author: YOUNG, Justice.

text:
    Pauline McCOLLUM, Appellant, v. PARKDALE STATE BANK, Appellee.
    No. 1272.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 27, 1978.

      Michael W. Williams, Corpus Christi, for appellant.
    Robert D. Kilpatrick, Robert W. Johnson, Jr., Wood, Burney, Nesbitt & Ryan, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

This is a summary judgment case. Plaintiff, Pauline McCollum, filed this suit against defendant, Parkdale State Bank seeking damages resulting from conversion of funds in a checking account. Parkdale State Bank counterclaimed for the balance due on a note and attorneys fees. Plaintiff appeals from an order granting defendant’s motion for summary judgment as to both the suit for conversion and the counterclaim.

The summary judgment proof shows that on August 14, 1975, appellant, Pauline McCollum, executed and delivered to Park-dale State Bank a promissory note for $2,305.92, secured by an automobile. The note was payable in 24 monthly installments of $96.08. The first installment was due on the 20th day of September, 1975, and each subsequent payment was due on the 20th day of each succeeding month until fully paid.

Subsequent to her execution of the note, appellant was injured at work and according to her petition: “was unable to generate an income to meet her financial obligations set out in the promissory note and security agreement.”

The Bank contends in the affidavit supporting its motion for summary judgment that appellant made only one payment on the note, that payment being made on October 1,1975, and that she thereafter made no other payments.

On February 26, 1976, the Bank repossessed appellant’s car from an automobile repair shop, and incurred a $98.50 expense 'in extinguishing a mechanic’s lien on the car. It should be here noted that the installment note herein provides “Borrower also agrees to pay the amounts actually incurred by the Lender as . the reasonable cost actually expended for repossessing . . . collateral.” Thereafter, on March 11, 1976, the Bank offset $578.90 from appellant’s checking account with the Bank.

Appellant, McCollum, filed this action on April 8, 1976, alleging wrongful conversion of her checking account. The Bank answered by general denial. On August 4, 1976, the Bank sold the repossessed automobile at private sale for $1300.00. Appellant subsequently amended her petition. The Bank then filed a motion for summary judgment without supporting affidavits or other proof. Appellant responded with an affidavit in opposition to the motion and the motion was denied on November 4, 1976.

On March 16,1977, the Bank filed a counterclaim against appellant, McCollum, seeking judgment for the amount of deficiency on the note plus interest and attorney’s fees. Appellant answered by general denial and asserted an affirmative defense that the car was sold in a commercially unreasonable manner. The Bank then moved for summary judgment, both upon appellant’s cause of action and upon its counterclaim. The trial court granted the Bank’s motion as to both causes, stating in its judgment that “after considering the affidavits, and exhibits, and argument of counsel [it] was of the opinion that there was no genuine issue of material fact.”

Appellant, brings this appeal alleging two points of error. Appellant’s first point reads: “The trial court erred in holding that plaintiff-appellant’s second amended original petition be denied as a matter of law.” Appellant’s argument in support of her point asserts there are issues of fact relative to the two independent grounds upon which a bank may justify a set-off; which grounds are (1) when the depositor is insolvent, or (2) when the obligation is a past due obligation. Holt’s Sporting Goods Co. of Lubbock v. American National Bank of Amarillo, 400 S.W.2d 943 (Tex.Civ.App.—Amarillo 1966, writ dism’d); Baldwin v. Peoples National Bank of Tyler, 327 S.W.2d 616, 619 (Tex.Civ.App.—Texarkana 1959, no writ). In this connection, the trial court impliedly held that there were no issues of fact as a matter of law on either of these grounds. See Nesmith v. Hester, 522 S.W.2d 605 (Tex.Civ.App.—Austin, 1975, no writ).

Appellant’s entire treatment of the insolvency issue in her brief appears as follows: “Appellee never established as a fact that the Appellant was insolvent (nor could it have). Solvency or insolvency at a particular time is a question for the determination of the jury and the burden of proof is on the one alleging insolvency . . . (citations omitted).” We have some doubt as to whether the above argument fulfills the appellant’s obligation to brief her point or her burden of showing that the proof is insufficient to establish as a matter of law the absence of an issue on insolvency. Daniels v. Shop Rite Foods, Inc., 502 S.W.2d 894, 896 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.); Anderson v. Bormann, 489 S.W.2d 945 (Tex.Civ.App.—San Antonio 1973, writ ref'd n. r. e.). Even so, the briefing rules are to be given a liberal construction. Inman v. Padrezas, 540 S.W.2d 789 (Tex.Civ.App.—Corpus Christi, 1976, no writ); Edwards v. Parker, 438 S.W.2d 141 (Tex.Civ.App.—Dallas 1969, no writ). Consequently, we have considered the merits of appellant’s contention. After reviewing the entire record, we find the proof insufficient to establish as a matter of law the absence of an issue on insolvency.

For purposes of set-off, insolvency is a debtor’s failure or refusal to pay his debts in the due course of business. First Nat. Bank of Wichita Falls v. Foley, 26 S.W.2d 314 (Tex.Civ.App.—Amarillo 1930, writ ref’d); Micarley Mining Co. v. Carpenter, 21 S.W.2d 711 (Tex.Civ.App.—El Paso 1929, no writ); 9 C.J.S. Banks & Banking § 298 n. 11 (1938). In order to prove appellant’s insolvency as a matter of law, the Bank relied solely on the affidavit of its assistant vice-president, William Redden, who stated in his affidavit signed March 28, 1977, that appellant had made only one $96.08 payment on the note and that no other payments were ever made. In this connection the trial court also considered the appellant’s affidavit which was filed in opposition to appellee’s first motion for summary judgment. That affidavit states that appellant had received a delinquency notice from the bank. A copy of the notice is attached to the affidavit and appears as follows:

Taken together, we find the affidavit of Redden, and the notice card raise an issue of fact as to which payments if any were missed by appellant, and accordingly, whether appellant was insolvent as a matter of law.

