author: J. CURTISS BROWN, Chief Justice.

text:
    Mary L. POSTON, Appellant, v. James E. POSTON, Appellee.
    No. 1853.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 18, 1978.
    Rehearing Denied Nov. 8, 1978.

      George M. Bishop, Mary W. Clark, Houston, for appellant.
    John Morgan, Barfield, Kinard, Kelly & Morgan, Pasadena, Lawrence Madeksho, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

This appeal is from a divorce decree in which the appellant was granted a divorce and certain property and debts were dealt with by the trial court as will be mentioned.

James E. Poston (appellee) sued Mary L. Poston (appellant) for divorce, alleging that the marriage had become insupportable due to conflict and discord. Appellant filed a cross-action for divorce, alleging, in addition to the above grounds, that appellee had committed adultery. Appellant, seeking to be appointed managing conservator of the couple’s minor children, requested title to the family home, or, in the alternative, its use until the children reached the age of 18. The trial court, before trial, sua sponte appointed a guardian ad litem and a master of chancery. The master of chancery met briefly with the attorneys for the parties and attempted to bring about a property settlement; however there was only limited success reflected in trial stipulations.

Trial was to the court, with the parties in basic agreement as to the disposition of all property except the homestead. After hearing the testimony of the parties, the trial court appointed a receiver to sell the house and distribute the proceeds. The receiver was ordered to use the proceeds to pay off the mortgage, pay court costs over deposit, pay guardian ad litem fees, pay master in chancery fees, pay certain general creditors, and then to distribute one-half of the remainder, if any, to the appellant. Out of the appellee’s one-half, the appellant’s attorney was to receive attorney’s fees stipulated to be $4,048.50, and the appellant was to receive one-half of any house payments not made by the appellee from the date of judgment until the house was sold. If appellee’s share of the proceeds proved insufficient to pay appellant’s attorney’s fees, appellant’s attorney was to receive 9% interest on the deficiency from the date of sale until paid.

Appellant perfected appeal to this court and filed notice of limited appeal. Appellant brings fifteen points of error, and in his first four points contests the propriety of the trial court’s action with regard to the master in chancery. Appellant first argues that the trial court erred in appointing the master in chancery. Appellant relies on Bell v. Bell, 540 S.W.2d 432 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ). In Bell the court held that the trial court abused its discretion in appointing a master of chancery because the case was not “exceptional” as contemplated in Tex.R.Civ.P. 171. In Bell the parties disputed the character, community or separate, of certain property and disputed the value of the husband’s business. The court held that those facts were not sufficient to warrant appointment of a master in chancery. In the case at bar, the situation is even less complicated than in Bell. The property here was clearly all community and the only real dispute concerned the disposition of the family home. We therefore hold that it was error to appoint the master. We also hold that it was reversible error to require the appellant to pay any part of the fees awarded to the master. The appellant neither requested nor acquiesced in the appointment. We sever this portion of the judgment and reverse and render the trial court’s taxing of the fee for the master.

Appellant next contends that the trial court erred in determining the amount of fees due to the guardian ad litem, and further that it was error to charge the fees against the proceeds from the sale of the house. Appellant questions the legal and factual sufficiency of the evidence to support the amount of fees awarded to the guardian ad litem. Initially we note that, because the guardian ad litem is an officer of the court, the trial court is vested with broad discretion in setting his compensation. The trial court’s decision as to reasonable compensation for the guardian ad li-tem will not be overturned unless there is a clear abuse of discretion apparent from the record. Coastal States Gas Producing Company v. Locker,-436 S.W.2d 592, 596 (Tex.Civ.App.—Houston [14th Dist.] 1968, no writ); Roberson v. Roberson, 420 S.W.2d 495, 502 (Tex.Civ.App.—Houston [14th Dist.] 1967, writ ref’d n. r. e.). We find some evidence to support the award of fees to the guardian ad litem by his activities reflected in the record. Appellant’s point of error attacking the .legal sufficiency of the evidence to support the award to the guardian ad litem is overruled.

In considering appellant’s challenge to the factual sufficiency of the evidence to support the award of $300.00 to the guardian ad litem, we note that the appellant failed timely to request findings of fact and conclusions of law and none were filed. Therefore, the record on appeal consists only of a statement of facts and the transcript. Without findings of fact, the trial court’s judgment must be affirmed if it can be upheld on any legal theory supported by the evidence. Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962). As indicated above, there is some evidence in the record to support the award to the guardian ad litem. The fact that the guardian did not testify about his services is not controlling. Roberson, supra. We find no abuse of discretion in awarding $300 to the guardian ad litem. Appellant’s ninth point of error is overruled.

In point of error five, appellant asserts that it was error for the trial court to tax the fees of the guardian ad litem against the proceeds of the sale of the house because the house was the homestead of the parties. On the basis of Delaney v. Delaney, 562 S.W.2d 494 (Tex.Civ.App.—Houston [14th Dist.] 1978, no writ history), we must agree. In Delaney, this court held that even when a homestead is sold by a receiver in a divorce case, the proceeds are to be accorded their exempt status. Although the issue in Delaney was payment to general creditors, we find no reason to distinguish fees to the guardian ad litem. We hold that the court erred in taxing the fees of the guardian ad litem against the proceeds from the sale of the homestead. Therefore we sever this portion of the trial court’s judgment and remand for taxing the cost of the guardian ad litem otherwise than from the proceeds of the sale.

Appellant’s points of error six, seven, ten, eleven and twelve are all to the effect that the trial court erred in taxing one-half of the court costs against the appellant. Tex.R.Civ.P. 131 provides that costs of Court are to be taxed to the losing party, whereas Rule 141 provides that the trial court may otherwise tax cost based on good cause shown in the record. Tex.R. Civ.P. 131, 141. Although we agree that had appellant been the only successful party below, it would have been improper to tax her with costs absent a showing of good cause, we do not agree that appellant was entirely successful below. In her petition appellant sought to keep the house and she sought higher child support payments than she received. Therefore, the appellant was not the only successful party to the action and we find no abuse of discretion in taxing the costs of the suit equally between the parties. Walker v. Showalter, 503 S.W.2d 624, 627 (Tex.Civ.App.—Houston [1st Dist.] 1973, no writ). Consequently, we overrule appellant’s points of error six, seven, ten, eleven and twelve.

In point of error fourteen, appellant maintains that the trial court erred in allowing interest on the attorney’s fees to appellant’s attorney at the statutory rate only if there was a deficiency from the proceeds of the house, and in ruling that the interest run from the date of sale of the house. We agree. Article 5069-1.05, Tex. Rev.Civ.Stat.Ann. provides that “[a]ll judgments of the courts of this State shall bear interest . . . from and after the date of judgment.” We construe that article as mandatory, and, because the award of attorney’s fees is part of the judgment, we hold that appellant is entitled to 9% on the award of attorney’s fees from the date of judgment. The trial court’s ruling on this point is modified to reflect 9% interest from the date of judgment on attorney’s fees awarded to appellant’s attorney.

Appellant, in point of error fifteen, urges that it was error for the trial court to waive bond for the receiver. Appellant attempts to show that Tex.R.Civ.P. 695a conflicts with Tex.Rev.Civ.Stat.Ann., art. 2296. Rule 695a allows the trial court to waive a receiver’s bond in divorce cases, whereas article 2296 requires all receivers to post a good and sufficient bond in an amount approved by the court. Appellant has offered no eases in support of her contention, and we have found none. We see no conflict in the two provisions because the statute vests broad discretion in the trial court concerning the amount of bond posted. It is not inconsistent with such broad discretion for the rule to further allow the trial court to find that no bond is required. Cline v. Cline, 323 S.W.2d 276 (Tex.Civ.App.—Houston 1959, writ ref’d n. r. e.). Appellant’s fifteenth point of error is overruled.

Appellant’s remaining points have been considered and are overruled.

Having sustained appellant’s point of error number one, we sever, and reverse and render that portion of the judgment that taxes any part of the master in chancery fees against the appellant. We also sever, and reverse and remand that portion of the judgment charging the fees of the guardian ad litem against the proceeds of the sale of the homestead. We modify the judgment to reflect 9% interest from the date of the judgment on the attorney’s fees awarded to appellant’s attorney. The remainder of the trial court’s judgment is affirmed.

Reversed and rendered in part; reversed and remanded in part; modified and affirmed in part. Costs of this appeal are taxed against appellant.

      . The writer dissented in Delaney but, o course, now yields to the authority of that opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Wayne HINES, Appellant, v. BANKERS LIFE AND CASUALTY COMPANY, Appellee.
    No. 1935.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 18, 1978.

      Michael Y. Saunders, Rodney V. Stein-burg, Helm, Pletcher, Hogan & Burrow, Houston, for appellant.
    Michael Phillips, C. A. Livingston, Jr., Boswell, O’Toole, Davis & Pickering, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

Appellant brings this appeal from a summary judgment rendered against him in a suit on an insurance policy.

Wayne Hines (appellant) obtained an income indemnity insurance policy from Banker’s Life and Casualty Company (ap-pellee) on January 25, 1973. Under the policy appellee was to pay specific amounts upon proof of appellant’s disability. On June 1, 1973, appellant was injured, and, claiming to be totally disabled, filed for indemnity under the policy. The appellee refused to pay the claim. Thereafter, on July 2] 1977, appellant filed suit, alleging total and continuous disability since the accident and further alleging that all conditions precedent to institution of the action had been performed.

Appellee, in addition to a general denial, alleged that the contractual limitations to institution of the suit had run. Appellee also asserted that the policy was void or voidable ab initio due to appellant’s alleged material misrepresentations of past medical history. Appellee later filed a motion for summary judgment contending that there were no genuine issues of material fact with respect to the two defenses set out in the original answer.

Initially we note that summary judgment is a harsh remedy that will not be upheld unless the record establishes the movant’s right thereto as a matter of law. Wilcox v. St. Mary’s University of San Antonio, Inc., 531 S.W.2d 589 (Tex.Sup.1975). Tex.R.Civ.P. 166-A. The appellee in this case faced a particularly heavy burden because, rather than attacking some element of appellant’s case, appellee sought a summary judgment on the defenses set out in its answer. When a party moves for summary judgment on the basis of its affirmative defenses, it must conclusively prove all elements of the defenses. Swilley v. Hughes, 488 S.W.2d 64 (Tex.Sup.1972).

