nor evidence are as specific and detailed as they might have been if the case had been contested in the trial court, nevertheless, we are forced to the conclusion that it is not shown that the * * * court’s assessment of damages was based on evidence of injuries not pleaded or on incompetent testimony. The petition would not have been subject to a general demurrer under the old practice.”

The above holding is applicable to the instant case.

Finding no reversible error in the record, all points of error are overruled and the judgment of the trial court is affirmed.

Affirmed.


author: PRESLAR, Justice.

text:
    PENNZOIL, Appellant, v. SOCONY MOBIL OIL COMPANY, Inc., et al., Appellees.
    No. 5853.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 18, 1967.
    Rehearing Denied Nov. 29, 1967.

      William L. Kerr, Kerr, Fitz-Gerald & Kerr, Midland, Baker, Botts, Shepherd & Coates, J. C. Hutcheson, III, James P. Lee, Bill Henry, Houston, for appellant.
    Jack T. Akin, P. Joseph Trimble, Maurice R. Bullock, Midland, Charles F. Heidrick, E. M. Cage, Hobert Price, Jr., Donald G. Canuteson, Dallas, Walter B. Morgan, Dillard Baker, Houston, for appellee.
   OPINION

PRESLAR, Justice.

This is an appeal from an order granting the defendants’ motion for summary judgment. Involved are questions of whether appellant, as plaintiff below, was barred by the doctrines of estoppel, waiver and ratification from obtaining the relief which it sought. We reverse and remand.

All of the parties hereto are parties to two agreements to unitize their interests in some sixteen sections of land in the Coya-nosa Wolf camp Field of Pecos County, Texas, for the production of oil, gas and associated minerals. Under the terms of the agreements, the parties were to share on the production from the unit for an initial period (Phase I) on the basis of surface acreage, but would change at a later date to allocating production on the basis of the calculated minerals in place (reserves) underlying the land of each, called “Phase II”. The subject matter of this suit is the date that change could be effected from allocating production under Phase I t oPhase II. The agreements were effective as of August 1, 1964, for commencement under Phase I, provided:

“Phase II Tract Participation shall become effective as of 7:00 a.m., June 1, 1968, or at 7:00 a.m. on the first day of the sixth calendar month following the date Working Interest Owners agree that the Unitized Formation is fully developed, whichever date is earlier.”

Defendant Mobil, as the operator of the Unit, in the early part of 1965 commenced efforts to change the basis of participation from Phase I to Phase II. Pursuant to these efforts, Mobil circularized the Working Interest Owners and requested them to agree that development was complete. 96.5% responded affirmatively, and a program was carried out toward effecting such change, and the date for such change was set for December 1, 1965. In late November, Pennzoil protested such change by letter to Mobil and the other Working Interest Owners, and followed such protest by this suit seeking declaratory judgment construing the agreements. Pennzoil, as a Working Interest Owner, brought this suit against all of the other Working Interest Owners asserting that it did not agree that the unitized formation was fully developed and asking the court to determine and declare that Phase II participation under the agreements cannot be instituted prior to June 1, 1968 in the absence of the agreement of all working interest owners. Pennzoil moved for summary judgment for such a construction of the agreements. Defendants, all of the other Working Interest Owners, opposed such motion on the basis that there was an absence of necessary parties, viz., owners of royalty and other mineral interests, who would be affected by a construction of the agreements. The court sustained this contention of the defendants and made no determination of Pennzoil’s motion for summary judgment. Defendants also moved for summary judgment against Pennzoil, alleging that by both its action and inaction in regard to certain events leading up to the declaration that Phase II would be initiated, it was barred by the doctrines of estoppel, waiver, and ratification from questioning the interpretation placed on the agreements by them. The granting of the defendants’ motion for summary judgment is what is before us on this appeal.

Pennzoil, as appellant, by its Point of Error No. 1, urges a construction of the agreements to mean that all owners, 100%, must agree that the unitized formation is fully developed as a prerequisite to the institution of Phase II prior to June 1, 1968. We are unable to pass on this point, for it was not presented to the trial court and, as indicated, it was specifically not passed on for lack of necessary parties. We are unable to make any construction of the agreements which would affect the absent parties, even as the trial court’s construction would have affected them. The record before us is conclusive on this court of the fact that there are absent necessary parties. Therefore, we do not pass on appellant’s Point of Error No. 1.

In upholding the contention of the defendants that Pennzoil is barred by the doctrines of estoppel, ratification and waiver from maintaining its present position, the trial court necessarily found that all of the elements of at least one of those doctrines was established as a matter of law so that summary judgment was proper. With that we are unable to agree, for when each element is viewed in the light required for the granting of summary judgments, there are questions of fact as to some.

