author: CIRE, Justice.

text:
    FIRST NATIONAL BANK OF BELLAIRE et al., Appellants, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA et al., Appellees.
    No. 1597.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 27, 1977.
    Rehearing Denied May 18, 1977.

      Charles R. Vickery, Jr., Vickery & Brown, Houston, for appellants.
    C. 0. Ryan, William J. Merrill, Kelley, Ryan, Merrill & Young, F. Walter Conrad, Jr., Baker & Botts, John L. Hill, Atty. Gen., David M. Kendall, Jr., First Asst. Atty. Gen., John C. Madison, III, Asst. Atty. Gen., Houston, for appellees.
   CIRE, Justice.

This appeal is from the granting of a summary judgment against plaintiff taxpayers of the City of Bellaire in their suit to recover damages for the city or to set aside a sale of city property.

In February 1975 the City of Bellaire sold the 4700 block of Locust Street in Bellaire to the Prudential Insurance Co. of America for $1,001. The title was conveyed by deed dated February 17, 1975. In September 1976 the First National Bank of Bellaire and six persons, taxpayers of Bellaire, filed suit on behalf of the taxpayers of Bellaire against Prudential, the City of Bellaire, members of the Bellaire City Council and the Attorney General of Texas, claiming that the land conveyed was worth $172,886; that Prudential had already paid private owners 100 times as much for the 558,000 square feet adjoining the 4700 block of Locust Street; that the transaction was entered into fraudulently by Prudential and the members of the Bellaire City Council; and that plaintiffs had requested the city council to recover the land or its fair market value. Plaintiffs sought damages based on the alleged inadequate consideration for the sale of the property or, alternatively, a declaration that the sale was invalid and the cancellation of the city’s conveyance of the land to Prudential. Defendants answered by general denial and further alleged that plaintiffs lacked standing to sue and that the city council had not authorized any of the plaintiffs to institute this suit in its name or on its behalf.

Both defendants moved for summary judgment. Defendant Prudential’s motion alleged that this suit was merely a vindictive action, brought on by the possibility that another national bank will be located in a building it owns in Bellaire. Defendants’ motions for summary judgment were based solely on the ground that plaintiffs had no standing to sue. The court granted defendants’ motions for summary judgment and plaintiffs appeal.

The appeal is based on four points of error. The first point complains, in general terms, that the trial court erred in granting summary judgment. Points two and three assert the trial court erred in holding plaintiffs had no standing to sue. Point four contends the asserted errors were calculated to cause and did cause rendition of an improper judgment.

The central question in this case, presented in points two and three, is whether, where fraud and bad faith are alleged, these taxpayers may, on behalf of the city, maintain an action for the recovery of money or the voiding of a contract. We hold that they cannot.

In Texas, taxpayers have standing to bring a suit in equity to enjoin public officials from expending funds under a void, illegal, or unconstitutional contract. Calvert v. Hull, 475 S.W.2d 907, 908 (Tex.Sup.1972); Osborne v. Keith, 142 Tex. 262, 264, 177 S.W.2d 198, 200 (1944): Hoffman v. Davis, 128 Tex. 503, 505, 100 S.W.2d 94, 95 (1937); City of Austin v. McCall, 95 Tex. 565, 577, 68 S.W. 791, 794 (1902); Terrell v. Middleton, 187 S.W. 367, 369 (Tex.Civ.App.-San Antonio 1916), writ ref’d per curiam, 108 Tex. 14, 191 S.W. 1138, 193 S.W. 139 (1917).

Appellants have not brought an in-junctive suit, but rather an action for the recovery of funds and for a declaration that the sale is void and for cancellation of the deed. Appellees contend it is the rule in Texas that taxpayers cannot maintain a suit for the recovery of funds expended under any illegal contract or for a declaration that the sale is void, relying on Hoffman v. Davis, supra. We believe that the rule expressed in Hoffman is controlling.

In Hoffman, taxpayers of Presidio County, acting for themselves, for other county taxpayers, and on behalf of the county, sued the county judge and commissioners on their bonds to recover losses allegedly sustained under contracts which the plaintiffs contended were illegal. Chief Justice Hickman, then a member of the Commission of Appeals, stated:

The right of a taxpaying citizen to go into a court of equity and enjoin public officials from the expenditure of public funds under an illegal contract is given general recognition. It has received the sanction of this court. Looscan v. County of Harris, 58 Tex. 511; City of Austin v. McCall, 95 Tex. 565, 68 S.W. 791; Terrell v. Middleton (Tex.Civ.App.) 187 S.W. 367 (error refused 108 Tex. 14, 191 S.W. 1138, 193 S.W. 139). Our investigation of the question has led us to the conclusion that in a large majority of the cases from other jurisdictions it is held that the right to enjoin cannot be distinguished in principle from the right to maintain a suit for restoration of money unlawfully expended, and it is accordingly held that taxpaying citizens may institute and prosecute suits as well in one class of cases as in the other. But our decisions have established a contrary rule for this jurisdiction.

128 Tex. at 505-06, 100 S.W.2d at 95.

Chief Justice Hickman then proceeded to give another reason why suits of this nature should not be allowed:

[The plaintiffs] have no private interest in the subject-matter. When a taxpayer brings an action to restrain the illegal expenditure by the commissioners’ court of tax money he sues for himself, and it is held that his interest in the subject-matter is sufficient to support the action; but when the money has already been spent, an action for its recovery is for the county. The cause of action belongs to it alone. Our courts do not recognize the right of one to bring a lawsuit for another merely because he might derive some indirect benefit therefrom.

The only distinction between Hoffman and this case is that in Hoffman both the commissioners’ court and the county treasurer had the statutory authority to bring suit for the recovery of debts due the county. However, we are convinced this was not a controlling factor in the decision. The court quoted from the opinion in Looscan v. County of Harris, 58 Tex. 511, 514 (1883):

The commissioners’ court undoubtedly has the right to cause suits to be instituted in the name of and for the benefit of the county, and except where a concurrent right to do the same thing, or where an exclusive right in a specified case or cases is conferred upon some other tribunal or some other officer of the government, the commissioners’ court must be deemed to be the quasi executive head of the county, vested with exclusive power to determine when a suit shall be instituted in the name of and for the benefit of the county.

128 Tex. at 507, 100 S.W.2d at 96.

The court then held that since the commissioners’ court was in no position to act because of its alleged misconduct, the right of the county treasurer to bring suit was exclusive. In our case, no other officer or body having a concurrent right, the city council was vested with the exclusive right to institute an action of this nature.

Appellants contend that where, as here, fraud and bad faith are alleged on the part of the public body or officials authorized to sue on a contract, then the taxpayers should be allowed to bring suit either before or after the contract is executed. This argument was considered by the court in Hoffman and rejected:

Plaintiffs in error call upon us to adopt the views of a court of a sister state expressed in this language: ‘If those entrusted with the custody of public funds, or those whose duty it is to protect the public interests are remiss in their duty, or refuse to act, the taxpayer should be permitted to do so, and the courts, in the exercise of a sound discretion, will prevent any abuse of the privilege.’ Once the right of citizens to bring suits of this nature is granted, under our system of practice the courts would be compelled to try them in the same way as they do other suits, and we know of nothing they could do to prevent the abuse of the privilege. But we are not called upon to decide either whether citizens would abuse the privilege, if granted, or whether it should be granted. What we decide is that it has not been granted. Whether or not it would be a wise public policy to grant it is a legislative, and not a judicial question.

128 Tex. at 509, 100 S.W.2d at 97.

We have reviewed all of the Texas cases cited by appellants in support of their contention that they have standing to bring an action for the recovery of funds. They are inapposite.

In Osborne v. Keith, supra, decided seven years after Hoffman, Chief Justice Hickman recognized the right of taxpayers to sue for an injunction, but held that they were not authorized to institute a suit on behalf of the county where the discretion to bring such a suit was vested in the county officers.

City of San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754 (1888), a taxpayer’s suit to enjoin the City of San Antonio and Bexar County from erecting a public building, held that the plaintiff had no standing to sue to restrain an interference with a public right where he had not suffered or been threatened with “some damage peculiar to himself.”

Bowling v. City of El Paso, 529 S.W.2d 509 (Tex.Sup.1975), was a suit by the City of El Paso to have the exchange of certain city-owned lands declared void and rescinded. It was not a taxpayers’ action.

Taxpayers in the City of El Paso were held to have standing to sue to cancel and declare void certain deeds executed by the city in McCoy v. Williams, 500 S.W.2d 178 (Tex.Civ.App.-El Paso 1973, writ ref’d n. r. e.). The court recognized the general rule that private citizens may not bring such suits, but held that those plaintiffs were authorized by article 1015c, Texas Revised Civil Statutes Annotated (1963), to bring a suit as taxpayers to enforce state laws intended to protect parks. No such statutory authority has been presented in this case.

McKinney v. City of Abilene, 250 S.W.2d 924 (Tex.Civ.App.-Eastland 1952, writ ref’d n. r. e.), was a suit brought by the City of Abilene, not by a taxpayer.

J. R. Phillips Inv. Co. v. Road Dist. No. 18, 172 S.W.2d 707 (Tex.Civ.App.-Waco 1943, writ ref’d), was a suit for recovery of money allegedly owing to the county, and to enjoin the county from paying out any funds under a contract with J. R. Phillips Investment Co. The court held that the plaintiff taxpayers were entitled to sue for a declaration that the contract in question was illegal and for an injunction against the county officials from paying any funds thereunder. The court also held that the county attorney was authorized to bring suit for the recovery of the money illegally paid. The court did not recognize the right of the taxpayers to bring such a suit.

In City of Corpus Christi ex rel. Harris v. Flato, 83 S.W.2d 433 (Tex.Civ.App.-San Antonio 1935, writ dism’d), the court held that taxpayers had no standing to bring a suit to recover money previously paid by the city.

Calvert v. Hull, supra, is the latest opinion by the supreme court on the question of taxpayers’ standing to sue. In that case, taxpayers sued the Comptroller of Texas to enjoin him from disbursing funds appropriated by the Legislature for acquisition of certain property. The court held that the taxpayers had standing to bring the suit, citing Terrell v. Middleton, supra, which was also an injunctive suit.

