author: BISSETT, Justice.

text:
    Guadalupe Garza ZAMORA, Appellant, v. Miguel A. ROMERO, Appellee.
    No. 1378.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 26, 1979.
    Rehearing Denied June 7, 1979.

      Terry D. Key, Wilkins & Phillips, McAl-len, for appellant.
    Gerald Beckman, Huerta, Pena, Beck-man, Rodriguez & Alfaro, Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

This appeal arises out of an action sounding in tort, brought by Miguel Romero against Guadalupe Zamora for damages to the plaintiff’s cattle allegedly caused by the defendant’s willfully locking the plaintiff out of an easement over the defendant’s land which the plaintiff normally used to gain access to his ranch. The plaintiff also sought injunctive relief against any further lock-out by the defendant. Trial was to a jury, which answered special issues favorably to the plaintiff. Accordingly, the trial court rendered judgment that awarded the plaintiff $15,500.00 damages and enjoined the defendant from obstructing the plaintiff’s use of the easement. The defendant has appealed.

Twenty-five points of error are presented. Reversible error is claimed because of: 1) the trial court’s refusal to grant a continuance to the defendant; 2) the calling of the defendant’s son as a witness under the adverse party rule; 3) the admission of depositions into evidence; 4) the lack of evidentiary support for certain jury findings; 5) and improper jury argument.

The plaintiff and defendant own adjoining lands in Hidalgo County, Texas. The plaintiff has owned his land, consisting of a 100 acre tract and a 190 acre tract, since about 1959. The defendant has owned his land since the 1930’s. At the time the plaintiff acquired his land, he was told by the Veteran’s Land Board, which was the prospective mortgagee, that he must first acquire an easement of ingress and egress, or a right-of-way, from the defendant assuring him access to the land. Through a course of dealing not relevant to this appeal, the easement was acquired, and the plaintiff took possession of the land.

Then, in September 1973, the defendant’s son, at his father’s instruction, locked the plaintiff out of the easement. As a result, the plaintiff, who was then grazing 85 head of cattle on the 100 acre tract, was denied access to this pasture and the cattle. The plaintiff remained locked out until February, 1974. The plaintiff lost 20 head of cattle due to malnutrition from September, 1973, until February, 1974.

The plaintiff, in points 1 and 3, attacks the trial court’s refusal to either grant him a continuance at the time this cause went to trial, or to take the case off the trial docket entirely. In reviewing these points, we adhere to the well settled rule that the trial court’s denial of a motion for continuance is within the sound discretion of the trial court and it will be presumed, absent a showing of an abuse of discretion, that the court properly exercised its discretion. Hernandez v. Heldenfels, 374 S.W.2d 196 (1963).

On July 15, 1977, the case was set for trial on the merits on October 3, 1977. Mr. Wilkins, attorney for the defendant, was not notified of the setting until September 18, 1977. On October 3, 1977, Mr. Wilkins filed a motion for continuance; as grounds therefor, it was alleged: 1) the case was set on the call docket for trial without notice to him, which was in violation of the local rules; and 2) he did not have time to properly prepare for trial on such short notice. Following the filing of the motion for continuance, a discussion was had on the same day, October 3, 1977, between the trial judge, Mr. Wilkins, and Mr. Beckman, attorney for the plaintiff. The judge asked what was needed for Mr. Wilkins to be ready for trial and Mr. Wilkins represented that he needed plaintiff’s income tax returns for the years 1969 through 1974 and some cattle sales tickets which plaintiff had previously agreed to furnish him. Mr. Wilkins told the judge: “I would like to have them by Wednesday.” The judge then announced:

“ . . . We will pick a jury this afternoon at 1:30. Supply that material by Wednesday or this case is going out. Pick a jury this afternoon at 1:30; we are going to try it next Monday, any dispute about it, we’ll just throw it out.”

The clear implication from what took place on Monday, October 3, 1977, was that the defendant would be ready to go to trial on the following Monday, October 10, 1977, if the plaintiff delivered the requested documents to him on Wednesday, October 5, 1977.

Copies of the requested income tax returns were delivered by the plaintiff to the defendant on Wednesday, October 5, 1977, but the cattle sales tickets were not delivered until Thursday, October 6, 1977, at 10:45 a. m. On Monday, October 10, 1977, prior to the call of the case for trial, counsel for the defendant orally re-urged his motion for continuance because of the violation of local rules in the failure to notify counsel of the setting and also because of the failure of plaintiff to furnish him with the cattle sales tickets on Wednesday, October 5, 1977, as ordered by the court. Counsel for the plaintiff then stated that it was impossible to deliver the sales tickets on Wednesday. The court ruled:

“Defendant’s amended motion for continuance is denied.”

The case proceeded to trial at 9:30 a. m. on October 10, 1977.

We do not believe that the denial of the motion for continuance, in the light of the sequence of events leading up to the trial of this lawsuit warrants reversal of the trial court’s judgment. Although, because of a definite violation of local rules, the defendant was deprived of all but 25 days of preparation for this particular trial, counsel for plaintiff waived any such grounds for a continuance on October 3, 1977. Although the plaintiff was a few hours late in turning over the sales tickets to the defendant, it does not appear to us that the defendant was prejudiced to the extent that he did not have time to prepare his defense and did not receive a fair trial. This case had been pending in the district court for several years before it finally went to trial.

The defendant never requested a formal hearing on its motion for continuance, and no evidence on the motion, which was filed on October 3, 1977, and re-urged on October 10, 1977, was ever presented. All the record contains is argument of counsel before the bench on two different occasions. We have no way of knowing whether being put to trial on October 10, 1977, prevented the defendant from putting on certain evidence or urging certain defensive theories. Moreover, the motions for continuance were not sworn motions. When Rule 251, T.R.C.P., which requires that the motions show sufficient cause “supported by affidavit,” is not followed, we must presume that the trial court did not abuse its discretion. City of Wichita Falls v. Lipscomb, 50 S.W.2d 867 (Tex.Civ.App.—Fort Worth 1932, writ ref’d). No abuse of discretion is shown. The defendant’s first three points are overruled.

By his fourth point of error, the defendant claims that the trial court committed reversible error in allowing the plaintiff to call Juan Lino Garza as an adverse party and cross-examine him without being bound by his testimony. Juan Lino Garza is the son of the defendant Guadalupe Zamora. He was not a party to the suit.

Plaintiff announced that he intended to call Juan Lino Garza “under the adverse party rule.” Defendant told the court that he was “not an adverse party.” Plaintiff then stated that if he could not cross-examine him under the adverse party rule, he wanted to do so as an adverse witness. The trial court did not rule clearly on the matter but did say:

“All right. The Court will allow you to lead the Witness at this time, as to whether or not it developes (sic) under the adverse party rule, I will see . you are not bound by his testimony

For all practical purposes, Juan Lino Garza was called by plaintiff under Rule 182, T.R. C.P., the adverse party rule.

It was error for the trial court to allow the plaintiff to call Juan Lino Garza to the stand and not be bound by his testimony. The adverse party rule applies only to parties named in the petition and answer, and to certain agents of a named corporate party. Louis v. Parchman, 493 S.W.2d 310 (Tex.Civ.App.—Fort Worth 1973, writ ref’d n. r. e.); Bell v. Umstattd, 401 S.W.2d 306 (Tex.Civ.App.—Austin 1966, writ dism’d). The witness was not a party to this suit and the defendant was an individual, not a corporation.

Although the trial court’s action in allowing the plaintiff to call Juan Lino Garza under the adverse party rule constituted error, the error was harmless in that such testimony did not produce any evidence damaging to the defendant’s defense otherwise uncovered during the course of the trial. Juan Lino Garza testified that it was he who actually locked the gate which prevented the plaintiff from using the easement as a means of entry to his ranch, and that this was done in accordance with the defendant’s instructions and with his own knowledge and the knowledge of the defendant that the plaintiff’s cattle might suffer. The defendant, when he took the stand in his own behalf, testified to the same effect.

Moreover, the error was not preserved for appellate review. The defendant did not object to the statement by the court immediately after the statement was made and before Juan Lino Garza actually commenced testifying. Counsel for the plaintiff then proceeded to examine Juan Lino Garza. After counsel for the plaintiff had almost finished his examination of the witness, he advised the court that he intended to read a portion of Juan Lino Garza’s deposition into evidence. Counsel for the defendant said:

“Juan Lino Garza is not a party.”

Following that statement, the trial judge responded:

“your previous objection is overruled.”

It is well settled that the party who opposes the admission of evidence must specifically object to the evidence at the time it is offered in order to lay a predicate for appellate review of the action by the trial court. Hartford Accident and Indemnity Co. v. McCardell, 369 S.W.2d 331 (Tex. Sup.1963); Withers v. Tyler County Lumber Company, 326 S.W.2d 173 (Tex.Civ.App. —Beaumont 1959, writ ref’d n. r. e.); Biard Oil Co. v. St. Louis Southwestern Railway Co., 552 S.W.2d 588 (Tex.Civ.App.—Tyler 1975, no writ); Central Power & Light Company v. Martinez, 493 S.W.2d 903 (Tex. Civ.App.—Corpus Christi 1973, no writ). An objection to the introduction of evidence, if not timely made, is waived. Gonzales v. Texas Employers’ Insurance Ass’n., 419 S.W.2d 203 (Tex.Civ.App.—Austin 1967, no writ); Guerra v. Texas Employers Insurance Ass’n., 343 S.W.2d 306 (Tex.Civ.App.—San Antonio 1961, no writ). An objection which is made after the evidence has already been admitted is too late. Hix v. Wirt, 220 S.W.2d 530 (Tex.Civ.App.—Eastland 1954, writ ref’d n. r. e.).

In the instant case, counsel for the defendant, although he did advise the court that the witness was not an adverse party to the suit, did not object to the ruling of the court at the time it was made and before the testimony of the witness was offered and received into evidence. Therefore, the error was waived by the defendant in failing to timely make a proper objection to the trial court’s ruling, and to timely secure a ruling on his objection. See Cusack v. Cusack, 491 S.W.2d 714 (Tex.Civ. App.—Corpus Christi 1973, writ dism’d).

