text:
    J. D. WORTHEY, Appellant, v. FIRST STATE BANK, MILFORD, Texas, Appellee.
    No. 5907.
    Court of Civil Appeals of Texas, Waco.
    Oct. 26, 1978.

      Glenn Hausenfluck, Hausenfluck & Gan-dy, Fort Worth, for appellant.
    Don Hancock, Milford, for appellee.
   HALL, Justice.

This is an appeal from a summary judgment in favor of the payee on a promissory note.

First State Bank, Milford, Texas, brought this suit against appellant J. D. Worthey and also against J. Dale Edwards to recover on a promissory note in the principal sum of $8,000.00. The note is signed by Worthey and Edwards as “principals” on lines marked “borrower(s),” and Bank is payee. Wor-they’s signature precedes Edwards’s on the face of the note. However, Bank alleged that Edwards was maker of the note and that Worthey “indorsed said note and agreed to guarantee payment thereof.” Worthey answered Bank’s suit with a general denial and a special denial that he was an indorser or guarantor on the note. He alleged that he was the original maker on the note; that he executed it to plaintiff in exchange for $8,000.00, as evidenced by the terms of the note; that he never received any money from plaintiff; and that the note has failed for want of consideration. Worthey also alleged that after he signed the note Bank altered it to show that Edwards was the principal borrower rather than he. Additionally, Worthey filed a cross action against Edwards for contribution in the event Bank recovered judgment against him.

Eventually, on Bank’s motion, summary judgment was rendered in favor of Bank against both defendants jointly and severally for $8,000.00 principal on the note, plus interest and attorney’s fees. Worthey’s cross action against Edwards was severed from Bank’s action, and Worthey brought this appeal. Edwards did not appeal.

Summary judgment is proper if the proof establishes that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law on the issues expressly set out in the summary judgment record. Rule 166--A(c), Vernon’s Tex.Rules Civ.Proc. It is settled that in determining the propriety of a summary judgment, both in the trial court and on appeal, all conflicts in the evidence are disregarded, the proof which tends to support the position of the party opposing the motion is accepted as true, and all doubts as to the existence of a genuine issue of material fact are resolved against the movant. Farley v. Prudential Insurance Company, 480 S.W.2d 176, 178 (Tex.Sup.1972).

Worthey gave the following testimony by way of affidavit and answers to interrogatories explaining his execution of the note:

“I executed the note as the maker of the note and in no other capacity. I executed the note for the purpose of securing an $8,000.00 cash loan from [Bank]. I never received any money for having executed the note. If any money was advanced by [Bank] as a result of my having signed the note, it was advanced to someone other than myself and done without my authority. I did not know that the note had been delivered to [Bank] until such time as I was notified by one of [Bank’s] representatives that the note was in default .
“It was my understanding that I was borrowing the money because J. Dale Edwards’s credit would not permit him to borrow the money and the purpose of the loan was to assist Mr. Ed Phillips in purchasing controlling interest in [Bank], and in addition to the loan, I was to cause $50,000.00 to be placed in [Bank] in the form of Certificates of Deposits, which I did. The proceeds of the $8,000.00 loan were to be paid to me in the form of a cashier’s check or held by the bank with the understanding that the funds would be used by Mr. Phillips in closing his deal to purchase the controlling interest of [Bank] . . . Furthermore, I was to be notified before the funds were used if held in the possession of the bank for my benefit at which time I was to receive whatever I deemed necessary to assure me that the loan would be taken care of by Mr. Phillips. Edwards was not supposed to sign the note in any capacity so far as I knew at the time I signed the note.”

After Worthey signed the note he delivered it and a copy of his financial statement to Edwards. Under their agreement, Edwards was to deliver the note and financial statement to Bank only if Phillips’s deal to purchase Bank was consummated. But without Worthey’s knowledge Edwards also signed the note as maker, then delivered the note and Worthey’s financial statement to Bank, and received an $8,000.00 loan for himself from Bank as consideration for the note. There was no contact between Worthey and Bank prior to Edwards’s negotiation of the note, and Bank did not have notice of the dealings and agreements between Worthey and Edwards when it paid Edwards $8,000.00 for the note. Bank is owner and holder of the note, which is past due and unpaid after presentment for payment.

Under the record we must and do assume Worthey was a maker on the note rather than indorser-guarantor as pleaded by Bank. Nevertheless, Bank still is entitled to the summary judgment on the principal amount of the note. The record establishes that Bank took the note for value, in good faith, and without notice of any defenses Worthey might have to the note. Therefore Bank was a holder in due course and took the note free from Worthey’s defenses. See, V.T.C.A., Bus. & C. §§ 3.302 and 3.305.

In the summary judgment Bank was allowed amounts totaling $6,666.67 as attorney’s fees for prosecution of the case in the trial court, and for representation in the Court of Civil Appeals and the Supreme Court in the event of appeals by the defendants. The amounts allowed were far in excess of the amounts pleaded for by Bank. Additionally, the awards were supported by the affidavit of Bank’s president that Bank had agreed to pay its attorney those amounts, and also that those amounts were “reasonable and necessary.” However, there is no showing that Bank’s president is an attorney or otherwise has personal knowledge of the reasonableness of legal fees. The court expressly found in the judgment that each amount allowed “would be both reasonable and necessary.”

Bank’s pleadings for attorney’s fees and the awards were based upon a provision in the note that in the event of default “Borrower shall also pay the amounts actually incurred by Lender as court costs, attorney’s fees, and reasonable costs for repossessing, storing, [etc.].” Bank now construes that provision to mean that it is entitled to recover as “actually incurred attorney’s fees,” whatever amounts it agreed to pay its attorney, without regard to the reasonableness of the fees. We do not agree with that construction. The clause is a contract for payment of attorney’s fees which, because of the absence of other specification in the note as to amount, are reasonable attorney’s fees. 13 Tex.Jur.2d 642, Contracts, § 365. Wor-they’s contention that material fact issues exist as to the reasonableness of the attorney’s fees awarded is sustained.

The judgment against Worthey for $8,000.00 principal on the note, plus interest, is affirmed. The judgment against him for attorney’s fees is reversed. The issue of attorney’s fees is severed from the remainder of the case and remanded to the trial court for determination.


source: Caselaw Access Project

author: JAMES, Justice.

license: Public Domain

text:
    George S. ORMSBY et ux., Appellants, v. The TRAVELERS INDEMNITY COMPANY OF RHODE ISLAND, Appellee.
    No. 5938.
    Court of Civil Appeals of Texas, Waco.
    Oct. 26, 1978.

      William C. Rice, Jr. and Lester R. Buzbee, III, Rice, Buzbee & Kleiber, Houston, for appellants.
    Bill M. Payne, Lawrence, Thornton, Payne & Watson, Bryan, for appellee.
   OPINION

JAMES, Justice.

This is an appeal from an instructed verdict in favor of the Defendant. We reverse and remand.

Plaintiff-Appellants George S. Ormsby and wife brought this suit against Defendant-Appellee Travelers Indemnity Company of Rhode Island for water damage to their residential property based upon a hazard insurance policy commonly called a fire and extended coverage policy. The insured property consisted of a two story composition frame and brick residence together with household goods contained therein. The extended coverage portion of the policy included, among other things, insurance against “explosion.” The policy in question ran for a one year term, to wit, from May 13,1973, to May 13,1974. Plaintiffs alleged that on or about January 1,1974, the building and contents were damaged by water escaping into the home; and more specifically, such damage was caused by an “explosion of a water line in the attic of such structure.” Said policy provided a maximum coverage of $33,000.00 on the building and $6,000.00 on the contents. Plaintiffs alleged the market value of the house immediately before the damage was $70,-000.00, and immediately after the damage was $19,000.00, thereby causing alleged house damage of $51,000.00; that the market value of the contents before the damage was $10,000.00, whereas after the damage it was $2,000.00, thereby allegedly causing $8,000.00 worth of damage to said household goods.

The Defendant Insurance Company went to trial on a general denial. A jury was selected, empaneled, and sworn; whereupon, the Plaintiff Mr. Ormsby personally testified on direct and cross examination. After the lawyers on both sides completed their respective examinations of Mr. Orms-by, counsel for the Defendant moved for an instructed verdict. At this point the record shows that Plaintiff had at least one additional witness, a Mr. Samuel Bryant, ready to testify; however, the trial court granted the Defendant’s motion for instructed verdict and discharged the jury without hearing any witness other than Plaintiff Orms-by. After the jury had been discharged, counsel for Plaintiff tendered the testimony of Samuel Bryant, which the trial court heard upon a bill of exception.

Plaintiff-Appellants assert five points of error and two cross points; however, we do not deem it necessary to discuss but two of such points, to wit, that the trial court erred in granting the instructed verdict in favor of Defendant: (1) because the evidence presented by Plaintiffs raised material fact issues, and (2) because the trial court cut Plaintiffs off by granting the instructed verdict before Plaintiffs had been given an opportunity to complete the presentation of their case. We sustain both of these contentions, and reverse and remand the cause for trial on the merits.

We revert to Plaintiff-Appellants’ first point, that is to say, that Plaintiffs’ evidence raises material fact issues which should have been submitted to the jury.