According to Redden’s affidavit, a chart of the payments made, missed payments and balances due would appear as follows:

In addition, on February 26, 1976, the Bank incurred an expense of $98.50 to release a mechanic’s lien. Mr. Redden’s affidavit is unclear as to how the Bank treated the $98.50 expenditure relative to the offset. His affidavit only states that the offset was “applied as a credit to the total indebtedness due and owing by Pauline McCollum.” Assuming, arguendo, that the Bank used part of the offset to pay off the $98.50, then, appellant would have had no unpaid indebtedness on March 11, 1976, the date of the offset. According to the affidavit of Redden, the March and April payments, also, were not made. These would amount to $192.16 due and owing. On the contrary, the past due payment notice attached to appellant’s affidavit stated that the “amount due” on May 1, 1976 was only $93.66 with an additional charge for accumulated fees and interest. There are several possible interpretations to give this inconsistency: one of which is that appellant did not miss as many payments as Redden contends, and another of which is that possibly there was not a past due indebtedness on the date of the setoff. It is our duty to view this evidence in the light most favorable to the nonmovant-appellant. Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41, 47 (Tex.Sup.1965). Guided by that rule, we find that the proof is not sufficient as a matter of law to show the absence of an issue of fact on insolvency.

Conversely, the Bank contends that appellant’s statement in her First Amended Original Petition that “she was unable to generate an income to meet her financial obligations set out in the promissory note and security agreement” amounts to a judicial admission of insolvency. We disagree. For a statement to constitute a judicial admission, it must be clear, deliberate and unequivocal. Hedge v. Bryan, 425 S.W.2d 866, 868 (Tex.Civ.App.—Tyler 1968, writ ref’d n. r. e.). The above statement does not necessarily mean that appellant did not make her payments. For example, she could have borrowed the money to make the payments.

Accordingly, we sustain appellant’s challenge to the summary judgment on the issue of insolvency.

Appellant’s second argument essentially challenges the court’s implied finding of past due indebtedness. The law is clear that a debt must be mature or, in other words, past due, before it will justify an offset. Holt’s Sporting Goods Co. of Lubbock v. American National Bank of Amarillo, supra. In this regard, appellant appears to argue that the Bank had to accelerate the instant note in order to have sufficient matured indebtedness for the entire amount of the offset. Appellant contends that the notice card (set out in full above) raises an issue of fact as to whether the Bank accelerated the note. If we assume, arguendo, that the offset was not used to pay the $98.50 expense, then, only $480.40 (see chart above) represented matured indebtedness on the date of the offset and the Bank did, indeed, need to accelerate the note to afford sufficient indebtedness to justify the offset. See Baldwin v. Peoples National Bank of Tyler, supra. Thus, an issue of fact as to acceleration of the note is raised. Accordingly, for the reasons above and in our discussion of insolvency, we sustain appellant’s point as to the court’s implied finding of past due indebtedness and reverse the trial court’s summary judgment as to appellant’s cause of action for conversion.

Appellant’s second point of error states: “The trial court erred in holding that the appellee proved the cause of action set forth in its counterclaim as a matter of law.” Appellant’s only contention in the brief relative to the counterclaim is that the trial court could not grant counterclaim-ant’s summary judgment because appellant pled an affirmative defense concerning whether the sale of her car was commercially reasonable. But appellant only pled the affirmative defense; she offered no summary judgment proof to support it. Pleading alone will not be regarded as summary judgment evidence. Meyer v. Kupatt, 549 S.W.2d 263 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.). In a summary judgment case, a nonmovant must come forward with some proof sufficient to raise at least an issue of fact with respect to the affirmative defense. Nichols v. Smith, 507 S.W.2d 518, 520 (Tex.Sup.1974). Accordingly, appellant’s seeond point is overruled.

In the instant case the suit for conversion and the counterclaim involved the same facts and similar issues which are so interwoven as to make it impracticable to try the case piecemeal. Bates v. First National Bank of Waco, 502 S.W.2d 181 (Tex.Civ.App.—Waco 1973, no writ); Blume v. Weaver, 412 S.W.2d 760 (Tex.Civ.App.—Eastland 1967, no writ); 4 Tex.Jur.2d Rev. Part 2, Appeal & Error § 908n 13 (1974); Hamilton v. Herrin Transportation Company, 343 S.W.2d 300, 303 (Tex.Civ.App.—Waco 1960, writ ref’d n. r. e.). For example both suits must be decided according to which payments, if any, were made.

Consequently, we reverse the entire judgment and remand both causes of action to the trial court for trial.


source: Caselaw Access Project

author: SPURLOCK, Justice.

license: Public Domain

text:
    Jessie M. McINTYRE, Appellant, v. Bob MILLIORN, Jr., Individually and as Independent Executor of the Estate of Alice E. Kyle, et al., Appellees.
    No. 17961.
    Court of Civil Appeals of Texas, Fort Worth.
    May 4, 1978.
    Norman & Bates, and Roger M. Norman, Fort Worth, for appellant.
    Shannon, Gracey, Ratliff & Miller, and David E. Keltner, Fort Worth, for appel-lees.
   OPINION

SPURLOCK, Justice.

This is a will contest. Decedent, Alice E. Kyle, executed a will on March 14, 1972. She died on November 5, 1974. After the will was admitted to probate in the probate court of Tarrant County, Jessie McIntyre (appellant herein) brought contest wherein she alleged that decedent lacked testamentary capacity to execute the will. The ap-pellees are the proponents of the will. The jury found that the decedent did have testamentary capacity at the time that she signed the will on March 14, 1972. From the probate court’s judgment rendered upon the jury verdict, the contestant has perfected her appeal.

We affirm.

By her first point of error, appellant contends that the “Probate Court erred in excluding from evidence certain portions of the testimony of Dr. Herman Rose, via his deposition dated October 28, 1976, wherein he would have testified to the various aspects of Mrs. Kyle’s physical condition, resulting in her deteriorating mental condition from March, 1971, through time of death, based on the objection that Dr. Rose’s answers were not responsive to questions, when such objections were not made in writing before trial with notice to Contestant’s counsel. (Germane to Paragraphs 3-16 in Contestant’s Motion for New Trial, TR-39; SF 106, 247-260).”

In their brief, appellees contend that appellant’s “first point of error is so broad and maltifarious (sic) that it does not direct the court of civil appeals’ or the appellees’ attention to the specific error allegedly made by the trial court.” We agree that neither appellant’s first point of error or argument attempt to designate the particular exclusion of evidence that she is complaining of and is deficient for that reason. Prior to its recent amendment effective January 1, 1978, Tex.R.Civ.P. 418(b) provided in part that the points in appellant’s brief “will be sufficient if they direct the attention of the court to the error relied upon . . . .” (This same requirement has been preserved in Tex.R.Civ.P. 418(d), even after the recent amendment.) Appellant’s first point of error is overruled. Cooper v. Argonaut Insurance Co., 430 S.W.2d 35, 38 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.).