Because of harmless error, and, in addition, waiver of the effect of the statement by the trial court which, in effect, permitted Juan Lino Garza to testify under the adverse party rule, the defendant’s contention cannot be sustained. The fourth point of error is overruled.

By his twenty-third, twenty-fourth and twenty-fifth points of error, the defendant attacks the trial court’s action in allowing the plaintiff to introduce the depositions of Guadalupe Zamora and Juan Lino Garza into evidence. The defendant’s deposition was read into the record over the objection of defendant that it had not been filed nor had it been reviewed by the defendant or signed by him. The deposition contained an agreement, the pertinent parts of which, read, as follows:

“ . . .It was agreed by and between Counsel for Plaintiff and Defendant in the above numbered and styled cause that all formalities, including issuance of notice, are waived specifically, and . said deposition being taken with the same force and effect as though all requirements of the statutes and rules had been fully complied with. * * * * * *
“IT WAS FURTHER AGREED that after said deposition has been returned into Court in accordance with these stipulations and agreements, it will be treated by the parties hereto and may be used herein with the same force and effect as though all statutes and rules relating to the taking and returning into Court of depositions had been fully complied with.”

It is the defendant’s contention that the signing and filing requirements of the deposition were not waived by this agreement.

Generally speaking, unless waived, a deposition which is not signed and has not been filed in the court where the cause is docketed is not admissible at the trial. Rule 209, T.R.C.P; Bobbie Brooks, Inc. v. Goldstein, 567 S.W.2d 902 (Tex.Civ.App.— S.W.2d 453 (Tex.Civ.App.—San Antonio 1954, writ ref’d n. r. e.).

The Texas Rules of Civil Procedure contemplated that a deposition, if it is to be used by any party at the trial, should be filed at least one day before the day on which the case is called for trial. Rule 212, T.R.C.P.

In this case, the deposition was taken in November, 1974, and was certified by the reporter who took it in July, 1975. The reporter delivered the deposition upon completion to counsel for defendant, who had physical possession of it at all pertinent times. The deposition was not filed in court until October 12, 1977, the third day of trial, when the trial judge ordered counsel for the defendant: “go, get it.” The deposition was never read to the defendant and was not signed by him.

We hold that the signature of the defendant was waived by the agreement of the parties, and the deposition was not rendered inadmissible because the defendant had not signed it. See Bankers Multiple Line Insurance Co. v. Gordon, 422 S.W.2d 244 (Tex.Civ.App.—Houston [1st Dist.] 1967, no writ), and the cases cited therein, wherein it is observed that the signature of the witness to a deposition is a matter of form, and comes within the meaning of the words “to the manner of taking the same,” as used in Rule 212.

We further hold, however, that the agreement did not waive the requirements imposed by the Rules of Civil Procedure relating to the filing of the deposition in the court in which the case was pending. The deposition in question should have been filed at least one entire day before October 10, 1977, the day on which the case was set for trial.

Despite the late filing of the deposition, it was admissible in evidence under the holding of Branch v. Jean, 320 S.W.2d 427 (Tex.Civ.App.— Eastland 1959, writ ref’d n. r. e.), and followed in Rowntree v. Rice, 426 S.W.2d 890 (Tex.Civ.App.— San Antonio 1968, writ ref’d n. r. e.). In those cases, as in the instant case, the depositions which were not signed by the defendant and were not filed in accordance with the requirements of the Rules of Civil Procedure, were held to be admissible because they contained declarations against interest. The same is true in the instant case. Notwithstanding the late filing of the defendant’s deposition, it was admissible since it contained admissions against interest. The deposition was properly admitted into evidence.

Assuming, arguendo, that it was error for the trial court to admit defendant’s deposition into evidence, any such error was harmless. Rule 434, T.R.C.P. The defendant was called to testify during his own case-in-chief by his own attorney. His testimony from the witness box was basically the same then as his testimony in his deposition.

There was no reversible error in the plaintiff’s use of Juan Lino Garza’s deposition. It was used very briefly for the apparent purpose of impeaching the witness Juan Lino Garza’s own live testimony. Even if there was error in admitting the portions of the deposition, we do not think its admission was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, T.R. C.P. The twenty-third, twenty-fourth and twenty-fifth points are overruled.

The jury found: 1) at the time plaintiff was locked out of the easement until after he regained the use of the easement, he was the owner of a herd of cattle in his pasture; 2) the act of locking the plaintiff out of his pasture was a proximate cause of damages to the herd of cattle; 3) the reasonable value of the cattle at the time of the lockout was $17,000.00; 4) the reasonable value of the cattle at the time the plaintiff regained the use of the easement was $10,-000.00; 5) the reasonable cost to the plaintiff of feeding and caring for the cattle during the time he was denied access to his pasture by the defendant was $2,000.00; 6) the act of locking out the plaintiff was committed with present consciousness of invading plaintiff’s rights or of exposing him to damages; 7) the plaintiff was entitled to $10,500.00 as exemplary damages. Based on those findings, judgment was rendered that the plaintiff recover $15,500.00, as damages, from the defendant, and that the defendant be permanently enjoined from interfering with the plaintiff’s use of the easement. In determining the total amount of damages awarded ($15,500.00), the reasonable expense incurred by the plaintiff in feeding his cattle during the time of the lock-out ($2,000.00) and the reasonable value of the cattle at the time the plaintiff regained the use of the easement ($10,-000.00) are deducted from the reasonable value of the cattle at the time of the lockout ($17,000.00), which results in the amount of $5,000.00; added thereto is $10,-500.00 for exemplary damages for a total award of $15,500.00.

The above jury findings are attacked by the defendant in seventeen points of error. Such attack is predicated on “no evidence,” or contrary to the “undisputed evidence” or “against the great weight and preponderance of the evidence” points. We follow the well established rules in disposing of those points. See Calvert, “No Evidence” and “Insufficient Evidence,” 38 Texas L.Rev. 359 (1960).

The undisputed evidence revealed that the plaintiff owned a herd of cattle in the pasture involved at the time he was locked out of the easement by the defendant. The herd numbered 85 animals.

The defendant’s contention was that the plaintiff had reasonable access into his property from other sources during the period the easement was obstructed and therefore did not sustain any damages. To support his contention, the defendant has pointed us to evidence that the plaintiff had been given permission to cross over his neighbor’s (Bortolo Salinas’s) property in order to reach his own property to feed his cattle. The defendant refers us to the evidence that the plaintiff’s son actually visited the “locked-out” tract on more than one occasion to feed the cattle in the particular pasture. Furthermore, the cattle were also fed from September to December of 1973, by a Vicente Saenz pursuant to plaintiff’s request. Examining the record as a whole, however, we find ample support for the jury’s finding that plaintiff did not have an entry way into his pasture at all times as needed. The plaintiff testified that trespassing upon defendant’s land would have been necessary even had he chosen to accept his neighbor’s offer. Furthermore, he was apprehensive of danger because of information he apparently had that defendant could be violent. The plaintiff’s son testified that some of his visits to their pasture involved trespassing upon defendant’s land, and that in doing this he had to act as his own beast of burden by carrying bales of hay by hand to the cattle.

There is abundant evidence in the record which supports the jury’s finding that the reasonable market value of the herd of cattle at the time plaintiff was locked-out was $17,000.00. It is, first of all, undisputed that plaintiff had 85 head grazing on the 100 acre tract at the time defendant locked the gate. Next, there was testimony that the herd consisted of two bulls valued at $300.00 to $350.00 each, five or six calves valued at around $100.00 each, ten to twelve 6 month old animals valued at around $225.00 each, six or seven yearlings valued at around $175.00 each and about fifty-eight mother cows valued at approximately $250.00 each. Totalling these figures, we find that the jury’s figure of $17,-000.00 was, if anything, conservative.

There is also abundant evidence which supports the jury’s finding that the reasonable value of the herd of cattle at the time the plaintiff regained the use of the easement was only $10,000.00. Vicente Saenz testified there were 65 head of cattle left alive by the time the gate was unlocked. Both bulls had died. The calves were worth about $100.00 each; the yearlings were worth about $215.00 each; the cows were worth about $150.00 each; and the remaining animals were worth about $200.00 each. The total of these figures approximates $10,200.00. The jury, however, would have been justified in reaching a figure even lower than $10,000.00 because of evidence that the animals were extremely weak and in “pretty bad shape.”

The finding that the reasonable cost of feeding the cattle during the time that the plaintiff was denied access to the pasture where the herd was located amounted to $2,000.00 is amply supported by the evidence. Plaintiff’s son hauled some 450 bales of hay to the 100 acre tract during the lock-out. It normally would have taken from 1,500 to 2,000 bales to support the herd. The price per bale at the time was around $1.25.

We have carefully reviewed, considered and weighed all of the evidence pertaining to the jury’s answers which have been challenged on evidentiary grounds. There is substantial evidence of probative force to sustain each finding. None of the questioned findings are against the great weight and preponderance of the evidence. The seventeen evidentiary points of error (points 6 through 22) are overruled.

Finally, the defendant, in his fifth point of error, contends that the trial court erred in overruling his objection to the plaintiff’s jury argument and accompanying motion for mistrial. In the plaintiff’s argument to the jury he referred to the defendant in the following manner.

“ . . .He has acquired, what is the evidence? Anywhere from thirteen to seventeen thousand acres; . . . ”

The defendant did not object to that statement immediately following its being made. The complaint, was, therefore, waived. A few moments later, the following exchange took place:

“I (MR. BECKMAN, counsel for the plaintiff) will close this opening portion of my statement by suggesting to you that the wrong done to Mr. Romero was a serious one, and that the punishment and damages, the exemplary damages that you assess against Mr. Zamora be substantial. A few thousand dollars is not going to mean anything to Mr. Zamora
MR. WILKINS (counsel for the defendant) I object to that line of testimony on the grounds that it tries to contrast the relative wealth and importance of the Defendant, and his arguments can’t help but prejudice the jury, and we ask for a mistrial at this time.
THE COURT: Objection is overruled, mistrial overruled. Ladies and Gentlemen, I want to tell you again that what these lawyers say is not evidence. You be the judge of the evidence, and again read the instructions as it relates, if any, to the particular question that it relates to.”