Furthermore, appellee chose not to present any summary judgment evidence in the form of either affidavits, depositions, exhibits or other items specified by Rule 166-A. When the movant declines to submit such summary judgment evidence, the motion is treated much like a special exception to the other party’s pleadings. 4 McDonald, Texas Civil Practice-Judgments, § 17.26.8(i) (1971). In effect, the contention of the movant is that its defenses are shown on the face of the other party’s pleadings, as in Tarkington v. Continental Casualty Company, 341 S.W.2d 490 (Tex.Civ.App.-Fort Worth 1960, writ ref’d n. r. e.). In Tarkington, the insurance policy attached to the plaintiff’s petition was held to show that the contractual period of limitations had run.

Turning to appellee’s grounds for summary judgment, we find first that the insurance policy does not reflect as a matter of law that there were no genuine issues of fact as to whether the contractual limitations had run. The policy provisions in question are as follows:

PROOFS OF LOSS: Written proof of loss must be furnished to the Company at its said office in case of claim for loss for which this policy provides any periodic payment contingent upon continuing loss within 90 days after the termination of the period for which the Company is liable and in case of claim for any other loss within 90 days after the date of such loss. Failure to furnish such proof within the time required shall not invalidate nor reduce any claim if it was not reasonably possible to give proof within such time, provided such proof is furnished as soon as reasonably possible and in no event, except in the absence of legal capacity, later than 1 year from the time proof is otherwise required.
LEGAL ACTIONS: No action at law or in equity shall be brought to recover on this policy prior to the expiration of 60 days after written proof of loss has been furnished in accordance with the requirements of this policy. No such action shall be brought after the expiration of 3 years after the time written proof of loss is required to be furnished. (Emphasis added).

Similar provisions were recently construed in Proctor v. Southland Life Insurance Company, 522 S.W.2d 261 (Tex.Civ.App.-Fort Worth 1975, writ ref’d n. r. e.). The Proctor Court stated that the insured, claiming continuous disability, could, after a length of time, file proof of loss and set a “termination” date from which the limitations would run against benefits accrued during that certain length of time. However, there would be no “termination” date until proof of loss was filed. We agree with the court’s analysis of the policy provisions in Proctor and we conclude that the contractual limitations provisions cannot be deemed as a matter of law to have run against all of appellant’s claim. Only that part of appellant’s claim for which he filed proof of loss more than three years prior to institution of this suit would be barred. In the case at bar, the three year limitations period would not begin to run until after the proof of loss was “required to be filed.” Proof of loss would not be “required to be filed” until the termination of the company’s liability had occurred. Appellee failed to supply any summary judgment evidence and we therefore have no basis upon which to determine whether any of the policy provisions should be given effect. While it is true that appellant, in an abandoned pleading, “admitted” to filing a proof of loss after the accident, that admission provides no conclusive proof or judicial admission concerning when proof of loss was “required to be filed.”

Pleadings themselves do not constitute summary judgment evidence, nor should a summary judgment be based on a pleading deficiency that could be cured by amendment. Hidalgo v. Surety Savings & Loan Association, 462 S.W.2d 540 (Tex.Sup.1971); Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.Sup.1974). We hold that appellee failed in his burden of showing that there were no genuine issues of fact as to whether limitations had run against appellant’s claim.

Appellee’s second ground in its motion for summary judgment was that as a matter of law the insurance policy was void or voidable ab initio due to appellant’s alleged material misrepresentations. Due to appellee’s failure to produce any summary judgment evidence, this contention must be supported, if at all, from the face of appellant’s trial pleadings. Finding no such support, we rule that appellee failed to carry its burden of showing no genuine issue of material fact.

Discerning no other basis upon which to affirm the trial court’s action in granting summary judgment, we reverse and remand for trial.

Reversed and remanded.


author: COULSON, Justice.

text:
    Johnny Lavell BLANKINSHIP, Appellant, v. Sheryl Combest BLANKINSHIP, Appellee.
    No. 1857.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 18, 1978.
    Jimmy Phillips, Jr., Angleton, for appellant.
    Martin B. Hardin, Jr., Wommack, Den-man & Hardin, Lawrence H. Packard, III, Lake Jackson, for appellee.
   COULSON, Justice.

Appellant, Johnny Lavell Blankinship, petitions this court by means of a writ of error to review a judgment granting a divorce to appellee Sheryl Combest Blankinship, providing that appellee be managing conservator of the minor children and, inter alia, granting possession of the couple’s home to appellee, with provisions for its disposal upon the happening of certain contingencies. Appellant complains of the disposition made of the parties’ home. Appel-lee has filed a motion to dismiss appellant’s writ of error on the ground that appellant participated in the proceedings below, which participation operates to defeat the jurisdiction of this court to review the petition for writ of error. The motion to dismiss is granted and the petition for writ of error is dismissed.

Tex.Rev.Civ.Stat.Ann. art. 2249a specifies that “no party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the Court of Civil Appeals through means of writ of error.” The question to be answered in determining whether writ of error is available to appellant is whether his actions in connection with the divorce proceedings constituted such “participation” as would foreclose writ of error review. The extent of participation in the actual trial that disqualifies an appellant from review by means of a writ of error appears to be one of degree. Thacker v. Thacker, 496 S.W.2d 201 (Tex.Civ.App.—Amarillo 1973, writ dism’d). Such review has. been granted to one who merely filed a motion for new trial with no other participation, Lawyers Lloyds of Texas v. Webb, 137 Tex. 107, 152 S.W.2d 1096 (1941); and to one who merely files an answer and does not further participate, Petroleum Casualty Co. v. Garrison, 174 S.W.2d 74 (Tex.Civ.App.—Beaumont 1943, writ ref’d w. o. m.). Writ of error is denied where the appellant participated in the actual trial that led to judgment, Lawyers Lloyds of Texas v. Webb, supra; to one who had excepted to the judgment in open court, Byrnes v. Blair, 183 S.W.2d 287 (Tex.Civ.App.—El Paso 1944, no writ); and to one who participated in all steps of a summary judgment case except appearance at the hearing on the motion for summary judgment, Thacker v. Thacker, supra.

The record in this case reveals that appellant signed a waiver of citation, which indicated that he was entering an appearance for all purposes, and waived the making of a record of testimony. Additionally, appellant indicated his approval of the divorce decree by signing the judgment prior to its entry by the trial court. We believe that appellant “participated” in the proceedings in an extent sufficient to preclude him, under article 2249a, from obtaining review in this court by means of writ of error. Our conclusion is supported further by the opinion of the Supreme Court of Texas in Lawyers Lloyds of Texas v. Webb, supra, where that court discussed the purpose of the article 2249a requirements:

The statute was intended to cut off the right of appeal by writ of error of those who participate in the hearing in open court in the trial that leads to final judgment. It was not intended to cut off the right of those who discover that a judgment has been rendered against them after the judgment has been rendered.

Appellant is not in the position of those who “discover that a judgment has been rendered against them after judgment has been rendered.” Appellant signed his approval of the judgment prior to an entry and we therefore presume that he read it and had knowledge of its contents prior to its entry.

The Lawyers Lloyds of Texas Court also stated:

There was good reason for making a distinction between those who participate in the hearing in open court, leading up to the rendition of judgment, and those who do not so participate. The statute allows a short period of time for the presentation of an appeal and a longer period for the suing out of a writ of error. Revised Civil Statutes 1925, Arts. 2253 and 2255, Vernon’s Ann.Civ.St. arts. 2253, 2255. The legislative purpose was to take away the right of appeal by writ of error from those who should reasonably use the more speedy method of appeal. Those who participate in the trial leading up to the rendition of judgment are familiar with the record, and are therefore in position to prepare for appeal on short notice; whereas, those who do not so participate in the actual trial, and are therefore unfamiliar with the record, may need additional time in which to familiarize themselves with the record. For example: One who participates in the hearing of the evidence will be familiar with the facts introduced upon the trial and can immediately begin the preparation of his appeal; whereas, one who does not so participate may have to wait until the reporter can prepare a statement of facts before he can properly prepare his appeal for presentation to the appellate court.

Appellant here is in the category of those who “should reasonably use the more speedy method of appeal.” He was fully familiar with the findings and conclusions of the decree even prior to its entry by the trial court. Furthermore, he had waived the making of a record of the proceedings and therefore had no occasion to delay his appeal to this court pending preparation of a statement of facts. The record was complete, and appellant had sufficient familiarity with the events from his participation in the proceedings to enable him to prosecute an immediate appeal if he so desired.

We hold, therefore, that appellant may not avail himself of appeal by a writ of error to this court. Appellee’s motion to dismiss the petition for writ of error is granted.


text:
    M. Doug PETERS, Jr. et ux., Appellants, v. LOMAS & NETTLETON FINANCIAL CORPORATION, Appellee.
    No. 1882.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 18, 1978.
    Thomas A. Harwood, Joe W. Walsh & Associates, Brownsville, for appellants.
    Robert H. Singleton, Singleton & Singleton, Houston, for appellee.
   COULSON, Justice.

Appellants, plaintiffs below, appeal from a summary judgment granted in favor of appellee, defendant below, in a suit based on allegations of usury. We affirm.

This suit arose out of transactions between appellants, appellee and one Fonta-na. In 1972, appellant M. Doug Peters, Jr. contacted Fontana, a real estate broker, to recommend real estate investments in Houston. Peters, Fontana and Sam Bowman agreed to purchase a piece of property in Harris County. In order to purchase the property it was necessary to borrow a substantial sum of money. To this end a corporation, the Seventy-Five Lee Corporation, was formed and a loan was arranged from appellee Lomas & Nettleton for $525,000.00. Appellant M. Doug Peters, Jr. signed a personal guarantee of the loan which had been made to the Seventy-Five Lee Corporation. In June of 1975, appellee notified appellant M. Doug Peters, Jr. that the note was in default and made demand upon Peters, as guarantor, for payments of the amounts due. On August 12, 1975, appellants filed suit against Fontana alleging breach of fiduciary duty, and against Lomas & Nettle-ton alleging usury. On February 27, 1978, the trial court granted appellee’s motion for summary judgment and decreed that appellants recover nothing from appellee as a matter of law. Appellants’ cause of action against appellee was severed from the remainder of the lawsuit and appellants perfected this appeal.