In determining whether it was proper to instruct a verdict in this case, we must view the evidence in the light most favorable to the Plaintiffs, the losing parties; we must indulge against the instruction every inference that may properly be drawn from the evidence; and if the record reflects any testimony of probative value in favor of the losing parties, we must hold the instruction improper; a peremptory instruction is warranted only when the evidence is such that no other verdict can be rendered and the winning party is entitled to judgment as a matter of law. White v. White (Tex.1943) 141 Tex. 328, 172 S.W.2d 295, and the cases cited therein on p. 296.

Applying the above rules as we must to the case at bar, we hereby summarize the evidence presented: Plaintiff Mr. Ormsby testified that he and his wife lived in Houston, Texas, but that they were the owners of the two story composition frame and brick residence in question together with household furniture and contents therein located in Hilltop Lakes Subdivision in Leon County, Texas, which house and contents were insured by Defendant by the insurance policy in question; that said policy consisted of fire and extended coverage, one of the perils insured against being that of “explosion.” The policy was admitted into evidence. Said policy offered a maximum coverage of $33,000.00 on the house and $6,000.00 on the contents. Ormsby testified that on or about January 4,1974, he arrived at his home covered by the insurance policy in question to find that said home and contents had suffered extensive water damage; that it appeared the water had come from somewhere in the attic of said house.

Ormsby testified that when he entered the house, the floor was wet and sopping, but that no water would run out because most all of the water was frozen. He went upstairs first, and found the carpet was wet on the stairs; however, the condition was so bad that he could hardly see the upstairs carpet because it was under sheetrock and insulation as he climbed through the debris. Upstairs the sheetrock was down from the ceilings so that he could see the ceiling rafters, the attic; and up to the roof; the walls were bulged out from water apparently having pushed them out; the furniture had fallen apart and “looked like it was melted”; the chandelier apparently had been knocked down on a table; everything in the house was mildewed and smelled bad; there were water marks around the walls which were six or seven inches above the floors. Ormsby further testified that he discovered a copper tube or water line in the attic that had a burst on one side. This copper tubing was a hot water pipe, that is to say, that it came off from and was connected to the upstairs hot water heater. He said he assumed the pipe had frozen, and had burst and flooded the house. Ormsby also testified concerning the market value of his home and contents immediately before and after the water damage.

At the conclusion of Ormsby’s testimony, but before Plaintiff-Appellants had rested, Defendant-Appellee moved for an instructed verdict which was granted by the trial court. Defendant’s motion was based upon Article 5.52 of the Insurance Code of Texas, entitled, “Provisions Governing Lightning, Windstorm, Hail, Invasion, Riot, Vandalism, Strikes, Lockouts and Other Insurance; ‘Explosion’ Defined.” The second paragraph in its pertinent parts reads as follows:

“The term ‘explosion’ as used above shall not include insurance against loss of or damage to any property of the insured, resulting from the explosion of or injury to (a) any boiler, heater, or other fired pressure vessel; (b) any unfired pressure vessel; (c) pipes or containers connected with any of said boilers or vessels; * * The gist of Defendant’s motion is this: the damages sued for by Plaintiffs are shown by the plaintiffs’ evidence to have been the result of the rupture of a pipe which connected with a hot water heater, which is expressly and explicitly covered by Article 5.52. In other words, Defendant-Appellee argues, the rupture of the pipe being one connected with the hot water heater, it was a “pipe” connected with a “heater,” and therefore was not an “explosion” under the above-quoted language of Article 5.52.

After the motion for instructed verdict had been granted and the jury discharged, Plaintiffs tendered the evidence of Mr. Samuel Bryant on a bill of exception, which was heard by the trial court in the absence of the jury. After qualifying as an expert regarding the various types of apparati or equipment enumerated in Article 5.52, Bryant characterized the apparatus causing the damage to Plaintiffs’ property as a “domestic water heater.” He defined a steam boiler as a device to generate steam, for any number of purposes; he said that the direct application of heat is not characteristic of an unfired pressure vessel; that the domestic water heater is provided with thermal and pressure safety release devices, and the pressure in the hot water line is not greater than the pressure in the cold water line that connects it to the (hot water) heater; that you would not expect there to be much of a possibility of an explosion in pipes connected to a hot water heater for the reason that such hot water heater would not be expected to generate pressure; that as far as pressure is concerned, he saw no difference between that in a hot.water line or in a cold water line. The sum and substance of Bryant’s testimony is that a domestic hot water heater (as in the case at bar) was neither a fired pressure vessel nor an unfired pressure vessel, which means that the burst copper pipe in question was not connected to any boiler or vessel that would fall within the definition of “explosion” in Article 5.52 which would be excluded from the “explosion” coverage of Plaintiffs’ insurance policy.

Going back to Plaintiff-Appellants’ first point of error, as hereinabove set out, the precise question before us is this: Does Plaintiffs’ evidence, same being that of Ormsby and Bryant, raise any material fact issue which should have been submitted to the jury? We believe that the question of whether or not the bursted water pipe in Ormsby’s house was the result of an “explosion” was a material fact issue which should have been submitted to the jury.

As to what constitutes an “explosion,” our courts seem to have never had the occasion to undertake to define “explosion.” It has been stated that it does not admit of a definite definition, having no fixed and definite meaning in ordinary speech or in law, but is said to be a general term unlimited in its application, and the true meaning of the word in each particular case must be settled, not by any fixed standard, or accurate measurement, but by the common experience and notions of men in matters of that sort. The term is to be construed in its popular sense, as understood by ordinary men, and not by scientific men. See Crombie and Co., Inc. v. Employers’ Fire Ins. Co. of Boston, Mass. (El Paso CA 1952) 250 S.W.2d 472, NRE; Millers Mutual Fire Ins. Co. v. Schwartz (San Antonio CA 1958) 312 S.W.2d 313, NWH; Oil Insurance Assn. v. Royal Indemnity Co. (Houston 14th CA 1975) 519 S.W.2d 148, NRE. Also see American Casualty Co. of Reading, Pa. v. Myrick (5th Cir. 1962) 304 F.2d 179; Bower v. Aetna Ins. Co. (District Court, Northern District of Texas, Dallas Division 1944) 54 F.Supp. 897; 35 C.J.S. Explosion p. 243; 12 C.J.S. Burst p. 760. Without detailing the holdings of the cases herein cited, we may see authority for the proposition that a fact issue is raised concerning whether or not a bursted water line was the result of an “explosion.” We therefore hold that the instructed verdict was improper, and that the case should have been submitted to the jury.

We now turn to Appellants’ second point, to wit, that the trial court erred by granting the instructed verdict before Plaintiffs had completed the presentation of their ease. As stated before, after Mr. Ormsby had completed his testimony, and before Mr. Bryant was permitted to testify, the trial court instructed the verdict for the Defendant. In other words, the Plaintiffs were not permitted to complete the presentation of their evidence. We believe this constituted error, and under the record before us, was harmful to Appellants. See Volume 3, McDonald’s Texas Civil Practice (1970 Revised Volume) Section 11.26, p. 227; 4 Tex.Jur.2d, “Appeal and Error — Civil Cases,” Section 932, p. 635 et seq.

As we understand it, as applied to the case at bar, the purpose of a motion for instructed verdict is to call to the trial court’s attention that after Plaintiffs have had full opportunity to present their evidence and have rested, that Plaintiffs have failed to prove a cause of action and therefore the Defendant is entitled to judgment as a matter of law. But in the case now before us, how can we say that the Plaintiffs at the conclusion of Mr. Ormsby’s testimony had failed to prove a cause of action, when at that time the Plaintiffs had not completed their presentation of proof?

We sustain Plaintiff-Appellants’ contention in this regard, and hold that the trial court erred in granting the instructed verdict before Plaintiffs had been afforded an opportunity to complete the presentation of their evidence and had rested.

For the reasons hereinabove stated, we reverse and remand the cause to the trial court for retrial.

REVERSED AND REMANDED.


author: MOORE, Justice.

text:
    Berenice Haupt JAMES et al., Appellants, v. Lodell Jackson HAUPT, Appellee.
    No. 1103.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 26, 1978.
    Rehearing Denied Nov. 22, 1978.

      Clyde M. Marshall, Jr., Callaway & Marshall, J. Frank Roberts, Fort Worth, for appellants.
    Fred Erisman, Longview, Gordon Well-born, Wellborn, Houston, Bailey & Perry, Henderson, for appellee.
   MOORE, Justice.

This is a will contest. Appellee, Lodell Jackson Haupt, filed an application in the County Court of Gregg County, Texas, seeking to have the will of her deceased husband, C. P. Haupt, Sr., admitted to probate. The will was dated September 23, 1976. Two of the adult children of her deceased husband by a former marriage, Clarence Philip Haupt, Jr., and Berenice Haupt James, appellants, hereinafter referred to as Contestants, contested the application to probate the will and in lieu thereof applied for the probate of an earlier will dated April 1, 1976. By agreement of the parties, the cause in its entirety was transferred to the District Court of Gregg County for trial. The cause was subsequently tried before a jury. Pursuant to the jury’s findings, the trial court entered judgment on the verdict in favor of appel-lee, hereinafter referred to as Proponent, admitting to probate the September 23, 1976 will, and denying the Contestant’s application to probate the instrument dated April 1, 1976. From such order and judgment Contestants perfected this appeal.

We affirm the trial court.