It is the defendant’s contention that this was improper jury argument because it prejudiced the jury by contrasting the relative wealth and importance of the defendant. We disagree.

It is well settled that attorneys are permitted considerable latitude in jury argument. Hartford Acc. & Indem. Co. v. Thurmond, 527 S.W.2d 180 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.); Fulmer v. Thompson, 573 S.W.2d 256 (Tex. Civ.App.—Tyler 1978, writ ref’d n. r. e.). It is not error for counsel to tell the jurors what they already know. Green v. Hudson Engineering Corp., 305 S.W.2d 201 (Tex.Civ. App.—Fort Worth 1957, writ ref’d n. r. e.). The jurors in the case at bar knew that the defendant was a large landowner. They also knew that one of the purposes of exemplary damages is to punish the wrongdoer. Moreover, assuming that the argument was improper, any harm resulting therefrom was removed by the court’s instruction to the jury. The award of $10,500.00 as exemplary damages is not attacked by a point of error and no point suggesting a remittitur has been brought forward. Reversible error is not shown because of improper jury argument. The fifth point is overruled.

The judgment of the trial court is AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Joe BUTLER, Appellant, v. STATE BOARD OF EDUCATION et al., Appellees.
    No. 1445.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 30, 1979.
    Rehearing Denied June 7, 1979.

      Sam A. Westergren, Jr., Corpus Christi, for appellant.
    Richard E. Flint, Gary, Thomasson, Hall & Marks, Corpus Christi, Martha Allan, Asst. Atty. Gen., Austin, for appellees.
   OPINION

BISSETT, Justice.

The question to be resolved in this case is whether judicial review of an order made by the State Board of Education after the effective date of Tex.Rev.Civ.Stat.Ann. art. 6252-13a (Supp.1978), known as the “Administrative Procedure and Texas Register Act,” is controlled by the Act, or if such review controlled by Tex.Educ.Code Ann. § 13.115 (1972).

Joe Butler, a former teacher in the Corpus Christi Independent School District, plaintiff in the trial court and appellant in this Court, sought judicial review of an order issued by the State Board of Education. The defendants are the State Board of Education (the “Board”), the Commissioner of Education (the “Commissioner”) and the Corpus Christi Independent School District (the “School District”). Suit was filed in the District Court of Nueces County, Texas, on December 12, 1977. It was dismissed by the trial court on September 10, 1978, for want of jurisdiction. Joe Butler, plaintiff, has appealed.

Two points of error are presented. First, Butler contends that art. 6252-13a does not apply to this case since his cause of action arose on October 28,1975, which was before the effective date of the Act, and to apply the requirements of the Act to his appeal would result in a retroactive application of the Act, and would impose a duty on him which did not exist prior to the effective date of the Act. Second, he also contends that even if the Act does apply to the action brought by him, there was no duty to file a motion for rehearing with the Board within 15 days after the order was made because the order was not a final order as defined in the Act. He argues, in effect, that his appeal from the ruling by the Board is governed by the provisions of Tex.Educ. Code Ann. § 13.115 (1972), which does not require the filing of a motion for rehearing with the Board as a prerequisite to the filing of suit in a district court for a trial.

Butler, who held a probationary teaching contract with the School District, experienced difficulties with the school authorities during the scholastic year 1974 — 1975. He pled that his contract was wrongfully terminated in September, 1975, and that he sought relief, beginning with a hearing before the Board of Trustees of the School District. This decision, which was adverse to him, was affirmed by both the Commissioner and the Board.

Apparently, Butler was notified on October 28, 1975, that his contract would be terminated. A hearing before the School District’s Board of Trustees on such termination was held on May 17, 1976, following which the School District terminated his contract, effective October 28,1975. Butler appealed to the Commissioner, who by written order signed on September 4, 1977, affirmed the decision of the School District. Butler then appealed to the Board, which, by order signed on November 12, 1977, affirmed the order made by the Commissioner. Butler did not file a motion for rehearing with the Board.

The Act became effective January 1, 1976. The provisions of the Act, in pertinent part, are:

“Sec. 16(b) A final decision must include findings of fact and conclusions of law, separately stated . . . .” ******
“Sec. 16(c) A decision is final, in the absence of a timely motion for rehearing, on the expiration of the period for filing a motion for rehearing, and is final and appealable on the date of rendition of the order overruling the motion for rehearing, or on the date the motion is overruled by operation of law. . . . ” ******
“Sec. 16(e) Except as provided in Subsection (c) of this section, a motion for rehearing is a prerequisite to an appeal. A motion for rehearing must be filed within 15 days after the date of rendition of a final decision or order. . . . ” ******
“Sec. 19(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this Act. This section is cumulative of other means of redress provided by statute. . . .”

The exceptions contained in Subsection (c) of Section 16 of the Act are not involved in this appeal.

The Commissioner’s order, entitled “FINAL ORDER,” and signed on September 4, 1977, includes findings of fact and conclusions of law, separately stated. The word “respondent” as used in the findings refers to the School District. The findings and conclusions pertinent to the disposition of this appeal read:

“FINDINGS OF FACT
“7. On October 28, 1975, respondent undertook to terminate petitioner’s teaching contract on the basis of his repeated failure to comply with official directives and established board policy and his repeated and continuing neglect of duties.
8. On May 17,1976, petitioner was given a hearing before respondent, prior to which he had been informed of the grounds for termination of his contract and at which he was given the opportunity to challenge the sufficiency of those grounds.
9. Following the hearing, respondent terminated petitioner’s contract effective October 28, 1975.”
“CONCLUSIONS OF LAW
After due consideration of the foregoing findings of fact, in my capacity as State Commissioner of Education, I make the following conclusions of law: ******
2. Petitioner’s erroneous and improper inventories, his failure to return the typewriter and tape recorder on May 30,1975, and his retention of these items for three months thereafter did constitute repeated and continuing neglect of duties within the meaning of Section 13.109, Texas Education Code.
3. Petitioner’s repeated and continuing neglect of duties, considered in light of the circumstances under which he was reverted from continuing to probationary contract status, constituted adequate cause for the termination of his probationary teaching contract.”

The order made by the State Board, omitting the formal parts, and signed on November 12, 1977, reads:

“ORDER
BE IT KNOWN that on the 12th day of November, 1977, came on to be heard the appeal of the Petitioner in the above captioned cause, and, after due consideration to the record and arguments of counsel, upon a voice vote, it is hereby
ORDERED that this appeal is in all things DENIED, and the FINAL ORDER of the State Commissioner of Education entered September 6, 1977, is AFFIRMED and adopted as the order of this Board.”

The record clearly shows that this is an appeal from the Board’s order and is not a direct attack on the order. The Act recites that the purpose of its enactment was to provide a “uniform practice and procedure for state agencies.” The repeal clause further provides that all laws and parts of laws in conflict with the Act are repealed. Prior to the enactment of the Act, provisions for appeal were included in practically all laws regulating the several state agencies. Thus, it appears that the legislature clearly intended to supersede the appeal provisions of the different statutes concerning appeals from most of the state agencies, and to initiate a uniform practice and procedure governing appeals from the agencies. For comprehensive discussions relating to the legislative intent in enacting the Act in 1975, see Imperial Am. Resources Fund v. R. R. Com’n of Tex., 557 S.W.2d 280 (Tex.1977), and Texas State Board of Pharmacy v. Kittman, 550 S.W.2d 104 (Tex. Civ.App. —Tyler 1977, no writ). The Act applies to the Texas Education Agency.

The Act is clearly a procedural act. It is settled that a litigant has no vested right in a procedural remedy set out in a procedural statute, and that the legislature may make changes applicable at any time and at any stage in the litigation which is affected by the procedural statute. Merchants Fast Motor Lines v. Railroad Com’n, 573 S.W.2d 502 (Tex.1978); Phil H. Pierce Co. v. Watkins, 114 Tex. 153, 263 S.W. 905 (1924). The issues here involved do not affect any vested rights of Butler under his contract, even though he insists that the determination of his vested right commenced on October 18, 1975, which was prior to the effective date of the Act. The appeal is not from a suit concerning his contractual rights as such, but is an appeal from the order of the Board, an administrative arm of the Texas Education Agency. Under the undisputed evidence in this case, all of the hearings before the several administrative entities, the School District, the Commissioner, and the Board, were had after January 1,1976. These hearings were part of the administrative process, and were required to be held and conducted before Butler could resort to the courts. The fact that Butler’s contract was, in effect, terminated on October 18, 1975, had no bearing on his pursuit of the administrative remedies available to him on the dates that the administrative hearings were held. An administrative order is reviewable by a court under the law applicable at the time the order is made. Merchants Fast Motor Lines v. R. R. Com’n of Tex., supra.

We hold that judicial review of the order made by the Board on November 12, 1977, is controlled by the Act, and is not controlled by Tex.Educ.Code Ann. § 13.115 (1972). Butler’s first point is overruled.

The statutory provisions regulating an appeal from an order of an administrative agency are mandatory and exclusive and must be complied with in all respects as a prerequisite for judicial review. Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084 (Tex.1926). The procedure for appeal prescribed by the Act is also mandatory and jurisdictional, and cannot be waived. Navarro Independent School Dist. v. Brockette, 566 S.W.2d 699 (Tex.Civ.App.—Austin 1978, no writ); Moore v. Texas Employ ment Commission, 565 S.W.2d 246 (Tex.Civ. App.— Houston [14th Dist.] 1978, no writ); Tex. Alcoholic Bev. Commission v. Lancaster, 563 S.W.2d 380 (Tex.Civ.App.—San Antonio 1978, no writ); Hurlbut v. State Board of Insurance, 555 S.W.2d 180 (Tex. Civ.App.—Austin 1977, no writ); Texas State Board of Pharmacy v. Kittman, supra.

Sec. 16(b) of the Act provides that a final decision must include findings of fact and conclusions of law, separately stated. This requirement was met when the order of the Board expressly adopted the final order of the Commissioner as part of its order. Auto Convoy Co. v. Railroad Commission of Texas, 507 S.W.2d 718 (Tex. 1974); Imperial Am. Resources Fund v. R. R. Com’n of Tex., supra.