Appellants seek a reversal on the ground that a genuine issue of material fact was raised on the question of whether the loan was usurious. The loan agreement and promissory note provided for interest at the rate of 4½% per year in excess of the prime interest rate of the First National Bank in Dallas, but in no event to be greater than the maximum rate of interest permitted by law. Appellants contend that the loan was, in fact, made “for the benefit of” M. Doug Peters, Jr. as an individual and that appel-lee required the formation of a corporation solely in order to evade the usury laws. They allege therefore that the maximum rate of interest allowed is governed by Article 5069-1.02 Tex.Rev.Civ.Stat.Ann., which provides: “Except as otherwise fixed by law, the maximum rate of interest shall be ten percent per annum. A greater rate of interest than ten percent per annum unless otherwise authorized by law shall be deemed usurious.” Appellants, for claimed violation of this statute, seek the penalties provided by Article 5069-1.06 Tex.Rev.Civ. Stat.Ann.

Our examination of the record reveals that the loan was in fact made to the Seventy-Five Lee Corporation. The promissory note and the deed of trust were executed for the corporation by its president. Appellant M. Doug Peters, Jr. executed the guaranty securing the note of the Seventy-Five Lee Corporation. The corporation was properly formed and Articles of Incorporation were properly filed with the Secretary of State. The loan proceeds were paid to the corporation and were used, by the corporation, to purchase the property in the name of the Seventy-Five Lee Corporation. None of the funds was ever paid personally to appellants, nor appropriated by appellants for their personal use. All payments due under the loan to Lomas & Nettleton were paid by the Seventy-Five Lee Corporation.

Article 1302-2.09 Tex.Rev.Civ.Stat.Ann. provides that corporations may “agree to and stipulate for any rate of interest as such corporation may determine, not to exceed one and one-half percent (1½%) per month, on any bond, note, debt, contract or other obligation of such corporation under which the original principal amount is Five Thousand Dollars ($5,000) or more, . and in such instances, the claim or defense of usury by such corporation, its successors, guarantors, assigns or anyone on its behalf is prohibited.” Under this statute it was legal for appellee to charge the Seventy-Five Lee Corporation a rate of interest in excess of ten percent. The mere fact that appellee required the formation of the corporation in order to obtain the loan does not render the transaction void or illegal. The corporation was validly incorporated and carried out its purpose of acquiring the property with proceeds of the loan in question. The corporation was created because the statute permits a corporate entity to make the contract which would be illegal if made by an individual. As the Dallas Court of Civil Appeals has stated, citing New York cases, “The law has not been evaded but has been followed meticulously in order to accomplish a result which all parties desire and which the law does not forbid.” Skeen v. Glenn Justice Mtg. Co. Inc., 526 S.W.2d 252 (Tex.Civ.App.—Dallas 1975, no writ); see also American Century Mtg. Investors v. Regional Ctr. Ltd., 529 S.W.2d 578 (Tex.Civ.App.—Dallas 1975, writ ref’d n. r. e.).

We conclude that the loan was made to the corporation, and the fact that the lender required the formation of such corporation in order to make the loan at a higher rate of interest does not make the transaction usurious or illegal. Thus, there was no material issue of fact on the question of usury raised by the summary judgment proof and summary judgment was properly granted in favor of appellee.

Affirmed.


author: CIRE, Justice.

text:
    Garry W. FENNO et al., Appellees, v. SAM REECE AIR CONDITIONING & HEATING, INC., et al., Appellees.
    No. 1878.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 18, 1978.

      Roland B. Darby, Houston, for appellants.
    Jack Erwin, Jr., John S. Brunson, Brun-son, Erwin & Byrom, Houston, for appel-lees.
   CIRE, Justice.

Garry W. Fenno and Dermot J. Durcan appeal from an order granting a new trial.

On February 10,1978, the 127th District Court of Harris County rendered a default judgment in favor of Fenno and Durcan. On February 21, 1978, Sam Reece Air Conditioning & Heating, Inc., appellee here, moved for a new trial. February 20 was a holiday, and the motion, therefore, was timely filed. Rule 329b, Tex.R.Civ.P.; Art. 4591, Tex.Rev.Civ.Stat.Ann.; Rule 4, Tex.R.Civ.P. This motion was granted on March 31, 1978.

We do not have jurisdiction to entertain this appeal. This court has no jurisdiction to act on appeals from interlocutory orders except in three situations provided for by statute. These are pleas of privilege (art. 2008, Tex.Rev.Civ.Stat.Ann.), appointments of receivers or trustees or orders overruling motions to vacate such appointments (art. 2250, Tex.Rev.Civ.Stat.Ann.), and temporary injunctions (art. 2251, Tex. Rev.Civ.Stat.Ann.). An order granting a new trial is an interlocutory order, and absent statutory authority this court cannot act on such appeal. Henderson v. Shell Oil Co., 143 Tex. 142, 182 S.W.2d 994 (1944).

When a court lacks jurisdiction in a matter, as this court does in the case of interlocutory orders, the only valid action it may take is dismissal. Berger v. Berger, 497 S.W.2d 453 (Tex.Civ.App.—El Paso 1973, no writ); City of Beaumont v. West, 484 S.W.2d 789 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.).

Further, even if the order granting a new trial had been void, as appellant claims, our disposition of this ease would be the same. Absent statutory authority we have no jurisdiction to hear appeals from void interlocutory orders for the purpose of declaring their invalidity. Johnson Radiological Group v. Medina, 566 S.W.2d 117 (Tex.Civ.App.—Houston [14th Dist.] 1978, no writ) (appeal from a void order reinstating a case after dismissal for want of prosecution).

Appeal dismissed.


author: YOUNG, Justice.

text:
    Betty L. RALPH, Appellant, v. MR. PAUL’S SHOES, INC., Appellee.
    No. 1284.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 19, 1978.
    Rehearing Denied Nov. 9, 1978.

      Charles N. Cartwright, Prichard, Peeler, Cartwright & Hall, Corpus Christi, for appellant.
    David T. Burkett, Burkett & Burkett, Inc., David Coover, Jr., Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

Mr. Paul’s Shoes, Inc., appellee, brought this suit against Betty L. Ralph, individually and as sole beneficiary of the estate of George Ralph, deceased, for smoke and heat damage to the merchandise, furniture and fixtures located at appellee’s store. Appel-lee alleged specific acts of negligence, i. e., careless disposal of smoking materials by appellant’s employees, but did not plead or prove a res ipsa loquitur case. Trial was to the court with a jury, which found that an employee of the appellant negligently caused the fire and damage in question. The appellant moved for a judgment non obstante veredicto alleging no evidence to support the jury’s findings. The court denied the motion and entered judgment on the verdict. Appellant’s motion for new trial was overruled and this appeal followed. We affirm.

A fair summary of the background facts shows these events and circumstances. Mrs. Ralph’s deceased husband was the owner of the Neptune Saloon. Appellee’s shoe store was located in a connected building. On the morning of September 9, 1975, two waitresses were on duty as well as the bartender-manager, Elizabeth Belew, who operated the saloon. Business had been slow, and the last customer left the saloon at about 1:40 a. m. The saloon closed for business at 2:00 a. m. After closing, the waitresses cleaned ash trays and glasses off the tables and emptied them into a trash can. Meanwhile Belew checked the cash register behind the bar. The waitresses then proceeded into the saloon’s storeroom which also served as their dressing room and as an office, to change from their costumes into their other clothes. After changing, the waitresses walked out of the storeroom to the end of the bar nearest to the storeroom and asked Belew if she wanted them to stay. Belew said they could leave. They all talked a few more minutes, and the waitresses left at about 2:15 a. m. Belew, a nonsmoker, then went to the desk located in the storeroom to do her daily bookwork, and while there neither noticed nor smelled anything unusual. Once finished, she discarded her adding machine tapes into the trash can next to the wall between the clothing locker and the desk. She locked the saloon and went home sometime between 2:25 a. m. and 2:35 a. m.

At 3:39 a. m. the Corpus Christi Fire Department received a fire alarm for the location of the Neptune Saloon. Upon arriving, the firemen found most of the fire centered in the saloon’s storeroom and in the attic above the storeroom. Smoke and heat from the fire damaged appellee’s inventory of shoes, furniture and fixtures.

Fire inspector Throneburg of the Corpus Christi Fire Department investigated the scene of the fire. At trial, he testified that he had five years experience in investigation and that in his opinion the origin of the fire was the above mentioned trash can in the storeroom. Throneburg also testified that in his opinion the fire was started by discarded smoking materials in the trash can. Throneburg then testified as to the facts upon which he based his opinion. He stated that he not only observed the physical evidence of the fire itself, the burn patterns, and the absence of any other reasonable origin for the fire, but that he also interviewed several people at the scene, namely, the firemen, Belew and the two waitresses. The conversations Throneburg had with others at the scene were offered only to show the facts upon which he based his opinion in part. See Lewis v. Southmore Savings Association, 480 S.W.2d 180, 186-87 (Tex.Sup.1972); Minor v. Commercial Ins. Co. of Newark, N.J., 557 S.W.2d 608 (Tex.Civ.App.—Texarkana 1977, no writ). According to Throneburg, the firemen found no signs of arson and no evidence that anyone had broken into the saloon. Belew told him that she had closed around 2:35 a. m., then went out the front door, which was at the opposite end of the saloon from the storeroom, and did not notice any odor or anything unusual in the lounge. Throneburg further stated that the two waitresses told him that while they were changing clothes in the storeroom they both smoked cigarettes and possibly left them in an ash tray. One of them further stated to him that it was their routine to empty all the saloon’s ash trays into trash cans and set them next to the wall in the storeroom so they could be taken out the next morning by the cleanup detail.