Appellants contend that Calvert was also a suit to invalidate executed contracts. We do not agree. The supreme court specifically noted there was no direct attempt to undo any particular deed or transaction. Moreover, had the court so viewed the case, it would then have been presented with a perfect opportunity to discuss the Hoffman case and distinguish or overrule that opinion. However, Hoffman was not even mentioned, and the court affirmed the judgment of the trial court enjoining the Comptroller from spending certain funds. The rule expressed in Hoffman is still the law in Texas.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    CHASE, INC., Appellant-Appellee, v. Raymond E. BOSTICK, Appellee-Appellant.
    No. 987.
    Court of Civil Appeals of Texas, Tyler.
    April 28, 1977.
    Rehearing Denied May 26, 1977.

      Bert Creel, Tyler, for appellant.
    James R. Lewis, Charles F. Potter, Potter, Guinn, Minton & Dickerson, Tyler, for appellee.
   MOORE, Justice.

This is an appeal from a summary judgment. The plaintiff, Raymond E. Bostick (Bostick) brought suit against Chase, Inc. (Chase) and its president, Elbert Runnels, and its secretary, Gaylord T. Hughey, individually, seeking rescission and restitution under two contracts in which Chase contracted to convey him a Vieth interest in an oil and gas lease on a 23.56-acre tract of land known as the “Smith Lease,” and agreed to re-enter and rework a gas well (the Smith well) situated thereon. Bostick sought restitution in the amount of $10,-853.11 which he had paid as consideration pursuant to the contract for the lease and for his proportionate part of the expense in completing the well. Each contract called for the conveyance to Bostick of a Vknd interest in the well within ten days after the completion of the well as a commercial producer, provided that Bostick had paid his proportionate share of the drilling expense. Bostick alleged that (1) the contract was void under the Statute of Frauds, Tex.Bus. & Comm.Code, sec. 26.01(b)(4), because a description of the land from which Chase agreed to assign an interest was insufficient to identify or locate the land in question, and (2) that the contract was either the result of a mutual mistake as to the location of the land, or the result of a mistake on the part of Bostick and constructive fraud on the part of Chase. Chase answered by a general denial. Both parties filed motions for summary judgment accompanied by supporting affidavits and other evidence under the provisions of Rule 166-A, Texas Rules of Civil Procedure. After a hearing on the motions for summary judgment the trial court granted Bos-tick’s motion and entered an order rescinding the contracts and ordering Chase to return the sum of $10,853.11 to Bostick. The court also entered a take-nothing judgment on Bostick’s claim against Runnels and Hughey, individually. Further, the trial court denied Chase’s motion for summary judgment relating to the Smith well. Chase perfected an appeal from that part of the judgment awarding Bostick a summary judgment for restitution of the consideration paid for the re-entry of the Smith well.

In order to properly understand the controversy, a statement of the summary judgment proof is necessary. Chase was engaged in the business of re-entering and reworking oil and gas wells which had been previously drilled and abandoned. Prior to the time the parties entered into the contract in question, it was contemplated that Chase would probably re-enter and rework several wells. Shortly before work was commenced on the first well Bostick agreed to participate. This well was known as the “Kangerga well.” As a result of his contract with regard to that well, he was granted an option to participate in the re-entry and reworking of subsequent wells to the extent of an undivided Vs2nd interest. When Chase decided to re-enter the Smith well, the company notified Bostick by letter and enclosed a “supplemental” agreement supplementing their agreement made with regard to the re-entry of the Kangerga well. Under the terms of the supplemental agreement Chase was to re-enter and rework the Smith well. Bostick accepted the terms proposed by the supplemental agreement and agreed to pay $2,150 for an undivided Vhnd interest covering drilling to the casing point and agreed to pay Vaith of the completion cost. The supplemental agreement contained the following stipulation:

“Chase, Inc. will make your assignment of said undivided Vs2 interest and execute and deliver the same within ten (10) days after completion of the above reference re-entry as a commercial producer, provided you shall have paid your proportionate share of expenses hereinafter set out as an additional sum required to cover the cost of completion.”

The supplemental agreement recited that its purpose was to “set forth our agreement concerning the hereinafter described lease block in Rusk County, Texas, and the proposed reworking of the W. W. Smith Well . and the lease covering the drill site tract . . ..” The agreement further recited that “Chase represents that it owns certain oil, gas and mineral leases covering approximately 23.56 acres as identified and described in Exhibit “A”. The Exhibit referred to describes the lease as follows:

“1. Oil and Gas mineral lease executed by W. W. Smith et ux, et al as lessors to Harry W. Bluhm, lessee, dated 12th June, 1954, and filed in the Deed Records of Rusk County, Texas, in Volume 530, pages 170-171. 23.56 acres more or less out of a 100 acre tract.”

At that time the north 76 acres out of the 100-acre tract had already been committed to a producing oil and gas unit known as the “Anthony Unit.” Nowhere in the agreement is the boundary line specified between the north 76 acres in the Anthony Unit and the south 23.56-acre tract.

At the time of the agreement both parties assumed that the Smith well was situated on the south 23.56-acre tract and were unaware that the well was situated on the north 76 acres in the Anthony Unit. It is undisputed that at the time Chase contracted to sell Bostick a Vi6th interest in 23.56-acre tract, Chase owned a large enough interest in the entire 100-acre tract so that it could have conveyed Bostick a ½6⅛ interest in 23.56 acres in and around the Smith well. While the parties understood the 23.-56-acre tract was located on the south end of the 100-acre Smith lease described in Exhibit “A” of the agreement, there was nothing in the agreement showing the metes and bounds description of the tract. Chase re-entered the well and thereafter completed it as a gas well producing at the rate of twelve million cubic feet per day. It is undisputed that Bostick paid Chase his full share of the drilling and completion costs in the amount of $10,853.11. Some time after the well was completed the tubing in the well separated, causing the lower part of the tubing to fall down in the well and partially block the flow of gas from the producing zone, and as a result production declined rapidly. It was then discovered that the Smith well was not, in fact, situated on the south 23.56-acre tract but rather was situated a short distance north of the southern boundary of the Anthony Unit and was within the Anthony Unit. Upon discovering the mistake as to location of the well, Chase immediately undertook to take the well out of the Anthony Unit. Chase employed a surveyor and caused a survey to be made in which the southern boundary of the Anthony Unit was moved northward so that the Smith well would then be on the 23.56-acre tract. In so doing, a small amount of land around the well was surveyed out of the Anthony Unit and exchanged for a similar amount of land taken from the 23.56-acre tract. A “Clarification of Unit Boundaries” agreement was then circulated among the owners of the Anthony Unit for signature. According to the deposition testimony of Mr. Hughey, Chase’s secretary, most of the owners of the Anthony Unit signed the agreement. He testified, however, that a few of the small royalty owners had never signed the agreement mainly because he had not contacted them. Bostick was not consulted about the change in the boundary line and did not sign the agreement because Chase did not deem his signature necessary since he owned no interest in the Anthony Unit.

It is undisputed that the re-entry was made; that the well was completed; and that Bostick had paid all the consideration for the same. Chase so admits in its brief. It is likewise undisputed that Bostick has never received an assignment of his Vieth interest. In this connection the record shows that when Bostick learned that the well was not situated on the 23.56-acre tract, he became alarmed. Upon contacting Chase in September 1972 he was told that certain curative work on the title was being done and as soon as such work was completed he would receive his assignment. Shortly thereafter he employed an attorney who filed suit for rescission and restitution on January 23, 1973.

By a single point of error appellee Chase contends that the trial court erred in rendering a summary judgment in favor of Bostick with regard to the W. W. Smith lease. Bostick maintains that the summary judgment may be sustained on the theory that the contract was voidable because of a mutual mistake of fact. We sustain Bos-tick’s contention.

What was said in Mason v. Peterson, 250 S.W. 143 (Tex.Com.App.1923, jdmt. adopted), would seem to apply with equal force to facts here. In that case the court said:

“It is held by a long and unbroken line of decisions in this state that a false representation by the vendor regarding the quantity of land sold or the quantity of a particular character, made to the vendee as an inducement to purchase, which actually deceives the vendee and is relied upon by him, constitutes fraud which will entitle the vendee to relief in equity. It is not essential to the granting of relief that the vendor act dishonestly in making the misrepresentations. If the misrepresentations are made as facts, and not as mere expressions of opinion, and are calculated to and do operate as an inducement to the vendee to enter into the contract, the consequences to him are the same whether the representations were innocently or fraudulently made; and for this reason fraudulent intent is held not to be a necessary element to granting the relief. Knowledge upon the part of the vendee of the falsity of his representations and his fraudulent intent in making them may aggravate the wrong, and might give rise to exemplary damages; but absence of such knowledge and intent cannot relieve him of the consequences of a false representation made by him as an existing fact and calculated to operate and actually operating as an inducement to the contract. Misrepresentations so made will be deemed fraudulent in law; hence the doctrine of constructive or legal fraud as distinguished from a malicious or fraudulent intent in fact. This doctrine is now settled by the following, among other decisions of our Supreme Court: Mitchell v. Zimmerman, 4 Tex. 75, 51 Am.Dec. 717; Smith v. Fly, 24 Tex. 345, 76 Am.Dec. 109; O'Connell v. Duke, 29 Tex. 300, 94 Am.Dec. 282; Loper v. Robinson, 54 Tex. 510; Culbertson v. Blanchard, 79 Tex. 486, 15 S.W. 700.
“And, even where there is no element in the transaction sufficient to warrant a finding of legal or constructive fraud, and the misrepresentation is the result of an honest mistake on the part of the seller, the mistake being shared in by the buyer, relief is granted upon the doctrine of mutual mistake, and the same remedies apply as in the case of actual or constructive fraud. Culbertson v. Blanchard, above; Cox v. Barton (Tex.Com.App.) 212 S.W. 652; Taylor v. Hill (Tex.Com.App.) 221 S.W. 267.
“Where fraud or mutual mistake enters into a contract of this character, the buyer has an election of inconsistent remedies. He may, if he acts promptly after discovering the fraud or mistake, or within a reasonable time after he should, by the exercise of proper diligence, have discovered it, rescind the contract and recover back the consideration if he has paid it, or, if he has not paid it, he may cancel his obligations under the contract.”