The undisputed evidence shows that the testator requested his attorney, Philip Brin, Esq., to prepare the will and requested E. B. Jennings and Harvey Holmes to come to his house and act as witnesses to the will. The evidence shows that the witnesses and the attorneys met at the house of the testator at approximately 4:00 P.M. on September 23, 1976, where the testator executed the will in the presence of the witnesses and his attorney while seated at the kitchen table. The record reveals that the will dated September 23, 1976, offered by the Proponent contained self-proving affidavits in the form and contents substantially in accordance with the form suggested with the Texas Probate Code Ann. sec. 59 (Supp.1978). The first three pages of the September 23, 1976 instrument contained the will with a place for the signature of the testator and the attesting witnesses on the third page. The remainder of the instrument contained a self-proving affidavit with a line for the signatures of the testator and the attesting witnesses on the fourth page.

Both witnesses testified that they saw the testator sign his name on page three of the instrument in their presence. They further testified that they signed as witnesses on page three of the instrument in the presence of the testator. The witnesses testified that they saw the testator sign the instrument on page four in their presence and that they signed as witnesses on page four of the instrument in the presence of the testator. The foregoing testimony is undisputed.

In response to six special issues, the jury found that (1) C. P. Haupt, Sr., signed the instrument dated September 23,1976, in the presence of Harvey Holmes and E. B. Jennings; (2) that Harvey Holmes and E. B. Jennings signed the instrument dated September 23, 1976, in the presence of C. P. Haupt, Sr.; (3) that at the time C. P. Haupt, Sr., executed the instrument dated September 23, 1976, he was of sound mind; (4) that he was not induced to make said will as the result of undue influence; (5) that at the time E. B. Jennings signed the former will dated April 1,1976, as a witness he was not in the presence of the testator, C. P. Haupt, Sr.; and (6) that at the time Harvey Holmes signed the previous will dated April 1,1976, as a witness, he was not in the presence of the testator, C. P. Haupt, Sr.

By their first three points of error, Contestants seek a reversal on the ground that the Proponent failed to discharge her burden of proving and obtaining jury findings establishing that the will was executed with the formalities and solemnities required by sec. 59 of the Texas Probate Code. Narrowed still further, Contestants contend that due to the wording of the first and second special issues inquiring only as to whether the testator signed “the instrument . . . dated September 23,1976,” the jury’s affirmative answers are ambiguous in that it is impossible to discern whether the jury found that the testator and the attesting witnesses signed the will as distinguished from the self-proving affidavit attached thereto. Contestants therefore contend that the trial court erred in refusing to disregard the jury’s finding to Special Issues Nos. 1 and 2. Based on this premise, Contestants maintain that Proponent failed to establish that the will was executed in accordance with the formalities required by the statute and that the trial court erred in ordering the will admitted to probate. We are not in accord with this proposition.

It is well settled that where the proponent offers a will for probate with a self-proving affidavit attached, the burden of proving testamentary capacity remains upon the proponent. But once the self-proved will is admitted into evidence, proponent makes out a prima facie case that the will has been properly executed, and contestants must go forward with the evidence to overcome the prima facie case. Reynolds v. Park, 485 S.W.2d 807, 815-16 (Tex.Civ.App.—Amarillo 1972, writ ref’d n. r. e.); Soto v. Ledezma, 529 S.W.2d 847, 851-52 (Tex.Civ.App.—Corpus Christi 1975, no writ); In re Estate of Rosborough, Jr., 542 S.W.2d 685, 688 (Tex.Civ.App.—Texarkana 1976, writ ref’d n. r. e.).

The instrument dated September 23, 1976, shows to have been signed “C. P. Haupt” on page three at the conclusion of the will and following his signature shows to have been signed by E. B. Jennings and Harvey Holmes. On the fourth page of the instrument at the conclusion of the self-proving affidavit, the instrument was signed “C. P. Haupt,” and immediately following, the instrument shows to have been signed by Jennings and Holmes. Both attesting witnesses as well as testator’s attorney testified that Mr. Haupt signed the instrument at both places in the presence of the attesting witnesses while seated at his kitchen table. The subscribing witnesses’ testimony that they signed the instrument at his request on pages three and four of the instrument is corroborated by Mr. Brin. Contestants registered no objection at the time the will was offered in evidence. After a careful review of the record we fail to find any evidence, circumstantial or otherwise, which would raise a fact issue for the jury on the question of whether the will was executed in accordance with the formalities and solemnities required by the statute.

It is not necessary for the trial court to submit an issue on an undisputed fact. Rule 272, Tex.R.Civ.P.; Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex.1971). Only the controlling issues raised by the pleading and evidence need be submitted. Rule 279, Tex. R.Civ.P.; Simmons Motor Co. v. Mosley, 379 S.W.2d 711, 715 (Tex.Civ.App.—Austin 1964, writ ref’d n. r. e.). Consequently, even assuming arguendo, as Contestants argue, that the jury’s answers to the issues are ambiguous, the issues were superfluous since the facts inquired about therein are undisputed. It follows that Proponent discharged her burden of establishing that the will was executed with the formalities and solemnities required by the statute irrespective of the jury’s answers to Special Issues Nos. 1 and 2.

This is not to say that we agree with Contestants’ contention that the issues and the jury’s answers are so ambiguous that it is impossible to discern whether the jury found that the testator and the attesting witnesses signed the will as distinguished from the self-proving affidavit. While the issues are broad and inquire only as to whether the testator and the attesting witnesses in the presence of one another signed the instrument, Contestants leveled no objection to either issue. Pursuant to the 1973 amendment to Rule 277, Tex.R.Civ.P., the trial court is authorized to submit broad issues to the jury. Contestants have no points of error challenging the jury’s finding on the ground that the findings made therein are not supported by the evidence. In the absence of any objection to the issues and in the absence of any contentions that the findings are not supported by the evidence, we think the jury’s answers are sufficient to establish that (1) the testator signed both the will and the self-proving affidavit; (2) that he did so in the presence of the attesting witnesses; (3) that the attesting witnesses signed both the will and the self-proving affidavit; and (4) that they did so in the presence of the testator. Thus, we think the issues were sufficient to establish that the will was executed in conformity with the formalities required by the statute and that the trial court was authorized to enter judgment based thereon.

Contestants further argue that there was a fatal gap in the proof because the Proponent failed to obtain a jury finding that the testator signed the will prior to the time Jennings and Holmes signed as subscribing witnesses. We find no merit in this contention. The basis of Contestants’ contention arises out of a conflict in the testimony of the subscribing witness E. B. Jennings. Although Jennings testified that the testator signed the will in the presence of both he and Holmes and also testified that they signed the will as attesting witnesses in his presence, he further testified that he signed as a witness prior to the time the testator affixed his signature.

It has been held or recognized in this state, as well as many other jurisdictions, that where the execution and attestation of a will occurs at the same time and place and form parts of the same transaction, it is immaterial that the witnesses subscribe before the testator signs. Ludwick v. Fowler, 193 S.W.2d 692, 695 (Tex.Civ.App.—Dallas 1946, writ ref’d n. r. e.); Guest v. Guest, 235 S.W.2d 710, 713 (Tex.Civ.App.—Port Worth 1951, writ ref’d n. r. e.); 91 A.L.R.2d 738-39; contra see Kveton v. Keding, 286 S.W. 673 (Tex.Civ.App.—Galveston 1926, writ dism’d).

We likewise find no merit in Contestants’ contention that Proponent failed to discharge her burden of proof in failing to submit and obtain a jury finding that the testator knew and understood the contents of the September 23, 1976 will. It must be presumed that the testator knew of the provisions of his will. 61 Tex.Jur.2d sec. 174, p. 304; Volkmer v. Chase, 354 S.W.2d 611, 614 (Tex.Civ.App.—Houston 1962, writ ref’d n. r. e.). We find no evidence of probative force to the contrary. Points one through three are overruled.

Under the fourth, fifth and sixth points, Contestants complain of the manner in which the question of the mental capacity of the testator was submitted to the jury. By Special Issue No. 3 the court instructed the jury to find from a preponderance of the evidence whether, at the time testator executed the instrument dated September 23, 1976, he was of sound mind. The trial court then instructed the jury of the meaning of “sound mind” and requested the jury to answer whether he was or was not of sound mind. Contestants objected to the submission of the issue on the ground that the soundness of mind constituted an evi-dentiary issue rather than the ultimate issue of testamentary capacity. Contestants tendered a specially requested issue inquiring as to whether the testator had testamentary capacity at the time he executed the will offered by Proponent. They also tendered a requested special instruction defining the term “testamentary capacity.” Contestants contend that the trial court erred in overruling their objections to the charge and refusing to submit the issue of testamentary capacity rather than whether the testator was of sound mind.

In connection with Special Issue No. 3 inquiring whether the testator was of sound mind, the trial court instructed the jury as follows:

In connection with this special issue, you are instructed that the term ‘sound mind’ means that C. P. Haupt, Sr., at the time of the execution of the will, must have had sufficient mental ability to understand the business in which he was engaged, the effect of his act in making the will, and the nature and extent of his property: He must have been able to know his next of kin, and the natural objects of his bounty and their claims upon him: and he must have had memory sufficient to collect in his mind the elements of the business about to be transacted, and to hold them long enough to perceive at least their obvious relation to each other, and to be able to form a reasonable judgment as to them.