Sec. 16(e) of the Act states that a motion for rehearing is a prerequisite to appeal. That section further recites that a motion for rehearing must be filed within 15 days after the date of rendition of a final decision or order.

In cases involving procedural remedies, the applicant must exhaust all administrative remedies before resorting to the courts. Public Utility Com’n v. City of Corpus Christi, 555 S.W.2d 509 (Tex.Civ. App.—Waco 1977, writ ref’d n. r. e.). Butler did not file a motion for rehearing with the Board; therefore, the order promulgated by the Board on November 12, 1977, became final 15 days thereafter. The filing of a motion for rehearing, being required by statute as a prerequisite to appeal, and being part of the administrative process, is mandatory in order for the complainant to exhaust, “all administrative remedies within the agency” before he “is entitled to a judicial review” under the Act. Since Butler did not exhaust all administrative remedies available to him within the Texas Education Agency prior to his filing suit in the district court for a judicial review of the Board’s order, the trial court did not acquire jurisdiction of the cause. The dismissal for want of jurisdiction was proper. Butler’s second point is overruled.

The judgment of the trial court is AFFIRMED.

      . The Administrative Procedure and Texas Register Act will be referred to in this opinion as the “Act.”


author: PRESSLER, Justice.

text:
    AMOCO PRODUCTION COMPANY et al., Appellants, v. William S. ARENDALE, Trustee, et al., Appellees.
    No. A2006.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 2, 1979.
    Rehearing Denied May 23, 1979.

      D. J. Capp, Houston, W. B. Browder, Midland, ' Robert E. Kelly, Jr., E. H. Brown, Reese Copeland, James W. McCartney, H. Ronald Welsh, Vinson & Elkins, Houston, for appellants.
    Preston Shirley, Mills, Shirley, McMicken & Eckel, Galveston, Robert Lee Bobbitt, Jr., Brite, Drought, Bobbitt & Halter, San Antonio, Tom P. Hamill, John T. Marshall, Houston, Jimmy Phillips, Angleton, David Bland, Barrow, Bland & Rehmet, Kronzer, Abraham & Watkins, Houston, for appel-lees.
    Before MILLER, PRESSLER and SALAZAR, JJ.
   PRESSLER, Justice.

This is a case concerning venue under subdivision 27, article 1995, Tex.Rev.Civ. Stat.Ann. Appellants Amoco Production Company (Amoco), Mobil Oil Corporation (Mobil) and Phillips Petroleum Company (Phillips) bring this appeal from an order of the district court overruling their pleas of privilege.

Appellees are owners of royalty interests in the Old Ocean Field and Unit located in Brazoria and Matagorda Counties, Texas. This suit was filed by appellees in Brazoria County, Texas against the appellants herein and the other operators in the Old Ocean Field and Unit claiming underpayment of gas royalties.

Amoco and Phillips filed separate pleas of privilege to have the portion of the case which is against them transferred to Harris County. Mobil filed its plea of privilege to have the portion of the case which is against it removed to Dallas County. Controverting affidavits were filed in reply to each plea of privilege. The trial court heard the appellants’ evidence, and at the close of the evidence, overruled all pleas of privilege. Appellants have perfected this appeal from the ruling of the trial court.

Appellees’ controverting pleas were based on subdivision 27, article 1995, Tex.Rev.Civ. Stat.Ann., which states:

27. Foreign corporations. — Foreign corporations, private or public, joint stock companies or associations, not incorporated by the laws of this State, and doing business within this State, may be sued in any county where the cause of action or a part thereof accrued, or in any county where such company may have an agency or representative, or in the county in which the principal office of such company may be situated; or, when the defendant corporation has no agent or representative in this State, then in the county where the plaintiffs or either of them, reside.

Appellants’ main contention is that subdivision 27 of article 1995 does not apply to a foreign corporation with a permit to do business in Texas. They argue that a foreign corporation with a permit to do business within the state is entitled to the same rights and privileges as a domestic corporation for venue purposes, thus making subdivision 27 inapplicable, or, alternatively, requiring proof of a cause of action against it when venue is attempted solely on the basis of there being an agent or representative in the county in which the suit is filed.

Article 1995, Tex.Rev.Civ.Stat.Ann., establishes the venue rule in Texas civil cases. The general rule established by article 1995 is that an individual who resides in Texas is entitled to be sued in the county of his domicile except in certain instances as set out in the various subdivisions of article 1995.

The appellants in this case are foreign corporations, each with a permit to do business within this state. Article 8.01, Tex. Bus.Corp.Act Ann., states in part that a foreign corporation may not transact business within Texas until it has received a permit to do so. Article 8.02, Tex.Bus.Corp. Act Ann. (Supp.1979), in setting forth the powers of a foreign corporation with a permit to do business within the state provides in part that such corporations shall “enjoy the same, but no greater rights and privileges as a domestic corporation . . . .” Appellants argue that the language of article 8.02 thus “domesticates” foreign corporations with permits to do business in Texas insofar as the venue statutes are concerned.

Two Texas cases have dealt with article 8.02, or legislation similar to it, and its impact on the venue statutes. Fireman’s Fund Insurance Company v. McDaniel, 327 S.W.2d 358 (Tex.Civ.App.—Beaumont 1959, no writ) ; Coca Cola Co. v. Allison, 52 Tex.Civ.App. 54, 113 S.W. 308 (1908, no writ). Both cases held that article 8.02, and legislation similar to it, were intended only to put a foreign corporation with a permit to do business within the State of Texas upon the same ground as domestic corporations in various business dealings, and thus had no effect on the venue statutes. If appellants’ contention were upheld, we would require stricter venue proof against such corporations than is required under subdivision 27. We hold that subdivision 27 sets forth the venue rules for foreign corporations doing business in the State of Texas. Appellees, in order to maintain venue in Brazoria County, need only show that appellants are foreign corporations doing business in this state and that each had an agent or representative in Brazoria County, Texas. Mobil Oil Corporation v. Cook, 494 S.W.2d 926 (Tex.Civ.App.—Amarillo 1973, no writ); Hanover Insurance Company v. Sanford, 457 S.W.2d 115 (Tex.Civ.App.—Beaumont 1970, no writ); Pacific Finance Corporation v. Ramsey, 305 S.W.2d 297 (Tex.Civ.App.—Waco 1957, no writ).

It is clearly established that each of the appellants before this court is a foreign corporation with a permit to transact business within the state. Phillips in its brief stated that it had an agent or representative in Brazoria County, Texas at all relevant times. Amoco, through its operation of the Old Ocean Plant and its designation as unit operator of the Old Ocean Field and Unit in Brazoria County, also has had an agent or representative in Brazoria County at all relevant times. Mobil denies that it has an agent or representative in Brazoria County. However, by virtue of the Unitization Agreement between all parties in the suit below, the record contains sufficient evidence for the trial court to have concluded that Amoco had been, at all relevant times, Mobil’s agent in Brazoria County.

The trial court could have reasonably concluded that appellees met all of the necessary venue requirements set forth in subdivision 27, article 1995 to maintain suit in Brazoria County, Texas. The trial court properly overruled appellants’ pleas of privilege.

The order of the trial court is affirmed.

Affirmed.

      . The holding in McDaniel regarding the constitutionality of subdivision 27 has been disapproved in Commercial Insurance Company of Newark, New Jersey v. Adams, 369 S.W.2d 927 (Tex.Sup.1963).


author: SALAZAR, Justice.

text:
    The CITY OF KATY, Texas, Appellant, v. Reverend Harrol L. WATERBURY, Appellee.
    No. A1997.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 2, 1979.

      Barnet B. Skelton, Price & Skelton, Houston, M. J. Dunlap, Jr., City Atty., David Frishman, Asst. City Atty., Katy, for appellant.
    Martin B. Beirne, Jeffrey R. Parsons, Fulbright & Jaworski, Houston, for appel-lee.
    Before MILLER, PAUL PRESSLER and SALAZAR, JJ.
   SALAZAR, Justice.

Appellant-defendant, The City of Katy, Texas, has appealed from a jury trial granting appellee a permanent injunction and damages. Appellee-plaintiff, Rev. Harrol L. Waterbury, had sought a temporary restraining order, a temporary injunction and a permanent injunction to enjoin appellant, The City of Katy, from constructing or using a roadway across his property. The trial court denied the temporary injunction and on appeal, this decision was affirmed in Waterbury v. City of Katy, 541 S.W.2d 654 (Tex.Civ.App.—Eastland 1976, no writ). Appellant now appeals from an adverse jury trial on the merits of the permanent injunction.

Appellee was deeded the property at issue in 1969, namely the North One-Half of Block Three of the North Thomas Addition to the Town of Katy. The subject matter of this suit is the area along the northern part of appellee’s property more commonly known as Seventh Street. By July, 1975, the City of Katy had completely opened up Seventh Street and kept it in use throughout the trial.

A previous property owner in appellee’s chain of title had made a dedication of the streets to the use of the public forever of the subdivision which included Seventh Street in the plats of 1907 and 1910. At trial, appellee urged that this dedication of Seventh Street and other streets was revoked by said property owner and cancelled by an order of Commissioners Court of Harris County, Texas, entered on April 9, 1912. Appellant defended the suit for injunction contending that Seventh Street was an irrevocably dedicated street and therefore, the City of Katy had rightfully constructed a road thereon.

The jury in the charge of the court was instructed that the 1912 order of Commissioners Court cancelled the dedication of said streets including Seventh Street but that such order did not preclude a subsequent dedication of such streets. In its answers to six special issues, the jury found that the owners of the property in question did not intend to dedicate a portion of Seventh Street when the land was deeded into the Waterbury family in 1940 nor was there any subsequent intention to dedicate throughout the chain of title down to appel-lee himself. The jury awarded appellee $8,000.00 in exemplary damages and $2,390.00 in damages for the fair market lease value of the converted property. Appellant was then permanently enjoined from trespassing onto appellee’s property in Block Three and from maintaining, using or sanctioning public use of a roadway or right-of-way on Seventh Street. The trial court further adjudged the 1912 Commissioners Court order to release and cancel the dedication of the streets granted in the plats by J. O. Thomas and held that the City of Katy failed to establish any subsequent rededication.