Basic rules governing the disposition of cases under 166-A, Texas Rules of Civil Procedure, are set out in Great American R. Ins. Co. v. San Antonio PI. Sup. Co., 391 S.W.2d 41 (Tex.1965), as follows:

“Rule 166-A, Texas Rules of Civil Procedure, provides that summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved aaginst him. Tigner v. First Nat’l. Bank, 153 Tex. 69, 264 S.W.2d 85 (1954); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). In other words, the evidence must be viewed in the light most favorable to the party opposing the motion. Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex.Sup.1963); Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954). If the motion involves the credibility of affiants or deponents, or the weight of the showings or a mere ground of inference, the motion should not be granted. All conflicts in the evidence are disregarded, and the eviden:e which tends to support the position of the party opposing the motion is accepted as true. Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286 (1957).”

And for a full discussion of the summary judgment procedure, see “What the Heck in Two Respects”, by Justice Zollie Steakley of the Supreme Court, in Vol. 30, No. 8, p. 697, Texas Bar Journal (Sept. 22, 1967).

By its suit Pennzoil, as plaintiff, sought to have the court construe the agreements of the parties, to settle the question of whether or not unanimous agreement of the Working Interest Owners was required to institute Phase II. The effect of the trial court’s judgment is that the right to have the contracts construed has been lost because of the course of conduct of the one seeking the construction prior to the time such construction is sought. The judgment does not specify the basis of denying the relief sought, other than the granting of the defendants’ motion for summary judgment, and the gist of such motion was that plaintiff had “ratified the procedure used” by defendants, and by its ’aches and unreasonable delay “waived” any right to complain, and “is now estopped as a matter of law from questioning the interpretation placed on the Unit Agreement and Unit Operating Agreement by all other Working Interest Owners.”

Prior to institution of Phase II, whenever it was to be accomplished, certain preliminary things had to be done — selection of consulting engineers, a determination by them of the minerals in place under the various tracts of the Unit, and an allocation to each tract of its proportionate part, etc. These matters were set out in the agreements, and it is alleged that as these steps were taken toward institution of Phase II, Pennzoil remained silent, and that on two occasions it took an active part. The affidavit and exhibits attached to defendants’ motion for summary judgment (affidavit made by F. S. Wright, of Mobil) sets out that on June 2, 1965 Mobil sent a telegram to all Working Interest Owners requesting them to formally agree that the unitized formation was fully developed, and that by letter of June 7,1965, Mobil wrote all Working Interest Owners:

“In reply to our telegram of June 2, 1965, this will advise that Working Interest Owners having a participation of 96.5% in the Coyanosa Wolfcamp Unit have agreed as of June 4, 1965, that the Unitized Formation is fully developed and that determination of Phase II Participation should start immediately.
“Under the terms of Section 6.2.4 of the Coyanosa Wolfcamp Unit Agreement, Phase II Participation will become effective as of 7:00 a. m., December 1, 1965.
“The two consultants (H. J. Gray and D. R. McCord) have commenced their work on the determination of Phase II Participation.”

The affidavit also sets out that a meeting was held to select consultants, which Pennzoil did not attend, but that by letter dated May 11, 1965, it proposed the names of three such consultants, and that representatives of Pennzoil attended and participated in two meetings of Working Interest Owners held on September 7 and September 21, 1965, at which the reports of two of the consultants were discussed and instructions were given to them; that on November 22, 1965, the final report of the consultants was received and forwarded the same day to all Working Interest Owners, and that on November 26, 1965, Pennzoil’s letter was received stating that any effort, at the present time, to institute Phase II Participation would be contrary to the terms of the Unit Agreement; and the affidavit states: “It was in reliance upon the agreement of the Working Interest Owners that the Unitized Formation was fully developed that prompted the. charge to the aforementioned consultants to make their studies for the purpose of determining Phase II Participation”, and the fee (paid by all Working Interest Owners) of such consultants was $58,733.53.

The opposing affidavit of Pennzoil (by its representative, W. A. Hover) expresses the opinion that development of the field was not complete, and in some detail described what drilling or development was going on during the period of time of the proceedings above described; that the limits of the field had not been established by dry holes, and that additional drilling on proven locations was still necessary and were provided for in a proposed budget by Mobil in late September 1965, and attached to the affidavit is correspondence from Mobil to the other operators in regard to pending and proposed development. Much of what is said in this regard has no bearing on the questions presented by the summary judgment procedure. Following the rules that the evidence must be viewed in the light most favorable to the party opposing the motion, and all conflicts in the evidence are disregarded and the evidence which tends to support the position of the opposing party is accepted as true, some significance must attach to the following from the Hover affidavit. He says that because Pennzoil could not agree that development was complete, it did not reply to Mobil’s telegram of June 2, 1965; that it is true that Pennzoil did not, prior to November 23, 1965, challenge the procedure being followed by Mobil to change to Phase II; that the reason for that was that it was not until late October that it made an independent review of the Unit Agreement and consulted counsel and then became convinced that the procedure being followed was improper; that it never occurred to him that a company of Mobil’s standing would, either through ignorance or design, disregard the provisions of the Unit Agreement; that it was not his intention to approve the procedure by his actions in sending representatives to the meetings of September 7 and 21, 1965; and that he does not believe, as implied by Mr. Wright, that the money paid to the consultants was wasted.