The substance of Contestants’ special requested definition of “testamentary capacity” is practically the same as the court’s definition of “sound mind” quoted above. The trial court’s definition of “sound mind” is identical with the definition in Williford v. Masten, 521 S.W.2d 878, 884 (Tex.Civ.App.—Amarillo 1975, writ ref’d n. r. e.). In that case the court made the following observation at page 884:

There has been consistent recognition and approval of the above definition of sound mind. See Welch v. Shoubrouek, 260 S.W.2d 84, 86 (Tex.Civ.App.—Beaumont 1953, no writ) on the authority of Morris v. Morris, 279 S.W. 806 (Tex. Comm’n App. 1926, jdgmt. adopted); Oliver v. Williams, 381 S.W.2d 703 (Tex.Civ.App.—Corpus Christi 1964, no writ); Lindley v. Lindley, 384 S.W.2d 676 (Tex.1964), and Reynolds v. Park, 485 S.W.2d 807 (Tex.Civ.App.—Amarillo 1972, writ ref’d n. r. e.). The proponents have the burden of proving all of those elements set out in the charge in order to establish that the testatrix was of sound mind at the time of her execution of the instrument in question.

The cases are legion holding that “sound mind,” as defined by the court, is the same as testamentary capacity. Nass v. Nass, 224 S.W.2d 280, 283 (Tex.Civ.App.—Galveston, 1949, citing cases, affirmed 228 S.W.2d 130); Anderson v. Clingingsmith, 369 S.W.2d 634, 637 (Tex.Civ.App.—Fort Worth 1963, writ ref’d n. r. e., citing cases). Thus, by finding that the testator was of “sound mind” the jury found, in effect that he had testamentary capacity. For this reason we cannot agree with Contestants’ contention that the manner in which the special issue was submitted would lessen the burden on the Proponent in that the jury would be less inclined to find that the testator was not of sound mind than that he lacked testamentary capacity. We have found no case, and have been cited to none, holding it reversible error to submit the issue of mental capacity on the basis of whether the testator was of sound mind where such issue is accompanied with an instruction embracing all the elements of testamentary capacity. We overrule Contestants’ points contending that the court erred in refusing to submit the issue on the basis whether the testator had “testamentary capacity” and erred in refusing the requested definition in connection therewith.

By the eighth point Contestants contend that the action of the court in sustaining the Proponent’s objection to the admissibility in evidence of the prior will dated April 1, 1976, constituted a prejudicial comment on the weight of the evidence. The record reveals that Contestants offered the prior will into evidence on three separate occasions. Proponent objected on the ground that a proper predicate had not been laid. In response to the first and second objection the court merely announced “sustained.” On the third offer the court overruled the objection and admitted the prior will in evidence. We fail to see how the mere sustaining of an objection could amount to a comment on the weight of the evidence. The point is found to be without merit and is therefore overruled.

Contestants complain in their eighth point of the action of the trial court in excluding certain portions of a letter written by the Proponent to the testator’s ex-wife more than thirty-eight years prior to the execution of the will offered by Proponent. Contestants registered no objection to the trial court’s ruling. It is well settled that a point raised for the first time on appeal will not be considered by the appellate court. 3 Tex.Jur.2d Appeal & Error— Civil Cases, sec. 98, pp. 422-24.

The ninth point complains of the argument made by Proponent’s counsel. The improper jury argument urged is with respect to a comment by counsel advising the jury that although he called the Proponent, Mrs. Haupt, as a witness, he was not permitted by law to question her with regard to any transaction with the testator, but that Contestants had a right to question her about “anything they wanted to.” Counsel for Contestants objected and moved the court to instruct the jury not to consider such statement on the ground “that urging of the Dead Man’s Statute, Article 3716 [Tex.Rev.Civ.Stat.Ann. art. 3716 (1926)] is not subject to argument to the jury.” The court sustained the objection and instructed the jury not to consider the remarks. We are of the opinion that the argument was within the legitimate scope of the court’s charge on the subject and therefore was not error.

The record shows that the court, in accordance with Rule 182a, Tex.R.Civ.P., charged the jury that neither party was allowed to testify against the other as to any transaction with a statement by the testator, unless called upon to testify thereto by the opposite party. The effect of this argument was to tell the jury that the Contestants could have questioned Mrs. Haupt about “anything they wanted to” including transactions with the deceased if they chose to do so. The court so charged the jury and therefore counsel had a right to comment upon it in his argument to the jury. Fox v. Lewis, 344 S.W.2d 731, 739-40 (Tex.Civ.App.—Austin 1961, writ ref’d n. r. e.). The ninth point is overruled.

In the tenth and final point, complaint is made of the closing argument wherein counsel for the Proponent commented on the fact that the notary who executed the jurat on the self-proving affidavit attached to the April 1, 1976 will relied on by Contestants, was not called as a witness to rebut the testimony of the attesting witnesses that they never appeared before the notary or swore to the instrument. Contestants objected on the ground that the notary was subject to subpoena by Proponent and that it was improper to comment on the fact that they did not call him as a witness. The court sustained the objection and at Contestants’ request instructed the jury not to consider the same.

Much could be written on whether under the circumstances the argument was improper. In the interest of brevity we shall assume, arguendo, that it was.

It seems to be the rule in this State that when the error occasioned by an improper argument is curable and an objection thereto is sustained, a claim of reversible error cannot be predicated upon (such argument). .
The sustaining of an objection to an argument impliedly carries with it an indication of disapproval, and if more be required an appropriate request should be made. In cases of curable error the judgment will not be reversed when it appears that the trial court has sustained the objections made, and given all requested instructions with reference to the argument complained of. Rogers v. Broughton, 277 S.W.2d 121 (Tex.Civ.App.—San Antonio 1965, writ ref’d n. r. e.).

We do not regard the argument complained of here as being beyond correction by means of a proper instruction. Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054, 1056 (1940); Younger Bros., Inc. v. Myers, 159 Tex. 585, 324 S.W.2d 546 (1959). The error, if any, was cured by the instruction to disregard. Contestants’ tenth point is overruled.

The judgment is affirmed.

      . Every last will and testament, except where otherwise provided by law, shall be in writing and signed by the testator in person or by another person for him by his direction and in his presence, and shall, if not wholly in the handwriting of the testator, be attested by two (2) or more credible witnesses above the age of fourteen (14) years who shall subscribe their names thereto in their own handwriting in the presence of the testator. Such a will or testament may, at the time of its execution or at any subsequent date during the lifetime of the testator and the witnesses, be made self-proved, and the testimony of the witnesses in the probate thereof may be made unnecessary, by the affidavits of the testator and the attesting witnesses, made before an officer authorized to take acknowledgments to deeds of conveyance and to administer oaths under the laws of this State .

      . SPECIAL ISSUE NO. 1: Do you find from a preponderance of the evidence that C. P. Haupt, Sr., signed the original copy of the instrument dated September 23, 1976, in the presence of Harvey Holmes and E. B. Jennings? Answer: Yes.

        SPECIAL ISSUE NO. 2: Do you find from a preponderance of the evidence that Harvey Holmes and E. B. Jennings signed the original copy of the instrument dated September 23, 1976, in the presence of C. P. Haupt, Sr.? Answer Yes.


author: DUNAGAN, Chief Justice.

text:
    TEXAS HEALTH FACILITIES COMMISSION, Appellant, v. EL PASO MEDICAL SURGICAL ASSOCIATES, Appellee.
    No. 1176.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 26, 1978.
    Rehearing Denied Nov. 22, 1978.

      Carla J. Cox, Asst. Atty. Gen., Austin, for appellant.
    Fred E. Davis, Davis, Davis & Sharp, Austin, for appellee.
   DUNAGAN, Chief Justice.

This appeal arose from an order of the Texas Health Facilities Commission, hereinafter “Commission,” which denied the application of El Paso Medical Surgical Associates, hereinafter “E.P.M.S.A.,” to transfer ownership of a Certificate of Need and relocate the proposed facility which was the subject of the Certificate.

The Commission, established by Article 4418h, Tex.Rev.Civ.Stat.Ann., and known as the Texas Health Planning and Development Act, is a state regulatory agency. It was created in response to the federal mandate of the National Health Planning and Resources Development Act of 1974, P.L. 93-641. The stated purpose of the Act is to insure that health care services and facilities are made available to all citizens in an orderly and economical manner. Through appropriate health planning activities, the Act seeks to assure that health care services and facilities will be provided in a manner which is cost effective and compatible with the health care needs of the various areas and populations of the state. Article 4418h, section 1.02, supra.

In June 1976, the Commission granted a Certificate of Need to E.P.M.S.A., a professional association of physicians, which authorized the establishment and operation of a day surgery outpatient center. The proposed facility was to consist of four minor operating rooms to be located in the Eastwood Medical Clinic and Office Building, hereinafter “Clinic.” However, E.P.M.S.A., in November 1976, applied for a transfer of ownership of the Certificate of Need for the day surgery center to Eastwood Hospital, Inc. The application for transfer of ownership included a request for approval of the relocation of the project from the Clinic to the adjacent Eastwood Hospital. It was submitted that an unused room at Eastwood Hospital be converted for day surgery outpatient use and be utilized in connection with existing facilities rather than the previously contemplated four-room surgical suite at the Clinic.