While admitting in its brief that the agreement in question was based on a mutual mistake of fact, Chase argues that Bostick is not entitled to restitution because the mistake was not material. In this connection Chase argues that the mistake was not material because the parties did not contract with regard to a specific 23.56-acre tract around the Smith well since the tract was not described by metes and bounds. Chase says that what the parties agreed upon was for the assignment of Vwth interest in an unspecified 23.56 acres containing the Smith well. Based on this premise Chase argues that since it owned more than a ⅛6⅛ interest in the entire 100-acre lease and subsequently had a survey made defining 23.56 acres around the well taking the same out of the Anthony Unit, and then tendered and continued to tender Bostick an assignment of his ½6⅛ interest, Chase fulfilled its contract and therefore the mistake was not material. In other words, Chase takes the position that even though there was a mutual mistake, the contract was nevertheless fulfilled in accordance with the original agreement and Bostick cannot now avoid the agreement by refusing to accept the assignment. As we view the record, Chase’s position is untenable because it fails to find support in the summary judgment proof. While Chase alleges in its answer and contends in its brief that it has tendered and continues to tender an assignment of the Vwth interest, the summary judgment proof refutes such contention. In the affidavit testimony of Chase’s secretary, Gaylord T. Hughey, dated April 18, 1975, he testified as follows:

“Assignments were prepared covering each of these interests, but I would not give his to Raymond Bostick until he paid the balance of his share of completion costs of the Smith well. These completion costs included remedial work required when the tubing failed in the well causing water from the Rodessa formation to block production from the lower petit formation, which was the productive zone. These remedial efforts were halted when Raymond Bostick brought this suit.”

We fail to find anything in the agreement requiring Bostick to pay for remedial work on the well once the well had been completed and Chase does not so contend. Chase admits in its brief that Bostick had “paid all the consideration called for by the contract” and admits that he had “performed” his part of the contract. While Chase alleges a tender of an assignment in its pleading, the proof shows that Chase had, in fact, refused to deliver the assignment for ulterior reasons foreign to the agreement. In any event the mere allegation of a tender of an assignment of an interest in land does not amount to a legal tender in the absence of any evidence showing that the instrument itself was tendered. Lefferts v. Dolton, 217 Pa. 299, 66 A. 527 (1907); 92 C.J.S Vendor & Purchaser § 230 p. 102.

Moreover Chase admits that not all of the owners of the Anthony Unit have signed the “clarification” agreement by which the Smith well was to be taken out of the Anthony Unit. As we understand the situation, this means that the well remains within the Anthony Unit thereby rendering it impossible for Chase to convey a merchantable title to the well.

We recognize the rule that in order for a party to rescind a contract on the ground of a mutual mistake of fact, the mistake must deal with a material part of the contract itself. See 13 Tex.Jur.2d Contracts sec. 255, p. 477. Obviously, the mutual mistake of fact was of sufficient gravity to be classified as material. The mistake has led to a situation where Chase cannot or will not deliver the assignment in accordance with its agreement. Not having received that for which he bargained because of a mutual mistake of material fact, Bos-tick was entitled to rescind the contract.

The well established rule is that a summary judgment should be granted only if the summary judgment record establishes a right thereto as a matter of law. Gibbs v. General Motors Gorp., 450 S.W.2d 827 (Tex.1970); Prestegord v. Glenn, 441 S.W.2d 185 (Tex.1969); Rule 166-A(c), Tex.R.Civ.P. The ultimate question is whether the summary judgment proof establishes that there is no genuine issue as to any material fact. Rule 166-A(c), supra. Where, as here, the motion for summary judgment is supported by affidavits or other extrinsic evidence sufficient on its face to establish facts which, if proven at the trial, would enable the movant to an instructed verdict, the opponent must show opposing evidentiary evidence which will raise an issue as to a material fact. 4 McDonald, Texas Civil Practice, sec. 17.26.8(iv) p. 156 (1971 ed.). The summary judgment proof establishes a cause of action for rescission and restitution based upon a mutual mistake of material fact. As we view the record, there is nothing in the summary judgment proof raising a disputed issue of material fact. It therefore follows that the appellee was entitled to a summary judgment as a matter of law.

The judgment of the trial court is affirmed.

      . Originally the appeal also involved a controversy with regard to the re-entry of the “Jones” well. The trial court granted Chase’s motion for summary judgment with regard to the “Jones” well. Although Bostick perfected a limited appeal from this portion of the judgment, he subsequently abandoned his appeal in this regard.


author: DIES, Chief Justice. KEITH, Justice, STEPHENSON, Justice.

text:
    REVLON, INC., Appellant, v. Glenn N. HAMPTON, Appellee.
    No. 7933.
    Court of Civil Appeals of Texas.
    April 28, 1977.
    Rehearing Denied May 19, 1977.
    Richard L. Josephson, Houston, for appellant.
    Larry J. Doherty, Houston, for appellee.
   DIES, Chief Justice.

Defendant below, Revlon, Inc., appeals from the granting of a judgment in the sum of $5,140 in favor of plaintiff below, Glenn Hampton. Plaintiff sought and recovered damages for personal injuries alleged to have been sustained from the use of a hair dye “Color Up” manufactured by defendant. The parties will be referred to as they were below.

Plaintiff applied the “Color Up” to his scalp in the spring of 1970. He testified that before application he followed precisely the directions given by defendant known as “patch test”, the purpose being to determine any allergic reaction a customer might have to the product. Plaintiff said the test on him was negative.

The “Color Up” dye caused immediate burning to plaintiff’s scalp, bleeding the following day, and permanent loss of part of his hair, plaintiff contended.

At trial, plaintiff contended his injuries were attributable to the presence of thallium in the dye. This substance is known to cause loss of hair. However, the jury failed to find that the dye contained thallium. They (the jury) did however find that the dye was defective and that this was a producing cause of plaintiff’s injuries, which defendant contends is supported by no evidence. We agree.

Section 402 A of Restatement (Second) of Torts (1965) provides:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
“(a) the seller is engaged in the business of selling such a product, and
“(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
“(2) The rule stated in subsection (1) applies although
“(a) the seller has exercised all possible care in the preparation and sale of his product, and
“(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 789 (Tex.1967) held this section of the Restatement applicable in Texas to defective products which cause physical harm to persons.

While plaintiff’s expert testified that any hair coloring that would produce hair loss was defective, on cross examination she admitted this conclusion was based on the assumption the dye contained thallium.

In Gravis v. Parke-Davis & Co., 502 S.W.2d 863, 868-869 (Tex.Civ.App. — Corpus Christi 1973, writ ref’d n. r. e.), the plaintiff was given a spinal anesthetic. Thereafter she suffered from a number of physical disabilities including bladder trouble requiring a catheter continuously, phlebitis of the left leg, high blood pressure, and other problems of the lower extremities. A diagnostician concluded that her condition was related somehow to the spinal anesthetic. The trial court granted an instructed verdict against her. In affirming the judgment, the court said:

“There is no evidence that the drugs were impure or defective. . . The plaintiffs ... did not rule out all of the other possible causes of the injury which could establish circumstantially at least, that the defective drug was the only cause. . . . The fact that the plaintiff was injured does not create liability.”
[Citing Aiberto-Culver Company v. Morgan, 444 S.W.2d 770, 776 (Tex.Civ.App.— Beaumont 1969, writ ref’d n. r. e.), disapproved on other grounds, Crocker v. Winthrop Laboratories, Div. of Sterling Drug, Inc., 514 S.W.2d 429, 432 (Tex.1974)].

See also Royal Crown Bottling Company v. Ward, 520 S.W.2d 797, 801 (Tex.Civ.App.— Beaumont 1975, no writ) [Citing Procter & Gamble Manufacturing Co. v. Langley, 422 S.W.2d 773, 778 (Tex.Civ.App. — Dallas 1967, writ dism’d)]:

“ ‘As a general rule the fact that injury follows the use of the product is not of itself alone a basis for a finding of proximate cause.’ ”

Cases may arise where the circumstantial evidence may be such that it can properly be inferred that the accident was caused by a defect in the product. See Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.E.2d 847, 852 (1950), cited in 1 L. Frumer & M. Friedman, Products Liability, §§ 1101[2], 1101[S] (1976). After a vaporizer was put into operation, it melted causing a fire; therefore “it would seem inescapable that if the vaporizer did . . , melt by the application of its own heat, it was defective.” 1 Frumer & Friedman, supra, § 11.01[3] p. 213.

But the case we review is not such a case. Plaintiff’s theory that the hair dye contained thallium was rejected by the jury. His expert witness really gave no factual testimony of a defect in the product or explained what defect caused plaintiff’s hair loss. See 1 Framer & Friedman, supra, § 12.02[1], Expert Evidence. In general p. 254.43 and 12.02[2] Causation in Fact, p. 254.72, and many authorities cited.

In 1 R. Hursh & H. Bailey, American Law of Products Liability 2d, § 1.7, p. 16 (1974) we find:

“In any products liability case, the plaintiff has to show that he was injured or damaged by the product in question. This is usually something more than merely showing that he used the product and that he simultaneously or subsequently suffered some injury or damage. The plaintiff also has to show that the product was defective in some manner and that the defect caused the injury.
“That a manufacturer or seller cannot be held liable for injury allegedly caused by a product in the absence of proof that the product in question was dangerous in some way — that, in short, it was capable of causing the injury — would appear too clear to require exhaustive citation of supporting authority. None of the vast number of cases on the subject of products liability has ever expressed or intimated anything in any way out of harmony with the above principle, and it seems safe to say that none ever will.”
In the language of Dean Keeton:
“The method employed to date [of establishing liability] is the requirement that there must have been a defect in the product as it left the hands of the manufacturer. This requirement remains the principal obstacle to a recovery.”

P. Keeton, “Products Liability — Liability Without Fault”, 41 Texas L.Rev. 855, 858 (1963). And, so it is here — plaintiff has failed to overcome “the principal obstacle” to his recovery.

The dissent does not address directly the evidence supporting a finding that the product was defective. Instead, the quoted testimony (an assumption predicated upon a hypothetical conclusion) may have established cause in fact; it did not establish any specific defect in the product.

Appellant's point of error is sustained. It is ordered, adjudged and decreed that Glenn Hampton recover nothing of Revlon, Inc. All costs are taxed against appellee.

REVERSED and RENDERED.

KEITH, Justice,

concurring.

The dissent has now taken the ultimate step in product liability cases. If followed, the manufacturer is now an insurer and no longer must a plaintiff establish that a product was defective when it left the manufacturer’s hands. The only authority for such a far-reaching change in the law are two food poisoning cases from this court, one of which is an unreported case.

This unprecedented step is taken in a case where, to use the language of our Supreme Court in Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 755 (Tex.1970), there is no more than “a glimmer of evidence to support the plaintiffs’ position.” If a manufacturer’s position has been changed into that of an insurer, and the plaintiff is no longer required to prove (either directly or circumstantially) a defect in the product, such a holding should come from our Supreme Court and not from an intermediate court.

Under the fact structure of this case, I concur in the reversal of the judgment and the rendition of the cause.

STEPHENSON, Justice.