By her second point of error, appellant basically contends that the probate court “erred in excluding from evidence the testimony of Dr. Rose in his supplemental deposition dated 9th of February, 1977, wherein he would have testified that . (decedent) on November 22, 1971, did not have sufficient mental ability to: understand the effects of making her Will on that date; understand the business in which she was engaged in making her Will; manage her property; have memory to collect in her mind the elements of the business of making a Will, and hold them in her mind long enough to perceive their obvious relation to each other, and be able to form a reasonable judgment as to the business of making a Will; based on the objection that Contestant’s pleadings did not permit introduction into evidence of a 1971 Will . . .”

The probate court had sustained appel-lees’ special exceptions to appellant’s first amended original petition concerning an alleged 1971 will. As the probate court mentioned out of the presence of the jury, the appellant had withdrawn his motion for continuance on the basis that the 1971 will would not be considered for any purpose.

The relevant inquiry in a will contest case based upon testamentary incapacity is the condition of the testatrix’s mind on the day that the will was executed. Lee v. Lee, 424 S.W.2d 609 (Tex.1968). The will in the case before us was executed on March 14, 1972. Dr. Rose’s supplemental deposition dealt with whether testatrix had testamentary capacity on November 22, 1971. Dr. Rose’s supplemental deposition is before us in the form of a bill of exceptions. There is nothing in his supplemental deposition which ties testatrix’s testamentary capacity on November 22, 1971, to her testamentary capacity on March 14, 1972, the relevant date of inquiry. Appellant’s second point of error is overruled.

By her third and fourth points of error, appellant contends that the probate court erred in excluding her testimony, wherein she would have testified about her observations, transactions and conversations with testatrix and wherein she would have testified that in her opinion the testatrix lacked the requisite testamentary capacity to make a will.

Tex.Rev.Civ.Stat.Ann. art. 3716 (1926), commonly known as the Dead Man’s Statute, provides in part that:

“In actions by or against executors, . neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, . unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

Appellant sought to testify at the trial of the will contest. She argues that appellees had waived the protection of the Dead Man’s Statute, by taking her deposition in a separate lawsuit pending in the 96th district court concerning ownership of certificates of deposits. Appellant and appellees agree that there is no Texas case whereby a litigant has been held to have waived the protection of the Dead Man’s Statute by his actions in a separate lawsuit. We hold that there has not been a waiver of the Dead Man’s Statute by virtue of the deposition taken in the 96th district court, particularly in view of the fact that there was not a complete identity of parties involved in the two separate lawsuits in different courts.

By her fifth and sixth points of error, appellant basically contends that the probate court erred in admitting into evidence the order admitting the will of testatrix to probate, because the said order was irrelevant and contained the statement that the testatrix was of sound mind.

In examining the statement of facts on this point, we note that appellant’s attorney made the following objection:

“Your Honor, I’ll object to this line of questioning. It has nothing to do with the issue of testamentary capacity, and mentioning the appointment of the Independent Executor is immaterial, prejudicial, and should not be considered.”
Then, appellant’s attorney made the following objection:
“Your Honor, in the interest of saving time, I’d like to state that I’m making a continuing objection to the appointment of the Executor and probating the will, and I’ll not raise the right to make any further objections.”

When appellees actually offered the court’s order admitting the will to probate, the judge asked: “Is there objection?” Appellant’s attorney responded: “The same.” The court responded: “Overruled.” Then, without further objection, appellee’s attorney read the order to the jury.

Appellant’s original objection complained only that the mentioning of the appointment of the Independent Executor was immaterial and prejudicial. Such an objection does not complain of the reading to the jury of the order admitting testatrix’s will to probate. In the absence of a proper objection, the error (if any) was waived. 56 Tex.Jur.2d Trial § 158 (1964). We overrule the appellant’s fifth and sixth points of error.

The judgment of the probate court is affirmed.


author: JAMES, Justice.

text:
    UNITED PACIFIC INSURANCE COMPANY, Appellant, v. Bob FARLEY, Appellee.
    No. 5845.
    Court of Civil Appeals of Texas, Waco.
    May 4, 1978.

      Robert L. LeBoeuf and Jack R. Martin, Martin & Sperry, Houston, for appellant.
    M. Scott Taylor, Moriarty & Madigan, Houston, for appellee.
   OPINION

JAMES, Justice.

This is a workmen’s compensation case. Plaintiff-Appellee Bob Farley sued Defendant-Appellant United Pacific Insurance Company for workmen’s compensation benefits as a result of injuries he sustained while an employee of Brady Steel Company in New Orleans, Louisiana on December 16, 1972.

Trial was had to a jury which found:

(1) Farley received an injury on or about December 16, 1972.

(2) At the time of receiving such injury, Plaintiff Farley was an employee of Brady Steel Company.

(3) Farley and his employer contemplated that he (Farley) would work in Texas and Louisiana as the circumstances of his employment might require.

(4) Farley was injured in the course of his employment.

(5) Farley’s injury in question was a producing cause of total incapacity

(a) which began December 16, 1972 and was

(b) of two weeks duration.

(6) Plaintiff Farley’s injury in question was a producing cause of partial incapacity

(a) which began January 1,1973 and was

(b) permanent in duration

(c) the weekly earning capacity of Plaintiff during such partial incapacity is $125.00.

(7) Plaintiff’s average weekly wage as of December 16, 1972, was $200.00.

(8) Medical care was reasonably required as a result of such injury.

(9) Jury failed to find that Defendant Insurance Co. failed to furnish within a reasonable time medical care reasonably required as a result of such injury.

(10) The value of such medical care reasonably required by Plaintiff was $1321.24.

Based upon the jury verdict the trial court entered judgment in favor of Plaintiff Farley against the Defendant United Pacific in the amount of $14,476.89 and costs, from which judgment Defendant United Pacific appeals. We affirm.

Appellant asserts there is no evidence, and insufficient evidence to support the jury’s answer to Special Issue No. 3, wherein the jury found that Plaintiff Farley and his employer contemplated that Farley would work in Texas and Louisiana as the circumstances of his employment might require. We overrule these contentions.