While the parties hereto speak of no dispute as to the facts — that is not to say there is no dispute about the ultimate facts which must exist to establish each element of the doctrines which control the case. Such elements are made up of one or more or a whole bundle of the undisputed facts. The judgment being that Pennzoil, as plaintiff, seeking declaratory judgment for construction of the agreement of the parties, is barred from the relief sought by the doctrines of waiver, ratification, or estoppel, it is necessary to examine such doctrines.

The principles or elements of equitable estoppel are set forth in 22 Tex.Jur.2d 668 in the following language:

“To constitute an equitable estoppel or estoppel in pais, there must have existed (1) a false representation or concealment of material facts, (2) made with knowledge, actual or constructive, of those facts, (3) to a party without knowledge,, or the means of knowledge, of those facts, (4) with the intention that it should be acted on, and (5) the party to whom it was made must have relied or acted on it to his prejudice. The basis of estoppel is deception, and in its absence there can be no estoppel in pais.”

Basically these are the governing principles, as set out in Gulbenkian v. Penn (supra), although various shades of the terms used may be found in the reported cases, most of which are discussed in Champlin Oil & Refining Company v. Chastain, 403 S.W.2d 376 (Tex.1965). We deem these to be the elements which must co-exist if the plaintiff is estopped in the case before us, and we do so with the realization that each asserted instance of estop-pel is different from any other and must depend on its particular facts.

Appellees urge that the material fact concealed by Pennzoil, which established element number (1), is that Pennzoil agreed with Mobil’s interpretation of the agreements as expressed in its letter of June 7th— 96.5% having agreed, we are now ready for Phase II. One appellee takes the position that the first element is established because the conduct of Pennzoil could only be calculated to convey one or both of the following- : (a) that Pennzoil agreed that the -unitized formation was fully developed, or (b) that Pennzoil agreed with Mobil’s interpretation of Article 6.2 as expressed in Mobil’s letter of June 7th. We think the evidence is against any belief that Pennzoil agreed that the field was fully developed. It was specifically asked to so agree by Mobil’s telegram of June 2, which read:

“IN ACCORDANCE WITH ARTICLE 6 OF THE COYANOSA WOLFCAMP UNIT AGREEMENT MOBIL RECOMMENDS THAT THE WORKING INTEREST OWNERS AGREE THAT THE' UNITIZED FORMATION IS FULLY DEVELOPED AND THAT THE DETERMINATION OF PHASE II PARTICIPATION BE STARTED IMMEDIATELY. YOUR APPROVAL BY RETURN WIRE IS REQUESTED.”

Pennzoil did not respond to that request, and thereafter the correspondence between the parties pointed up Pennzoil’s position by reciting that 96.5% of the Working Interest Owners had agreed. For purposes of summary judgment determination, we must look to the affidavits and their attached exhibits, and Mr. Hover says Pennzoil never agreed that the field was fully developed. Nothing points to concealment by Pennzoil of its position on field development. As to concealment by Pennzoil of the fact that it was in agreement with Mobil’s interpretation of the agreement (100% agreement not required), it must be noted that Pennzoil never stated its position on that. It remained silent, so that its position would have to be what the other parties made it, stated by them and not denied by Pennzoil, when it was under a duty to do so. Appellees maintain that Mobil’s letter of June 7th created a duty to speak, and when Pennzoil remained silent, it was concealing from appellees its own interpretation of the contract and causing appellees to believe it agreed with theirs. In this connection it should be noted that Mobil’s letter did not specifically deal with the construction of the contract. Mobil’s letter of June 7th did not say — we construe the contract not to require 100% agreement. Construction of the contract was not the subject of the letter. Had it been the subject of the letter, of specifically mentioned, then Pennzoil would have had actual knowledge, or at least would have been put on notice, that there was a question of interpretation existing. Mobil’s letter was to advise that 96.5% had agreed — to report the results of its telegraphic inquiry — and it inferred that percentage met contract requirements, as they were going ahead. Mr. Hover says in his affidavit that it never occurred to him that a party of Mobil’s standing would, either through ignorance or design, disregard the provisions of the agreement. However lame an excuse this may seem to be, it bears on the duty to speak lest estoppel arise from silence. The matter is discussed in the majority opinion, on motion for rehearing, page 403 of Champ-lin Oil & Refining Company v. Chastain (supra), as follows:

“ * * * Ordinarily, when one contracting party discovers or becomes aware of a fact or circumstance affecting the contract, he must make disclosure of such fact or circumstance to the second contracting party before he may assert an estoppel based upon the non-action of the second party. If full disclosure be made, an estoppel could arise under certain circumstances, even though the second party by inattention, neglect or wanton carelessness, failed to realize the situation and act accordingly. On the other hand, if the second party (the one against whom the estoppel is asserted) has knowledge or information of facts sufficient to put him upon inquiry which if reasonably pursued would lead to the discovery of the controlling fact, —in this instance, the use of the plant allocation formula, — said second party is in effect charged with actual knowledge of such controlling fact because the circumstances are such that notice of such fact is necessarily imputed to him. 2 Pome-roy’s Equity Jurisprudence (5th Ed.) 613, § 596. Such notice is imputed actual notice and will support an estoppel. ‘[A]c-tual notice is a conclusion of fact, capable of being established by all grades of legitimate evidence.’ 2 Pomeroy, Equity Jurisprudence (5th Ed.) 612, § 595. It is Chastain’s position that the letter of September 12, 1958, coupled with the monthly reports submitted to him by Champlin, were insufficient as a matter of law to impute knowledge to him that Champlin was allocating mineral substances to him on a basis other than that prescribed in the contract. We think the evidence presents an issue of fact for a jury.”
* * * * * *
“ * * * Depending upon a jury’s estimate of the information set forth in the Champlin letter, it could be concluded that Chastain was under a duty to speak. ‘An estoppel may arise as effectually from silence, where it is a duty to speak, as from words spoken.’ Burnett v. Atteberry, 105 Tex. 119, 145 S.W. 582, 1. c. 587 (1912). Cf. Humble Oil & Refining Co. v. Harrison, 146 Tex. 216, 205 S.W.2d 355 (1947).”

The facts in the case before us do not appear to be as strong as those in the Champ-lin case, yet in Champlin the elements of the doctrine were submitted to a jury by special issue, and the final disposition of the case by the Supreme Court was to send it back for another trial to a jury. We think the matter here discussed is not conclusive as a matter of law, but that a fact issue is presented for trial by a court or jury.

In its most simple form, this case is one of two parties operating under a contract, and one of the parties raising the question that the contract terms are not being followed and asking for a construction of such term or provision; the other party replies that you have gone along with our construction to the point where you are es-topped to call for a construction of our agreement — this, because it would be inequitable. At what point is a party equitably estopped to question whether the procedure they are following is in keeping with their agreement? The answer is supplied in Champlin Oil & Refining Co. v. Chastain (supra), 403 S.W.2d at page 401, by the following language:

“An essential element of Champlin’s defense that Chastain was equitably es-topped is a finding that it relied and was injured by reason of Chastain’s silence after he was under a duty to speak. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W. 2d 929 (1952); Waxahachie National Bank v. Beilharz, 94 Tex. 493, 62 S.W. 743 (1901).”

At the point where Pennzoil protested the procedure and called for a construction of the agreement, had Mobil and the other parties relied on Pennzoil’s conduct to their injury? (Element (5) above). Did Mobil and the other defendants go forward with Phase II plans in reliance on Pennzoil’s representation that they were in agreement or did they go forward because they considered 100% agreement was not necessary? Their position throughout has been that 100% agreement was not necessary. They knew there was not 100% agreement, yet they went forward. Mobil’s letter of June 7 says 96.5% have agreed and Phase II will go into effect on December 1. Much of their briefs before this court is devoted to the argument that 100% agreement is not required, and in their affidavit in support of their motion for summary judgment they set out that they received a 96.5 favorable reply to their telegraphic request for agreement, and that affidavit says, “It was in reliance upon the agreement of the Working Interest Owners that the Unitized Formation was fully developed that prompted the charge to the aforementioned consultants to make their studies for the purpose of determining Phase II Participation.” The affidavit then states that the consultants’ fee was $58,733.53. In his controverting affidavit Mr. Hover, for Pennzoil, says this was not wasted. We think a fact issue is presented as to the fifth element of the doctrine of equitable estoppel, and the same being true of the first element, we deem it unnecessary to discuss the other elements.

The granting of the defendants’ motion for summary judgment cannot be upheld on the basis of the doctrines of ratification or waiver. As indicated earlier, the effect of the judgment is that the right to have the contract construed has been lost. The action for declaratory judgment sought an interpretation or construction of the agreement under which the parties are operating and will continue to operate. We fail to see how approval, or “ratification”, of past procedure under the contract can cut off the now existing right to construe, in the absence of the elements of estoppel which have been discussed. Likewise, if we assume that Pennzoil waived its rights in the past, it does not mean that it has waived future rights. Waiver cannot exist until the thing waived is in existence. As said in 60 Tex.Jur.2d 186: “To constitute a waiver, the right or privilege alleged to -have been waived must have been in existence at the time of the alleged waiver.” (Citing Payne v. Beaumont, Tex.Civ.App., 245 S.W. 94, err. ref., and Roberts v. Griffith, Tex.Civ. App., 207 S.W.2d 443, err. ref., n. r. e.). Also, as said in Snyder v. Citizens State Bank, Tex.Civ.App., 184 S.W.2d 684, affirmed Binford v. Snyder, 144 Tex. 134, 189 S.W.2d 471: “While there is a distinction between waiver and ratification, both re quire full knowledge and intention to waive.” The controverting affidavit of Mr. Hover would raise a fact issue here, for he speaks out on “intention”, and that affidavit is before us, despite the protests of the defendants that it should not be considered. The trial court overruled defendants’ motion to strike it, and such action is not assigned as error.