I respectfully dissent. I would affirm the judgment of the trial court.

It is true plaintiff alleged specifically that this product was defective because it contained thallium. However, there is also a general allegation that the product in question was in such a defective condition as to subject plaintiff to an unreasonable risk of harm, and, as such, the product was unfit for its intended use.

Plaintiff’s pleadings also contained the allegations that he purchased the product and used it in accordance with the directions; that he gave himself the patch test before using; that before such use he had a full head of hair; and that it was characteristic of his family to keep a full head of hair.

It must be remembered that the point of error sustained by the majority opinion is that there is no evidence to support the jury finding that this hair coloring was defective at the time it was sold to him. In passing upon such a point, this court can consider only the favorable evidence to such finding.

It is stipulated that defendant packaged, bottled, and prepared the product in question, and, in effect, that there was no substantial change in its condition when sold to plaintiff. Defendant’s answer to an interrogatory shows the manufacturing of this product was discontinued during the year 1969.

Plaintiff testified to the following: He bought this product in March 1970. He read the instructions with the product and followed them. He gave himself the patch test as directed. Then he applied this product and noticed a burning sensation immediately. The burning sensation continued until he rinsed the product off. In two or three days his scalp began to bleed and large clumps of hair started falling out; that he did not use anything else that could have caused the bleeding and loss of hair. When his hair did not grow back he went to see a doctor. He has continued to experience hair loss. He had a full head of hair before this incident. His father is still alive and has a full head of hair. There are no baldness traits for the males in his family.

Dr. Ida Walton testified to the following: She is a dermatologist by profession, and a licensed medical doctor; that plaintiff suffered from alopecia areata, which resulted in his hair loss. His problem was a postin-flammation alopecia, with destruction and atrophy of the underlying hair follicles, resulting from the intense dermatitis and subsequent infection which followed the use of the hair dye; that her diagnosis was based upon the most reasonable medical probability in determining the cause of the condition. She ruled out the probability of a spontaneous loss of hair.

In answer to the following hypothetical question, Dr. Walton gave this answer:

“QUESTION: Assume with us, then, that the only inflammatory agent that was applied to his head, during this period of time, was the Color Up in question; assume with us, also, that the history that I will give to the judge and jury will reflect that he experienced an immediate onset of irritation and difficulty in that area. Would you, within a reasonable medical probability, conclude, then, that the application of this substance was the source of his hair irritation?
“ANSWER: Well, I would have to assume that it was.
“QUESTION: Based on those assumptions?
“ANSWER: Based on those assumptions.”

I am well aware of the general rule stated in the majority opinion that the fact that injury follows the use of the product is not of itself alone a basis for a finding of proximate cause. It is also a general rule for which citation is unnecessary, and that is that producing cause can be proved by circumstantial evidence. In my opinion the circumstantial evidence that the product was defective is overwhelming. The favorable evidence shows plaintiff used the product as directed and suffered his injuries. The favorable evidence ruled out all of the other possible causes of these injuries.

In my opinion the evidence is as strong, if not stronger, than the evidence in both Herfy’s Corporation v. Marilyn Collins, Docket No. 7905 (Tex.Civ.App. — Beaumont, January 13, 1977) (unreported), and Hebert v. Loveless, 474 S.W.2d 732 (Tex.Civ.App.— Beaumont 1971, writ ref’d n. r. e.). Those opinions came out of this court, and in neither ease was there any evidence as to what was wrong with the food eaten by the plaintiffs. The plaintiffs ate food and suffered injuries; and the defect in the food was thereby established by circumstantial evidence. I would apply the same rule to the case before us.

In a concurring opinion it is stated that to adopt a rule as set forth in this dissent would make the manufacturer an insurer. Although that might not be a bad rule and the next step in products liability law, I am not prepared to go that far. I suggest only that the defectiveness of a product may be proven by circumstantial evidence as established in each case. This is not a new statement of law in products liability cases. Even a casual reading of a well written opinion by Justice Keith in Hebert v. Loveless, supra, shows this matter is discussed at length. The author of that opinion cites Pittsburg Coca-Cola Bottling Works v. Ponder, 443 S.W.2d 546 (Tex.1969), and Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.1969), neither of which is a food case. Justice Keith quotes from Darryl as follows:

“ ‘To exclude circumstantial evidence that the product was defective at the time of the sale would frustrate the beneficial purposes of the doctrine. It would be equally difficult, if not impossible, for the plaintiff to rebut by direct evidence all of the conceivable possibilities which would account for the defective condition other than the existence of the defect at the time of the sale. Such direct evidence should not be required, particularly when dealing with a latent defect.’

      . It is generally accepted throughout the nation that an unreported case has neither binding nor persuasive effect and that any citation of such decisions should be precluded. See R. Leñar, Appellate Judicial Opinions, 309, 313 (West Publishing Co., 1974), and page 319 where the reasons are set out.


author: KEITH, Justice. DIES, Chief Justice,

text:
    TIRE DISTRIBUTORS, INC., Appellant, v. The GENERAL TIRE & RUBBER COMPANY, Appellee.
    No. 7939.
    Court of Civil Appeals of Texas.
    April 28, 1977.
    Rehearing Denied May 19, 1977.
    Murry B. Cohen, R. Leonard Weiner, Houston, for appellant.
    Dan Ryan, Houston, for appellee.
   KEITH, Justice.

Defendant below appeals, by writ of error, from a judgment rendered in a non-jury trial and we will speak of the parties as they appeared in the trial court.

Plaintiff sought to recover the unpaid rents it claimed were due upon a sublease agreement and defendant’s answer, supported by an affidavit of its president, alleged that the sublease had been terminated by mutual agreement at the end of the last month for which the rent had been paid.

This answer was signed by John M. Fisher, “Representative for Defendant”. Although plaintiff contends that Fisher is not an attorney, a careful search of the record does not disclose such fact. However, since defendant does not contend otherwise, we will assume that Fisher was a layman and not an attorney.

Nevertheless, the parties engaged in discovery proceedings and upon one occasion plaintiff’s counsel signed Fisher’s name to an agreement to continue the case. Prior to the entry of judgment on February 17, 1976, Fisher’s status and right to appear on behalf of defendant had not been challenged.

On February 17,1976, judgment was rendered against the defendant when it did not appear in person or by counsel at a trial on the merits. The only evidence introduced at the hearing was the written sublease agreement attached to plaintiff’s petition.

Defendant, through an attorney, timely filed a motion for new trial wherein it was alleged that defendant had no notice of the trial setting and that Fisher had relied upon the promise of plaintiff’s counsel that no action on the case would be had pending completion of discovery proceedings, including the deposition of plaintiff’s agent. The motion also claimed a meritorious defense: the mutual abandonment of the sublease. This motion was supported by Fisher’s affidavit.

Plaintiff, without controverting the truth of the allegations, moved to strike the motion for new trial because it was not signed by the party or his counsel as required in Tex.R.Civ.P. 320. Plaintiff’s motion was sustained by the trial court and defendant’s original motion for new trial was stricken. A similar fate overtook the amended motion for new trial when it was timely filed.

Defendant’s motions for new trial (both original and as amended) were in time, proper form, and signed by a licensed attorney. Each motion contained a verified charge of extrinsic fraud in the procurement of the judgment. See Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 1001 (1950). Plaintiff has not responded to this charge.

Instead, plaintiff has challenged the right of defendant’s counsel to represent defendant. Plaintiff has not pointed to any authority which authorizes a plaintiff to challenge the authority of an attorney to represent a defendant. While a defendant may challenge authority of plaintiff’s counsel to proceed, there is no similar authority authorizing a plaintiff to challenge the right of defendant’s attorney. Angelina County v. McFarland, 374 S.W.2d 417, 422-423 (Tex.1964).

We are convinced that the trial court erred in refusing to consider defendant’s motions for new trial and to hear the testimony upon the issue of extrinsic fraud and meritorious defense. See, generally, 4 McDonald, Texas Civil Practice, § 18.18(1), pp. 292-293 (1971) Rev.Vol.), and cases cited.

The third paragraph of Tex.R.Civ.P. 434 reads:

“Provided, second, that if the erroneous action or failure or refusal of the trial judge to act shall prevent the proper presentation of a cause to the Court of Civil Appeals, and be such as may be corrected by the judge of the trial court, then the judgment shall not be reversed for such error, but the appellate court shall direct the said judge to correct the error, and thereafter the Court of Civil Appeals shall proceed as if such erroneous action or failure to act had not occurred.”

It would appear that a simple solution to the problem presented by this appeal would be to remand the cause to the trial court with directions to hear and determine the merits of the plaintiff’s amended motion for new trial. If it were to be granted, a certification of such fact to this court would result in a dismissal of the appeal; an order overruling such motion could then be reviewed with a complete record.

However, should we adopt such a course of action, we would be in conflict with one of the most firmly established procedural rules in this state, the rigidity which governs time within which a trial court must dispose of motions for new trial. There are many cases which stand for the proposition that trial courts must not enlarge the period for taking action relating to motions for new trials except as specifically authorized in the rules. See, e. g., Reese v. Piperi, 534 S.W.2d 329, 331 (Tex.1976).

In essence, such an order would be equivalent to a writ of mandamus [such as sought in Plains Growers, Inc. v. Jordan, 519 S.W.2d 633, 644 (Tex.1974)], ordering the trial judge to consider and rule upon a motion for new trial when he would be without power so to do.

On the other hand, having found error, we can afford appellant the relief to which it is entitled under this record — a new trial. The penalty of having to try a case a second time is one which rests upon appellee who made the motion to strike defendant’s motions for new trial and upon the trial judge who sustained the motion.

For the reasons herein set out, the judgment is reversed and the cause is remanded for a new trial.

DIES, Chief Justice,

dissents.

I agree the trial court abused his discretion in not hearing the motion for new trial, but I have trouble with the majority opinion’s conclusion that because of this to remand the case for a complete new trial. It seems to this writer the effect of this decision is to take as true the facts and circumstances set up in defendant’s motion for new trial. These allegations are not evidence as to the matters alleged. Associated Employers Lloyds v. Wynn, 230 S.W.2d 838, 839 (Tex.Civ.App. — Fort Worth 1950, no writ), and authorities cited therein. I would therefore remand this case with instructions to the trial court to hear the motion for new trial. Either party could then obtain a review of its contentions.