Plaintiff Farley worked off and on for Brady Steel Company from 1963 to 1972. In October of 1972 he returned to work for Brady Steel Company as an erector. Plaintiff testified that he was hired by Mr. Chuck Brady and three other men at the Brady Steel Company headquarters and plant at 4525 Saunders Road, in Houston, Texas; that he contracted with Brady Steel Company to work in New Orleans, Baton Rouge, Lake Charles, and Houston as his work may require. Following his employment by Brady Steel, he moved to Houston from West Virginia and established his residence in Houston before leaving Houston for New Orleans, Louisiana. At all times thereafter, Plaintiff maintained his residence in Houston, Texas, even though the majority of his work was in Louisiana. At the time Plaintiff was hired by Mr. Brady, there were also three other men present, to wit, Jerry Avery, Gary Emerson, and Ted Killy. Plaintiff was the only person who testified concerning this ■ conversation in Houston wherein he was hired. None of the other four persons, that is, Brady, Avery, Emerson, or Killy were called as witnesses to refute or deny Plaintiff Farley’s testimony. In other words, Plaintiff’s testimony in this regard stands unchallenged.

Article 8306, Section 19, Vernon’s Texas Civil Statutes, as same existed at all times material to this controversy, in its pertinent parts provided:

“If an employee, who has been hired in this State, sustain injury in the course of his employment he shall be entitled to compensation according to the Law of this State even though such injury was received outside of the State, and that such employee, though injured out of the State of Texas, shall be entitled to the same rights and remedies as if injured within the State of Texas,_”
“Providing that such injury shall have occurred within one year from the date such injured employee leaves this State; _”

Farley testified that he was hired to work both in Texas and Louisiana. He did some work in Texas before leaving for Louisiana, in preparation for his Louisiana work, consisting of hauling some stair railings and materials, screws, and bolts, from Brady Steel Company’s Houston headquarters to New Orleans. Moreover, he purchased some tools in Houston which were for usé in his work as a steel erector in New Orleans. Additionally, Plaintiff came back and forth between New Orleans and Houston on the weekends in order to pick up from Brady Steel headquarters loads of stair railings and other materials and haul same back to the New Orleans work. He was paid for this work and was furnished a Company truck and credit card to accomplish such purposes.

Our Supreme Court has long held that before an employee injured outside the territorial limits of this State can recover for such injury under our workmen’s compensation statutes, he must prove that at the time of such injury he occupied the status of a Texas employee. Southern Underwriters v. Gallagher (1940) 135 Tex. 41, 136 S.W.2d 590, 592; Hale v. Texas Employers Ins. Assn. (1951) 150 Tex. 215, 239 S.W.2d 608, 614.

When does an employee have the status of a Texas employee? This question has been answered by our Supreme Court in Texas Employers’ Insurance Assn. v. Dossey (Tex.1966) 402 S.W.2d 153 at page 155 in the following language:

“An employee has the status of a Texas employee when he has been hired in this state to work in this state and in another state as the circumstances of his employer may require. His Texas employee status is fixed in the fact of his employment to work in Texas as well as in the other state. He continues to occupy this status even though he first works in the other state.”

Also see Maryland Casualty Co. v. Spritzman (Houston 1st Tex.Civ.App.1966) 410 S.W.2d 668, NRE.

After careful examination of the evidence concerning the jury’s answer to Special Issue No. 3, wherein the jury found that Plaintiff and Brady Steel contemplated that he would work in Texas and Louisiana as circumstances of employment might require, we are of the opinion and hold that the evidence is both legally and factually sufficient to support the jury’s answer to such special issue.

'¡Next, Appellant contends there is no evidence, and insufficient evidence to support the jury’s finding in answer to Special Issue No. 4, wherein the jury found that Plaintiff Farley was injured in the course of his employment. We overrule these contentions.

Plaintiff’s injuries were sustained as the result of an argument between Lefty Val-verde and Plaintiff over wages Valverde had earned while working with Farley in the week then ending. Both Plaintiff and Valverde were employees of Brady Steel Company, and the work that had been done for which the wages in dispute had been earned was on the Brady Steel project then in progress in New Orleans, Louisiana. The injury in question happened on a Saturday and the testimony showed that it was not unusual for employees of Brady Steel to work on Saturday. Plaintiff had gone to the Brady Steel yard on Haynes Street in New Orleans to read and pick up some blueprints preparing to proceed to the job project, and he also needed to pick up his helper, Valverde. After asking where Val-verde was, Plaintiff was told that Valverde was next door in a bar called “Castaway Lounge.” Thereupon Plaintiff went to the bar in order to get his helper; and after he got inside, Valverde confronted Plaintiff and demanded that Plaintiff pay him the wages for two and a half day’s work assert-edly due him in the week that was just ending. In this connection it should be pointed out that Plaintiff was paid by Brady Steel on a piece work basis, and was responsible for paying his own help. There was evidence to the effect that Valverde had already received his pay for this two and a half day’s work by Lee Smith, the office manager for Brady Steel, at Plaintiff’s request.

Plaintiff’s testimony was that Valverde said, “I want my money. I’ll pay Lee back,” and when Plaintiff told Valverde that the agreement was that he (Plaintiff) would pay Lee back on Friday, Valverde responded; “I’ll get my money one way or the other.” Plaintiff testified the he walked back toward the Brady Steel office, and Valverde followed him out, and the argument continued in the Brady Steel yard; that finally, Plaintiff said that they would go to the office and get it straightened out; that as Plaintiff walked away towards the office, Valverde came up behind him and struck him on the head with a piece of steel tubing, causing the injuries in question. Plaintiff’s version of the incident was corroborated by two eyewitnesses, Ralph E. Buzzinotti and Laurence J. Co-chrane. Harvey Slater, a superintendent for Brady Steel, told a conflicting version: Slater said he saw Plaintiff and another man chasing Valverde around the Brady Steel yard; that he (Slater) caught hold of Plaintiff and stopped him, and at this point Valverde struck Plaintiff with the steel tubing.

At any rate, at the time of the injury in question, Plaintiff Farley was on the job for Brady Steel, his work day had already begun, and incidental to the performance of his duties he went to find his helper, at which time the argument ensued with Val-verde which led to the injuries. There is no evidence of there having been a personal grudge that preexisted between Plaintiff and Valverde. The argument arose during the time of Plaintiff’s regular duties, and was inspired by the employment relationship as it existed between them from the week just ending, and the wages that Val-verde had earned in connection therewith.