The facts of this case clearly show an irrevocable dedication of Seventh Street by the plats of 1907 and 1910. It is also clear from the transcript and exhibits that subsequent transfers in the chain of title down to appellee himself make reference to the plats. However, there is an intervening Commissioners Court order in 1912 which granted J. 0. Thomas, who had irrevocably dedicated Seventh Street and other streets, a cancellation of this dedication.

Tex.Rev.Civ.Stat.Ann. art. 6705 (1960) details the statutory authority of a commissioners court to discontinue a road and such controls in the present case. Art. 6705 requires all such applications to the commissioners court be signed by at least eight freeholders in the precinct in which such road is desired to be discontinued and that twenty days’ notice be given by posting. The transcript contains a certified copy of a certified copy of the 1912 order. There is no copy of the petition itself to the Commissioners Court nor any other transcript of the 1912 proceedings in the record on appeal. The order recites that the petition of J. O. Thomas came on to be considered for the cancellation of the portion of the plat including Seventh Street and that the same was cancelled and that said streets were discontinued as public roads.

Appellant attacks the legality of this 1912 order. Appellant seeks to do now what it could have only done by direct attack on the order in 1912. Haverbekken v. Hale, 109 Tex. 106, 204 S.W. 1162 (1918), often cited by appellant, is an example of a direct attack on an order of a commissioners court. Such a direct attack permits a full inquiry to see if the commissioners court proceedings complied with the law. Haverbekken v. Hale, 204 S.W. at 1165. Appellant here is making a collateral attack upon the 1912 order more than fifty years after rendition and this may not be done. Hale v. Schraub, 369 S.W.2d 377, 380 (Tex.Civ. App.—Austin 1963, no writ); Luck v. Welch, 243 S.W.2d 589, 591 (Tex.Civ.App.—Fort Worth 1951, writ ref’d n. r. e.). We hold that the 1912 order is valid, cancelling the dedication of Seventh Street and thus we overrule points of error one, two, three, nineteen, twenty, twenty-one, twenty-two, twenty-three and twenty-four.

This cause of action instituted by appellee below, a suit for injunctive relief, is proper. This is not a title suit but one to enjoin appellant from constructing a roadway over appellee’s property. However, without proof of ownership, appellee could not show a taking of property to compel the granting of an injunction. Appellee was required to prove that he owned or, at least, had a property interest in the land, regardless of whether or not it had been formally dedicated to public use. City of Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 712 (Tex.1956); McCarver v. City of Corpus Christi, 155 Tex. 153, 284 S.W.2d 142 (Tex. 1955); McBride v. Aransas County, 304 S.W.2d 450 (Tex.Civ.App.—Eastland 1957, writ ref’d n. r. e.). We overrule points of error four, five, seven, eight, thirty-one and thirty-two.

Appellant complains of the failure of appellee to file the required affidavit and give notice with respect to certified copies of the 1912 order and the deed from appel-lee’s grantor to appellee pursuant to Tex. Rev.Civ.Stat.Ann. art. 3726 (Supp.1978-79). The certified copy of the certified copy of the 1912 Commissioners Court order had already been introduced into evidence in the temporary injunction hearing. The certified copy of the 1969 deed was a document which counsel for appellee had earlier introduced into the records of the court. We find points of error six and nine untenable and they are overruled.

Appellant contends that special issues numbers one, two and three were improperly submitted to the jury. These issues inquired of the intention to dedicate of the various grantors in appellee’s chain of title from the 1940 deed into the Waterbury family down to appellee himself. The jury found that each grantor did not intend to dedicate Seventh Street or any other street by the mere repetitive reference to the plat in each successive deed. Upon reviewing the entire record, we find more than a scintilla of competent evidence to support the submission of special issues numbers one, two and three and furthermore, we find the evidence factually sufficient and not against the overwhelming weight and preponderance of the evidence as to demonstrate any prejudice and passion on the part of the jury. Points of error ten through eighteen are overruled.

Appellant complains that the trial court erred in granting appellee damages for trespass because a municipal corporation cannot be liable for damages for trespass. Appellant engaged in the construction and grading of Seventh Street, a proprietary function. City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753, 755 (Tex. 1960); City of Houston v. Glover, 355 S.W.2d 757, 759 (Tex.Civ.App.—Waco 1962, writ ref’d n. r. e.). Appellant cannot there fore enjoy the same exemption from liability as if it had been engaged in a governmental function. City of Houston v. Glover, 355 S.W.2d at 759. A municipal corporation can be liable for damages to land for injury done measured by the fair market lease value of the converted property as was the case here. Points of error twenty-five and twenty-six are overruled.

Appellant next contends that the trial court committed error in awarding actual and punitive damages because appellant had no actual notice of the 1912 Commissioners Court order. The Commissioners Court had the authority to discontinue roads in any part of Harris County and there has been no showing that notice by posting in the vicinity of Seventh Street pursuant to Tex.Rev.Civ.Stat.Ann. art. 6705 (1960) was not in fact done. Furthermore, the Texas recording statutes, Tex.Rev.Civ. Stat.Ann. art. 6624 et seq. (1969), provide for recordation in the county, not city, records. The certified copy of the certified copy of the 1912 order shows that the 1912 order was recorded in the Harris County records in 1956. We hold that appellant had actual notice of the 1912 order. Points of error twenty-eight, twenty-nine and thirty are overruled.

Addressing point of error number twenty-seven, a municipal corporation such as appellant cannot generally be liable for exemplary damages where there does not appear to be such wilfulness, wantonness, malice or gross negligence committed by it. Moody v. City of Galveston, 524 S.W.2d 583, 590 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ ref’d n. r. e.); Cole v. City of Houston, 442 S.W.2d 445, 451 (Tex.Civ.App. —Houston [14th Dist.] 1969, no writ). The facts have not raised this degree of negligence. The City of Katy is a municipality which except in the most vindictive of circumstances cannot be held liable for exemplary damages. It was error for the trial court to submit special issue number five. Accordingly we reform the trial court judgment to allow appellee recovery only in amount awarded by the jury for the fair market lease value of the land converted by appellant.

Reformed and affirmed.

PAUL PRESSLER, J., not participating.


author: PRESLAR, Chief Justice.

text:
    Fred E. LIBBY, Appellant-Appellee, v. Paul NOEL d/b/a Noel Construction Company, Appellee-Appellant.
    No. 6781.
    Court of Civil Appeals of Texas, El Paso.
    May 2, 1979.
    Rehearing Denied May 30, 1979.

      James A. Mashburn, C. H. Brockett, Jr., Robert R. Truitt, Jr., Midland, for appellee-appellant.
    Jimmie D. Oglesby, Midland, for appellant-appellee.
   OPINION

PRESLAR, Chief Justice.

This suit involves the construction and sufficiency of writings for the sale of real estate under the Statute of Frauds. Suit was brought by Appellant for enforcement of a contract for the purchase-sale of real estate from the Appellee, who counterclaimed for title and possession. Trial was to the Court without a jury, and judgment was rendered awarding Appellee title and possession with a monetary award to Appellant for certain improvements. We reverse in part and affirm in part.

We have concluded that the two instruments in writing relied on here satisfy the Statute of Frauds, and constitute an enforceable contract. The following is one of the instruments involved:

PURCHASE AGREEMENT
Midland, Texas October 6, 1968
The undersigned Purchaser agrees to purchase home at 3600 Godfrey Court, Midland, Texas, from the undersigned Seller, at the following terms:
Pay a total of $651.25 which will cover down payment and the October payment on property.
Assume present loan of approximately 17,700.00 payable, 188.25 per month beginning with the November, 1968 payment.
Negotiate a second note in favor of Seller, amount of $2,650.00, payable 25.00 per month including interest at 8%, first payment, November 6, 1968. Purchaser may have immediate occupancy and Seller agrees replace loose vinyl tile in bath and repair faucet leak in kitchen. & repair bath lav. drain.
Purchaser
s/ Lee Weatherly
for Noel Construction Co.

The other instrument is a promissory note dated October 6, 1968, payable to Noel Construction Company in the amount of $2,650.00 at Midland, Texas, with 8% interest, payable $25.00 per month with the first payment due November 6, 1968, and signed by Fred E. Libby and Bettye A. Libby. This is a printed form note with the blanks filled in, and there is written across the top line of it “3600 Godfrey Ct.”

The Appellee challenges the sufficiency of these writings under the Statute of Frauds which requires that contracts for the sale of real estate be in writing. Tex. Bus. & Comm. Code Ann. sec. 26.01 (Tex. UCC 1968) (Supp.1978-1979). He first questions the sufficiency of the property description. For a contract to be valid and enforceable by a specific performance, it must contain a property description that makes the subject matter to be conveyed identifiable. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945). To be sufficient, the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the land to be conveyed may be identified with reasonable certainty. Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972); Kmiec v. Reagan, 556 S.W.2d 567 (Tex.1977); U. S. Enterprises, Inc. v. Dauley, 535 S.W.2d 623 (Tex.1976); Williams v. Ellison, 493 S.W.2d 734 (Tex. 1973). The reference to 3600 Godfrey Court may be in itself sufficient since the evidence is that there was no other house or home on that property. Hoover v. Wukasch, 152 Tex. 111, 254 S.W.2d 507 (1953). More important to our decision is the fact that the purchase agreement refers to the assumption of the present loan, and papers from that loan record are in evidence showing the complete legal description of the property involved. Morrow v. Shotwell, supra; Kmiec v. Reagan, supra. Additionally, Appellant went into possession of the property immediately, and has been in possession for some ten years with no question but that this was the property intended to be conveyed. The highest evidence of intention can be found in the practical construction placed upon a contract by the parties themselves. Lone Star Gas Co. v. X-Ray Gas Co., 139 Tex. 546, 164 S.W.2d 504 (1942).