I admit I can find no authority for this suggestion, but neither can I find any authority for the majority’s action; and at least to me to now require the trial judge to do what he should have done is more reasonable than in effect our granting a new trial on the basis of no evidence. I do not regard Plains Growers v. Jordan, supra, cited in the majority opinion as prohibiting such action. There a party filed a writ of mandamus to compel the trial court to grant a new trial contending it had no notice of the setting of the case for trial, a different matter altogether.


author: DIES, Chief Justice.

text:
    LOUISIANA PACIFIC CORPORATION et al., Appellants, v. Ben M. STEVENSON, Appellee.
    No. 7956.
    Court of Civil Appeals of Texas, Beaumont.
    April 28, 1977.

      W. D. Perkins, Lufkin, for appellants.
    John H. Seale, Jasper, for appellee.
   DIES, Chief Justice.

In cutting timber on a tract of land in Jasper County, defendant below, Louisiana-Pacific Corporation, crossed the boundary line separating the tract from plaintiff below’s land, causing some damage. After a jury trial, plaintiff received a $10,000 judgment from which defendant appeals. The parties will be referred to as they were below.

Defendant says the court should have submitted issues inquiring if the damage to plaintiff’s land was permanent, and to determine the value of the land before and after the trespass, citing Cummer-Graham Co. v. Maddox, 155 Tex. 284, 285 S.W.2d 932 (1956); M. C. Winters, Inc. v. Lawless, 445 S.W.2d 761 (Tex.Civ.App.— Eastland 1969, writ ref’d n.r.e.); Hamilton v. Fant, 422 S.W.2d 495 (Tex.Civ.App.— Austin 1967, no writ).

In Maddox, supra, defendant had acquired a bill of sale to cut softwood other than elm and gum. Plaintiff’s action alleged wrongful cutting by defendant of elm and gum. This case set out the measure of damages in such cases as:

(1) If the thing destroyed or removed from the realty has a value which can be measured without reference to the soil, the recovery is the value of the thing destroyed or removed and not the value of the land.

(2) If the trees have a value only with reference to the land as shade or ornamentation, or if they be fruit trees or young growth which has no market value, then the proper measure of damage would be the difference in the value before and after.

Both Winters and Hamilton, supra, are in accord.

However in our case the plaintiff sought damages only to restore the land to its former condition, as in Mobile Pipe-Dillingham v. Stark, 437 S.W.2d 359 (Tex.Civ.App. —Beaumont 1969, no writ). In Mobile Pipe, stark complained of pipe put on his land and sought as damage the cost of cleaning up his land and restoring it to the condition it was before the pipe was put on it. In our case, plaintiff’s proof was that defendant cut 1300-1500 trees on his land, only a few of which had market value as timber, scarred the land with skidders, stopped up his creek, and left tree tops and cut trees on his property. His proof was that it would take men and machines costing $1,000 per day fifteen days to clean it up. On the same basis of Stark, supra, we overrule these points.

The jury found that $10,000 would fairly and reasonably compensate plaintiff for the damage caused by the trespass, which defendant attacks as being supported by no evidence, insufficient evidence, or as against the great weight and preponderance of the evidence.

A no evidence point directs us only to the evidence and inferences to support the verdict. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). When the contention is insufficiency of the evidence or against the weight and preponderance, we examine all the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The plaintiff, Ben M. Stevenson, a Houston attorney, had supervised “land negotiation, damage payments, and that sort of thing” for two companies. He claims to have had considerable experience in the matter of damage to land, and the cost of restoration and repair of land. In 1973 he and a friend, Tom Newell, acquired seventy-five acres of land through the Texas Veteran’s Land Board. This was divided, and his one-half is the property damaged by defendant. Defendant bought the timber on land adjoining this, got over the line and cut and knocked over 1300-1500 trees, leaving the tops and residue on the ground and blocking the flow of his creek. To reach the damaged area, one would either have to come across the adjoining property as defendant did or construct a road. To clean up the area would take a front loader or a dozer and a truck and three men. It would take fifteen days at a total of $15,000.

Tom Newell, the friend who bought the seventy-five acre tract with him, is right-of-way manager for Houston Pipeline Company. He assesses the damages for the taking of land for right-of-way purposes. In a general way he is familiar with the cost of operating heavy equipment. It was his opinion also that i* would cost $15,000 to restore the land to its original condition and that the land needed reseeding to prevent erosion.

Claude Y’Barbo lives next to this land. He sold his place to plaintiff and Newell, retaining a life estate. He truck farms some. He has worked in the woods and clearing right-of-ways, and he believes it would cost a thousand dollars a day to clean up this land.

The plaintiff and Newell paid $250.00 per acre for this land in 1973. The defendant produced evidence that only a small amount of trespassed land was involved, and that $600 would clean it up. The land is in a rural portion of Jasper County, and, while plaintiff testified he intended to subdivide it, there is no proof it is suitable for a subdivision. Nevertheless, the defendant has no point of excessiveness of damages; so, we may not therefore, consider this. Tex.R.Civ.P. 418; Flock v. Kelso, 366 S.W.2d 698 (Tex.Civ.App. — Amarillo 1963, no writ); Hudspeth v. Hudspeth, 206 S.W.2d 863 (Tex.Civ.App. — Amarillo 1947, no writ); Carnes v. Kay, 210 S.W.2d 882 (Tex.Civ.App. — Amarillo 1948, no writ).

All points of error are overruled, and the judgment of the trial court is affirmed.

AFFIRMED.


author: McKAY, Justice.

text:
    KIRBY LUMBER CORPORATION, Appellant, v. Joe Nathan TAYLOR et al., Appellees.
    No. 994.
    Court of Civil Appeals of Texas, Tyler.
    April 28, 1977.

      Joe G. Roady, Cox, Pakenham & Roady, Houston, for appellant.
    Tom P. Senff, Nacogdoches, Sid S. Sto-ver, Seale & Stover, Jasper, for appellees.
   McKAY, Justice.

This case involves a suit by plaintiff-appellant, Kirby Lumber Corporation (Kirby), against defendant-appellees, Joe Nathan Taylor (Taylor), and his wife, Lilly Mae Taylor, and the San Augustine Lumber Company (San Augustine) for conversion of timber. The suit, nominally one in trespass to try title, asserted the ownership by Kirby of pine timber cut from the Gallender and Bruce Surveys in San Augustine County by Taylor and his son Herman, such cutting allegedly occurring during the period September 1,1971, to April 4,1972, without the authority of Kirby, and sold by, Taylor to San Augustine. The legal theories on which the liabilities were asserted were trespass and conversion on the part of Taylor and conversion on the part of San Augustine. Trial was to a jury on the issues of liability for conversion and damages. The jury found in special issues 1 and 4 that the Taylors did not cut and remove pine timber from the Gallender and Bruce Surveys and that San Augustine did not receive the same from Taylor. Judgment was rendered that Kirby take nothing as to money damages. This is the only part of the judgment that is questioned on this appeal.

Appellant brings five points of error. Points one and two complain that the court erred in entering a take nothing judgment with respect to the liability of the Taylors and San Augustine for conversion, “the evidence being undisputed that Joe Nathan Taylor cut and removed pine saw timber from the Gallender and Bruce Surveys” and “cut and removed pine saw timber from the Gallender and Bruce Surveys and sold the same to San Augustine Lumber Company.” Point three complains that the trial court erred in not giving effect to certain admissions of Taylor, which will be discussed at a later point in this opinion. Points four and five complain that the jury findings on special issues one and four were “so clearly against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust.”

The land in question is located in San Augustine County, southwest of the city of San Augustine. The Gallender and Bruce Surveys are located near what is referred to as the Norwood Community, to the north and west from the intersection of State Highways 103 and 147. Farm Road 1992 is located in this area, running north from Highway 103 to the west of Highway 147, and then turning east, near the southeast corner of the Gallender Survey to intersect Highway 147. The surveys, depicted on the inserted map taken from Plaintiff’s Exhibit 27, are located in the area where Farm Road 1992 curves to turn east. Most of the testimony centered on Taylor’s activities near the southeast corner of the Gallender Survey, where as the testimony established, there was an old automobile body and, just to its north, a large pine tree with a red band painted around it. Most of the southern boundary of the Gallender Survey adjoins U. S. Forest Service lands in the Charity Sanders Survey, and in the Blount Survey to the west.

The evidence as to Taylor’s activities on or near the land was very vague and uncertain. John Kent and Byron Fredieu, two employees of Kirby, testified as to meetings with Taylor on or near the Gallender Survey in the spring of 1972. According to Kent, on March 28, 1972, he found, an A-frame loader near the northwest corner of the Gallender Survey, went to Taylor’s home, and inquired of Taylor about the loader. Taylor denied that the loader was his. The following day Kent found Taylor on land north of the Gallender Survey not belonging to Kirby and inquired as to whether the loader was Taylor’s. According to Kent, Taylor told Kent that this loader was his and that he had cut timber “in that area”; however, Taylor testified that Kent had asked about a black loader the first time and a maroon or purple loader the second. Kent also testified that he didn’t think any timber had been cut in the area of the loader. Fredieu testified of a meeting with Taylor in April of 1972 just north of the south line of the Gallender Survey. He indicated he was stopped by Taylor, who was sitting in his pulpwood truck, upon attempting to enter the Gallen-der Survey. At this meeting Taylor claimed the land was his and wanted to know, among other things, why the Kirby employees were marking stumps on the land. Fredieu told him that the land belonged to Kirby and the stumps were being marked to determine the extent of unauthorized cutting.

Two residents of the area, Prentis Sowell and Bernard Watson, also testified as to the activities of Taylor in that area. Sowell lived in a house near the intersection of Farm Road 1992 and a woods road which came in a southward direction through the center of the Gallender Survey and the Charity Sanders Survey before running into 1992. He testified that he saw Taylor hauling logs out of the Gallender Survey past his house down the woods road “on several different occasions” for “more than a month” in late 1971 or early 1972. However, he said that he “did not see [Taylor and his son, Herman] cut a tree” and that he did not know from which survey the logs had been cut. Watson lived in a house across Farm Road 1992 from the southeast corner of the Gallender Survey. He testified that he had seen Taylor “stuck with a load of logs” on the land northwest of the car body and the red-painted tree. He indicated that he “watched them try to get out and me and his wife stood there and talked.” When asked whether he had seen anyone cutting timber “north of that particular area,” he indicated that he had seen “a colored fellow” cutting timber “within three hundred yards . . . but I didn’t talk to him.” Later on cross-examination Watson admitted that he didn’t know where the logs Taylor had been hauling had come from. Edward Sheffield, an employee of the U. S. Forest Service, testified that at one point, upon request of a Mr. Atchley of San Augustine, he had walked the government line (between the Gallender and the Charity Sanders Surveys) with Taylor and that Taylor had expressed an intention to cut timber in the Gallender Survey.