The mere fact that two employees of the same employer, or one of them and a third person not employed by the same employer, engage in a fight, is not controlling of the question of whether or not one of the employees who receives an injury while engaged in it is entitled to compensation. McClure v. Georgia Casualty Co. (Comm.App.1923) 251 S.W. 800, judgment adopted; Texas Indemnity Ins. Co. v. Cheely (Amarillo Tex.Civ.App.1950) 232 S.W.2d 124, writ refused. Cheely also holds that proof that the injury occurred while the employee was engaged in or about the furtherance of his employer’s affairs or business is not alone sufficient; but that Plaintiff must also show that his injury was of such kind and character as had to do with and originated in the employer’s work, trade, business, or profession, citing several cases in support of this proposition on page 126.

We are of the opinion and hold that the evidence in the case at bar meets the test set out in Cheely, supra, and is legally and factually sufficient to support the jury’s answer to Special Issue No. 4, to the effect that Plaintiff was injured in the course of his employment. Also see United States Casualty Co. v. Henry (Waco Tex.Civ.App.1963) 367 S.W.2d 405, NRE, for application of the Cheely rule in a fact situation analogous to the case at bar, wherein the injury was held to be compen-sable.

Appellant’s next point of error complains of the refusal of the trial court to submit to the jury the following requested special issue and explanatory instruction:

“Do you find from a preponderance of the evidence that Plaintiff received such injury in the course of his employment by Brady Steel Company?
“ ‘Injury in the course of employment’ means any injury having to do with and originating in the work, business, trade, or profession of the employer, received by an employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon the employer’s premises or elsewhere.
“An injury is not in the course of employment if it is caused by the act of another person intended to injure the employee because of reasons personal to the employee and not directed against him as an employee or because of his employment. An injury caused by the employee’s willful intention to injure some other person is not in the course of employment, unless the injury results from a dispute arising out of the employee’s work or the manner of performing it and the employee’s acts growing out of such dispute are done in a reasonable attempt to prevent interference with the work or in reasonable self-defense.
“Answer ‘We do’ or ‘We do not’.”

Now, the trial court submitted as Special Issue No. 4 the following:

“Was Bob Farley injured in the course of his employment?”

Also, the trial court in the charge defined the term “sustained in the course of employment,” which definition is substantially in the same language as the first paragraph of the Defendant-Appellant’s requested instruction, but did not include any language used by Appellant in the second paragraph of the requested instruction. By said second paragraph Appellant undertook to exclude from the jury’s consideration defensive matters provided for in Article 8309, Section 1, subparagraphs (2) and (4), Vernon’s Texas Civil Statutes.

However, Defendant-Appellant made no objection to the charge, as submitted, pointing out to the trial court what Appellant considered to be erroneous concerning Special Issue No. 4 and the trial court’s definition relative to “course of employment.” By its failure to so object, Appellant has waived any error, if any, in connection therewith. Rule 274, Texas Rules of Civil Procedure, City of Dallas v. Priolo (1951) 150 Tex. 423, 242 S.W.2d 176, at page 179; Texas Employers’ Ins. Assn. v. Mallard (1944) 143 Tex. 77, 182 S.W.2d 1000, 1002. Also see Tyler Mirror & Glass Co. v. Simpkins (Tyler Tex.Civ.App.1966) 407 S.W.2d 807, 817, NRE; Foley v. Foley (El Paso Tex.Civ.App.1961) 350 S.W.2d 890, no writ. Accordingly, this point of error wherein Appellant complains of the court’s refusal to submit the requested instruction herein above-quoted is overruled.

Finally, by its last two points of error, to wit, sixth and seventh, Appellant complains of the refusal of the trial court to submit two requested special issues, inquiring of defensive matters concerning “course and scope of employment” provided for in Article 8309, Sec. 1, subsections (2) and (4), hereinabove referred to. Both of these requested special issues are worded so as to place the burden of proof upon the Plaintiff, and are clearly inferential rebuttal issues. Rule 277, Texas Rules of Civil Procedure, provides, among other things: “Inferential rebuttal issues shall not be submitted.” Appellant’s sixth and seventh points of error are overruled.

Finding no reversible error in the record, we accordingly affirm the trial court’s judgment.

AFFIRMED.


author: COLEMAN, Chief Justice.

text:
    Carl B. FOX, Jr., Appellant, v. Harold L. BOESE et al., Appellees.
    No. 17071.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 4, 1978.
    Rehearing Denied June 1, 1978.

      Eikel & Davey, Robert Eikel, Houston, for appellant.
    Talbert, Giessel & Stone, William S. Bush, Henry P. Giessel, Houston, for appel-lees.
   COLEMAN, Chief Justice.

This is an appeal by the plaintiff in a suit for attorney’s fees from the judgment entered on the verdict of a jury. The judgment will be affirmed.

Carl B. Fox, Jr., the plaintiff, is a well qualified and experienced patent attorney. On December 1,1970 one of the defendants, R. Layton Hazelip, retained Fox to do the legal work necessary to obtain a patent on a cryogenic system by which an electric motor could be cooled so as to greatly increase its efficiency. Fox immediately began work on the matter and on August 1,1972 a patent was issued.

There was an agreement that Fox would charge $600.00 plus expenses for preparing the patent application. This fee was paid when the application was filed. ' Fox continued to render services in connection with this application and also with applications for patents in eight foreign countries. He rendered a bill for these services which was paid on January 22, 1971. At that time Hazelip told Fox that he had paid all he could on the project and asked Fox to continue work with the understanding that he would be paid at an undefined future date. Fox agreed to this proposition. Subsequently a dispute arose over the amount of the fee which was charged by Fox and this suit resulted.

The case was submitted to the jury on one special issue which in essence inquired as to what amount the defendant should pay to the plaintiff for the services rendered to the defendants. The jury answered “$6,500.00” and judgment was rendered for the plaintiff in that amount.

Fox complains in two points that “The Court erred in submitting the case to the jury” because from the undisputed and un-contradicted evidence the appellant was entitled to recover a judgment in the amount of no less than $48,000, and because the answer made by the jury is contrary to the great weight and overwhelming preponderance of the evidence, or, alternatively, because said answer is supported by insufficient evidence. A point is also presented that the court erred in overruling the plaintiff’s motion to disregard the jury’s findings and for judgment non obstante veredicto because a directed verdict in the amount of no less than $48,000.00 should have been given.