Belew, who at the time of trial was employed by appellant, Mrs. Ralph, also testified that, although the general policy of the Neptune Saloon was not to allow the waitresses to smoke in the storeroom, that they did so anyway, and that she would permit their smoking if the waitresses would clean up the ash trays and empty them into the trash can in front of the bar between the service rails.

Appellant brings seven points of error. Points 1, 2 and 3 assert that the trial court erred in overruling appellan ’s motion for judgment n. o. v. because there is no evidence to support the jury’s findings that a) an employee discarded smoking materials in the trash can next to the desk in the storeroom, that b) the act was negligence and that c) the act was the proximate cause of the damages. We disagree.

Appellant’s argument centers on the facts that Charles Throneburg was the only witness who testified about the cause of the fire and that all of his opinions were qualified by the term “possibly.” From this, appellant argues that Throneburg’s opinions are at best conjecture and that thus they constitute no evidence of the cause of the fire. Appellant cites Leatherwood Drilling Company v. TXL Oil Corporation, 379 S.W.2d 693, 697 (Tex.Civ.App.—Dallas 1964, writ ref’d n. r. e.) for the proposition that evidence that a happening is possible cannot be accepted as evidence that it did happen.

We do not accept this argument of the appellant for two reasons. First, not all of Charles Throneburg’s opinions concerning the cause of the fire were qualified by the term “possibly.” On page 34 of the statement of facts we find the following testimony:

“Q. So then, Mr. Throneburg, you are satisfied that your report, in investigating this fire you came to a proper conclusion then, right?
A. Yes.
Q. And in your mind, in your opinion, the fire was started by discarding smoking materials into the trash can, was that correct?
A. Yes, sir.”

Secondly, the test of whether an expert’s testimony expresses a reasonable probability, as opposed to pure conjecture, that an event occurred is not based upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony. Otis Elevator Company v. Wood, 436 S.W.2d 324, 331-32 (Tex.Sup.1968); Insurance Company of North America v. Myers, 411 S.W.2d 710 (Tex.Sup.1966). In looking at all of Throneburg’s testimony, and the facts stated in support of his opinion, we hold that his opinions which were qualified by the word “possibly” were used in the sense of “probably.” See Otis Elevator Company v. Wood, supra; Texas Elec. Service Co. v. Ragle, 559 S.W.2d 454, 456-57 (Tex.Civ.App.—Fort Worth 1977, writ ref’d n. r. e.); Graham v. Oak Park Mobile Homes, Inc., 546 S.W.2d 394 (Tex.Civ.App.—Corpus Christi 1977, no writ); Pan American Fire & Casualty Company v. Reed, 436 S.W.2d 561 (Tex.Civ.App.—Amarillo 1968, writ ref’d n. r. e.). Therefore, Throneburg’s opinions constituted more than conjecture; they were evidence of the cause of the fire.

Appellant also argues in his point 1 that the testimony is too conjectural to conclude that one of the employees negligently disposed of smoking materials. Appellant cites several cases, but primarily relies upon Systech Financial Corp. v. Vaughn, 558 S.W.2d 105 (Tex.Civ.App.—Tyler 1977, no writ). This was an apartment fire case in which the landlord sued his tenant for damages to the tenant’s apartment. The plaintiff’s evidence merely proved that a) the defendant was the tenant of the apartment in which the fire occurred, that b) the defendant smoked cigarettes, that c) the fire started in the defendant’s sofa and that d) a fire department investigator gave his opinion that the fire was caused by careless smoking on the defendant’s sofa. The Court of Civil Appeals affirmed the directed verdict granted to the defendant because one would be required to pile, inferences upon inferences to conclude that the defendant’s acts were negligent and the proximate cause of the fire.

The present case is different. We need not, here, pile one inference upon an inference to reach a finding that one of the defendant’s employees was negligent. Inspector Throneburg’s expert opinions, though partially based upon hearsay evidence, are admissible to explain the cause of the fire. Graham v. Oak Park Mobile Homes, Inc., supra; Garrett v. Standard Fire Ins. Co., Etc., 541 S.W.2d 635 (Tex.Civ.App.—Beaumont 1976, writ ref’d n. r. e.). The weight to be given such expert testimony is for the jury. Fulton Fire Ins. Co. v. First State Bank of Willis, 353 S.W.2d 937 (Tex.Civ.App.—Waco 1962, writ ref’d n. r. e.). These opinions of Throneburg explain that a) lighted smoking materials were in the storeroom on the night of the fire, that b) these smoking materials were discarded into the trash can, that c) these smoking materials caused the fire in the trash can, and that d) the fire in the trash can was the origin of the fire which damaged the appel-lee’s property.

As to the first issue of whether one of appellant’s employees discarded smoking materials into the trash container, in addition to the facts mentioned earlier, the evidence shows that persons other than employees were not allowed in the storeroom without permission. Belew did not recall whether any one other than an employee had been in the storeroom the night of the fire. The two waitresses normally smoked, and they routinely put their cigarettes into an ash tray on the desk when smoking in the storeroom. There is evidence in the record that immediately before the fire there was one ash tray in the storeroom on one of the shelves across from the desk and possibly another on the desk, although Be-lew denied that there was one on the desk when she was doing her bookkeeping. It was the waitresses’ duty to discard all smoking materials and empty all ash trays at the end of the day, including the ash trays in the storeroom. According to the evidence the average cigarette could smolder between 10 to 15 minutes or possibly longer before igniting a trash can of flammable material. We hold that the above is some evidence and sufficient evidence to justify the jury’s inference that one of the employees of the Neptune Saloon discarded smoking materials into the trash can in the storeroom.

The evidence concerning negligence shows that flammable materials were in the trash can in the storeroom on the night in question as demonstrated by the great quantity of ashes found in the can after the fire. This fact coupled with the other circumstances concerning the time and location of the incident provides evidence that the act was negligent.

Evidence concerning proximate cause, is provided by Throneburg’s opinion that the discarded smoking materials caused the fire. Consequently, one need not pile inferences upon inferences to reach the result of the jury. Appellant’s points 1, 2 and 3 are overruled.

Appellant’s points 5 and 6 contend that the evidence is factually insufficient to support the jury’s affirmative answers to the inquiry about an employee’s discarding smoking materials and to the inquiry about negligence. After we have reviewed the entire record, we find the evidence is factually sufficient to support the jury’s findings. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Appellant’s points 5 and 6 are overruled.

Appellant’s points 4 and 7 contend the trial court erred in entering judgment for the appellee because the evidence was legally and factually insufficient to support the jury’s finding that appellant’s employees were acting within the scope of employment at the time of the incident.

In that regard, in order to render a master liable for an act of his servant, the act must be committed within the scope of the general authority of the servant, in furtherance of the master’s business and for the accomplishment of the object for which the servant is employed. Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354 (Tex.Sup.1971). These matters may be proved circumstantially. Hudiburgh v. Palvic, 274 S.W.2d 94, 100 (Tex.Civ.App.—Beaumont 1954, writ ref’d n. r. e.). We think the evidence we have heretofore set out shows the waitresses were acting within the scope of their authority, in furtherance of the Neptune’s business, to accomplish the objects for which they were employed up until the time they left the saloon. More specifically, the evidence clearly indicates that it was the waitresses’ duty to the owner Ralph to properly dispose of smoking materials, and that it was the act of negligently disposing smoking materials which caused the fire herein. Even if, as appellant argues, the waitresses were smoking for their own personal pleasure, they had at least some responsibility to their employer to properly dispose of their cigarettes or, if the cigarettes were placed in an ash tray, to empty the ash tray.

Further, if the purpose of serving the master’s business actuates the servant to any appreciable extent his acts are within the scope of employment. Best Steel Bldgs., Inc. v. Hardin, 553 S.W.2d 122, 128 (Tex.Civ.App.—Tyler 1977, writ ref’d n. r. e.); Howard v. American Paper Stock Co., 523 S.W.2d 744, 747 (Tex.Civ.App.—Fort Worth), reformed per curiam, 528 S.W.2d 576 (Tex.Sup.1975). Only if the servant steps aside from the master’s business for some purpose wholly disconnected with his employment will the relation of master and servant be suspended. Bresman v. Republic Supply Co., 63 S.W.2d 1105, 1106 (Tex.Civ.App.—Eastland 1933, writ ref’d). We hold the evidence justifies an inference that the employees’ disposal of smoking materials was to some extent actuated by their duties of employment, and thus their acts were within the scope of their employment. Appellant’s points 4 and 7 are overruled.

The judgment of the trial court is affirmed.


author: BISSETT, Justice.

text:
    Emilio ESPINOZA et ux., Appellants, v. VICTORIA BANK & TRUST COMPANY, Appellee.
    No. 1292.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 19, 1978.
    Rehearing Denied Nov. 9, 1978.

      Don Krause, San Antonio, for appellants.
    Robert P. Houston, Victoria, for appellee.
   OPINION

BISSETT, Justice.

This is a summary judgment case. The dispute arose out of a credit transaction involving a mobile home. Emilio Espinoza and wife, Viola Espinoza, hereinafter referred to as the “Espinozas,” brought suit against the Victoria Bank & Trust Company, hereinafter called the “Bank,” to recover damages under the Deceptive Trade Practices Act, Tex.Bus. & Comm.Code Ann., §§ 17.41-63, and to recover statutory penalties and attorney’s fees for several violations of the Texas Consumer Credit Code, Tex.Rev.Civ.Stat.Ann. art. 5069-1.01, et seq., hereinafter referred to as either the “Credit Code” or the “Code.” With respect to the action brought under the Credit Code, the Espinozas first alleged that the transaction in question constituted an installment loan as defined by Chapter Four and that such loan was usurious. In the alternative, they alleged that the transaction was a retail installment sale within the purview of Chapter Seven. The Bank filed what it denominated a “cross action” and what the judgment described as a “counterclaim,” whereby it sought to recover the balance due on a note which the Espinozas had executed in connection with their purchase of the mobile home.