Appellee argues that the two instruments cannot be construed together and therefore the purchaser is not named since only the seller signed the purchase agreement. We overrule this contention because the instruments are to be construed together, the identity of the parties involved has been known for ten years, and because of the testimony of the Appellee; on trial, he identified the purchase agreement and note and testified fully to the intent of the parties that there would be a purchase-sale under the terms listed in the purchase-sale agreement; that the purchaser would receive immediate possession; and when the conditions of the note and purchase agreement were met, the purchaser would receive clear title to the property. He is in no position to now contend that the purchase agreement and the promissory note were two different transactions. Also, both instruments refer to 3600 Godfrey Court, and one describes the other in detail; the reference to each other permits this joint construction. Owen v. Hendricks, 433 S.W.2d 164 (Tex.1968).

Additionally, the two instruments must be construed together because they were executed at the same time between the same parties and relate to the same subject matter. Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62 (1959); Foster v. Bullard, 554 S.W.2d 66 (Tex.Civ.App.—Austin 1977, writ ref’d n.r.e.).

This being a valid purchase-sale agreement, Appellant is entitled to specific performance upon compliance with its terms. The proof shows that he has made all the payments to date on the assumed note to the savings and loan association. He stayed one month behind on his payments on that note for a long period of time, but no attempt was made to foreclose it and he was current at the time of trial. As to the note from Appellant to Appellee payable $25.00 per month, the proof shows that Appellant had made some 54 payments but was two years delinquent when these proceedings were started. At the time of trial, Appellant had paid into the Registry of the Court the balance of principal and interest on that note in the amount of $2,618.25. . There are no foreclosure provisions in that note, and additionally, the Appellee testified that he was sympathetic to family trouble that the Appellant was having and had told him that he “would not lean on him;” that he would be willing to wait a reasonable length of time for this $25.00 a month and wouldn’t pressure him, but he would have to get the savings and loan payments current and keep them that way; and that he would work with him, and he could pay whenever he could on the $25.00 a month note. Clearly any right of foreclosure for delinquency was waived by this action.

Since the 1968 inception of this contract, there have been several insurance claims paid to Appellee which Appellant contends are rightfully his since he paid the insurance premiums. The trial Court awarded these to Appellee, and, in the absence of findings of fact and conclusions of law, it must be presumed it found the facts to be that Appellee was entitled to such insurance claims. Appellant does not attack this award on the basis of the sufficiency of such evidence and his point of error regarding such funds is overruled.

The trial Court awarded the Appellant $3,000.00 for improvements made on the property and title to the $2,618.25 in escrow with the Court. Those awards are reversed since Appellee does not get title to the property under our holding.

We reverse the judgment of the trial Court awarding title and possession of the property to Appellee and hold that Appellant is entitled to specific performance. This means that Appellee is entitled to the $2,618.25 in escrow for the $25.00 per month note, and Appellant must satisfy the first mortgage note to the savings and loan association.

The judgment is reversed as to the award of title in Appellee and as to the $3,000.00 award to Appellant, and it is affirmed as to the award of insurance proceeds to Appel-lee.


author: HUGHES, Justice.

text:
    Pat HOLLOWAY, Appellant, v. Walter C. DANNENMAIER, Appellee. William H. HOLLOWAY, Appellant, v. Walter C. DANNENMAIER, Appellee.
    Nos. 18084, 18168.
    Court of Civil Appeals of Texas, Fort Worth.
    May 3, 1979.
    Rehearing Denied June 7, 1979.
    Small, Craig & Werkenthin and Jim Als-up, Austin, for Pat Holloway and William H. Holloway.
    Thomas L. Kolker, Austin, for Walter C. Dannenmaier.
   OPINION

HUGHES, Justice.

Pat Holloway and William H. Holloway, landlords, have appealed the denial of their pleas of privilege to be sued in their county of residence, Harris County. Each had been sued by Walter C. Dannenmaier, tenant, for return of a security deposit held by them in connection with his lease of an apartment from them in Travis County. The'separate numbered appeals of Pat and William have been consolidated.

We reverse and render.

Tenant sued landlords on two counts and is seeking recovery on both. First, he seeks recovery under Tex.Rev.Civ.Stat.Ann. art. 5236e (1973) which provides for recovery against a landlord who in bad faith retains a security deposit after a tenant has vacated.

Second, tenant sued landlords under Tex. Bus. & Comm. Code. Ann. §§ 17.50, 17.46(a) and 17.46(b)(12) (Supp. 1978), for (a) “False, misleading, or deceptive acts or practices in the conduct of any trade or commerce .”, in (b)(12) representing that an agreement “confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law”.

It is undisputed that: Tenant and landlords entered into a lease agreement in writing. Landlords own the property leased. Tenant deposited $175.00 with landlords under lease terms for security deposit. No written itemization of damages was received by tenant as to why the deposit was kept. Tenant left a forwarding address when he left. Tenant understood from landlords that “the security deposit was against damages on the place.”

Tenant pleaded bad faith on the part of landlords in failing “to return or itemize damage deductions from a security deposit”, as the basis of his first cause of action.

For his second cause of action, tenant pleaded “that defendants’ representations in the lease that plaintiff’s deposit would only be retained until he vacated the premises deceived plaintiff into believing he had said right.” He alleged that such “misrepresentation” constituted a deceptive trade practice.

Tenant claims to have alleged a deceptive trade practice herein. Landlords say he has failed to allege any facts which fall under Tex. Bus. & Comm. Code Ann. § 17.56, (Supp. 1978).

The part of the lease pertinent to this controversy reads:

“3. The Tenant agrees to deposit with the Owner a sum equal to one month’s rent or $175.00 said deposit to be retained until termination of the tenancy or this lease expires. This sum or a portion thereof will be applied against damage to the demised premises or its contents. “4. The Owner shall be entitled to retain any part of or all of the said deposit necessary to cover the cost of cleaning, repairs or replacements of any damages or losses of property or items, including light bulbs, covered by this contract. Tenant will return all keys to the premises or forfeit the entire deposit.
“5. The Owner or his representatives shall have the right to enter and inspect the demised premises at any time during this agreement without being liable to prosecution or cause of action for damages, with effecting the obligation of this agreement.
“6. The Tenant agrees to pay for the cost of repairs, when damage results from mis-use or neglect, including stoppages in commode or sink.”

Tex.Rev.Civ.Stat.Ann. art. 5236e (1973) provides, in effect, additional provisions to all contracts such as this which obligate landlords to refund security deposits within thirty days after tenant surrenders the premises. § 2(a). It also provides that landlords shall account in a written list for damages to property charged against the security deposit. § 3(a).

In alleging landlords’ failure to return the deposit or provide the written list within thirty days, has tenant alleged a deceptive trade practice under § 17.56, supra? Has he alleged a “claim to relief” under § 17.50, supra?

Let us suppose that: Tenant, when he vacated the apartment, left a forwarding address where he could expect to receive his security deposit refund or a written list of damages in lieu thereof within thirty days. Landlords, in apparent disregard of the law and the contract, gave tenant neither the refund nor the written list and by their plea of privilege say “come down to Houston, where we live, to try to collect your $175.00, not in Austin where we did business together.”

Would this not be a clever device to discourage tenants from seeking legal redress for return of withheld security deposits? Yes. Would this be a misrepresentation of rights, remedies, or obligations stated in the contract? No. Although tenant might believe that he could get a refund or a written explanation without going to court for same, he had no more guaranty than any other party to any contract that the same would not be breached. He still has the same rights as spelled out in the contract. As in any breach of contract, he has the right to bring an action to enforce them. His own testimony reflects that he knew the security deposit could be retained for damages to the property.

Usually mere failure to later perform a promise does not constitute misrepresentation. Stone v. Enstam, 541 S.W.2d 473 (Tex.Civ.App.—Dallas 1976, no writ). We note that the tenant failed to allege or attempt to prove that the landlords’ failure to return the security deposit or an accounting thereof was part of some continuing practice or scheme. Further, there is no allegation or proof that the landlords never intended to refund the deposit at the time the obligation to do so was made. We assume, without deciding, such allegation and proof might state a cause of action for deceptive trade practices.

Tex.Rev.Civ.Stat.Ann. art. 1995(5) (1973) provides:

“5. Contract in writing. — (a) Subject to the provisions of Subsection (b), if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.
“(b) In an action founded upon a contractual obligation of the defendant to pay money arising out of or based upon a consumer transaction for goods, services, loans, or extensions of credit intended primarily for personal, family, household or agricultural use, suit by a creditor upon or by reason of such obligation may be brought against the defendant either in the county in which the defendant in fact signed the contract, or in the county in which the defendant resides at the time of the commencement of the action. No term or statement contained in an obligation described in this subsection shall constitute a waiver of this provision.” (Emphasis ours.)

If the trial court’s overruling of the plea of privilege is to be sustained we will have to do so by applying the written contract to Subd. 5, supra. We find no comfort for tenant in such an application.

While testimony reveals that the contract was signed in Travis County and the contract itself describes the property demised as being in Travis County, the particular obligation sought to be enforced, refund of the security deposit, does not have the place of performance of such refund in writing. Even the principal case cited by tenant says the obligation may be inferred, but the place where it is to be performed must be expressed in writing. (Emphasis ours.) Ed Rachal Foundation v. Texas Oil and Gas Corp., 561 S.W.2d 33, 34 (Tex.Civ.App.—San Antonio 1978, writ dism’d). Many cases hold that for Subd. 5 to apply, the written contract must expressly require performance in a particular county. Heath v. Gilbreath, 536 S.W.2d 404 (Tex.Civ.App.—El Paso 1976, no writ); General Motors Corporation v. Brady, 477 S.W.2d 385 (Tex.Civ.App.—Tyler 1972, no writ).

We sustain points of error numbers 1, 4, 5 and 6.

We reverse the order of the trial court overruling landlord’s plea of privilege and order that both cases be transferred to a proper court in Harris County.


author: SHANNON, Justice.

text:
    TEXAS HEALTH FACILITIES COMMISSION et al., Appellants, v. NUECES COUNTY HOSPITAL DISTRICT, d/b/a Memorial Medical Center, Appellees.
    No. 12972.
    Court of Civil Appeals of Texas, Austin.
    May 9, 1979.
    Mark White, Atty. Gen., Carla J. Cox, Asst. Atty. Gen., Austin, for Texas Health Facilities Commission.
    Fred E. Davis, David M. Davis, Davis, Davis & Sharp, Austin, for Spohn Hospital of Corpus Christi.
    Duane F. Emmert, McGinnis, Lochridge & Kilgore, Austin, for appellee.
   SHANNON, Justice.