Since each of these points attacks the action of the court in entering a judgment on the issues these points are all “no evidence” points. Chemical Cleaning, Inc. v. Chemical Cleaning & Equipment Service, Inc., 462 S.W.2d 276 (Tex.1970). We are, therefore, required to review the evidence and the reasonable inferences therefrom most favorably in support of the jury’s finding. Before we can sustain either of these points we must determine that there is no evidence to support the finding made by the jury. When considering a no evidence point this court must disregard all evidence adverse to the finding of the jury and consider only the evidence favorable to the finding, indulging every legitimate conclusion which tends to support the same. Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126 (1959); Travelers Ins. Co. v. Williams, 378 S.W.2d 110 (Tex.Civ.App.-Amarillo, 1964, writ ref’d n. r. e.).

After the agreement between Fox and Hazelip that Fox would work on credit there is evidence that Fox had a number of conferences with Hazelip and with Hencey and Boese involving the processing of the applications at the patent office and also such matters as taxes and the assignment of the patent application and the licensing and/or sale of the patent. In 1971 the patent office advised Fox that the applications had been rejected necessitating additional work on his part in making amendments to the application. In November of 1971 Fox sent Hazelip an invoice in the amount of $2,179.34 for fees and disbursements subsequent to January 22, 1971. As an addendum to this statement Fox noted on the invoice that he should have charged approximately $3,000.00 more but that in view of defendant’s problems he just “forgot” to bill for all the time spent. This statement did not result in a payment but Fox continued working.

In January, 1972 in response to a request for a settlement figure Fox agreed to accept in payment the sum of $5,700.00. No payment was made in response to this proposal. In February of 1972 Fox, at the request of Boese, attended a conference with certain investors and the defendants in Alvin, at which time he met A. Guy Crouch and Mark T. McGee. Fox discussed with them the value and feasibility of the invention. On March 19,1972 McGee and Crouch agreed with the defendants to pay $500,-000.00 down and annual payments of $3,000,000.00 for an assignment to McGee and Crouch of a one-fifth interest in the invention contingent upon the issuance of patents. There is evidence that at this meeting an understanding was reached that Crouch would pay Fox for future services. At that time he paid him $2,000.00 in advance. Beginning April 10, 1972 and continuing through February 14,1973 Fox rendered bills to Crouch totalling over $15,-000.00.

Prior to the February, 1972 meeting there had been discussions between Fox and the defendants of an arrangement whereby Fox would receive a percentage of the compensation which the defendants would in the future receive from the invention. No agreement was worked out satisfactory to all parties. After the February meeting there is testimony that Fox attempted to re-open and re-negotiate a percentage arrangement. Hencey testified that when he refused to agree to such an arrangement Fox stated that he would refigure everything he had ever done and make up a bill. Thereafter he orally communicated to the defendant that he would settle for $5,789.32.

On July 31, 1972, Fox sent each of the defendants an invoice for legal services in the amount of $10,000.00 plus 5% override based on income to be received by defendants from the patent. He testified that the invoices were based on the opinions of several prominent attorneys as to a reasonable charge for his services in obtaining the patent and also upon the defendants’ promises that he would participate in the value of the invention. In his brief he states that the invoices were also based upon Fox’s having spent on the project on the average approximately three hours every working day from December, 1970, until the end of May, 1971, for a total of 378 hours during which period he was charging $50.00 an hour for a total of $18,900.00. The brief states that the invoices were also based on Fox’s having during the period from June, 1971 to early 1972 devoted approximately 168 hours during which period he was charging $60.00 an hour for a total of $10,-080.00, and approximately 252 hours at $60.00 an hour, or $15,120.00, which he had expended on the patent subsequent to early 1972. It must be noted, however, that the invoices show payment of charges prior to January 22, 1971. This statement is inconsistent with the statement of November 29, 1971 and disregards the evidence that in April, 1972 payments were made and charges incurred by Mr. Crouch. Mr. Fox failed to present time sheets or other data to substantiate his estimate of the number of hours which he spent working on the case.

At the trial Mr. Fox called an expert witness who testified that based on the testimony which he heard during the trial the sum of $50,000.00 would be reasonable compensation for Fox’s services. He also testified that for the time prior to June, 1972 $50.00 per hour and for the time subsequent to that date $60.00 per hour was a fair basis for the calculation of fees.

The appellant contends that the opinion testimony of an expert is conclusive where the jury cannot properly be assumed to have, or be able to form, correct opinions of their own based upon the evidence as a whole and aided by their own experience and knowledge of the subject of inquiry. We do not question the soundness of this rule. Coxson v. Atlantic Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943 (1944); Exxon Corporation v. West, 543 S.W.2d 667 (Tex.Civ.App.-Houston, 1st Dist., 1976, writ ref’d n. r. e.).

In this case, however, there is evidence as to the per hour value of the attorney’s services and of the number of hours which he spent on the case in addition to the bills presented to the defendants by the plaintiff. The jury was not bound by Fox’s testimony that the $5,700.00 bill was a “salvage” figure, nor was it bound by his estimate as to the number of hours which he had spent on the case. We see no reason why a jury would not be able to form correct opinions concerning a reasonable attorney’s fee based upon evidence such as was before them in this case. As a general rule the testimony of an expert witness is not binding on the jury. Coxson v. Atlantic Life Ins.Co., 142 Tex. 544, 179 S.W.2d 943 (1944); Houston Lumber Supply Co. v. Wockenfuss, 386 S.W.2d 330 (Tex.Civ.App.-Houston, 1st Dist., 1965, writ ref’d n. r. e.).

In connection with special issue no. 1 the trial court submitted an instruction in the following language:

“You will be guided by what was fair and reasonable at the time the services were rendered. Consideration may be given to the amount of time spent, the complexity of the problems and the skill and experience of the attorney. . .”