The trial court denied the Espinozas’ motion for summary judgment on their Credit Code claims, granted the Bank’s motion for summary judgment concerning such claims and also granted its motion for summary judgment on its counterclaim; and, after a hearing before the Court where evidence was presented, found that the Bank was entitled to attorney’s fees “for the prosecution of its counterclaim.” After a jury trial concerning the action brought under the Deceptive Trade Practices Act, the trial court instructed a verdict in favor of the Bank. The trial court then decreed:

“[t]hat Plaintiffs take nothing by their suit and that Defendant be awarded judgment against the Plaintiffs in the amount of $10,662.30, plus a reasonable attorney’s fee' in the amount of $3,600.00.”

It was further ordered that “Defendant’s lien on the mobile home owned by the Plaintiffs is foreclosed . . . ”

The Espinozas have not appealed from that portion of the judgment which granted the Bank’s motion for an instructed verdict and resulted in a take nothing judgment on their suit under the Deceptive Trade Practices Act. They have, however, appealed from the remaining portions of the judgment.

The transcript shows only two motions for summary judgment; one was filed by the Espinozas on their Credit Code claims, and the other was filed by the Bank on its counterclaim. However, the judgment recites, in part, that “the Court considered Defendant’s Motion for Summary Judgment as to the Plaintiffs’ claim that it had violated the Texas Consumer Credit Code . . . and . . . considering the pleadings, depositions, affidavits, exhibits and interrogatories on file herein, the Court is of the opinion that there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law, and therefore Defendant’s Motions for Summary Judgment are in all things, Granted.” The parties agree that the Bank did file such a motion. The Espinozas, appellants herein, present two points of error (their second and fourth points), wherein they assert that the trial court erred in granting the Bank summary judgment against them on their asserted Credit Code claims. The Bank, appellee herein, says in its brief: “[t]he Trial Court properly overruled Appellants’ Motion for Summary Judgment on this point and granted that of the Appellee.” We consider that the judgment with respect to the Credit Code claims is final and appealable under the rule announced in Tobin v. Garcia, 59 Tex. 58, 316 S.W.2d 396 (1958).

The true purpose of summary judgments is the elimination of patently unmeritorious claims or untenable defenses. Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex.Sup.1972). Thus, summary judgment should be granted, and if granted, should be affirmed, only if the record establishes the right of the movant to judgment as a matter of law in the absence of any genuine issues of material fact. Farley v. Prudential Insurance Company, 480 S.W.2d 176 (Tex.Sup.1972); Collins v. New, 558 S.W.2d 108, 109 (Tex.Civ.App.—Corpus Christi 1977, no writ). The burden of proof is on the movant for summary judgment, and all doubts as to the existence of a genuine issue of material fact are resolved against him. Parrott v. Garcia, 436 S.W.2d 897 (Tex.Sup.1969).

The evidence herein discussed with respect to the denying of the Espinozas’ motion for summary judgment and the granting of the Bank’s motion therefor means proper “summary judgment” evidence.

The Espinozas purchased from Padre Mobile Homes, hereinafter referred to as the “Dealer,” in Corpus Christi, Texas, a used mobile home which had previously been owned by one Richard Palmer, subject to a security interest held by the Bank. Palmer defaulted on his payments to the Bank, and the mobile home was repossessed by Jack H. Wigginton and Associates, Inc., hereinafter referred to as “Wigginton.” The mobile home was delivered by Wigginton to the Dealer’s lot in Corpus Christi where it was put up for sale. The Espinozas later visited the Dealer’s lot, and decided to purchase the mobile home. They executed a “purchase agreement” on April 21, 1975, whereby they agreed to buy, and the Dealer agreed to sell, the mobile home in question. On the face of the agreement in small type near the bottom of the page is the statement:

“Title to the within described unit passes as of the" date of signing of the retail installment or security agreement by the purchasers even though physical delivery may not be made until a later date.”

The price of the mobile home, according to the purchase agreement, is shown to be $8,834.80. The purchase agreement recites a cash down payment of $556.04, leaving an unpaid balance on the sale price of $8,278.76. Next, comprehensive insurance coverage for a term of at least thirty-six months, at a premium cost of $593.00, is listed, together with coverage of personal effects for $3,500.00. No premium is shown for the latter coverage. Immediately below the itemization of insurance coverage is a box labeled “please purchase the coverages checked above.” The box was checked. The amount financed is stated to be $9,018.00. The finance charge for the sale is then shown to be $8,114.40. The annual interest rate is stated to be 14.5%. The total amount payable ($17,132.40) is to be paid in 120 monthly installments of $142.77 each. The finance charge includes the $593.00 insurance premium. Neither Mr. nor Mrs. Espinoza read any provision of the “purchase agreement” at the time it was signed.

In addition to the “purchase agreement” the Espinozas signed two other documents on April 21, 1975. First, they signed an application for credit to finance their purchase of the mobile home. Second, they made an application to the Mobile County Mutual Insurance Company for the insurance on the mobile home. Such application requested the following: 1) comprehensive insurance at a premium of $548.00; 2) personal effects insurance at a premium of $15.00; 3) VSI (vendor’s' single interest) insurance at a premium of $30.00. While it is undisputed that the policy was duly issued, it is not in evidence.

After signing the “purchase agreement,” the application for credit, and the application for insurance, and making their down payment on the mobile home, the Espinozas understood that the Dealer would attempt to find a lending institution which was willing to finance their purchase of the mobile home. They did not, at that time, know that the Bank would finance their purchase. A few days later, a salesman representing the Dealer called them and told them that financing had been obtained from the Bank. The Espinozas then executed a document entitled “security agreement, note and installment contract,” hereinafter referred to as the “security agreement.” Under its provisions, the Espinozas agreed to pay to the order of the “LENDER” the sum of $17,132.40 in 120 successive monthly installments of $142.77 each, commencing June 4, 1975. Included therein is a finance charge of $8,114.40. The document states on its face that, the “ANNUAL PERCENTAGE RATE” is 14.5% per annum. Also included therein, is a charge of $593.00, which is described therein as the premium for “comprehensive insurance for a term of at least 36 months if obtained through LENDER.” The insurance charge (premium) is shown as being “included in the amount financed.”

After the Espinozas signed the “security agreement,” all papers incidental to the transaction (purchase agreement, insurance application, credit application and security agreement) were delivered by the Dealer to Wigginton, who, in turn, forwarded them to the Bank, along with a receipt for title application and disbursement record. This was done about May 15, 1975.

At all times pertinent to this appeal, there was outstanding an agreement between Wigginton and the Bank. According to the agreement, Wigginton was an independent contractor in the business of mobile home servicing. Wigginton promised to provide certain services as well as obtain indemnity insurance for the Bank against any credit losses caused by buyer defaults on outstanding mobile home loans. Among its more important services, Wigginton promised to solicit indirect “mobile home installment loan contracts” by approaching various mobile home dealers. Additionally, it was required to handle all aspects of mobile home repossessions for the Bank.

The procedure to be followed by Wiggin-ton in repossessing mobile homes was spelled out in its agreement with the Bank. After receiving written authorization from the Bank, Wigginton would physically repossess a unit and deliver it to an approved retail dealer for resale. Should such resale involve an indirect loan, Wigginton promised to supply all necessary forms. According to the agreement, it was actually the Dealer who was to initiate such a loan by furnishing the Bank with a credit application. If the Bank approved the loan, the dealer would then provide the Bank with all the documents required by Wigginton’s “underwriting guidelines.” The Bank would then review the correspondence and send it on to Wigginton, which would then issue a “default insurance certificate” on the particular loan involved. One reason for this procedure was to guarantee Wig-ginton that the proper property insurance had been written on the mobile home being purchased. Thus, actual procurement of property insurance in some manner was a necessary precondition to actualization of the indemnity bond meant to protect the Bank from credit losses. It was also, however, the policy of the Bank in this case to require insurance for the collateral.

In this case the Bank sent the Espinozas a payment booklet after their credit had been approved and the “security agreement” had been executed. Upon receipt of the payment booklet, payment to the Bank was commenced by the plaintiffs. Payment on the mobile home continued until the Espinozas allegedly experienced difficulties with their home when, in July or August, 1976, they stopped paying on the note. This suit was filed thereafter.

In their first two points of error, the Espinozas contend that the Bank made them an installment loan, that the interest charged was usurious as a matter of law under Chapter Four of the Credit Code; and, consequently, it was reversible error to deny their motion for summary judgment upon the Credit Code claim asserted by them and to grant the Bank summary judgment thereon. As will be developed in detail, the transaction in question did not constitute an installment loan contract within the purview of Chapter Four of the Credit Code.

Tex.Rev.Civ.Stat.Ann. art. 5069-1.02, Chapter One of the Credit Code, limits the legal rate of interest to 10% per annum “unless otherwise authorized by law.” Under Chapter Four of the Code, Tex.Rev.Civ. Stat.Ann. art. 5069-4.01, interest at more than 10% per annum may be legally charged under certain circumstances. The statute places a limit on the amount of interest to be charged at “Eight Dollars per One Hundred Dollars per annum for the full term of the loan contract.” Therefore, under the formula provided by the statute, if there was an installment loan contract in this case, the Bank, as asserted by the Espi-nozas, charged the latter about $900.00 interest above the amount allowed by the statute. But, in order to hold that the contract was usurious on its face as a matter of law under Chapter Four of the Code, we would be required to hold that the transaction involved is an installment loan contract. This, we refuse to do.

Neither of the parties have cited a Texas case which assertedly controls the determination of whether the transaction was, as contended by the Espinozas, an installment loan contract within the provisions of Chapter Four of the Credit Code; or, whether such transaction, as contended by the Bank, was a retail installment sales contract under Chapter Seven of the Code.