Appellants Texas Health Facilities Commission and Spohn Hospital appeal from the judgment of the district court of Travis County that reversed an order of appellant Commission. The Commission’s order denied the application of appellee Nueces County Hospital District, doing business as Memorial Medical Center of Corpus Christi, for a certificate of need authorizing the purchase and installation of a computerized tomographic whole body scanner. In another order the Commission granted the application of appellant Spohn Hospital for a certificate of need authorizing the purchase and installation of a similar scanner.

Spohn filed its application with the Commission in April, 1977, to purchase a scanner to be placed and operated in its hospital in Corpus Christi. Memorial filed its application in May, 1977, for a scanner to be placed and operated at its hospital, also located in Corpus Christi. The Commission joined the applications as “potentially competing applications” pursuant to Commission Rule 902(c) and considered the applications in a single hearing.

After entry of the Commission’s orders, Memorial filed an administrative appeal in the district court of Travis County in which it attacked both the order approving Spohn’s application and the order denying its own application. Pursuant to Spohn’s motion, the district court severed that part of the administrative appeal complaining of the approval of Spohn’s certificate from the part complaining of the denial of Memorial’s certificate. The district court then entered judgment affirming the Commission’s approval of Spohn’s certificate. That judgment has been affirmed by this Court. Nueces County Hospital District v. Texas Health Facilities Commission, 576 S.W.2d 908 (Tex.Civ.App.1979, no writ).

In the instant cause, the district court entered judgment reversing the Commission’s denial of Memorial’s application for a certificate to obtain and operate the scanner. More specifically, the district court concluded in its judgment that there was “. . . adequate evidence of record on which a decision [by the Commission] could be made to grant a certificate of need, but a lack of evidence on which a decision could be made to deny a certificate of need.” The district court ordered the cause remanded to the Commission for future consideration, limited to the record previously made before the Commission. It is that judgment now under consideration in this appeal.

With respect to the cause complaining of the denial by the Commission of Memorial’s application, the district court’s task was to determine from the record whether the evidence so conclusively required an affirmative finding of need for a scanner at Memorial that the failure of the Commission to make that finding was arbitrary or capricious. Upon appeal, the important issue for review is whether the district court correctly determined that the failure of the Commission to approve Memorial’s certificate was arbitrary or capricious.

An appeal from an order of the Commission is governed by the substantial evidence rule. Nueces County Hospital District v. Texas Health Facilities Commission, supra. Memorial, as applicant, had to produce evidence in the agency hearing showing a need in the community for a scanner at its hospital. Memorial introduced such evidence. Because the Commission refused its application, it was Memorial’s burden on administrative appeal to demonstrate that the Commission’s refusal to make a finding of need for the scanner was arbitrary or capricious. Gerst v. Cain, 388 S.W.2d 168 (Tex.1965). In our opinion Memorial met that burden.

Many witnesses testified that two scanners were needed in order to properly serve the community. Several witnesses for the competing applicant admitted the need for two scanners. All of the medical witnesses who were questioned concerning the subject testified that indeed two scanners were needed. No witness testified that only one scanner was needed. There was no testimony that either hospital would be adversely affected by the placement of a scanner at both hospitals. The evidence in the agency record is overwhelming that two scanners are needed. Based upon that record, reasonable minds could not have reached the conclusion that there was no need for a scanner to be placed at Memorial. Auto Convoy Company v. Railroad Commission of Texas, 507 S.W.2d 718 (Tex.1974).

In defense of its order the Commission argues that “[wjhile the evidence in the record may appear on its face to support the need for two CAT scanners, the Court must consider that the Commissioners and their staff are given the authority to utilize their special skills and knowledge in evaluating the evidence presented before them.” (Emphasis added). In response to the Commission’s argument, it is fair to observe that whatever agency expertise the Commission may have brought to bear in this case remains a secret from the parties and the reviewing courts. This is so since the Commission’s findings are silent as to the role played by such “special skill and knowledge” in the Commission’s evaluation of the evidence. A valid exercise of agency expertise, like other agency action, must find support in substantial evidence in the record made before the agency.

The discretion conferred on the Commission by the Texas Health Planning and Development Act, Tex.Rev.Civ.Stat. Ann. art. 4418h (1976), to grant or refuse applications is not an unbridled discretion; its findings may not be arbitrary or capricious, but must have support in substantial evidence. Gerst v. Nixon, supra.

Texas Rev.Civ.Stat.Ann. art. 6252-13a § 19(e) empowers the reviewing court, among other things, to reverse an agency order for error and remand the cause to the agency for further proceedings. By the terms of its judgment, the reviewing court may limit the scope of its remand to the agency. First Savings & Loan Ass’n of Del Rio, Tex. v. Lewis, 512 S.W.2d 62 (Tex.Ciy. App.1974, writ ref’d n. r. e.).

In the case at bar, the district court ordered the cause remanded to the agency for further consideration, limited to the record previously made before the Commission. There was no error in the limitation of the scope of remand to the Commission. First Savings & Loan Ass’n of Del Rio, Tex. v. Lewis, supra.

The judgment is affirmed.


text:
    Norma Jean Stokes COLBERT, Appellant, v. Samuel Lynn STOKES, Appellee.
    No. 12980.
    Court of Civil Appeals of Texas, Austin.
    May 9, 1979.

      D. Keith Woodley, Sudderth, Woodley & Dudley, Comanche, for appellant.
    Gerald R. Ratliff, Ratliff & Edwards, San Angelo, for appellee.
   SHANNON, Justice.

This is an appeal from a judgment modifying a previous divorce decree pursuant to Tex.Family Code Ann. § 14.08 (Supp.1978).

Appellee Samuel Lynn Stokes filed a motion in June, 1978, in the district court of Tom Green County to modify a divorce decree entered by that court in December, 1971. By his motion appellee sought appointment as managing conservator of his two minor children, Christina Rene Stokes, age ten, and Michael Douglas Stokes, age seven. Appellee requested that his former wife, appellant Norma Jean Stokes Colbert, be removed as managing conservator and appointed possessory conservator with reasonable visitation rights.

After trial to a jury, judgment was entered by the district court appointing appel-lee managing conservator and appellant possessory conservator. We will affirm that judgment.

The court’s charge contained one special issue: “Do you find from a preponderance of the evidence that since the former judgment or Order granting custody of the minor children to [appellant], there has occurred such a material and substantial change of circumstances or conditions that the retention of the present managing conservator [appellant] would be injurious to the welfare of the children and that the appointment of [appellee] as managing conservator would be a positive improvement for the children?” No objection was made to the manner in which the issue was framed. The jury answered the issue affirmatively.

Appellant attacks the judgment by points of error claiming that there is no evidence or, alternatively, insufficient evidence to support the jury’s answer to the special issue.

In considering a “ho evidence” point, the reviewing court must reject all evidence contrary to the jury’s findings and consider only the facts and circumstances which tend to support those findings. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950). In reviewing factual sufficiency points of error, the court considers all of the evidence to determine whether the findings are so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Texas Family Code Ann. § 14.08 (Supp. 1978) empowers the court having jurisdiction of a suit affecting the parent-child relationship to modify, after hearing, an order appointing a managing conservator if:

“(c) . . .
(1) . . . the circumstances of the child or parent have so materially and substantially changed since the entry of the order or decree to be modified that the retention of the present managing conservator would be injurious to the welfare of the child and that the appointment of the new managing conservator would be a positive improvement for the child. ...”

Several months after entry of the order appointing appellant managing conservator, appellant married Joe Colbert. She later divorced and remarried Colbert. In February, 1978, she and Colbert lived in Brownwood, Texas. During that month, appellant left Colbert and took the children to Panama City, Florida. She made no effort to notify Colbert or appellee where she or the children might be reached. There was evidence from which the jury could have believed that appellant and the children lived in a trailer house in Panama City with a married man from Brownwood, David Miller. After several weeks in Florida, appellant and the children returned to Texas where she and the children took an apartment in Comanche. There was evidence from which the jury could have concluded that David Miller lived with appellant and the children in the apartment. Appellant was divorced from Colbert for the second time in June, 1978.

After appellant and appellee were divorced, appellee married his present wife, Shiela Ruth Stokes. Mrs. Stokes has two children by previous marriages, and she and appellee have one child, a five-year old daughter. Appellee and his family live in San Angelo, and he works for Southwestern Life Insurance. He and Mrs. Stokes own a comfortable home. The Stokes family attends the First Christian Church where appellee is a deacon. There was evidence from which the jury could have concluded that the Stokes were responsible, loving parents and could provide Christina and Michael with a stable, wholesome home life.

Under appellant’s no evidence point, the argument is limited to the claim that appel-lee failed to prove that the circumstances of the child or parent had materially and substantially changed since entry of the December, 1971, order. Appellant states the law to be: “[tjhere must be some evidence of probative force showing a material and substantial change of circumstances which occurred between the date of the last order and the date Appellee filed his petition. O’Dell v. Brame, 517 S.W.2d 920 (Tex.Civ. App., 1974, n. w. h.), Bukovich v. Bukovich, 399 S.W.2d 528 (Tex.Sup.Ct., 1966), Watts v. Watts, supra [563 S.W.2d 314 (Tex.Civ.App. 1978, writ ref’d n. r. e.)].” Appellant emphasizes that appellee introduced no evidence showing the circumstances of the children or either parent at the time of the divorce or at the time of any prior order. Appellant then argues that without such evidence, the fact finder could not conclude that there had been a material change of circumstances with respect to the children or either parent so as to permit a modification of the prior order. Watts v. Watts, supra.

Rejecting all evidence contrary to the jury’s answer and considering only the facts and circumstances that tend to support that answer, we are of the opinion that there is some evidence that the circumstances of the managing conservator, appellant, and of the children have so materially and substantially changed since the entry of the order to be modified that retention of appellant as managing conservator would be injurious to the welfare of the children and that the appointment of appellee would be a positive improvement for the children. Appellee proved that appellant married Joe Colbert in the spring of 1972. She later divorced Colbert and then remarried him. In February, 1978, she left her husband, Colbert, and took the Stokes children to live with another man, David Miller. Appellant and Colbert were again divorced in June, 1978.