The plaintiff objected to this charge as being inadequate and insufficient because the court failed to advise the jury that they could consider the value of the property interest involved, the extent of the responsibility assumed by the attorney, whether further employment was lost by the attorney, and the benefits resulting to the clients from his services. Each of these elements is a matter which an attorney may properly consider in setting a fee for legal services. D. R. 2-106, Code of Professional Responsibility, Vol. 1-A, Texas Civil Statutes, pages 300-301; Braswell v. Braswell, 476 S.W.2d 444 (Tex.Civ.App.-Waco, 1972, writ dismissed); Hundere v. Tracy & Cook, 494 S.W.2d 257 (Tex.Civ.App.-San Antonio, 1973, writ ref’d n. r. e.). In this case, however, we conclude that the trial court did not err in failing to include in the instruction the elements pointed out by the plaintiff. The hourly rate charged by the plaintiff is in evidence. The expert witness testified that these rates were reasonable. This testimony is not contradicted. It will be presumed that the plaintiff and his expert witness considered all of these elements in fixing the hourly rate. The instruction given by the trial court did not limit the jury to the elements specifically set out. The various factors involved in fee setting by an attorney can be developed in the evidence, but it is not necessary that the trial court instruct the jury on the factors which may be considered in determining a reasonable fee. See, Hundere v. Tracy & Cook, supra.

Where, as here, the trial court undertakes to give an explanatory instruction it should encompass all relevant factors which would enter into the setting of a fee that have support in the evidence. This the trial court failed to do.

The record viewed as a whole does not afford any substantial basis for a belief that the failure of the trial court to include additional factors in his explanatory instruction was such an error as was reasonably calculated to cause and which probably did cause the rendition of an improper verdict. Rule 434, Texas Rules of Civil Procedure.

The judgment is affirmed.


author: BRADBURY, Justice.

text:
    ATOKA, INC., Petitioner, v. R. E. THORNTON, Respondent.
    No. 5132.
    Court of Civil Appeals of Texas, Eastland.
    May 4, 1978.

      Gregory S. C. Huffman, Thompson, Knight, Simmons & Bullion, Dallas, for appellant.
    Frank Jennings, Jennings, Montgomery, Dies & Turner, Graham, for appellee.
   BRADBURY, Justice.

This is an application by Atoka, Inc. for writ of error seeking reinstatement of a suit against R. E. Thornton that was dismissed for want of prosecution. The trial court denied Atoka’s motion to reinstate and petitioner has filed this application. We dismiss the application.

In this case, the trial court lost jurisdiction after six months from the date of the order of dismissal. Rule 165a, T.R.C.P. The order of dismissal having disposed of all parties and issues was a final judgment. The application for writ of error having been filed after six months from date of final judgment leaves this court without jurisdiction. The application for writ of error is dismissed.

The sequence of relevant events was as follows:

June 14, 1971 - Respondent’s motion for summary judgment granted
February 11,1972 - Summary judgment reversed by this court; Atoka, Inc. v. Thornton, 477 S.W.2d 333, 1972, writ ref. n. r. e.
December 14,1976 - Petitioner’s suit dismissed for want of prosecution
June 2.1977 - Respondent’s motion for dismissal of his cross action granted
July 11,1977 - Petitioner’s attorney and petitioner for first time learned of Order of Dismissal of petitioner’s suit, and order dismissing respondent’s cross action
July 25,1977 - Petitioner filed motion for reinstatement
July 28, 1977 - Petitioner filed amended motion for reinstatement
August 4,1977 - Trial court denied petitioner’s motion for reinstatement
August 22,1977 - Petitioner filed its application for writ of error

In findings of fact and conclusions of law, the trial court found:

“Plaintiff Atoka, Inc. and plaintiff’s counsel did not receive notice and did not have knowledge of the court’s intention to dismiss plaintiff^ case for want of prosecution, the order dismissing plaintiff’s case for want of prosecution entered on December 14, 1976, defendant’s motion for dismissal or the order granting dismissal of cross-action entered on June 2, 1977, until the date of July 11, 1977.”

We must decide whether the order of dismissal of December 14,1976, or the order of June 2, 1977, dismissing respondent’s cross action is the final judgment.

Rule 165a, T.R.C.P., among other things provides:

“Within thirty days after the signing of the order of dismissal, the court shall reinstate the ease upon finding, after hearing, that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake. Where after a hearing the court finds that neither the party nor his attorney received a mailed notice, or acquired actual notice in any manner, of either the court’s intention to dismiss or the order of dismissal prior to the expiration of twenty days after the signing of such order, the court may reinstate the case at any time within thirty days after the party or his attorney first received either a mailed notice or actual notice, but in no event later than six months after the date of signing the order of dismissal.”

The trial court’s order of August 4, 1977, denied reinstatement. The conclusions of law stated the order of December 14, 1976, constituted a final judgment. We agree. Petitioner’s motion for reinstatement and its amended motion for reinstatement being made more than six months after the date of signing the order of dismissal, the trial court lacked jurisdiction to reinstate the case. Caddell v. Gray, 544 S.W.2d 481 (Tex.Civ.App.—Waco 1976, no writ).

In this case, the order of December 14, 1976 disposed of all issues and parties; therefore, it was a final judgment for purposes of appeal.

The court in Dawn v. Amerada Petroleum Corporation, 434 S.W.2d 451 (Tex.Civ.App.—Waco 1968, no writ) in discussing the rule as laid down in North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966) stated:

“It is said in the cited case that a judgment granting relief to a plaintiff which fails to expressly dispose of a cross-action or counterclaim should be construed as disposing of all issues made by the pleadings. In Davis v. McCray Refrigerator Sales Corporation, 136 Tex. 296, 150 S.W.2d 377, plaintiff was denied recovery by dismissal of his suit. It was held this did not dispose of defendant’s cross-action not expressly referred to in the judgment. The cross-action there, however, was for the most part independent of plaintiff’s claim. This circumstance was said in the Aldridge case (400 S.W.2d p. 897) to constitute an exception to the general rule.”

The cross action of respondent was not an independent action. The only way respondent could succeed in his cross action was for petitioner to first have been successful in its action. When petitioner’s case was dismissed, there were no issues left for trial.

The application for writ of error having been filed August 22, 1977, was more than six months from the date of final judgment and is not timely filed. Article 2255, V.A. T.S.

Application dismissed.


author: RALEIGH BROWN, Justice.

text:
    Mike RENFRO et al., Appellants, v. Doris SHROPSHIRE, County Clerk, Appellee.
    No. 5149.
    Court of Civil Appeals of Texas, Eastland.
    May 4, 1978.
    Rehearing Denied June 1, 1978.

      Ralph A. Rash, Kuhn, Collins & Rash, Austin, for appellants.
    Robert 0. Smith, Austin, for appellee.
   RALEIGH BROWN, Justice.