Being of the opinion that questions of fact are presented by the record before us which preclude the granting of summary judgment, the judgment of the trial court is reversed and the cause remanded for trial on the merits.


text:
    ALLAN CONSTRUCTION COMPANY, Inc., Appellant, v. Florencio SOLIZ, Appellee.
    No. 11544.
    Court of Civil Appeals of Texas. Austin.
    Nov. 15, 1967.
    Rehearing Denied Dec. 6, 1967.

      L. W. Anderson, Dallas, for appellant.
    E. B. Fuller, Austin, for appellee.
   PHILLIPS, Chief Justice.

This is a plea of privilege case in which appellee, plaintiff below, and a resident of Travis County, brought suit against two defendants, Allen & Heidt, Inc., a corporation with its place of business in Travis County and Allan Construction Co., Inc., a corporation with its principal place of business in Bexar County, Texas. Allan Construction Company, Inc. is the appellant here.

Appellee filed his suit in Travis County, Texas. The appellant, Allan Construction Company,' Inc. filed its plea of privilege to be sued in the county of its principal place of business, Bexar County, Texas. Appellee then filed his controverting plea alleging that venue could be maintained in Travis County, Texas under Tex.Rev.Civ. Ann. art. 1995, Sec. 4 and also under section 23 of this same article. The trial court overruled appellant’s plea.

We reverse this judgment and render the cause as hereinafter described.

Some two months prior to the accident in question, Allen and Heidt, Inc. loaned Allan Construction Co., Inc. an asphalt tank to be used in the vicinity of Rusk, Texas. Allen & Heidt, Inc. instructed the appellee, who was an employee of Machinery Haulers, Inc. of Travis County, Texas, to go by and check the tank and return it to Austin. Allen & Heidt, Inc. further told appellee not to move the tank if any asphalt remained in the tank. He was cautioned by Allen & Heidt about moving the tank if there was asphalt in it and that he would have to call someone to get the asphalt out before he could move the tank. This procedure is in conformity with the regulations of the Texas Railroad Commission. In this connection, it should be pointed out that the evidence discloses that appellee was in the business of hauling tanks, had handled asphalt tanks in the past and in fact had moved the very tank in question in several instances in the past.

Appellee called for the tank at 2 a. m. on a July morning and testified that in checking the tank for asphalt he climbed on top of it and hit the outside of the lid with an iron bar and that the tank exploded. He could not remember if the top of the tank was opened when the accident occurred. There was a spigot on the tank through which the contents could have been checked or appellee could have tapped the sides of the tank with something to ascertain whether the sound indicated that asphalt remained therein.

After the court’s ruling, appellant filed its request for Findings of Fact and Conclusions of Law. In its conclusion of law the court found that the appellee “made out a prima facie case against the defendant Allen & Heidt, Inc., and defendant Allan Construction Company, Inc. is a proper party defendant in this suit within said Subdivision 4, Article 1995.”

Appellant is before this Court on seven points of error, the principal basis of which is that nowhere did the Court’s Conclusions of Law state that a prima facie case was made out against the appellant Allan Construction Company, Inc., as required by Tex.Rev.Civ.Stat.Ann. art. 1995, Subdivision 4 or Subdivision 23. Nowhere in the trial court’s Findings of Fact does the court find that either defendants below were guilty of negligence and the remaining attendant elements necessary to fix liability.

Appellee alleges in his petition that appellant was negligent in improperly maintaining the asphalt tank in question; in so handling the asphalt tank as to leave it in a position where it could not adequately and properly be examined, moved or transported; in leaving a quantity of their asphalt material in the tank, sealed, so that an explosion could occur under the proper circumstances; in not leaving the top or lid off of the tank so that the explosive mixture inside the tank could evaporate, leaving it in an inert condition.

No evidence was introduced by appellee that appellant was guilty of negligence in improperly maintaining the asphalt tank or handling the asphalt tank as to leave it in a position where it could not adequately and properly he examined, moved or transported. This testimony is inadequate to show any negligence on the part of the appellant. Appellee must show what constituted negligence in support of his allegations in order to make a prima facie case required by the exceptions to the statute. The findings of fact filed by the trial court did not find any negligence or proximate cause on the part of either company in maintaining the asphalt tank or with respect to Allen & Heidt, Inc. in connection with the warning.

Further, no evidence was introduced to show that appellant was negligent in keeping asphalt in an asphalt tank or in leaving the lid of the asphalt tank on the tank. Neither did appellee bring forth evidence which would have shown that appellant had a duty to keep a guard at the tank or that there was any duty on the part of Allen & Heidt, Inc. to warn a person in the business of moving asphalt tanks of their inherent danger. See Durham v. Fort Worth Tent & Awning Company, Inc., 271 S.W.2d 181 (Tex.Civ.App.Fort Worth 1954, writ dism’d.)