It is plain that appellant’s conduct, outlined above, occurred subsequent to the entry of the original order. It is equally manifest that such conduct constituted a material and substantial change of conditions that affected appellant’s situation and the Stokes children’s interests. Wallace v. Fitch, 533 S.W.2d 164 (Tex.Civ.App.1976, no writ).

From the evidence the jury could have concluded that the existing parent-child relationship was not a proper one and that appellant’s parental ability was, at best, questionable. The jury was entitled to consider- the stable, wholesome home life offered by appellee and his family for Christina and Michael in contrast to appellant’s erratic course of conduct and pattern of life.

In reviewing appellant’s insufficient evidence points of error, this Court has considered all of the evidence and has concluded that the jury’s answer is not so against the great weight and preponderance of the evidence as to be manifestly unjust.

All of appellant’s points are overruled and the judgment is affirmed.

Affirmed.


author: COULSON, Justice.

text:
    The STATE of Texas, Appellant, v. Hugo A. TOUCHY, Appellee.
    No. B2065.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 9, 1979.
    Rehearing Denied May 30, 1979.
    Mark White, Michael E. Stork, Asst. Atty. Gen., Austin, for appellant.
    John W. O’Dowd, Houston, for appellee.
    Before J. CURTISS BROWN, C. J., and CIRE and COULSON, JJ.
   COULSON, Justice.

The State of Texas filed this mandamus action to compel Judge Hugo Touchy, judge of the County Court at Law No. 3, Harris County, to comply with article 3266 § 7, Tex.Rev.Civ.Stat.Ann. This statute requires that in eminent domain cases, if no objections to the decision of the commissioners are timely filed,

the County Judge shall cause said decision to be recorded in the minutes of the County Court, and shall make the same the judgment of the court and issue the necessary process to enforce the same.

This case arose from the condemnation of a piece of property owned by Charles E. Marquart. The special commissioners awarded Marquart the sum of $18,000 as compensation, and this decision was filed with the county judge on July 12, 1976.

Marquart filed his objections to the award on August 9,1976. The State moved for judgment on the ground that the objections were required to be filed on August 2, and therefore were not timely filed. The trial judge, after considering the motion and Marquart’s motion in opposition, declined to enter the decision of the commissioners as the judgment of the court. The State then filed a petition for mandamus in the 190th District Court, which petition was denied. This appeal followed.

A decision in this case involves the interpretation of article 3266 § 6, Tex.Rev.Civ. Stat.Ann. The section reads as follows:

If either party be dissatisfied with the decision, such party may, on or before the first Monday following the 20th day after the same has been filed with the county judge, file his objection thereto in writing, setting forth the grounds of his objection, ... In computing the period of time prescribed or allowed by this Subdivision, the last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a legal holiday.

The decision of the commissioners was filed on July 12, 1976. The twentieth day after this was Sunday, August 1. Appellant contends that the first Monday following this twentieth day was August 2, and that any objections filed after such date were untimely. Appellee urges that since the twentieth day was a Sunday, it was not to be counted, that the following day, Monday, August 2, became the twentieth day, and that the first Monday following that day was August 9. Appellee contends that therefore the objections were timely filed. We agree.

As originally, enacted, article 3266 contained no enlargement provision, and the supreme court held in 1962 that Rule 4, Tex.R.Civ.P., did not apply to eminent domain statutes. Rayburn v. State, 163 Tex. 450, 356 S.W.2d 774 (1962). Subsequently the article was amended to include a computation provision identical to that in Rule 4.

The significant phrase in this provision is “the period so computed”. Appellant urges that this phrase refers to the twenty day period plus the Monday following, and that since the said Monday, August 2, was not a legal holiday, the enlargement provision did not become operative in this case. We hold that this language refers to the twenty day period exclusive of the first Monday following. This is a logical interpretation, for the reason that the final sentence provides for the last day of this period to fall on Saturday or Sunday. If appellant’s interpretation were correct, the inclusion of the language, “unless it is a Saturday, Sunday or legal holiday” (emphasis added) would be meaningless, because the first Monday following could never fall on a Saturday or a Sunday, though it could fall on a legal holiday. It is presumed that the legislature intended every word used in a statute to be given effect. Perkins v. State, 367 S.W.2d 140 (Tex.Sup.1963). Our interpretation is in harmony with this maxim, since the last day of the twenty day period could fall on a Saturday, Sunday, or a legal holiday, thus giving meaning to all three possibilities, rather than just one.

Appellant suggests a situation in which the twentieth day after the decision is filed falls on a Thursday, with the following Monday being a legal holiday. In such a case, under our interpretation, the enlargement provision would not operate, since “the last day of the period so computed” is not a Saturday, Sunday, or legal holiday. Therefore the objections would be due on the first Monday following, a day when the courthouse is closed. Appellant suggests that this is contrary to the intent of the legislature, which was to assure that the objections were due on a day when the objecting party had access to the courthouse.

Appellant contemplates a situation in which the day on which action is due falls on a legal holiday. This is neither the circumstances treated by the statute nor the case before us. Our case, and the one to which the statute properly applies, is one in which the last day of a specified intermediate period (the period “so computed”) falls on a legal holiday, with the action being due on a particular day following such period. Where legislative intent is supposed rather than expressed, and the statute is not ambiguous, our duty is to interpret the language of the statute as written, and we will not speculate about .a fact situation, such as the one appellant suggests, which is not before us.

Accordingly we hold that the objections filed by Marquart were timely and the trial judge was not under a ministerial duty to enter the commissioners’ award as the judgment of the court.

Judgment of the trial court is affirmed.

CIRE, J., not participating.


author: J. CURTISS BROWN, Chief Justice.

text:
    J. E. FELLER, Individually, d/b/a Programmed Security Corporation, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee.
    No. B2073.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 9, 1979.
    Murray L. Lieberman, Joseph D. Hill, Houston, for appellant.
    William T. Schiffman, Urban & Coolidge, Houston, for appellee.
    Before J. CURTISS BROWN, C. J., and COULSON and CIRE, JJ.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from a summary judgment rendered for Southwestern Bell Telephone Company (Bell) in the suit on an open account against J. E. Feller (Feller), individually and d. b. a. Programmed Security Co. (Programmed Security).

Bell originally filed suit on a sworn account under rule 185, Tex.R.Civ.P., against Feller, individually and d. b. a. Programmed Security Co., but since Bell’s Third Amended Petition was not sworn as required by rule 185, this was not a sworn account case. Nevertheless, Feller responded by a sworn denial in his Third Amended Answer, in which he contested the validity of the account; claimed the statute of limitations barred Bell’s suit; and also claimed to be a stranger to the transaction forming the basis of Bell’s suit. Concurrent with filing its Third Amended Petition, Bell filed a motion for summary judgment accompanied by affidavits and other summary judgment evidence. Feller did not respond to the motion for summary judgment, although sequentially his Third Amended • Answer to Bell’s petition was filed subsequent to Bell’s motion for summary judgment. The trial court granted Bell’s motion for summary judgment and appeal is from that judgment.

Feller contends that by his Third Amended Answer genuine issues of fact were presented to the trial court on whether the statute of limitations barred the suit and whether Feller was a stranger to the transaction. From Feller’s answer it is apparent that, as to the latter ground, Feller sought to defend on the ground that the statements of the account filed by Bell listed Programmed Security Corporation as the account debtor; that Feller was not personally listed on the statement; and that Feller had never done business as Programmed Security Company. We agree with Feller that under Bell’s summary judgment evidence there would have been a fact issue on whether Feller was liable on the account or was a stranger to the transaction. Aztec Pipe & Supply Co. v. Sundance Oil Co., 568 S.W.2d 401 (Tex.Civ.App.—Houston [1st Dist.]), writ ref’d n. r. e. per curiam, 576 S.W.2d 780 (Tex.Sup.1978). However, as Bell maintains, this was not a sworn account, nor was a summary judgment obtained based on a prima facie sworn account pursuant to rule 185. As a result, the principles addressed in Aztec are not applicable to this case. The summary judgment in this case was subject to the provisions of rule 166 — A, Tex.R.Civ.P., which requires a party moving for summary judgment to “state the specific grounds therefor . ” and further mandates that “[ijssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”

As we construe that portion of rule 166-A, the nonmoving party is now required to make some response to the motion for summary judgment, and in that response must bring fact issues to the attention of the trial court as a predicate to relying on those issues on appeal as grounds for reversal. To effectuate that purpose, “answer” as used in the rule must be interpreted to.be an answer in response to the motion for summary judgment rather than an answer generally filed by a defendant in response to a petition.

Appellant Feller does not disagree with the above construction, but advances the argument that his Third Amended Answer was actually in response to the motion for summary judgment. He urges that his answer was misnamed and that under rule 71, Tex.R.Civ.P., his Third Amended’ Answer should be considered as a response to Bell’s motion for summary judgment rather than an answer to Bell’s Third Amended Petition. Rule 71, which states that if a party has “mistakenly designated any plea or pleading, the court, if justice so requires, shall treat the plea or pleading as if it had been properly designated . . .” (emphasis added), is not applicable in this case because it is readily apparent from the face of Feller’s Third Amended Answer that in fact it was a sworn denial directed to Bell’s Third Amended Petition, and therefore that it was not mistakenly designated.

Since Feller neither responded to the motion for summary judgment nor specified fact issues for the trial court, no issues have been preserved for the purposes of this appeal.

We affirm the judgment of the trial court.

Affirmed.

CIRE, J., not participating.

      . Bell’s original suit also included a claim for attorney’s fees, but that portion of the suit was severed by the trial judge when the motion for summary judgment was granted.

      . The Supreme Court in Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540, 545 (Tex.Sup.1977), has established that pleadings, even if sworn, are not summary judgment evidence.

      .It is less clear that a fact issue would have been presented on the defense that Bell’s suit is barred by the statute of limitations since that is an affirmative defense, and Feller would have the burden of raising a fact issue to avoid a summary judgment. Zaie Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.Sup.1975).