Subsequent to a review of all the evidence and the recommendations of the Hearing Officer, the Commission found that the relocation of the day surgical center from the Clinic to Eastwood Hospital would (1) require modification of Eastwood Hospital, (2) constitute a service not currently offered by Eastwood Hospital, (3) substantially alter the project authorized by the Certificate of Need granted to E.P.M. S.A., and (4) would be outside the scope of the project previously approved. As a result of the above findings of fact, the Commission concluded as a matter of law that it could not grant the transfer of ownership of the Certificate of Need and relocation of the proposed facility, but that Eastwood Hospital, Inc. would have to obtain a new Certificate of Need. The application for transfer and relocation submitted by E.P.M. S.A. was therefore denied.

Upon denial of the application by the Commission, E.P.M.S.A. perfected its appeal to the district court which reversed the Commission’s order and remanded the cause to the Commission with instructions to grant and approve the transfer and relocation in question. In support of its judgment, the district court filed conclusions of law of which the following are pertinent to this appeal:

“(3) The Order of the Texas Health Facilities Commission is arbitrary and capricious and is characterized by an abuse of discretion because the Commission did not authorize the transfer of the Certificate of Need even though it is specifically authorized to do so by Rule 515, Rules and Regulations of the Texas Health Facilities Commission, and the reliable and probative evidence of record presents an affirmative showing of ‘good cause.’
(4) The Order of the Texas Health Facilities Commission is arbitrary and capricious and is characterized by an abuse of discretion because the Commission failed to follow its established holdings in authorizing a transfer of ownership and a relocation of the project.
(5) The order of the Texas Health Facilities Commission is founded upon an improper construction of Article 4418(h), Tex.Rev.Civ.Stat., and the Rules and Regulations promulgated by the Commission thereunder.”

From this adverse judgment, the Commission has perfected its appeal to this court.

The Commission predicates its appeal upon four points of error. We will first consider the complaints raised by appellant in points of error Nos. 1 and 3 which assert that the trial court erred in holding that (1) the action of the Commission was arbitrary, capricious, and characterized by an abuse of discretion because the Commission did not authorize the transfer of the Certificate of Need as authorized by Rule 515, Rules and Regulations of the Texas Health Facilities Commission, and (3) the Commission’s order was founded upon an improper construction of Article 4418h, supra, and the Rules and Regulations promulgated by the Commission thereunder.

It is evident that transfers of Certificates of Need were contemplated by both the Health Planning and Development Act, supra, and the Rules and Regulations promulgated by the Commission. Section 3.13(b)(3) of Article 4418h, supra, is the only portion of the Health Planning and Development Act to deal with such transfers and provides that a Certificate of Need is subject to forfeiture where:

“. . . a certificate holder, before completion and operation of the project, has attempted to or has transferred or conveyed more than a two percent interest in the certificate of need or the certificate holder without prior written approval from the commission. Transfers resulting from . . . good cause as determined by the commission . are exempt from this provision.”

In addition to the above provision in Article 4418h, supra, the Commission has promulgated Rule 515(c), Rules and Regulations of the Texas Health Facilities Commission, which directly deals with transfers and states:

“(c) Transfer. Exemption Certificates, Declaratory Rulings, and Certificates of Need are not transferable prior to the completion of the project without the written consent of the Commission. Upon an affirmative finding of good cause the Commission may authorize the transfer of an Exemption Certificate, Declaratory Ruling or a Certificate of Need.”

In the instant case, the Commission admits that had only an issue of transfer of ownership been involved there would have been no question that appellee carried its burden of showing “good cause.” Appellee, in noting this admission, argues that it was an abuse of discretion for the Commission to deny this application once good cause for the transfer had been shown. However, the application submitted by appellee was not solely a request for transfer of ownership of a Certificate of Need but in addition sought approval for the relocation of the proposed facility. This additional request, concludes the Commission, places this application beyond the scope of the provisions of both section 3.13(b)(3), supra, and Rule 515(c), supra.

The Health Planning and Development Act, section 3.01(a), supra, specifies certain activities for which a Certificate of Need or an Exemption Certificate must be obtained from the Commission. These designated activities include proposed projects to:

“(1) substantially expand a service currently offered or provide a service not currently offered by the facility;
(2) construct a new facility or change the bed capacity of an existing facility;
(3) modify an existing facility;
(4) convert a structure into a healthcare facility; or
(5) organize an HMO [Health Maintenance Organization] which requires a new or modified facility.”

Findings of fact were made by the Commission and incorporated into the order which denied this application for transfer and relocation. The Commission found that the relocation of the project from the Clinic to Eastwood Hospital would require modification of existing facilities at Eastwood Hospital and would constitute the provision of a service not currently offered at Eastwood Hospital.

The question presented here, one which we believe to be of first impression, is whether the relocation of a proposed service or facility may be approved through the procedure for transfer of a Certificate of Need or whether a new Certificate of Need must be obtained, as asserted by the Commission. The Health Planning and Development Act fails to explicitly address the question of relocation and therefore an issue of statutory construction is raised.

In construing statutes, it is the duty of the court to ascertain and give effect to the legislative intent. Popham v. Patterson, 121 Tex. 615, 51 S.W.2d 680, 683 (1932). If the statute being construed is plain and unambiguous, there is no need to resort to rules of construction, and it would be inappropriate to do so. Fox v. Burgess, 157 Tex. 292, 302 S.W.2d 405, 409 (1957). However, where the meaning of the statutory provision is unclear, in doubt, or ambiguous, the construction placed upon the provision by the agency charged with its administration is entitled to weight. Ex Parte Roloff, 510 S.W.2d 913, 915 (1974); Calvert v. Kadane, 427 S.W.2d 605, 608 (1968); Slocomb v. Cameron Independent School District, 116 Tex. 288, 288 S.W. 1064, 1066 (Tex.Comm.App.1926, holding approved). Although the courts are not bound by the agency construction, 53 Tex. Jur.2d Statutes, section 177, p. 263, it is well established that the court should give deference to the construction of the agency administering an Act. Tarry Moving & Storage Company, Inc. v. Railroad Commission, 359 S.W.2d 62, 67 (Tex.Civ.App.-Austin 1962, aff'd 367 S.W.2d 322). When the construction of an administrative regulation rather than a statute is in issue, deference is even more clearly in order. Udall v. Tallman, 380 U.S. 1,85 S.Ct. 792, 13 L.Ed.2d 616 (1965).

In the instant case, the Commission was granted a great deal of administrative discretion by the legislature. Rule-making powers were conferred upon the Commission to “define and determine the terms and conditions” under which a Certificate of Need would be required. Article 4418h, section 3.01(c), supra. The Commission could exempt a Certificate of Need from forfeiture when transferred as a result of “good cause as determined by the commission . . . .” Article 4418h, section 3.13(b)(3), supra. The Commission construed its own rule, Rule 515(c), supra, as not applicable to the request for a change of location found in the present case. In support of this conclusion, the Commission tenders two main contentions which we will now discuss.

First, the Commission asserts that the objectives of the Health Planning and Development Act require specific criteria to be met by applicants for Certificates of Need. Article 4418h, section 3.10, supra; Rule 801, Rules and Regulations of the Texas Health Facilities Commission. The data to be considered in attempting to determine whether the necessary criteria are met are termed by the Commission as “facility specific.” In other words the criteria to be evaluated must be analyzed in the context of the particular parent facility in which the proposed service or facility will be located. The Commission concluded that the procedure by which the ownership of a Certificate of Need may be transferred, merely requiring an affirmative showing of good cause, is neither appropriate nor designed to allow the detailed type of examination required where a change of location of the contemplated service or facility is involved. The Commission contends that the proper vehicle for examination of all the “facility specific” criteria is an application for a new Certificate of Need.

A second rationale in support of the Commission’s position is the difference in the notice requirements between transfers of Certificates of Need and applications for such Certificates. An applicant for a Certificate of Need must give notice by publication both (1) within the locality where the proposed service or facility would be developed and (2) in the largest city in the health service area to be serviced by the new service or facility. Article 4418h, Section 3.07, supra. A person has forty days to then give notice of his desire to become a party. On the other hand, a Rule 515(c), supra, proceeding requires only notice by publication in the Texas Register and allows but twelve days for a person to give notice of a desire to be a party. The Commission felt that to allow a change of location without the full notice requirements of an application for a Certificate of Need might allow an applicant to utilize the transfer procedure as an avenue to circumvent the full notice requirements and thereby minimize possible opposition.

The issue raised here is one of procedure: what is the proper vehicle for obtaining approval of the desired relocation of a proposed facility. The Commission has not denied the requested relocation upon its merits but merely held that the transfer procedure followed by the applicants was not appropriate for the evaluation of the criteria specified in the Health Planning and Development Act and the Rules and Regulations promulgated thereunder by the Commission. We hold that the Commission’s construction of Article 4418h, supra, and the Rules and Regulations promulgated thereunder by the Commission was not improper. In addition, we hold that the Commission’s failure to approve the requested relocation and authorize the transfer of ownership was neither arbitrary, capricious, nor characterized by an abuse of discretion. Appellant’s points of error Nos. 1 and 3 are sustained.

The Commission’s second point of error complains that the trial court erred in concluding that the Commission’s order was arbitrary, capricious, and an abuse of its discretion because the Commission failed to follow its established holding authorizing a transfer and relocation. The Commission in January of 1976 had approved the transfer and relocation of a proposed 200-bed hospital facility without requiring a new Certificate of Need. Appellee argues that it was error for the Commission to fail to follow this controlling precedent. The Commission, however, contends that the two cases are clearly distinguishable and a short discussion of the facts will therefore be necessary.