Nowhere in the trial court’s Findings of Fact does the trial court find that either defendant was guilty of negligence or any act to support such a finding.

Where an appropriate request for a statement of findings and conclusions has been made, findings on every material issue must be prepared and filed by the Judge. Treadaway v. Hodges, 125 S.W.2d 385 (Tex.Civ.App.Amarillo 1939, no writ). Also Tex.R.Civ.P. 299 is authority for this point, wherein it is stated as follows:

“Where findings of fact are filed by the trial court they shall form the basis of the judgment upon all grounds of recovery and of defense embraced therein. The judgment may not be supported upon appeal by a presumption of finding upon any ground of recovery or defense, no element of which has been found by the trial court * * (Emphasis added.)

It is necessary that there be a finding of fact on each and every essential ultimate fact which is controlling in the lawsuit. As stated in the case of Mayor v. Breeding, 24 S.W.2d 542 (Tex.Civ.App. San Antonio 1930, writ ref’d), it was held as follows:

“ * * * It was an ultimate and controlling fact, which will not be resolved by presumption in support of the judgment, as would evidentiary facts merely incidental to ultimate issues. It constituted an independent, and, as it proved to be, the sole, ground upon which appellees could have recovered. The burden of eliciting a finding thereon was upon ap-pellees, who, in the absence of such finding or a request therefor, will be held to have abandoned that ground of recovery. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W. 2d 1084. Therefore, in the absence of such finding, the court erred in rendering judgment in favor of appellees for the land, and, the error being apparent upon the face of the record, and going to the very foundation of the case, it is obviously fundamental, and must be noticed, although not specifically urged by appellant. The judgment must be accordingly reversed.”

Also see: Hanover Insurance Co. v. Sonfield, 386 S.W.2d 160 (Tex.Civ.App.Houston 1965, no writ).

Appellant timely filed its request for findings and conclusions and thus was entitled to findings on every essential fact. Appellant was entitled for the trial court to make findings on every ultimate issue, in this case, including negligence and proximate cause on the part of the defendants, which would support the judgments rendered.

Before either of the two companies involved here can be held liable, it is indispensable to show not only that they were negligent, but also that their negligence was the proximate cause of the injuries complained of. In the absence of either of these elements against them, Allan Construction Company, Inc., is entitled to have the plea of privilege sustained. 40 Tex.Jur.2d, Findings of Negligence, in General, Section 188, pp. 757-759. In Findings of Fact Number Four, the court stated that the defendant did not warn plaintiff of any danger in examining the tank. There was no finding that this act was negligence or that this act was the proximate cause of the injuries sustained, which are ultimate and necessary findings.

The evidence itself will not support these omitted findings even had they been made. Allied Building Credits, Inc. v. Grogan Builders Supply Co., 365 S.W.2d 692 (Tex. Civ.App.Houston 1963, writ ref’d n. r. e.).

When the trial court merely stated its conclusion of law that a prima facie case was made out against the resident appellant such was insufficient. 57 Tex.Jur. 2d, Trial, Sec. 591.

The judgment of the trial court • is reversed and judgment is here rendered that the plea of privilege of the appellant Allan Construction Company, Inc., be sustained and this cause, as to it, be transferred to the District Court of Bexar County, Texas.

Reversed and rendered.

      . Appellant’s points of error are as follows :
      “(1) The trial court erred in stating in the conclusion of law that a prima facie case had been proved against the resident defendant, Allen & Heidt, Inc., so as to establish venue against Allan Construction Company, Inc., under Article 1995, Section 4, when there was no evidence or finding to support the same;
      (2) the trial court erred in stating in the conclusion of law that venue was proper against Allan Construction Company, Inc., under Article 1995, Section 23, merely because it had a representative for eighteen (18) months prior to the hearing when this is insufficient as a matter of law, because in addition thereto, the prima facie case must be proved against Allan Construction Company, Inc.; (3) the trial court erred in stating in the conclusion of law that venue was proper against Allan Construction Company, Inc., under Article 1995, Section 23, when there was no conclusion of law, finding of facts, or evidence that the prima facie case had been proved against Allan Construction Company, Inc.; (4) the trial court erred in holding that there was a prima facie case made out against the defendant, Allen & Heidt, Inc., so as to hold venue under Article 1995, Section 4, when there was no finding of fact that such defendant or its agents, servants or employees were negligent, and their negligence was a proximate cause of the accident; (5) the trial court erred in holding that there was venue as to the defendant, Allan Construction Company, Inc., under Article 1995, Section 23, when there was no finding of fact that Allan Construction Company, Inc. or its agents, servants and employees were guilty of any act toward the plaintiff, or that such an act was negligence and a proximate cause of the accident; (6) an act of negligence on the part of either defendant, Allen & Heidt, Inc., or Allan Construction Company, Inc., could not be deemed found as an admitted finding, because: A. No element of negligence is found in the finding of facts. B. The evidence presented in the trial court does not support the finding of negligence; (7) the defendant, Allan Construction Company, Inc., did not waive its right to complain about the findings of fact by not requesting additional findings, since the evidence would not support such an additional finding of negligence and (8) the action of the plaintiff in striking the tank with an iron bar constituted an act which was not reasonably foreseeable and accordingly, the trial court erred in holding venue under either Section 4, or Section 23, of Article 1995.”