As to Taylor’s own testimony concerning where he had cut the timber, it is apparent from the record that he either (1) was confused as to the actual location or (2) cut timber in several different locations. He testified that he had cut wood “to the west and southwest” of the car body, pointing to the Charity Sanders Survey south of the Gallender Survey. In regard to his deposition, which was not introduced into evidence, Taylor testified as to the following:

“Q All right, sir. Now, in your deposition in September 1972, didn’t you testify you were cutting slightly northwest of the car body and the marked tree?
“A Yes, sir.
“Q Northwest, not southwest? Isn’t that accurate?
“A From where the car body and the ring around the tree?
“Q Yes, sir?
“A I was cutting up the line to a government corner, ducked and went due north or northeast a short ways, then it went in the same direction to a tram road, and I was hauling, coming out of that tram road to a main dirt road, coming back to the highway.
“Q The question was, Mr. Taylor, you were cutting north and west of those car bodies and that tree? And not southwest? Do you confirm or deny what I just said? You were cutting northwest of it, weren’t you?
“A Either — In the direction the lines was running, I was cutting inside of this L.”
He further testified:
“Q All right. Now, you were cutting just to the north of that Forest Service line, weren’t you?
“A Yes, sir.
“Q About a quarter of a mile off farm road 1992 in that area?
“A Short quarter, if it was.”

He went on to say when asked had he cut timber about “half or three quarters of a mile” to the north of the south boundary of the Gallender Survey that, “Well, I did cut that.” However, Taylor testified that he had cut the wood on his land and that such was in the Charity Sanders Survey.

The testimony of Taylor’s wife, Lillie Mae, was slightly less confusing. She initially testified that the cutting took place to the southwest of the car body, and when asked if the cutting took place “north toward San Augustine of that Forest Service line,” she replied, “No sir. I don’t think.” She further testified that any timber she may have marked (for Joe Nathan and Herman to cut) was south of Sowell’s house and southwest of Watson’s house, which would put the location on the Charity Sanders Survey.

In regard to the question of whether Taylor sold the pine logs cut in the fall of 1971 and the spring of 1972 to San Augustine, Taylor testified, “All the hauling I done I didn’t send to San Augustine Lumber Company because I cut at times, I move out, and I come back and out again.” Counsel for Kirby sought to impeach Taylor by his deposition, not introduced in evidence, wherein Taylor apparently indicated that he had sold all the timber cut out of this area, in that particular period of time, to San Augustine. Later, when asked whether “all of the pine saw logs” that he cut “from this area right here” (with no reference to the map in the record) were sold to San Augustine, he replied, “Yes, sir”. Taylor also testified that he carried some hardwood cut out of the area to Center. Kent, the Kirby employee, testified that he checked with “several other mills” in the area, and “none of them took any timber from Joe Nathan except Mr. Gillespie” who apparently owned a lumber mill other than San Augustine’s.

After viewing all of the evidence in the record, it cannot be said that such evidence conclusively establishes that Taylor “cut and removed pine saw timber from the Gallender and Bruce Surveys” nor that Taylor “cut and removed pine saw timber from the Gallender and Bruce Surveys and sold the same to San Augustine Lumber Company” as urged in appellant’s first two points of error. Although Taylor told Kent that he had cut timber in the “area” of the loader, according to Kent no wood had been cut around the loader. Other witnesses testified that they had seen Taylor haul logs off of the Gallender Survey although they couldn’t say from where the logs came. Although Taylor testified that he was to the north and northwest of the car body, which would place him on the Gallender Survey, he also testified that the cutting occurred to the west and southwest which would place him on the Charity Sanders Survey. As to the sale of the logs, Taylor indicated that he had sold some logs in Center and some to a Mr. Gillespie. Moreover, since it was not proven without dispute that Taylor cut the timber from Kirby’s land, it cannot be said that he sold such timber to San Augustine. We do not believe that the assertion that Taylor cut timber off of the Gallender Survey, or that he sold the same to San Augustine, is without dispute. The evidence shows a series of suspicious circumstances but no direct proof of the questions at hand. Moreover, special issues one and four inquired as to whether Taylor cut timber from the “Gallender and Bruce Surveys” [emphasis added] so that it was necessary for the jury to find that Taylor had cut trees from both surveys. There is very little evidence at all that Taylor cut any timber from the Bruce Survey; therefore, we cannot agree that it was conclusively established that Taylor had cut and removed timber from both surveys. Points of error one and two are overruled.

Point three complains that “The Court erred in failing to give effect to the following admissions of Joe Nathan Taylor:

“a. that he cut the timber where his loader equipment was located, shown without question to be on the Gallender;
“b. that he cut the timber at a point one-half to three-quarters of a mile north from point A on Plaintiff’s Exhibit 27 [the southeast corner of the Gallender Survey] which unquestionably and without dispute places him and his timber cutting on the Bruce Survey;
“c. the admission, to the Forest Service employee Sheffield, that he had cut the timber on the Gallender and was going to cut such timber thereafter;
“d. that he was cutting a quarter of a mile off Farm Road 1992, which places his cutting squarely on the Gallender;
“e. that he cut timber near an abandoned tram, which was shown on Plaintiff’s 27 to cross both the Gal-lender and Bruce Surveys;
“f. that all of the pine sawtimber that he cut from the land in controversy was taken and sold to San Augustine Lumber Company;

and, based upon such failure, in entering a take nothing judgment with respect to the liability of all Defendants for conversion, the effect of such admissions being to establish conclusively and as a matter of law the liability of both Defendants for conversion.”

We do not agree with Kirby that the trial court would be bound by these so-called “admissions”. The statements concerning the loader equipment and the abandoned tram only said that he was in the vicinity of such; the testimony did not purport to indicate his exact location. The loader was shown to be located near the boundary line of the Gallender and the J. C. Thornton Surveys (not owned by Kirby); likewise, the tram was shown to cross the J. C. Thornton Survey as well as the Gallender and Bruce Surveys, so that Taylor may well have not been on Kirby’s land. The statements by Taylor that he was a “short quarter” of a mile off Farm Road 1992 and “half or three quarters” of a mile north from point A are merely estimates of distance and direction and are'not conclusive of his exact location. Sheffield, a Forest Service employee, only testified that he had walked the government line (the outside edge of the Gallender Survey) with Taylor and Taylor told Sheffield that he was going to “cut that stuff,” apparently meaning the Gallender Survey, only expressing an intention to cut the timber and not an admission that he had already done so. Taylor’s statement that he had sold all of the timber cut from the land in controversy to San Augustine was contained in his deposition. Such was only used for impeachment purposes and, not having been introduced into evidence, would have weight only on the question of Taylor’s credibility. The jury has exclusive power to determine the credibility of the witnesses and the weight to be given their testimony. State Highway Department of Texas v. Maris, 532 S.W.2d 690, 693 (Tex.Civ.App. — Texarkana 1976, no writ); Williford v. Masten, 521 S.W.2d 878, 890 (Tex.Civ.App. — Amarillo 1975, writ ref’d n. r. e.). We hold that the statements in question were not “admissions” conclusive as to the question of Taylor’s and San Augustine’s liability; therefore, the questions of whether Taylor cut timber off the land in question and sold the same to San Augustine were questions of fact for the jury. Point three is overruled.

Under its fourth and fifth points appellant urges that the trial court erred in entering a take nothing judgment on the question of liability for conversion, the jury’s answers to special issues number one and four being so clearly against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. After a review of the entire record and after having weighed and balanced all the evidence, both that in favor and against the verdict and judgment, we are of the opinion that we would not be justified in concluding the finding of the jury in regard to special issues one and four was so clearly against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. Points four and five are overruled.

The judgment of the trial court is affirmed.

      . “SPECIAL ISSUE NO. 1
      “Do you find from a preponderance of the evidence that defendant Jonathan Taylor, for himself and for his wife, defendant Lilly Mae Taylor, cut and removed pine saw timber from the Gallender and Bruce Surveys in San Augustine County, Texas during the period September 1, 1971 to April 4, 1972, inclusive, with the intent of converting the same to his, or their, own use?
      “Answer ‘We do’ or ‘We do not’.
      “Answer: ‘We do not.’ ”
      “SPECIAL ISSUE NO. 4
      “Do you find from a preponderance of the evidence that defendant San Augustine Lumber Co., during the period September 1, 1971 to April 4, 1972, inclusive, received from defendant Jonathan Taylor and from Herman Taylor and converted to its own use and benefit pine saw timber cut and removed from the Gallen-der and Bruce surveys in San Augustine Coun- . ty, Texas?
      “Answer ‘We do’ or ‘We do not’,
      “Answer: ‘We do not.’ ”

      > See map attached heret0 as page 132.


author: YOUNG, Justice.

text:
    In the Matter of the GUARDIANSHIP OF Terre Lynn HENSON, Brian Keith Henson, and Jared Ashley Henson, minors.
    No. 1148.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 28, 1977.
    Rehearing Denied June 2, 1977.

      O. F. Jones, Victoria, for appellant.
    Kemper Williams, Jr., Cullen, Carsner & Williams, Patrick A. Cullen, Cullen, Carsner & Williams, W. W. Kilgore, Kilgore, Cole, Seerden & McManus, Victoria, for appellee.
   OPINION

YOUNG, Justice.

This is an appeal from an order of the district court of DeWitt County, Texas, that denied Daniel Henson’s application to be appointed guardian of three minor siblings, Terre Lynn Henson, Brian Keith Henson and Jared Ashley Henson; and that granted Patricia Gonzales’ application to be appointed guardian and managing conservator of those children.

Mrs. Gonzales, a sister of the deceased mother of the minors and temporary guardian of the persons of said minors, filed her application to be appointed permanent guardian of the minors’ persons and/or managing conservator of the minors. Daniel Henson, a brother of the minors’ deceased father, filed a contest to the application asserting that since he had been named in the will of the minors’ deceased father as their guardian he was entitled to be appointed permanent guardian of their persons.

Minnie Henson, the children’s paternal grandmother, intervened seeking to be appointed permanent guardian of the children’s persons in the event that Daniel Henson was not so appointed. Prior to trial, Terre Lynn Henson, who was 14 years old at the time, executed a selection of guardian wherein she named Mrs. Gonzales as her choice to be guardian of her person, subject to the court’s approval.