El Paso Del Norte Joint Venture had obtained an Exemption Certificate under section 6.02(a) of Article 4418h, supra, to construct a 200-bed hospital facility. Later, an application was filed with the Commission seeking to transfer ownership of the Exemption Certificate and approval of a change of location from the original site to another a few blocks away. This application was approved by the Commission in January 1976, Declaratory Ruling and Administrative Order Number AH75-1216-001, without any requirement that a new Certificate of Need or Exemption Certificate be obtained.

Section 6.02(a) of Article 4418h, supra, acts as the “grandfather clause” of the Health Planning and Development Act by allowing the completion of projects already in the planning stages when the Act went into effect without the need of meeting the criteria required by section 3.10, Article 4418h, supra. A project which comes within the terms of section 3.01(a), Article 4418h, supra, must receive either an Exemption Certificate or a Certificate of Need. It is not necessary for an Exemption Certificate holder to have his proposed facility evaluated in terms of the “facility specific” criteria specified by the Health Planning and Development Act or the Rules and Regulations promulgated by the Commission thereunder. Since no such scrutiny was required when the Exemption Certificate was originally obtained, no such scrutiny would be required when the certificate holder applied for a change in location within the municipality. This situation, contends the Commission, is clearly distinguishable from the situation in the instant case. Appellees were required to obtain a Certificate of Need and meet the criteria specified by the Health Planning and Development Act and the Rules and Regulations promulgated by the Commission thereunder when a Certificate was originally applied for. Now appellees seek to transfer ownership of the Certificate of Need and relocate the project. Therefore the “facility specific” criteria must be applied to the new parent facility. This is not a distinction without meaning as asserted by appellees. We therefore sustain the Commission’s point of error No. 2.

In light of our disposition of the above points of error, we do not reach appellant’s fourth point of error which complains that the district court erred by reversing the Commission’s order and remanding the cause with instructions to approve appel-lees’ application.

Accordingly, we reverse the judgment of the district court and affirm the order of the Commission.


author: McKAY, Justice.

text:
    HERIDER FARM PROCESSING, INC., Appellant, v. CITY OF NACOGDOCHES et al., Appellees.
    No. 1229.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 26, 1978.
    Rehearing Denied Nov. 22, 1978.
    William D. Perkins, Lufkin, David J. Beck, Christopher E. H. Dack, Fulbright & Jaworski, Houston, for appellant.
    Thad Floyd, Robert B. Atherton, Stripling & Sutton, Adams & Belanger, Nacog-doches, for appellees.
   McKAY, Justice.

This is an appeal from the issuance of a temporary injunction by the trial court enjoining the City of Nacogdoches from terminating water and sewer services to appellant for a period of fifteen days.

Appellant, Herider Farm Processing, Inc., is engaged in the business of processing and selling chickens and chicken parts, and owns and operates a processing plant in the City of Nacogdoches. The City furnishes water and sewage disposal services to appellant as it does to all residences, businesses and industrial plants in the city. Appellant brought a declaratory judgment and injunc-tive action against the City and its mayor and city commissioners, appellees, to have declared unconstitutional a city ordinance which regulates the discharge of industrial waste into the sewer system, and for an injunction against its enforcement. The ordinance provides for a surcharge for all sewage that causes or creates a biochemical oxygen demand (B.O.D.) in excess of a designated limit, to be determined by calculations made pursuant to certain standards. Appellant alleged that the surcharge for its plant averaged $2,000~$4,000 per month. Then for the month of June 1978 it received a bill which included a surcharge of $44,-207.91. Appellant did not, and to date has not, paid the June surcharge. The City informed appellant that if the surcharge was not paid, water and sewer services would be discontinued. Appellant filed suit in the District Court of Nacogdoches County and secured a temporary restraining order restraining appellees from terminating water, sewer, and other services to appellant’s plant.

On the hearing for a temporary injunction, the court below entered its order, stating in part:

“The Court finds that Plaintiff has a probable right to permanent injunctive relief upon a hearing on the merits of this cause, and that Plaintiff will probably suffer injury to that right if a temporary injunction is not granted because unless enjoined by this Court, Defendants stand in a position to terminate water and sewage-disposal service to Plaintiff, thereby causing its plant to be shut down, resulting in a loss of approximately two hundred jobs and severe disruption of Plaintiff’s entire poultry-processing business, all of which constitutes irreparable injury to Plaintiff for which it has no adequate remedy at law. For the above reasons, without prejudice to the rights of either party to a trial on the merits and without establishing who will finally prevail, the Court finds that Plaintiff is entitled to a temporary injunction for a period of fifteen (15) days from the date of hearing.”

Appellant then filed its motion for extension of the temporary injunction “until such time as the principal suit herein may be tried to a conclusion . . and the district court entered its order overruling said motion. It is from these orders that appellant has perfected this appeal.

Appellant presents a single point of error by which it asserts that the district court abused its discretion by failing to grant the requested injunctive relief which would be effective until a trial can be had on the merits. We agree.

The general rules of law pertaining to injunctions are well established. To be entitled to injunctive relief, an applicant need not establish that he will prevail on the final trial; rather he needs merely to plead a cause of action, show a probable right on final trial to the relief he seeks, and show probable injury in the interim. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, 552 (1953). A further requirement is that the applicant must show a probable right on final trial to a permanent injunction. Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex.1968). Where these elements are presented by the pleadings and evidence, the trial court has broad discretion in determining whether to issue the injunction, and on appeal, the appellate court’s review of the action of the trial court is limited to the narrow question of whether such action constituted a clear abuse of discretion. Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962); McGonagill v. Hide-A-Way Lake Club, Inc., 566 S.W.2d 371, 374 (Tex.Civ.App.—Tyler 1978, no writ). Every restraining order and order granting an injunction shall set forth the reasons for its issuance and shall be specific in its terms. Rule 683, T.R.C.P.

In the instant case, the trial court found that appellant has a probable right to a permanent injunction; that appellant will probably suffer injury to that right if a temporary injunction is not granted, which injury constitutes irreparable harm to appellant for which it has no adequate remedy at law. The making of such findings, as noted above, is within the sound discretion of the trial court and we are neither asked to find, nor do we find, an abuse of discretion on the part of the district court here in making them. Appellees do not argue here that the trial court’s findings were incorrect or unjustified by the evidence adduced at the hearing. Indeed, they assert that the trial court’s action should be upheld in all things. They and appellant have divergent views only regarding the length of time for which the district court granted, or should have granted, the injunction.

It is not the office of a temporary injunction to determine the respective rights of the parties under the cause of action asserted or defenses urged. 31 Tex. Jur.2d Injunctions sec. 38 (1962); Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 421 (1959); Dunn v. Patton, 360 S.W.2d 837, 838 (Tex.Civ.App.—Waco 1962, no writ). The function of a temporary injunction is to maintain the status quo until a final trial of the main suit on the merits can be had. “In a hearing on an application for a temporary injunction the only question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits.” [Emphasis added.] Transport Co. of Texas v. Robertson Transports, Inc., supra, 152 Tex. at 552, 261 S.W.2d at 552. In B & B Vending Co. v. White, 461 S.W.2d 637, 639 (Tex.Civ.App.—Waco 1970, no writ), the court stated, “The pleadings and evidence show without dispute a probable right of recovery in plaintiff, and a probable injury to it if the application for temporary injunction were denied. As a matter of law under the record plaintiff was entitled to a preservation of the status quo of the subject matter of the suit pending a trial on the merits . . ..” [Emphasis added.] See also Genitempo v. Anderson, 246 S.W. 742 (Tex.Civ.App.—San Antonio 1922, no writ).

We find that the district court abused its discretion, not in making its findings, but rather, after having made such findings, in granting the injunction for only a fifteen-day period. In view of the findings stated in the order granting the injunction, an injunctive period of merely fifteen days is insufficient to preserve the status quo. If appellant has established the elements required for the issuance of an injunction, as the trial court so found, he is entitled to injunctive relief until a trial can be had on the merits of the suit.

The order of the trial court granting the temporary injunction is modified so as to continue the injunction in force until the final trial on the merits, and as so modified, is affirmed.


author: DODSON, Justice.

text:
    In the Matter of the MARRIAGE OF Kenneth RUTHERFORD and Nancy Lee Rutherford.
    No. 8956.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 30, 1978.
    Rehearing Denied Nov. 27, 1978.

      Bill A. Davis, Lubbock, for appellants.
    Brock, Waters & Pigg, Ralph Brock, Brown & Harding, Ray Fargason and Ralph H. Brock, Larry E. Glazner, Lubbock, for appellees.
   DODSON, Justice.

M. S. Craig and Harold P. Brown, Jr., appeal from an order temporarily enjoining them from conducting a trustee’s sale under terms of a deed of trust securing a promissory note owned by Craig and covering certain real community property owned by appellees Kenneth and Nancy Rutherford. We determine that the trial court did not abuse its discretion by issuing the temporary injunction. The order of the trial court is affirmed.

In 1970 Kenneth Rutherford and Dave Anderson, partners, purchased the property which is the subject of this suit from Mrs. Ethel Stokes for $35,000. The partners made a $5,000 down payment and executed a promissory note secured by a deed of trust on the property for the balance. Kenneth Rutherford subsequently purchased his partner’s interest for $6,000.