      . The court’s findings of fact 3 and 4 are as follows:
      “3. At some time prior to July 19, 1965, Allan Construction Company, Inc., had ceased having a need for the tank and had advised Allen & Heidt, Inc., of this fact. A duly authorized representative of Allen & Heidt, Inc., spoke to the plaintiff as a representative of Machinery Haulers Inc. and asked him to make arrangements for the tank to be brought back to Austin by Machinery Haulers, Inc. This information was imparted to Supervisory Personel of Machinery Haulers, Inc. by the plaintiff; 4. Mr. Allen of Allen & Heidt, Inc., acting within the scope of his employment, personally instructed the plaintiff to examine the tank to be sure that it was empty of asphalt, but did not warn plaintiff of any danger in so doing.”


author: COLEMAN, Justice.

text:
    The CITY OF HOUSTON, Appellant, v. SOCONY MOBIL OIL COMPANY, Inc., Appellee.
    No. 15118.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Nov. 16, 1967.
    Rehearing Denied Dec. 7, 1967.

      William A. Olson, City Atty., Homer T. Bouldin, Trial Supervisor, Joseph G. Rollins, Senior Asst. City, Atty., Houston, for appellant.
    William H. Tabb, John A. Berke, Jr., David R. Latchford, Jerome E. Dawkins, Dallas, for appellee.
   COLEMAN, Justice.

This is a suit for the damage resulting to real estate from the lowering of the grade of Long Point and Foley Streets by the City of Houston. After appellee secured an interlocutory summary judgment decreeing liability, the cause was tried to a jury on the question of damages. Based on the jury verdict and the interlocutory summary judgment, the trial court entered a final judgment in favor of appellee.

Appellant contends that the trial court erred in overruling its motion for judgment non obstante veredicto because the evidence established that the City of Houston levied a paving assessment on the property in •question and appellee failed to appeal from such assessment in the manner provided by law, and, further, estopped itself from denying that the property was enhanced in value by the paving by paying the assessment, which was based on the enhanced value of the property. By its other point appellant contends that the trial court erred in entering judgment for appellee for the same reasons.

The summary judgment establishing liability was based on the unsworn pleadings of the parties and the answers made to certain requests for admissions of fact. In its petition appellee alleged ownership of certain real property fronting 125 feet on Long Point Road and 125 feet on Old Campbell Road (Foley Street) within the City of Houston. This property was improved by the construction of a modern gasoline service station. In connection with a street improvement program the City of Houston lowered the grade on Long Point Road and Foley Street from two to three feet, thereby destroying all approaches to and entries upon the plaintiff’s premises. It was alleged that as a result of the steep grades between the plaintiff’s lot and the streets resulting from this work, it is impossible to •construct suitable driveways to the filling station and that in order to restore the premises to a suitable condition for use as a filling station it would be necessary to remove all improvements and lower the grade of the lot. The petition alleged damage in the sum of $21,205.00.

In its answer the City of Houston alleged that by Ordinance No. 61-1982 enacted by the City on November 1, 1961, the City Council of the City of Houston determined the necessity for the paving of Long Point Road and of assessing the various abutting property owners, including plaintiff, for this work; that thereafter, and in compliance with law, due notice was given to plaintiff of this paving assessment and opportunity was afforded the plaintiff to protest same and present any claims for damages but, instead, on April 4, 1963 it did voluntarily pay the full amount of the paving assessment assessed against it for net benefits and enhancements to plaintiff’s property resulting from such paving; hence, any claim for diminution in market value to its premises which plaintiff might otherwise have had has been expressly waived by said plaintiff.

The plaintiff’s unsworn motion for summary judgment was filed on October 21, 1965, and alleged that the attached interrogatories and admissions show that, except for the amount of damages, there is no genuine issue as to any material fact. This motion was set for hearing on November 8, 1965. On this date the City filed its unsworn answer to the motion for summary judgment in which it stated that in addition to the question of damages there remained to be proved other facts in order to establish the liability of the City, and that the burden of proving such facts rested on the plaintiff.

The trial court proceeded to hear the motion and, on November 8, 1965, entered a decree sustaining the motion and ordering that the cause proceed to trial on the sole issue of damages.

After the entry of this decree the. plaintiff filed a supplemental petition in answer to certain special exceptions contained in the City’s answer. On the 6th day of June, 1966, the special exceptions were heard and the trial court entered an order overruling them with the exception of one bearing on the issue of damages.