Trial was to a jury, which found: (1) that the best interests of both Brian and Jared would be served by the appointment of applicant Patricia Gonzales as the permanent guardian of their persons; (2) and (3) that neither Daniel Henson nor Minnie Henson were asserting any claim to any property adverse to the minors; and (4) that the best interests of both Brian and Jared would be served by the appointment of applicant Patricia Gonzales as managing conservator of the two children. The trial court disregarded the jury’s answers to special issues 2 and 3 and found that as a matter of law, the contestant Daniel Henson was disqualified from serving as guardian of the children’s persons. Judgment was rendered appointing Patricia Gonzales permanent guardian of the persons and managing conservator of the children. Victoria National Bank of Victoria, Texas, was appointed guardian of the estates of the children. Respondent Daniel Henson alone has perfected an appeal.

On December 27, 1973, Jesse and Laurie Henson, the parents of the three children, were involved in a shooting altercation which resulted in the death of both parents. Laurie Henson died intestate and prior to her husband. Jesse Henson, however, died testate leaving his estate to his children and appointing Daniel Henson independent executor of his estate and guardian of his children.

Prior to his death, Jesse Henson purchased the El Camillo Restaurant in Cuero, Texas, with his mother, Minnie Henson, and his brother, Daniel. An oral partnership agreement was entered into between the parties whereby each owned one-third of the property and business. The purchase price, however, was paid in unequal shares; Minnie Henson contributing 80%, Daniel Henson 10-15% and Jesse Henson, the remainder. All parties contributed to the day to day operations of the restaurant. Upon Jesse Henson’s death, his interest passed to his children.

We will consider first appellant’s point 3. There he complains that the trial court erred in holding that appellant is disqualified from serving as guardian because there are no pleadings to that effect. The record reflects that on this appeal is the first time appellant has objected to appel-lee’s pleadings. During the trial, no objections were made to the evidence on the ground that it was not supported by the pleadings. We hold, therefore, that appellant has waived any requirement that ap-pellee’s pleadings contain a statement that appellant is disqualified to serve as guardian because he held adverse interests to the children and that this issue was tried by implied consent of the parties. Koenning v. Manco Corporation, 521 S.W.2d 691 (Tex. Civ.App. — Corpus Christi 1975, writ ref’d n.r.e., 531 S.W.2d 805); Willeford v. Walker, 499 S.W.2d 190 (Tex.Civ.App. — Corpus Christi 1973, no writ). Appellant’s point 3 is overruled.

Appellant further complains, in his points 1 and 2, of the decision to disqualify him as guardian by asserting error in the court’s decision to disregard special issue 2. It is appellant’s theory that special issue 2, coupled with Jesse Henson’s declaration in his will that Daniel Henson serve as guardian of the children, required the court to appoint Daniel Henson guardian. Although we agree with appellant’s theory that a person qualified is entitled to be appointed guardian if so named in a will, we do not find the court in error, as we will demonstrate. Tex.Prob.Code Ann. § 117 (1956) provides as follows:

“The surviving parent of a minor may, by will or written declaration, appoint any qualified person to be guardian of the person of his or her children after the death of such parent; and, if not disqualified, such person shall also be entitled to be appointed guardian of their estate after the death of such parent, upon compliance with the provisions of this Code. .” (Emphasis supplied.)

Court interpretations of statutes similar to Section 117 indicates that a person designated by will as the parents’ choice for guardian is entitled to appointment unless disqualified. See 67 A.L.R.2d p. 813, et seq. (1959).

Tex.Prob. Code Ann. § 110 (Supp.1976), however, provides seven means of disqualifying persons who propose to serve as guardians. Specifically, our case involves subsection (e) of Section 110 and provides:

“The following persons shall not be appointed guardians:
(e) Those who are indebted to the person for whom or for whose estate a guardian is to be appointed, unless they pay the debt prior to the appointment, or who are asserting any claim to any property, real or personal, adverse to the person for whom, or for whose estate, the appointment is sought.” (Emphasis supplied.)

This language has been interpreted to exclude as guardians those who might have a “conflict of interest” with the wards. Dobrowolski v. Wyman, 397 S.W.2d 930 (Tex.Civ.App. — San Antonio 1965, no writ), and to limit appointment to those possessed of “disinterestedness from obligations antagonistic to, or conflicting with, financial interests of the minor.” Penny v. Hampton, 283 S.W. 599 (Tex.Civ.App. — Texarkana 1926, no writ).

All of which brings us to the question of whether, under the facts of our case, the appellant was disqualified to be appointed guardian of the minors. The key to this question depends upon whether the trial judge was correct in his action of disregarding the jury’s finding in special issue 2. In this issue, as we have noted, the jury answered in the negative whether the appellant was asserting any claim adverse to the minors.

Where there is no evidence to support a jury finding, the trial court may disregard the finding. On appeal, the decision to disregard the jury finding may be approved if there is no evidence of probative force upon which the jury could have based their verdict. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962); Villarreal v. Boggus Motor Company, 471 S.W.2d 615, (Tex.Civ.App. — Corpus Christi 1971, writ ref’d n.r.e.). In determining this question, we must consider only that testimony which supports the jury’s answers and disregard all evidence contrary thereto. Le Master v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224 (1942); Villarreal v. Boggus Motor Company, supra.

As pointed out above, appellant Daniel Henson, Minnie Henson and Jesse Henson owned equal shares (⅛) in a restaurant partnership. Jesse Henson’s interest in this business passed to his children by will when he died. Additionally, there will be a necessity for an accounting by appellant Daniel Henson and Minnie Henson to the children covering all the months since the death of Jesse Henson. This is so because during the time since Jesse’s death, those two surviving partners have been drawing on the partnership account and the children have not. We believe that this undisputed evidence establishes as a matter of law that appellant does own interests which are adverse to the children and is indebted to them. He is thus disqualified from serving as guardian. Phillips v. Phillips, 511 S.W.2d 748 (Tex.Civ.App. — San Antonio 1974, no writ); Dobrowolski v. Wyman, supra; Penny v. Hampton, supra.

Further, it is the opinion of this Court that guardianship of the person is simply a managing conservatorship. Tex. Prob. Code Ann. § 229 (1956) entitled a guardian to the “charge and control of the person of the ward” and the “care of his support and education.” McCaffity v. Ramsey, 274 S.W.2d 194 (Tex.Civ.App.— Dallas 1954, writ ref’d n.r.e.). Similarly, Tex.Family Code Ann. § 14.02(b) (1975) defines rights, privileges, duties, and powers of a nonparent managing conservator to include the following:

“(1) the right to have physical possession of the child and to establish its legal domicile;
(2) the duty of care, control, protection, moral and religious training, and reasonable discipline of the child;
(3) the duty to provide the child with clothing, food, shelter, and education;

Section 14.07(a) of the Family Code provides that the primary concern in determining the question of managing conservator-ship is the best interest of the child. Further, in such a proceeding, the trial court has broad discretion in determining what is in the best interest of the child and its judgment will not be disturbed unless there is a clear abuse of discretion. Wilkinson v. Evans, 515 S.W.2d 734 (Tex.Civ.App. — Dallas 1974, writ ref’d n.r.e.); Erwin v. Erwin, 505 S.W.2d 370 (Tex.Civ.App. — Houston [14th Dist.] 1974, no writ).

Judy Blackwell, a court appointed investigator, testified that because of Mrs. Gonzales’ age (24), because she was the sister of the deceased mother, and because her home was of adequate size; that in her opinion, the children should be placed with Mrs. Gonzales. Patricia Gonzales, and her husband, Roy, each testified that they desired that the children be placed with them. The record further reveals that the Gon-zaleses were capable of supporting the children. Additionally, Terre Lynn Henson has filed a written preference that she remain with Patricia Gonzales. On the basis of this evidence, we can find no clear abuse of discretion by the trial court in awarding the guardianship of the persons of these children to Patricia Gonzales. Appellant’s points 1 and 2 are overruled.

Appellant’s final contention, point 4, is that there is no jurisdiction to appoint a managing conservator for children who are without parents or a guardian. We do not agree. Although Tex.Family Code Ann. § 11.09(a)(5) (1975) speaks to the need to serve guardians with citations in a suit affecting the parent-child relationship, and that venue thereof is established by the county of residence of the guardian in § 11.-04(c)(2) of the Family Code, it is not mandatory that such a person exist. The Code, in fact, in reference to guardians in each instance says “if any” or “if”. Further, we note that Patricia Gonzales had been appointed temporary guardian of the children before the time of trial. Therefore, in effect, a parent-child relationship was in existence. Appellant’s point 4 is overruled.

The judgment of the trial court is AFFIRMED.


author: McDONALD, Chief Justice.

text:
    James A. PHIPPS, Appellant, v. The CITY OF WACO et al., Appellees.
    No. 5672.
    Court of Civil Appeals of Texas, Waco.
    April 28, 1977.
    Rehearing Denied June 2, 1977.

      James A. Phipps, pro se.
    Albert R. Kuehl, Waco, for appellees.
    Douglas R. Bergen, Waco, for interve-nors.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Phipps from judgment for plaintiffs City of Waco, et al. in a delinquent tax suit.

The City of Waco and the Waco Independent School District sued Phipps for delinquent taxes on his place of business known as Jim Phipps Memorial Company. The property was assessed for tax purposes as five separate tracts: 1) Lots D18, B19, and C19; 2) Lot 29.' 3) Lots B23, B24, and B25; 4) Lot C19; and 5) B14, B15, and B16.

Suit was for delinquent City and School taxes on: tract 1 for 1962 thru 1967 and 1969 thru 1974; tract 2 for 1965 thru 1974 (except for 1968); tract 3 for 1964 and 1971 thru 1974; tract 4 for 1962 thru 1967 and 1969 thru 1974; tract 5 for 1961 thru 1974 (except for 1968); and for taxes on personal property located at the place of business for 1963 thru 1974 (except for 1968). The State of Texas and McLennan County intervened for taxes owing the State and County.

The jury in answer to special issues found the value of each tract and the personal property as assessed by plaintiffs. Judgment was rendered on the verdict for plaintiff (except for tract 3 for 1964 and 1970) for taxes, penalty and interest in the amount of $15,060.60.

Defendant appeals on 6 points.

Points 1 thru 4 assert plaintiffs’ City and School District failed to reassess all invalid and cancelled taxes in accordance with Article 7346 V.A.T.S.; that the Board of Equalization was not in session when such taxes were reassessed and defendant was denied his right to appear before such Board; and that such reassessed taxes were not published.