In 1975 Kenneth sued for divorce and Nancy Rutherford was appointed receiver of the property. Thereafter, Nancy regularly made late payments on the note which were accepted by Mrs. Stokes.

On January 16, 1978, Mrs. Stokes sought to foreclose on the property and notice of a trustee’s sale was posted by Brown, the substitute trustee. Prior to foreclosure, Mrs. Stokes discounted the note to Craig, who purchased with notice of the default. When the first monthly installment to Craig was in default, Craig collected the rents from the property, deducted the monthly installment and placed the balance in an escrow account. Craig continued to collect these rents during the following two months and sought to foreclose, relying on the default in making timely payments and the notice of trustee’s sale posted by Mrs. Stokes which set the sale date for March 7, 1978. On March 6, 1978, the Rutherfords obtained a temporary restraining order. Following a hearing on March 22, the temporary injunction was granted.

Our Supreme Court addressed the general principles governing the issuance of a temporary injunction in Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 556, 261 S.W.2d 549, 552 (1958). Justice Calvert, writing for the Court, stated:

In a hearing on an application for a temporary injunction the only question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits. To warrant the issuance of the writ, the applicant need only show a probable right and a probable injury; he is not required to establish that he will finally prevail in the litigation. . . . Where the pleadings and the evidence present a case of probable right and probable injury, the trial court is clothed with broad discretion in determining whether to issue the writ and its order will be reversed only on a showing of a clear abuse of discretion. There is no abuse of discretion in the issuance of a writ if the petition alleges a cause of action and the evidence adduced tends to sustain it (citations omitted) (emphasis added).

These principles govern our consideration of appellants’ points of error.

Appellants maintain that the Rutherfords’ petition failed to state a cause of action because no probable injury was alleged. The petition alleges, in part, that: (1) the Rutherfords own certain real property which is the subject of a trustee’s sale set for March 7, 1978; (2) Craig is the current owner and holder of a promissory note which is secured by a deed of trust on the property; (3) Brown is the substitute trustee under the deed of trust; (4) Mrs. Ethel Stokes, the previous owner of the promissory note, instituted the foreclosure action prior to the date that she sold the note to Craig; (5) the Rutherfords have made regular, although untimely, payments which have been accepted by Mrs. Stokes without complaint or other notice that such untimely payments were unsatisfactory for the last seven months; (6) the Rutherfords made a valid tender of past due payments which was refused without reason; and (7) immediate and irreparable harm will result to the Rutherfords if the injunction does not issue because they will “lose these Gray building complexes and all rents and revenues received therefrom and all of the money previously invested therein without having a fair opportunity to protect their investment.” We conclude that the petition alleges a probable injury.

Appellants also contend the Rutherfords failed to present sufficient evidence to discharge their burden of proof. Nancy testified that she regularly made late payments to Mrs. Stokes which were accepted. Copies of Nancy’s cancelled checks for note payments, one of which indicates that three payments were made in a single check, were admitted into evidence. Both Kenneth and Nancy testified to individual conversations with Mrs. Stokes in which she agreed to work with them to avoid foreclosure after the proceedings had been instituted. Mr. Craig testified that he purchased the note with knowledge of the defaults.

The holder of a note may waive the right to foreclose as to past defaults where late payments have been regularly accepted and notice has not been given that future defaults will provide the basis for foreclosure proceedings. See Vaughan v. Crown Plumbing & Sewer Service, Inc., 523 S.W.2d 72 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ ref’d n. r. e.). The purchaser of a note with knowledge of a default does not qualify as a holder in due course. Tex.Bus. & Com.Code Ann. § 3.302 (Vernon 1968). Thus, Craig as the holder of the note is subject to any defenses which the Ruther-fords had against Mrs. Stokes on the note, including waiver. Tex.Bus. & Com.Code Ann. § 3.306 (Vernon 1968).

The record is also replete with testimony concerning the harm which would result to the Rutherfords if the injunction did not issue. Nancy testified that she had made nine or ten monthly payments of $253.17 in 1977 and that 80 or 90 payments had been made on the property since its purchase. Kenneth testified that he had $11,000 equity in the property plus what had been paid on the note since 1970. Additionally, Kenneth detailed improvements to the property totalling approximately $4,100. These improvements would be lost if the injunction did not issue.

We conclude the trial court was justified in believing that the evidence adduced at the hearing tends to support the existence of a probable right and a probable injury. The Rutherfords are not required to establish that they will prevail in the litigation. Transport Co. of Texas v. Robertson Transports, Inc., supra.

Appellants also contend that the trial court erred in granting relief in excess of that prayed for by the Rutherfords. Appellants complain of the trial court’s action in ordering Craig to collect rents and revenues from the property and authorizing Craig to use these revenues to make immediate and necessary repairs to the buildings. Further complaint is made that the injunction enjoins foreclosure of future breaches for an indefinite period of time. The evidence established that Craig had already begun collecting rents from the property when this injunction proceeding was instituted. Craig was deducting the monthly payment of $253.17 from rents totalling $600 a month and placing the balance in an escrow account which he established. Thus, the order merely requires Craig to continue a course of action which he began. Furthermore, we are persuaded that the order is designed to protect Craig’s interest and is calculated to maintain the status quo of the subject matter of the action pending final disposition. There is no indication in the record that the trial court will not proceed forthwith to dispose of the matters now pending before it.

Appellants complain in their final point of error that the trial court abused its discretion in setting the injunction bond at only $1,000. Appellants argue that this sum is insufficient security for the monetary damages, in addition to costs, which they will sustain if the injunction is dissolved because wrongfully issued. We have already detailed the provisions of the temporary injunction which operate to protect Craig from sustaining further damages. Furthermore, the temporary injunction does not purport to enjoin the collection of a debt, but only enjoins foreclosure under the deed of trust. Under these circumstances, we are persuaded that the trial court did not abuse its discretion in setting the amount of the bond.

In summary, we conclude that the trial court did not abuse its discretion by issuing the temporary injunction. The appellants’ points of error are overruled and the order of the trial court is affirmed.

      . The trial court granted the divorce and awarded the property in question to Nancy. On appeal, this court reversed and remanded as to the division of the estate. Rutherford v. Rutherford, 554 S.W.2d 829 (Tex.Civ.App.—Amarillo 1977, no writ). The final division of the estate is pending.


author: PHILLIPS, Chief Justice.

text:
    SOUTH TEXAS INDUSTRIAL SERVICES, INCORPORATED, Appellant, v. TEXAS DEPARTMENT OF WATER RESOURCES et al., Appellees.
    No. 12787.
    Court of Civil Appeals of Texas, Austin.
    Nov. 1, 1978.
    Rehearing Denied Nov. 22, 1978.

      Harry J. Schulz, Three Rivers, for appellant.
    John L. Hill, Atty. Gen., W. Thomas Buckle, Asst. Atty. Gen., Austin, for Texas Dept, of Water Resources and Texas Water Development Bd.
    James F. McKibben, Jr., Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for City of Corpus Christi.
   PHILLIPS, Chief Justice.

This appeal was brought by appellant from the judgment of the trial court affirming the revocation of appellant’s permit for the disposal of hazardous waste materials.

We affirm.

On December 5, 1973, the Texas Water Quality Board, acting through its Executive Director, issued appellant a “Certificate of Registration for an Industrial Solid Waste Management Site.” Following public hearings, the board members of the agency approved the permit on April 24, 1974.

On May 22, 1974, the Texas Water Quality Board suspended the certificate of registration and ordered a public hearing on the matter. Immediately following the May 22 suspension, two lawsuits were filed (one by the City of Corpus Christi) complaining of the original issuance of the permit. These suits are still pending.

The Board then finally and permanently revoked appellant’s permit on January 28, 1975. It is from the judgment of the district court affirming the revocation that appellant has perfected its appeal to this Court. The Texas Water Development Board and Department of Water Resources have now replaced the Water Quality Board and are appellees along with intervenor City of Corpus Christi.

Appellant is before us on a number of points of error which, in our judgment, present the sole questions of whether the Board had jurisdiction to revoke the permit, and, if so, whether the revocation was based on substantial evidence.

Appellant contends that the Board lost jurisdiction over áppellant’s permit the moment Corpus Christi filed its appeal in district court on May 22, 1974, attacking the permit that the Board had issued on April 24,1974. We do not agree with this contention.

The Solid Waste Disposal Act provides:

“The state agency has the authority, for good cause, after hearing with notice . to revoke or amend any permit it issues for reasons pertaining to public health, air or water pollution, land use, or violation of this Act or of any other applicable laws or regulations controlling the disposal of solid waste.” Tex.Rev.Civ. Stat.Ann. art. 4477-7, § 4(e)(8) (Supp. 1974-1975) (Act amended 1978).

It is well settled that when a suit is brought to test the validity of an agency order, the agency loses jurisdiction over the subject matter of such order while the suit is pending. It is equally well settled that an agency has the right to reopen a matter and enter a different order upon a showing of changed circumstances; however, the agency does not have the authority to review a former order upon the same fact situation. See, e. g., Railroad Commission v. Aluminum Co. of America, 380 S.W.2d 599 (Tex.1964); Magnolia Petroleum Co. v. New Process Production Co., 129 Tex. 617, 104 S.W.2d 1106 (1937); Railroad Commission v. Humble Oil & Refining Co., 119 S.W.2d 728 (Tex.Civ.App.1938, writ ref’d). In Magnolia the Court stated: “If conditions change, rights change, and the governing statutes place the matter of ascertaining such rights and determining the facts relating thereto in the first instance under the jurisdiction of [the agency].” Magnolia Petroleum Co. v. New Process Production Co., supra, 104 S.W.2d at 1111.