The term “loan” is not defined in Chapter Four of the Credit Code. However, Section 7.09 of Chapter Seven of the Code provides that none of the provisions governing motor vehicle installment sales “shall affect or apply to any loans or to the business of making loans.” See Tex.Rev. Civ.Stat.Ann. art. 5069-7.09 (1971). It is also provided by the statute that none of the provisions of the loan or interest statutes shall “affect of apply to any retail installment transaction.” We construe this to mean that the legislature intended for installment loans and retail installment sales to be treated as mutually exclusive concepts. Otherwise, a transaction which happened to resemble both in different aspects might be subject to two conflicting statutory standards. Thus, a transaction whereby a person acquires a mobile home where the payment of part of the consideration is financed must be treated as either an installment loan or as a motor vehicle installment sale, but not both.

We consider Manning v. Princeton Consumer Discount Company, Inc., 390 F.Supp. 320 (E.D.Pa.1975), aff’d, 533 F.2d 102 (3rd Cir. 1976), to be persuasive in determining whether or not the transaction amounted to an installment loan. There, the plaintiff alleged that the defendant had violated the Federal Truth-in-Lending Act, 15 U.S.C.A. §§ 1601-1681 (1974), by treating the credit sale of a car as if it were a loan. After plaintiff had agreed to buy a car from the defendant, she made a down payment and was promised that financing would be obtained. The defendant car dealer submitted credit information on the plaintiff to a lending institution, which the plaintiff had never heard of nor done business with. The dealer, however, had a continuing relationship with the finance company. About a week after the plaintiff made her down payment, the dealer telephoned the plaintiff and explained that financing had been obtained. He took the plaintiff to the finance company to fill out a “loan” contract. Plaintiff signed the “loan” agreement and was issued a draft which she immediately endorsed over to the dealer. The “loan” was for the exact amount of the unpaid balance on the car. The issue before the court was whether the transaction was a loan for the purposes of disclosure requirements in the Truth-in-Lending Act. If it was, the disclosure requirements were less strict than if it were a consume]' credit sale. 15 U.S.C.A. § 1639 (1974), which set requirements for disclosure in loan transactions, applied to “any creditor making a consumer loan or otherwise extending credit in a transaction which is neither a consumer credit sale nor under an open end consumer credit plan.” A “credit sale” is defined in 15 U.S.C.A. § 1602 (1974) as “any sale with respect to which credit is extended or arranged by the seller.” The issue for the Court, therefore, was whether the dealer had “extended or arranged” for credit to finance the plaintiff’s purchase of the car. The court held that the dealer had arranged for such credit and, therefore, the transaction was a credit sale rather than a loan. The same reasoning applies to the case now before us on appeal.

We acknowledge that there are some factual and legal distinctions between Manning and the case at bar, for in Manning, the dealer and finance company had a continuous and ongoing relationship, and the defendant was the dealer rather than the lending institution. Moreover, Manning dealt with federal law in general and the Truth-in-Lending Act in particular. Here, there was no continuous and ongoing contractual relationship between the Dealer and the Bank prior to the Espinoza transaction, but we believe that Manning is relevant in that it points the way to what we think is a satisfactory legal test for determining whether or not a transaction should be treated under the Credit Code as an installment loan where the purchaser does not arrange for his own credit. Comporting with the rule that a court should consider the substance of a transaction rather than its mere form, we hold that, regardless of the labels the parties place on a transaction, or the forms that they use, where the dealer is substantively involved in arranging for the buyer’s credit through a lending institution the transaction is not an installment loan contract but rather a retail installment sales contract.

In the instant case, the “security agreement,” standing alone, could be literally read as either an installment loan contract or a retail installment sales contract. The frontside of the document is consistent in its use of the terms “borrower” and “lender.” The backside of the document is equally consistent in its use of the terms “buyer” and “seller.” But after consideration of the “purchase agreement,” which, while not executed at exactly the same time as the “security agreement,” was executed as part of essentially one transaction, the latter document takes on the aspects of a retail installment sales contract.

Reading the two documents as different, yet related, expressions affecting the same transaction, while also considering the attendant circumstances, we conclude that the substance of this transaction is more in the nature of an installment sale, rather than an installment loan. The Espi-nozas did not initially seek out the Bank to loan them the money with which to buy a mobile home. Instead they sought out a dealer in mobile homes. When they found a mobile home which suited them, they then relied on the dealer to obtain financing for their purchase of the same. The Dealer, in turn, obtained financing from the Bank in a manner that was contemplated by the agreement between the Bank and Wiggin-ton. In effect, this entire transaction amounted to an “indirect loan” as defined in Wigginton’s service agreement with the Bank and contemplated by the Bank’s policy-

The Espinozas, besides zeroing in on the form of the “security agreement,” also place undue stress on the nature of the “purchase agreement.” They contend that the “purchase agreement” was not meant to be an installment sales contract because it essentially promises the Dealer nothing save $500.00 liquidated damages in the event they breach their promise to purchase the home. We find nothing extraordinary about such an agreement, particularly in light of what was contemplated by the Dealer, who fully expected that the Espino-zas’ obligation to pay for the mobile home would eventually end up in the Bank’s hands.

The record shows that the execution of the “purchase agreement” and the “security agreement” essentially constituted a single transaction which was not completed until the latter document was signed by the Espi-nozas. We hold that the transaction amounted to a retail installment sales contract under Chapter Seven of the Credit Code, and not an installment loan contract under Chapter Four of the Code. Therefore, the interest charged was not, and could not, be usurious as being in violation of Chapter Four. The Espinozas’ first and second points of error are overruled.

The Espinozas, by their third and fourth points of error, contend that if the transaction here involved was not an installment loan contract under Chapter Four of the Credit Code, then it was a motor vehicle installment sale under Chapter Seven of the Code. They assert that the trial court erred in denying their motion for summary judgment, and in granting the Bank’s motion concerning their claim, because the Bank “violated Chapter Seven of the Texas Consumer Code as a matter of law” in that the Bank failed to make certain required disclosures to them.

Having held that the true character of the transaction in question was a motor vehicle sale under a retail installment contract, we first determine whether or not the Bank was a “retail seller” or “holder” under Chapter Seven of the Code. The Espinozas’ claim that it was, while the Bank asserts that it was not because it is conclusively established by the evidence that only the Dealer (Padre Mobile Homes) was the retail seller.

It is undisputed that the Espinozas were “retail buyers” of the mobile home. Art. 5069-7.01(c) of the Credit Code defines a “retail seller” as:

“. . .a person engaged in the business of selling motor vehicles to retail buyers in retail installment transactions.”

Art. 5069-7.01(d), defines “retail installment transaction” as:

“. . . any transaction as a result of which a retail buyer acquires a motor vehicle from a retail seller under a retail installment contract for a sum consisting of the cash sales price and other charges as limited by this Chapter and agrees with a retail seller to pay part or all of such sum in one or more deferred installments. The term shall include every transaction wherein the promise or agreement to pay the deferred balance of such sum is made by the retail buyer . .”

Additionally, art. 5069-7.01(j) defines “holder” as:

“. . . the retail seller of the motor vehicle or assignee if the retail installment contract or the outstanding balance thereunder is sold or otherwise transferred.”

The Bank, in its first amended original answer, its live pleading, stated:

“. . . the entire transaction involved the sale of a mobile home pursuant to a contract entered into by and between the PLAINTIFF and PADRE MOBILE HOMES, and the subsequent assignment of that contract to DEFENDANT . .
(Emphasis supplied).

In its counterclaim, the Bank averred:

“DEFENDANT is the holder of the RIGHT TO RECEIVE PAYMENTS on an Installment Sale Contract pursuant to the terms of a series of transactions (the sequence of which was described) . (Emphasis supplied).

The affidavit of Mr. Ed Branton, Vice-President of the Bank, which was attached to the Bank’s reply to the Espinozas’ motion for summary judgment, stated:

“The mobile home which was ultimately sold to MR. and MRS. ESPINOZA was owned at the time of sale by VICTORIA BANK & TRUST COMPANY, having been repossessed for VICTORIA BANK & TRUST COMPANY by JACK H. WIG-GINTON and ASSOCIATES, INC. . .”

Mr. Branton also stated in his affidavit: “. . . the Bank treated this entire

transaction as a vehicle installment sales contract, the contract having been assigned to the Bank . . . ” (Emphasis supplied).

Mr. Branton concluded his affidavit with the statement:

“The bank in the ESPINOZA instance was both owner/retail seller and assignee of the contract of sale prepared and assigned by PADRE MOBILE HOMES.”

In view of the admissions made by the Bank in its pleadings, of the statements made by Mr. Branton in his affidavit, which comprises part of the summary judgment evidence in this case, and other summary judgment evidence hereinbefore summarized in our disposition of the Espinozas’ first and second points, we hold that it was conclusively established that the Bank: 1) was the owner of the mobile home at the time it was sold to the Espinozas; 2) was a “retail seller” as that term is defined in Chapter Seven of the Code; 3) was a “holder” under the statutory definition; and 4) was the “assignee” of the installment sales contract. Furthermore, in a manner of speaking, all rights which Padre Mobile Homes, the Dealer, may have acquired pursuant to the execution of the “purchase agreement” were “otherwise transferred” to the Bank when the Espinozas executed the “security agreement” in the Bank’s favor under the circumstances noted. Unquestionably, the transaction constituted a retail installment sales contract between the Espinozas as “retail buyers” and the Bank as either a “retail seller” or a “holder.”

We now turn our attention to whether or not the Bank violated any of the provisions of Chapter Seven of the Credit Code. The Espinozas first contend that the Bank failed to disclose to them at the time the transaction was made that the required comprehensive insurance was procured at a rate “not fixed or approved by the State Board of Insurance.”