Mr. Phipps has not paid any taxes for the years involved, although he testified he had no complaint at the valuations of the State or County, and Mr. Phipps has not rendered the property for taxes for any year here involved except for 1968. Mr. Phipps complains on this appeal of the judgment only as it applies to City and School taxes for the years 1962 thru 1970, but seeks remand of the entire case asserting “the law does not afford a formula for separating amounts properly and improperly assessed”.

The record reflects that in 1970 the 74th District Court of McLennan County held City and School District assessments on some of the property here involved grossly excessive for some years, and that the City of Waco and School District thereafter reassessed these taxes. Cities and School Districts have the right to' reassess taxes under Article 7346 V.A.T.S. Electra Independent School Dist. v. W. T. Waggoner Estate, 140 Tex. 483, 168 S.W.2d 645. The Statement of Facts does not disclose what years the taxes were reassessed for or whether such reassessments were published. It is shown however, a Board of Equalization notice was sent to Mr. Phipps on the reassessed values in 1971, and that Mr. Phipps did not appear before the Board. Mr. Phipps did not deny receiving such notice. The errors asserted in points 1 thru 4 are not shown by the record of this case.

Point 5 asserts personal property cannot be reassessed under Article 7346 V.A.T.S.

Reassessment of personal property under Article 7346 by a city or school district is proper. Republic Ins. Co. v. Highland Park Independent School Dist, 141 Tex. 224, 171 S.W.2d 342; Alamo Barge Lines v. City of Houston, Tex., S.Ct., 453 S.W.2d 132.

Point 6 asserts irreconcilable conflict in the jury’s answers to Issues 34 thru 39, with the jury’s answers to Issues 14a-f and 33a-f.

The record reflects the former issues deal with value of lots in tract 1 as assessed by the City and School District while the latter issues deal with the value of such lots as assessed by the County and State.

To be conflicting, findings must concern the same subject matter. Turner v. Victoria County Electric Co-op., CCA (Waco) NWH, 428 S.W.2d 484; Rhoades v. Castillo, CCA (Waco) NRE, 488 S.W.2d 528.

The evidence adduced by plaintiffs is ample to support the jury findings as to value, and defendant submitted no evidence as to the value of the property for any of the years in question.

All defendant’s points and contentions have been considered and are overruled.

AFFIRMED.


author: SPURLOCK, Justice.

text:
    Wayne WILLMON, Appellant, v. SIGMA STEEL INCORPORATED, Appellee.
    No. 17795.
    Court of Civil Appeals of Texas, Fort Worth.
    April 29, 1977.

      Brown, Herman, Scott, Dean & Miles and J. Lyndell Kirkley, Fort Worth, for appellant.
    Robert J. Wilson, Burleson, for appellee.
   OPINION

SPURLOCK, Justice.

This is a suit brought by the guarantor of a note against the accommodation maker. After a non jury trial the court denied contribution and rendered judgment that the guarantor recover from the accommodation maker the full balance due on the note.

We affirm.

American Conveyor Corporation (American) and Wayne Willmon (Willmon) executed a note payable to the order of Burle-son State Bank (Bank). Sigma Steel, Inc. (Sigma) guaranteed payment of the note. American and Willmon defaulted and Sigma paid the Bank the unpaid balance. Bank then transferred and assigned the note to Sigma which thus became the owner and holder of the note.

Upon American’s becoming insolvent, a credit association operated it under an arrangement with the creditors. American was sold under an agreement with Sigma and Willmon that Sigma retain its right to proceed against Willmon on the note.

Sigma obtained judgment against Will-mon for the amount of the unpaid balance due on the note.

Willmon assigns only one point of error: “THE TRIAL COURT ERRED IN FINDING THAT APPELLANT WAS NOT A CO-SURETY WITH APPEL-LEE ON THE AMERICAN CONVEYOR NOTE ENTITLING APPELLANT TO HAVE HIS LIABILITY THEREON LIMITED BY THE DOCTRINE OF CONTRIBUTION AMONG CO-SURETIES.”

The trial court made findings of fact, stated in summary form in part as follows:

(1) American and Willmon were makers of the note; (2) Sigma was the guarantor: (3) American and Willmon defaulted; (4) Sigma paid the Bank $9,234.69: (5) the payee Bank endorsed the note to Sigma which acquired the right of subrogation against the obligors, American and Will-mon; (6) Sigma retained the right to proceed against Willmon on the note when American was sold to Comanche Land and Cattle Co.; (7) Willmon had knowledge of and gave consent for the reservation by Sigma of its claim against him when the aforementioned sale was made; (8) the credit association paid Sigma $2,059.69 on the note on behalf of American; (9) Will-mon and Sigma are not co-sureties on the note. Both are accommodation parties, but not accommodation makers and the doctrine of contribution does not apply. The liability of Willmon is several, not joint.

The court concluded Sigma was entitled to recover from Willmon the amount of the judgment rendered in this cause.

This appeal is before us without a statement of facts.

Tex.R.Civ.P. 377 provides in part that in a nonjury case where findings of fact and conclusions are requested and filed, any party claiming that the findings of the court do not support the judgment may have noted in the record an exception to the judgment and then take an appeal without a statement of facts.

Willmon did not take the exception required by the above rule.

In Phillips v. American General Insurance Company, 376 S.W.2d 808, 810 (Tex.Civ.App., Amarillo 1964, no writ), the appellant excepted to the judgment in compliance with Tex.R.Civ.P. 307 and appealed without a statement of facts. That court held that: “In the absence of a statement of facts the appeal must be decided upon the transcript which includes the pleadings, stipulations, findings of facts, and judgment of the trial court (citing cases. It is therefore incumbent upon this court to affirm the judgment of the trial court unless the pleadings, stipulations and findings of the trial court do not support the judgment.”

The transcript does not reflect whether the guaranty agreement with Sigma was in writing, oral, or both, nor the terms thereof. In the absence of a statement of facts, this court cannot ascertain the nature of the evidence heard and considered by the trial court in finding the facts and making the conclusions of law that flowed therefrom.

Tex.Bus. & Comm.Code Ann. § 3.415(e) (1968) provides that: “An accommodation party is not liable to the party accommodated, and if he pays the instrument has a right of recourse on the instrument against such party.”

Under the facts, the legal presumptions, and the law applicable to this case, we find no reversible error in the judgment of the trial court. Appellant’s point of error is overruled.

Judgment affirmed.


author: CHADICK, Chief Justice.

text:
    Ex Parte Arlen Y. STURDIVANT.
    No. 8457.
    Court of Civil Appeals of Texas, Texarkana.
    May 3, 1977.
    Rehearing Denied May 31, 1977.

      Jack 0. Herrington, Lovett & Herring-ton, Clarksville, for appellant.
    Pat C. Beadle, Beadle & Beadle, Clarks-ville, for appellee.
   CHADICK, Chief Justice.

This is a habeas corpus ease. The relator, Arlen Y. Sturdivant, was confined in the County Jail of Panola County on November 22, 1976, in response to the command of a Commitment signed by the Judge of the 102nd Judicial District Court of Red River County. Relator was admitted to bond by this Court pending a determination of the validity of such restraint.

The issue in this appeal is narrowed by relator’s brief to failure of the District Court of Red River County to afford the relator due process of law guaranteed by Article 1, Sec. 19 of the Constitution of Texas and the Fifth and Fourteenth Amendments to the Constitution of the United States.

Complaint in the form of a verified petition signed by Mary Margaret Sturdivant, divorced wife of the relator, was filed on November 5, 1976, in the District Court of Red River County. The petition alleged the relator failed and refused to pay child support as theretofore ordered and prayed that he be held in contempt of court and imprisoned until he complied with the support .order. The trial judge considered the petition and concluded that it stated grounds for relief and entered an order containing this language:

“YOU, the said Arlen Y. Sturdivant, are therefore ORDERED to be and appear in and before the 102nd Judicial District Court of Red River County, Texas, in the County Courthouse, in the City of Clarks-ville, Texas, in said County, on the 19th day of November, 1976, at 10:00 o’clock, A. M., to show cause why you should not be punished for your conduct in so failing to comply with the Order of this Court,

This order was attached to a precept to serve and was served on the relator November 10, 1976.

From the dates of service and hearing, it is apparent that relator was not given ten days prior notice of the contempt hearing. Both by statute, Texas Family Code Sec. 14.09(c), and rule, Tex.R.Civ.P. 308-A, an alleged defaulter in child support cases is allowed ten days prior notice of such hearing. The purpose of such ten day notice is to afford reasonable opportunity for the alleged defaulter to “employ counsel, gather evidence, subpoena witnesses and prepare for trial.” Ex Parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961); Ex Parte Cardwell, 416 S.W.2d 382 (Tex.1967). These and other authorities hold that failure to afford ten day prior notice standing alone, is not a denial of due process. But when the statute and rule are disregarded, the length of prior notice that will afford due process and the length that will not, depend upon the facts and circumstances in the case under examination. Ex Parte Davis, supra; Ex Parte Cardwell, supra.

The record shows the relator was commanded by solemn and lawful order of the District Court to be in and appear at the place and hour therein stated on November 19, 1976, to show cause why he should not be punished for contempt. In Ex Parte Davis, supra, it is said:

“The person charged may not ignore the show cause order as he might ignore citation in a civil suit. He is commanded by the court to appear, and if he ignores the command he may be brought in under a capias.”

Relator did not appear or object to commencement of the hearing on the date set. He takes the stand in this Court that failure to give him a full ten day prior notice deprived him of constitutional due process and that the judgment of contempt entered pursuant to the November 19, 1976 hearing is void. In support of his position, relator cites Ex Parte Hoover, 520 S.W.2d 483 (Tex.Civ.App. El Paso, 1975, no writ). This court is unable to distinguish this case from Ex Parte Hoover on any meaningful ground. However, the instant case must be decided on its own merit.

No effort is made by relator herein to excuse obedience to the court’s command because relator needed additional time to employ counsel, gather evidence, subpoena witnesses, or otherwise prepare for trial. In a judicial context due process requires a proceeding “adapted to the nature of the case, in which the citizen has an opportunity to be heard, and to defend, enforce, and protect his rights”. 16A C.J.S. Constitutional Law § 567. Conducting the hearing upon less than ten days notice is an irregularity that would become a denial of due process if it deprived or adversely affected the relator’s ability to assert and defend his interest. There is no suggestion that lack of ten day prior notice had an adverse effect upon the relator’s ability to assert his interest or defend himself or that his interest or defense was curtailed, hindered or embarrassed by failure to receive such notice. Consequently, the record does not show that the relator was denied due process.

Under the record, it becomes the duty of this Court to remand the relator to the custody of the sheriff of Panola County. It is so ORDERED.