Under the authority of Magnolia and the cited cases, it is our opinion that the rule with respect to the changed conditions is applicable to the facts hereinafter outlined. The agency has exclusive and original jurisdiction to determine the question of changed conditions. Railroad Commission v. Wencker, 140 Tex. 527, 168 S.W.2d 625 (1943); Magnolia Petroleum Co. v. New Process Production Co., supra. The appeal to the courts is confined to scrutiny of the conditions as they existed at the time of the original order. Magnolia Petroleum Co. v. New Process Production Co., supra. The agency loses jurisdiction only over the subject matter of the original order. The changed conditions, stated below, were not a part of the earlier hearing and therefore were not before the Court at the time the Commissioner issued the order in question. There is no infringement upon the authority of the Court here. Indeed, no good purpose would be served by requiring the Court to complete its review based on evidence no longer controlling, while the agency waits to consider evidence, presently applicable, of conditions as they now exist.

Next comes the question of determining whether the findings of the Board, in the matter before us, that conditions had changed were supported by substantial evidence. We find several factors, any one of which, in our judgment, constitutes substantial evidence upholding the order. Appellant corporation had come to a state of disarray at the time of the revocation hearing with overwhelming debts and few assets. The day before the hearing, the owners of 95% of the stock in appellant corporation released their shares to the corporation. This action was brought about because these shareholders, who included officers and directors, had become implicated in activity involving illegal waste disposal. In addition, appellant had become involved in litigation with Conoco Oil Company over the right to use the surface at the disposal site. Finally, the evidence discloses that Conoco is engaged in uranium mining at the disposal site that affects the movement of ground water which, in turn, presents a water pollution problem should the wastes in question be buried as planned.

The judgment of the trial court is in all things affirmed.

      . See Tex.Rev.Civ.Stat.Ann. art. 4477 -7 (Supp. 1978).

      . Stewart v. Smith, 126 Tex. 292, 83 S.W.2d 945 (1935); Chenoweth v. Railroad Commission, 184 S.W.2d 711 (Tex.Civ.App.1944, writ ref'd w. o. m.), Edgar v. Stanolind Oil & Gas Co., 90 S.W.2d 656 (Tex.Civ.App.1935, writ ref’d).

      . We express no opinion as to whether the illegal activity of these individuals who are no longer associated with the corporation may be considered as illegal activity of the corporation itself. We only consider this evidence as relevant to the question of the corporation’s ability to perform the functions for which it sought the permit.


author: JONES, Justice.

text:
    Olga PEERS, Appellant, v. Drexell R. DAVIS et al. and Laurence E. Higgins et al., Appellees.
    Supreme Court of Kentucky.
    Oct. 31, 1978.
    Samuel Manly, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Miles H. Franklin, Asst. Atty. Gen., Frankfort, Bert T. Combs, William E. Scent, Tarrant, Combs, & Bullitt, S. J. Stallings, Louisville, for appellees.
   JONES, Justice.

The issue presented is whether Section 152 of the Kentucky Constitution requires or permits an election to be held at the regular election in November 1978 for the unexpired term of Judge of the Jefferson Circuit Court, 13th Division. This court has reviewed the record, the briefs of the parties, and heard oral arguments. At the conclusion of oral arguments the court announced its decision from the bench that the judgment of the trial court was affirmed and that an opinion would follow.

On November 3, 1977, Thomas A. Ballan-tine, Judge of the Jefferson Circuit Court, 13th Division, resigned from that office in order to accept a commission as Judge of the United States District Court for the Western District of Kentucky. Judge Bal-lantine had been elected in November 1975, and his term had approximately six years to run following his resignation.

On February 9, 1978, Laurence E. Higgins was appointed by the Governor of Kentucky to fill the vacancy caused by Judge Ballantine’s resignation. The territory covered by the office of circuit judge in the 13th division embraces all of Jefferson County. Prior to the primary election in May 1978, petitions for nomination for the office of Judge, Jefferson Circuit Court, 13th Division, were filed with Drexell R. Davis, Secretary of State, by both Judge Peers and Judge Higgins. On advice of the Attorney General, the Secretary of State, on March 30, 1978, informed Judge Peers that he would not certify her as a candidate for the 1978 election because an election for the unexpired term could not be held until 1979. The Secretary of State refused to issue a certificate of nomination for either Judge Peers or Judge Higgins. This action precluded their names from appearing on the ballot at the November 7, 1978 general election.

J udge Peers commenced this action in the Franklin Circuit Court on April 27, 1978. She asserted that there must be an election in November 1978 to fill the vacancy. On August 18, 1978, the trial court denied Judge Peers’ motion for summary judgment. The trial court held that Section 152 of the Kentucky Constitution is determinative of the issue in this case and that Section 152 was neither expressly nor impliedly repealed or amended by the enactment of the Judicial Article except that Section 118 provides for the Judicial Nominating Commission. The trial court held also that the only office embracing all of Jefferson County to be filled at the November election in November 1978 is that of United States Senator. He also held that office is not a state office within the meaning of Section 152. The real grist of the trial court’s finding was that Section 152 of the Kentucky Constitution does not require, nor does it permit, an election to be held at the regular election in November 1978 for the unexpired term of Judge, Jefferson Circuit Court, 13th Division.

Judge Peers filed her notice of appeal and sought transfer of this case from the Court of Appeals to the Supreme Court and moved to advance the appeal on the docket for speedy hearing and disposition. On October 2, 1978, this court granted her motion to transfer and set oral argument for Wednesday, October 4, 1978. The court also directed the Franklin Circuit Court Clerk to transmit the entire certified trial record to the clerk of this court.

Judge Peers contends that the enactment of the Judicial Article, which includes a repealer division set out in Section 124 of the Constitution, repealed so much of Section 152 of the Kentucky Constitution as conflicts with Sections 117 and 118 of the Constitution which are contained in the Judicial Article.

Judge Peers also contends that the November 1978 election is an election within the meaning of Section 152 of the Kentucky Constitution, since it includes an election for the office of United States Senator. She argues that a United States Senator is a state officer under Section 152 of the Constitution. Peers relies on the provisions of KRS 118A.100(1) in support of her contention that there must be an election to fill the vacancy in the 13th Division of Jefferson Circuit Court in November, 1978. KRS 118A.100(1) provides as follows:

“Filling vacancy for unexpired term. — (1) Candidates for an unexpired term of a judicial office to be filled at a regular election shall be nominated at the primary next preceding the regular election in the manner prescribed in KRS 118A.060 if the vacancy occurs not less than seventy (70) days before the primary. If the vacancy occurs on or after the seventieth day before the primary, the election to fill the unexpired term shall be held in accordance with the procedures described in this section and section 152 of the constitution of Kentucky. .” (Emphasis added).

Section 152 of the Constitution clearly prohibits an election to fill the vacancy in the unexpired term in the 13th Division of Jefferson Circuit Court because there is no regular election to be held in Jefferson County embracing the entire county.

The pertinent parts of Section 152 of the Kentucky Constitution relating to this controversy provide:

“§ 152. Vacancies — When filled by appointment, when by election — Who to fill. —Except as otherwise provided in this Constitution, vacancies in all elective offices shall be filled by election or appointment, as follows: If the unexpired term will end at the next succeeding annual election at which either city, town, county, district or State officers are to be elected, the office shall be filled by appointment for the remainder of the term.

The second sentence of Section 152 of the Kentucky Constitution provides that:

“If the unexpired term will not end at the next succeeding annual election at which either city, town, county, district or State officers are to be elected, and if three months intervene before said succeeding annual election at which either city, town, county, district or State officers are to be elected, the office shall be filled by appointment until said election, and then said vacancy shall be filled by election for the remainder of the term.

The only annual elections to be held in Jefferson County in 1978 that involve either “city, town, county, district or State officers” are certain school board elections. This court has construed Section 152 as requiring all vacancies to be filled at the next regular election “embracing the area in which the vacancy has occurred.” Because the Jefferson County School Board elections do not embrace the entire county, they fail to embrace the judicial circuit, the area in which the vacancy in question occurred.

In Brumleve v. Ruth, Ky., 195 S.W.2d 777 (1946), this court held that no election to fill a vacant Court of Appeals judgeship could be held, where the only offices to be filled at the upcoming election were a Representative in Congress, a United States Senator, and various school board positions. This court has also stated that “It is undisputed that if there were only a member of Congress and a United States Senator to be elected at that time, there could be no election to fill the vacancy in the office of Mayor.” Smith v. Ruth, Ky., 212 S.W.2d 532 (1948).

The vacancy in question cannot be filled at the regular election in November 1978 by the express provisions of Section 152 of the Kentucky Constitution. It is the opinion of this court that the vacancy existing in the office of Judge, Jefferson Circuit Court, 13th Division, cannot be filled until the regular November 1979 election which is an election for statewide officers embracing the entire state.

The judgment is affirmed.

All concur.