Tex.Rev.Civ.Stat.Ann. art. 5069-7.06(2) and (3), in relevant part, provide:

“(2) A seller or holder may, in addition, request or require a buyer to insure tangible personal property involved in such a contract, made under authority of this Chapter, and include the cost of such insurance as a separate charge in such contract. . . . ”
(3) When insurance is required in connection with such a contract or agreement made under this Chapter, the seller or holder shall furnish the borrower a statement which shall clearly and conspicuously state that insurance is requested or required in connection with the contract, and that the buyer shall have the option of furnishing the required insurance either through existing policies of insurance owned or controlled by him or of procuring and furnishing equivalent insurance coverages through any insurance company authorized to transact business in Texas. In addition when any requested or required insurance is sold or procured by the seller or holder at a premium or rate of charge not fixed or approved by the State Board of Insurance, the seller or holder shall include such fact in the foregoing statement . . . ”

It is undisputed that property insurance was required in this case. It is conclusively established by the evidence that the insurance required by both the “purchase agreement” and the “security agreement” was issued by Mobile County Mutual Insurance Company (Mobile), for a three-year period at a premium cost of $593.00. It is also undisputed that the above premium was not fixed or approved by the State Board of Insurance.’ It is further undisputed that this fact was not disclosed to the Espinozas by the Bank or anyone else. It is conclusively established by the evidence that the Espinozas, on the face of the “purchase agreement,” instructed Padre Mobile Homes, the Dealer, to “purchase the coverages cheeked above.” Both the “purchase agreement” and the “security agreement” disclosed that the $593.00 premium was to be financed.

The “security agreement,” in pertinent part, provided:

“Comprehensive insurance coverage for term of at least 36 months payable to BORROWER, LENDER, LENDER’S assigns, as interest may appear, is required for this loan; premium $593.00 if obtained through lender.
BORROWER SHALL HAVE THE OPTION OF FURNISHING SAID INSURANCE EITHER THROUGH EXISTING POLICIES OWNED OR CONTROLLED BY BORROWER OR OF PROCURING AND FURNISHING EQUIVALENT COVERAGE THROUGH ANY INSURANCE COMPANY AUTHORIZED TO TRANSACT BUSINESS IN TEXAS. INSURANCE COVERAGE TO BE FURNISHED BY

It is further undisputed that the Bank financed the premium that was paid to Mobile County Mutual Insurance Company. Mr. Bran ton stated in his deposition:

“Q If you will look at the security agreement, note and installment contract, does it also show a charge for insurance coverage for property insurance?
A Yes, it does.
Q Five Hundred and Ninety-three dollars?
A That’s correct.
Q Okay. So Victoria Bank & Trust Company financed the purchase of the property insurance?
A That’s correct.
Q That is, part of the payment made by Mr. Espinoza to the Victoria Bank & Trust Company went to pay the premiums of this insurance?
A That’s correct.”

Regarding property insurance on the mobile home, two policies are involved. The first policy was issued by Mobile concurrently with the making of the retail installment contract. The second policy was issued by Foremost Mobile Home Insurance Co. (Foremost) some six months after the execution of the contract when Mobile went bankrupt. In view of our holding that the Bank failed to make required statutory disclosures with respect to the insurance provided by Mobile, it is not necessary that we consider the Espinozas’ claim that the Bank also failed to make required statutory disclosures as to the insurance provided by Foremost.

We believe that Southwestern Investment Co. v. Mannix, 557 S.W.2d 755 (Tex.Sup.1977), is controlling of the issue concerning whether the Bank owed a duty to the Espinozas to disclose to them that the premiums charged by Mobile were not fixed or approved by the State Board of Insurance. This is so, even though the claims there involved were claims under Chapter Six of the Code rather than claims under Chapter Seven.

In Mannix, the Court distinguishes between “seller-procured insurance” and “buyer-procured insurance” in these words:

“. . . However, this court construes the term ‘seller-procured insurance’ to include any insurance coverage whereby the seller becomes involved in the insurance acquisition process or directly or indirectly benefits from such insurance coverage. This involvement may be accomplished by actual sales of insurance policies, referrals to insurance agencies, receipts of direct or hidden commissions, financings of insurance purchases from other sources, or by other similar devices. Only that insurance obtained totally independent of the seller and from which the seller will obtain no direct or indirect benefit from the procuring of the required insurance shall be considered ‘buyer-provided.’ ”

The Supreme Court further noted that “seller” and “seller-procured” includes “holder” and “holder-procured.” See also Ford Motor Credit Co. v. Blocker, 558 S.W.2d 493 (Tex.Civ.App.—El Paso, 1977, writ ref’d n.r.e.); O. R. Mitchell Motors, Inc. v. Bell, 528 S.W.2d 856 (Tex.Civ.App.—San Antonio 1974, writ ref’d n.r.e.).

Under the evidence, there is no question but that the Bank was either a “seller” or a “holder” of the contract in question. It is conclusively established that the Bank financed the purchase of the required property insurance on the mobile home with Mobile, and thereby not only became “involved in the insurance acquisition process,” but also benefitted financially from such insurance coverage by receiving interest on the amount of the premiums financed by it. The insurance obtained from Mobile was not obtained “totally independent of the seller” and from which the seller would obtain no direct or indirect benefit from the procuring of the required insurance. The “security agreement” required the “Buyer” to pay for all insurance premiums regardless of whether the pertinent policy was procured by the “Seller” or by the “Buyer.” The fact that the Mobile insurance policy was written pursuant to an application made by the Espinozas does not, of itself, make such insurance “buyer-procured” under the definition of that term set out in Mannix.

Applying the very broad rule announced in Mannix to this case, we have no choice but to hold that the Bank was under a duty to disclose to the Espinozas that the premiums charged by Mobile, paid by the Bank to Mobile, and financed by the Bank, were not fixed or approved by the State Board of Insurance. Since it did not make such a disclosure, the Bank is required to pay to the Espinozas the statutory penalties imposed by Tex.Rev.Civ.Stat.Ann. art. 5069-8.01, which reads:

“Any person who violates this Subtitle by contracting for, charging or receiving interest, time price differential or other charges which are greater than the amount authorized by this Subtitle, or by failing to perform any duty specifically imposed on him by any provision of this Subtitle, shall forfeit to the obligor twice the amount of interest or time price differential and default and deferment charges contracted for, charged or received, and reasonable attorneys’ fees fixed by the court, provided that there shall be no penalty for a violation which results from an accidental and bona fide error.”

There is no pleading or summary judgment proof that the Bank’s violation of the disclosure requirement relating to the Mobile Insurance premium resulted from “an accidental or bona fide error.”

We do not deem it necessary to determine whether the remaining alleged violations of the required disclosures constituted violations of the statute. The Espinozas’ third and fourth points are sustained.

The Espinozas, by their fifth point of error, contend that the trial court erred in granting summary judgment for the Bank on its counterclaim for two reasons. First, they argue that the Bank did not have a claim to any interest or time-price differential because of its violations of the Credit Code. In this regard, the Espinozas cite us to the recent Supreme Court decisions in Wall v. East Texas Teachers Credit Union, 533 S.W.2d 918 (Tex.Sup.1976), and First State Bank of Bedford v. Miller, 563 S.W.2d 572 (Tex.Sup.1978). These cases are not in point. They dealt with usurious interest, and held that a lender cannot recover interest under the contract when the interest rate charged is usurious. The rate of interest charged by the Bank is not usurious.

Second, they argue that the Bank failed to prove proper acceleration of the maturity of the contract as an essential element of its claim. Specifically, they say that the Bank failed to give them any notice of its intent to accelerate the maturity of the note. The note and security agreement upon which the Bank’s counterclaim is based contains a standard optional acceleration clause which provides that “LENDER shall have the right at LENDER’S option to: . . . accelerate the maturity of the installments . . . ”

The Espinozas did not plead as an affirmative defense that the Bank did not give them any notice of its intent to accelerate the maturity of the note. That defense was not tried by consent, and cannot be urged for the first time on appeal. In that state of the record, we hold that such contended defense has been waived. See Smith v. Davis, 453 S.W.2d 340, 346 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n.r.e.); Kyle v. Commercial Credit Co., Inc., 152 S.W.2d 465 (Tex.Civ.App.—El Paso 1941, dism’d jmt. cor.); Sylvester v. Watkins, 538 S.W.2d 827 (Tex.Civ.App.—Amarillo 1976, writ ref’d n.r.e.); Gresham v. McElroy, 309 S.W.2d 84 (Tex.Civ.App.—Houston 1958, no writ).

Purnell v. Follett, 555 S.W.2d 761 (Tex.Civ.App.—Houston [14th Dist.] 1977, no writ), relied on by the Espinozas, is not in point. That case involved a suit to set aside a trustee’s sale under a deed of trust where it was alleged that there had not been proper notice of intent to accelerate before the trustee’s sale. The Bank’s action in the case at bar, however, deals with a suit on the note, which is materially different from a suit to set aside a trustee’s sale.

There is another aspect of the case which should be mentioned. The Bank, in its motion for summary judgment on its counterclaim, did not attach the original or a certified copy of the note as an exhibit to any pleading, nor was such original or certified copy attached as an exhibit to any document constituting summary proof. See Texas Nat. Corp. v. United Systems Internat'l, Inc., 493 S.W.2d 738 (Tex.Sup.1973); Perkins v. Crittenden, 462 S.W.2d 565 (Tex.Sup.1970). However, the Espinozas did not complain on that ground. Since the error did not constitute fundamental error, it cannot now be raised in this Court, and we cannot reverse the trial court’s judgment because of such failure by the Bank. See Southwestern Fire & Casualty Company v. Larue, 367 S.W.2d 162 (Tex.Sup.1963); Perkins v. Crittenden, supra.

The Espinozas’ fifth point is without merit. Accordingly, it is overruled.

The Espinozas, in their sixth point of error, complain that the award of $3,600.00 as attorney’s fees is excessive. We agree. The trial court awarded such attorney’s fees “as a reasonable attorney fee for the prosecution of its counterclaim.”

Contained in the “security agreement” is a boiler-plate provision that, in the event of default on the note, borrower agrees to pay the lender reasonable attorney’s fees. The trial court, after ruling on the parties’ motions for summary judgment, heard evidence on the matter of attorneys’ fees incurred by the defendant.

The Bank’s expert witness relating to attorney’s fees testified that in his opinion as an attorney, the time spent in defending the Espinozas’ suit was necessary “to the counterclaim”; that 100 to 120 hours were reasonably required to prepare for the defense of the Espinozas’ suit and for the “prosecution” of the Bank’s counterclaim; that a reasonable fee for such services would be $40.00 per hour for “preparation,” and $50.00 per hour “for the trial”; and that taking into consideration the “complexities of this particular case,” $4,800.00 would be a reasonable fee “for the prosecution of the counterclaim and the defense that was necessarily required under the plaintiff’s (sic) cross-action in this case.”