The cause proceeded to trial on the issue of damages on November 14, 1966, and a judgment was entered on the 19th day of December, 1966, reciting the fact that the issue of liability had been established by the order of the 113th Judicial District Court on November 8, 1965, and setting out the issues on damages together with the answers of the jury. The judgment then decreed that the plaintiff recover the sum of $7,-750.00, representing the difference in the market value of the property immediately before and immediately after the damage.

Appellant presented the matters it relies on for reversal in its motion for judgment non obstante veredicto and in its motion for new trial. In its motion for judgment it alleged that it was entitled to an instructed verdict by reason of the failure to appeal from the special assessment and the subsequent payment thereof. There was no mention of the summary judgment and, of course, no motion to set it aside. In the motion for new trial appellant complained of the failure to grant an instructed verdict; alleged error in submitting the case to the jury, and alleged error in that the court refused its motion for judgment non obstante veredicto. There was no complaint made to the court entering the final judgment that the 113th District Court had erred in entering the partial summary judgment at any stage of the proceeding, unless such complaint can be implied from the recitation in the judgment that the defendant duly excepted and gave notice of appeal.

Appellant has no point in its brief in this Court specifically complaining of the action of the trial court in granting the partial summary judgment. The summary judgment is not mentioned by appellant in its argument under either of the points presented.

During the trial of the damage issue before the jury, the trial court sustained ap-pellee’s objection to appellant’s proffered evidence concerning the paving assessment. The final judgment incorporated the partial summary judgment and was based thereon.

Rule 166-A, Texas Rules of Civil Procedure, specifically provides that a summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. It is provided that the judgment shall be rendered on the pleadings, depositions, admissions, and affidavits on file, and that no oral testimony shall be received at the hearing. If there is no genuine issue as to a material fact developed on the basis of this evidence, the movant is entitled to a judgment. The rule also provides that when judgment is not rendered on the whole case or for all the relief asked, the trial court shall ascertain if practicable, what material facts exist without substantial controversy and shall set out such facts in an order. On the final trial such facts shall be deemed established and the trial shall be conducted accordingly.

It is the clear purport of this rule to make the issues determined on the motion for summary judgment final. Once an interlocutory summary judgment is entered, the issues decided cannot be further litigated unless the judgment is set aside by the trial court, or unless the summary judgment is reversed on appeal. An interlocutory summary judgment is not appealable until a final judgment is entered disposing of all parties and issues in the cause. Maples v. Klimist, 377 S.W.2d 774 (Tex.Civ.App., Texarkana, 1964).

An appeal from a final judgment, in which an interlocutory summary judgment has been merged, presents an opportunity for an appeal from the summary judgment. If the appeal results in a reversal on points not involved in the summary judgment, that portion of the case decided on summary judgment will not be remanded for a new trial. Coleman v. Hudson Gas & Oil Corporation, 403 S.W.2d 482 (Tex.Civ.App., Beaumont, 1966, ref. n. r. e.).

A question not presented in a point of error, or by argument under the points of error, in appellant’s brief, cannot be considered. Lott v. Lott, 370 S.W.2d 463 (Tex. Sup., 1963).

If by liberal construction we may hold that the question of waiver of damages by reason of failure to appeal from the action of the City Council in finding that the street improvements enhanced the value of the property of appellee and levying an assessment, which was paid by appellant, was presented to this Court by appellant’s points, we find no merit in the points.

The propriety of the action of the trial court in granting the summary judgment depends on the facts properly before the Court at the time the judgment was entered. The burden was on the movant for a summary judgment, in an action in which the defendant has pleaded an affirmative defense, to demonstrate by evidence that there is no material factual issue upon elements of his claim. He is then entitled to his judgment unless his opponent comes forward with a showing that there is such a disputed fact issue upon his affirmative defense. It is not incumbent upon the plaintiff to incorporate in his pleading allegations which negative the affirmative defense. Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1959).

Appellant’s points do not challenge the propriety of the summary judgment except insofar as a material question of fact is raised as to the failure of appellee to appeal from the order levying the special assessment and finding that the property was enhanced in value by the street improvements, and insofar as a question of waiver of damage was raised by appellee’s action in voluntarily paying the assessment.

There were no affidavits, depositions, or admissions on file as of November 8, 1965, tending to raise issues of fact as to any of these matters. Plaintiff’s supplemental petition and brief in support of the petition, filed April 26, 1966, and the admissions of fact filed on March 19, 1966, in response to interrogatories, cannot be considered since the summary judgment was entered prior thereto. For the same reason the evidence introduced at the trial on the bill of exceptions cannot be considered. There was no summary judgment evidence to support the allegations in appellant’s answer. Since we are of the opinion that the matters sought to be raised constituted affirmative defenses, appellant had the burden of submitting evidence raising issues of fact with reference thereto. Gulf, Colorado & Santa Fe Railway Co. v. McBride, supra.

The judgment of the Trial Court is affirmed.