The attorney representing the Bank testified on direct examination that he spent 120 hours on the case. On cross examination, he stated that the actual time spent by him in drafting the counterclaim, and in arguing the same to the trial court was about 4 hours.

In reviewing the trial court’s action, we recognize that allowance of attorney’s fees rests in the sound discretion of the trial court, and its judgment will not be reversed without a clear showing that the trial court abused its discretion. Reintsma v. Greater Austin Apt. Maintenance, 549 S.W.2d 434 (Tex.Civ.App.—Austin 1977, writ dism’d w.o.j.). The range of what is reasonable is wide, Hirsch v. Bearing, 151 S.W.2d 949, 951 (Tex.Civ.App.—Galveston 1941, no writ), and this Court cannot set aside an award merely because it would have allowed more or less. However, we do have authority, by examining the entire record, to determine whether a particular award was excessive, to draw on our own knowledge as judges and lawyers, and to determine the matter in light of the testimony, the record, and the amount in controversy. Southland Life Insurance Co. v. Norton, 5 S.W.2d 767, 769 (Tex.Comm’n App.1928, opinion approved).

Attorney’s fees are not recoverable in tort or contract actions unless provided for by statute or by agreement between the litigants. New Amsterdam Casualty Company v. Texas Industries, Inc., 414 S.W.2d 914 (Tex.Sup.1967). In the instant case, the law makes no provision for the recovery of attorney’s fees in defending the type of suit brought by the Espinozas. Here, unquestionably the award of $3,600.00 for attorney’s fees stems from evidence that the attorney’s time was spent representing the Bank in the action brought by the Espinozas, as well as in representing the Bank on its counterclaim. Moreover, if the award is limited to legal services rendered on the counterclaim, as so stated in the judgment, the award of $3,600.00 is grossly excessive and constitutes an abuse of discretion. The Espinozas’ sixth point is sustained.

The amount of the interest or time-price differential is $8,114.40; the note was payable in 120 monthly installments of $142.77 each. The “security agreement” provides for a default charge “in an amount not to exceed five percent of each installment or FIVE DOLLARS, whichever is less.” Applying the penalty provisions of Tex.Rev. Civ.Stat.Ann. art. 5069-8.01 to the Credit Code action, the Espinozas are entitled to recover twice the sum of $8,114.40, and the sum of $1,200.00 ($5.00 X 120 X 2), or a total recovery of $17,428.80, plus reasonable attorney’s fees.

The portion of the trial court’s judgment which ordered that the Bank’s lien on the mobile home in question be foreclosed is affirmed. The portion of the judgment which awarded the Bank the sum of $10,662.30 on its counterclaim is also affirmed. The portions of the trial court’s judgment which denied the Espinozas’ motion for summary judgment on their Credit Code claim and granted the Bank’s motion for summary judgment thereon are reversed, and judgment is here rendered that the Espinozas recover the sum of $17,428.80 from the Bank for the Bank’s violation of the Code, less, however, the amount awarded the Bank on its counterclaim. Since the Espinozas’ recovery on the principal action is more than the Bank’s recovery on its counterclaim, and as a severance was not ordered by the trial court, the Bank is entitled to offset its recovery against that of the Espinozas. Therefore, judgment is here rendered that the Espinozas recover the sum of $6,766.50 from the Bank, together with interest thereon from August 10,1977, the date the trial court’s judgment was signed, at the rate of nine percent (9%) per annum until paid. Rule 434, T.R.C.P.

The issues of attorney’s fees are severed from the remainder of the case. McDonald v. Savoy, 501 S.W.2d 400 (Tex.Civ.App.— San Antonio 1973, no writ). The portions of the judgment which, in effect, denied the Espinozas any attorney’s fees on their Credit Code claim is reversed, and that part of the suit is remanded to the trial court for the purpose of determining the amount which would constitute reasonable attorney’s fees, as provided by Tex.Rev.Civ.Stat. Ann. art. 5069-801; likewise, the portion of the judgment which awarded attorney’s fees to the Bank in the amount of $3,600.00 is also reversed, and that part of the counterclaim is remanded to the trial court for the purpose of determining the amount which would constitute reasonable attorney’s fees. The costs of this appeal are assessed fifty percent (50%) to the Espino-zas and fifty percent (50%) to the Bank.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART, and REVERSED AND REMANDED IN PART.


author: DODSON, Justice.

text:
    E. J. GRAY, Appellant, v. Audrey WEST, Appellee.
    No. 8928.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 23, 1978.
    Rehearing Denied Nov. 13, 1978.

      McCleskey, Harriger, Brazill & Graf, George H. McCleskey, Lubbock, for appellant.
    Kirby, Ratliff, Sansom, Manning & Greak, Nolan E. Greak, Littlefield, for ap-pellee.
   DODSON, Justice.

In the venue phase of this action, E. J. Gray appeals from an order of the trial court overruling his plea of privilege to be sued in Harris County, Texas. Appellee Audrey West brought this action against C & G Enterprises, an alleged partnership, and James Christesson and Gray, individually and as partners of C & G Enterprises, alleging a breach of a written contract for the purchase and sale of 7,000 tons of cubed alfalfa. The contract, which provides that venue for any suit thereunder shall be maintained in Lamb County, Texas, was executed by West, the seller, and Christes-son on behalf of C & G Enterprises, the purchaser. Gray avers that he is not a partner in C & G Enterprises. We determine that the evidence, is sufficient to support the trial court’s implied findings of fact essential to establish venue in Lamb County, Texas, under subdivision 5 of article 1995, Tex.Rev.Civ.Stat.Ann. (Vernon 1964). The order of the trial court is affirmed.

The essential venue facts under subdivision 5 of article 1995 are: (1) that the defendant is a party reached by the statute; (2) that the claim is based on a written contract; (3) that the contract was entered into by the defendant or by one authorized to bind him ; and (4) that the contract by its terms provides for performance of the obligation sued upon in the county of suit. See N. K. Parrish, Inc. v. Navar, 553 S.W.2d 216 (Tex.Civ.App.—Amarillo 1977, no writ); 1 R. McDonald, Texas Civil Practice § 4.11.1 (rev. 1965). Gray challenges the legal and factual sufficiency of the evidence to support an implied finding of the trial court that Christesson had authority to bind him to the contract.

The record reveals that Gray did not testify at the evidentiary hearing on his plea of privilege. He did, however, introduce Christesson’s answers to certain written interrogatories filed in the case, one of which provided that “E. J. Gray has never been a partner with C & G Enterprises.” It was further stated in an answer that:

3. C & G Enterprises is not a partnership. It originated as a partnership in Lafayette, Louisiana about three years ago, said partnership consisting of J. B. Christesson and Leroy Guidry, but said partnership was terminated approximately two years ago. Since that time the business has been conducted as a solely owned business by J. B. Christesson.

West testified to each of the following occurrences and conversations. Christesson initially contacted him about the purchase of 10,000 tons of cubed alfalfa. During the subsequent negotiations, Christesson informed West that his partner, E. J. Gray, would furnish the money and share in the profits. Although Gray did not sign the contract, on the day of its execution Christesson told West that C & G Enterprises stood for Christesson and Gray and that they were “partners on the deal.”

Several days after the contract was signed, Gray called West to assure him that the contract was a good deal. Gray related that he would have been present on the day the contract was signed but he had been sick. Gray further stated that he and Christesson were to meet with Jim Crump, vice president of the Texas Commerce Bank in Lubbock, on the following Monday to “set up the money to get the thing rolling.”

On February 14, 1977, Christesson and Gray visited West in Sudan, Texas. Gray allegedly stated: “We’ve set up your $100 deal in Lubbock with Jim Crump. That’s where you’ll get your money as it’s weighed through Lubbock, and I’m going to handle all this deal out of my Baytown office. Mr. Christesson will be in charge of shipping it.” Gray also provided that “He didn’t want us to worry about this contract on this hay, and that he was up here to make it work; that he had never welshed on a deal in his life, and he wasn’t going to welsh on that one.” Thereafter, Gray inspected the hay and took some samples. West had not delivered any of the cubed alfalfa to C & G Enterprises prior to this date.

Subsequent to these events, the first shipments of hay went through Lubbock and payments were received. The next shipments were moved to Lubbock, but were returned to Sudan when payments were not made. Subsequently, these shipments were transported to El Paso and released upon Gray’s personal guarantee of payment. Payment, however, was never made.

Jim Crump stated in his deposition that when the transaction was not working as planned he talked to Gray, suggesting that a buyer was available who would purchase the hay for $95 a ton. Gray responded by insisting that he had a written contract for the hay at $100 a ton which would be honored. He would not agree to release the contract to permit West to sell the hay.

We conclude that this evidence is sufficient to raise fact issues as to whether Gray represented himself as a partner in C & G Enterprises or consented to Christesson’s representations that he was a partner in C & G Enterprises. See Bromberg, Commentary on Partnership by Estoppel, Tex.Rev. Civ.Stat.Ann. art. 6132b, § 16 (Vernon 1970) (stating that the existence of the representation or consent is a fact question). An affirmative answer to either of these questions would operate to estop Gray from denying his partnership status with C & G Enterprises. Tex.Rev.Civ.Stat.Ann. art. 6132b, § 16 (Vernon 1970). In the absence of express findings of fact by the court, we must presume that these fact issues which were raised by the evidence were resolved by the trial court in support of the order overruling Gray’s plea of privilege. Construction and General Labor Union, Local No. 688 v. Stephenson, 148 Tex. 434, 437-38, 225 S.W.2d 958, 960 (1950).

Gray’s points of error three and four are overruled. Our view of these points is dis-positive of this appeal; therefore, we deem it unnecessary to further discuss Gray’s remaining points of error. Accordingly, the order of the trial court overruling the plea of privilege is affirmed.