This appeal is from a judgment granting Doris Shropshire, County Clerk of Travis County, declaratory relief against the Commissioners Court of Travis County. Trial was before the court, which found that it had jurisdiction under the Declaratory Judgment Act and held that the Commissioners Court had no right to prescribe qualifications of persons to be employed in the county clerk’s office and also the Commissioners Court had no right to require the clerk to complete “Form F” as a condition precedent to the submission of her requested budget. The Commissioners Court appeals. We affirm in part and reverse and dismiss in part.

Appellee agrees to the following fact statement by appellants:

“In April 1975, Jim Johnson, the personnel director for Travis County drafted a compensation and classification policy for all county employees which was approved by the commissioners court. The personnel policies embodied in the document include a salary system for classified personnel by which all positions are assigned to a range number on a pay scale of 1 through 30, with the lowest paying positions being placed at range 1 and the highest at range 30, and with each range containing seven salary steps beginning with a six-month probationary period at step A with salary increases each year thereafter through step G on a rqerit basis.
Under these adopted policies, no person recruited by the county clerk can be employed or placed on the payroll of her office without the permission of a personnel coordinator appointed by the commissioners court and approval by the commissioners court.
The commissioners court promulgated a budget package which is disseminated to department heads and county officials prior to budget hearings. It is contemplated that the department heads and officials will complete the budget package and return it to the auditor for eventual review by the commissioners court. Included in this budget package is a “Form F” questionnaire.
The auditor received the county clerk’s budget request in September or October of 1976, complete except for the “Form F”. A memorandum purporting to be from the County Judge and Commissioners Court to Herbert Freitag, Assistant County Auditor, dated September 24, 1976 stated that:
. . it is the policy of this Commissioners Court not to review or consider Departmental budgets of which all requested forms are not completed. We would therefore ask that you return all budgets in which required data is missing so that the Department can complete the forms and return them in time for budget review process.’
But for that memorandum the county auditor would have presented the budget furnished to him by the county clerk to the commissioners court for evaluation and hearing . . ”

Appellants urge the trial court erred in holding that the Commissioners Court has no legal right to prescribe minimum qualifications for persons to be employed at the various salary steps established by the Commissioners Court.

In its judgment, the trial court held:

“The Commissioners Court of Travis County has the legal right and duty to approve a budget in January of each year for the office of the County Clerk of Travis County; and, in so doing, has an implied right to construct the budget for salaries of personnel upon a system of graduated salary steps and to prescribe the titles and number of persons who may be employed at each step. However, the commissioners court has no legal right to prescribe the qualifications of persons to be employed at the various salary steps and no legal rights to screen applicants or to veto appointments made by the county clerk to positions at the various salary steps.”

Appellants contend the issue for resolution is whether the power of the Commissioners Court to fix salaries of county employees paid wholly with county funds also gives the County Commissioners Court by implication the power to adopt and implement a plan to aid them in determining what salary is proper with respect to each employee.

Commissioners Courts may exercise only such powers as the Constitution or the statutes have specifically conferred upon them. Canales v. Laughlin, 147 Tex. 169, 214 S.W.2d 451 (Tex.1948); Starr County v. Guerra, 297 S.W.2d 379 (Tex.Civ.App.—San Antonio 1956, no writ). Article 5, § 18 of the Texas Constitution says in part:

“. . . The County Commissioners so chosen, with the County Judge as presiding officer, shall compose the County Commissioners Court, which shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed.”

The court in Glenn v. Dallas County Bois D’Arc Island Levee Dist., 275 S.W. 137 (Tex.Civ.App.—Dallas 1923, no writ) considering the authority of the Commissioners Court to handle “county business” said:

“. . . Within the meaning of the Constitution creating and conferring jurisdiction upon commissioners’ courts, we think it is proper to give to the term ‘county business’ a broad and liberal construction so as not to defeat the real purpose that was intended to be accomplished by the law in providing that the commissioners’ court shall exercise such power and jurisdiction over all county, business as is conferred by the Constitution and the laws of the state, or as may be hereafter prescribed; and not that meaning which would restrict the powers of jurisdiction to the business of the county in and for which said court was created, but to any and all business of that county and any other business of that county connected with or interrelated with the business of any other county properly within the jurisdiction of such courts under the Constitution and laws of the state . . . ”

See also Rodgers v. County of Taylor, 368 S.W.2d 794 (Tex.Civ.App.—Eastland 1963, writ ref. n. r. e.).

Tex.Rev.Civ.Stat.Ann. art. 3912k, § 1 provides:

“Except as otherwise provided by this Act and subject to the limitations of this Act, the commissioners court of each county shall fix the amount of compensation, office expense, travel expense, and all other allowances for county and precinct officials and employees who are paid wholly from county funds, but in no event shall such salaries be set lower than they exist at the effective date of this Act.”

This article must be considered together with Tex.Rev.Civ.Stat.Ann. art. 3902, which says in part:

“Whenever any district, county or precinct officer shall require the services of deputies, assistants or clerks in the performance of his duties he shall apply to the County Commissioners’ Court of his county for authority to appoint such deputies, assistants or clerks, stating by sworn application the number needed, the position to be filled and the amount to be paid. Said application shall be accompanied by a statement showing the probable receipts from fees, commissions and compensation to be collected by said office during the fiscal year and the probable disbursements which shall include all salaries and expenses of said office; and said court shall make its order authorizing the appointment of such deputies, assistants and clerks and fix the compensation to be paid them within the limitations herein prescribed and determine the number to be appointed as in the discretion of said court may be proper; provided that in no case shall the Commissioners’ Court or any member thereof attempt to influence the appointment of any person as deputy, assistant or clerk in any office. Upon the entry of such order the officers applying for such assistants, deputies or clerks shall be authorized to appoint them; provided that said compensation shall not exceed the maximum amount hereinafter set out . . . ”

Appellants argue that the legislature, by commanding the commissioners court to fix salaries of county employees, must have intended that the process of fixing the salaries be in accordance with some objective standards. To fix salaries, they argue, the commissioners court must be vested with the power to secure information about employees’ qualifications.

Chief Justice Hickman, while serving on this court, considering Article 3902 in Neeper v. Stewart, 66 S.W.2d 812 (Tex.Civ.App.—Eastland 1933, writ ref’d) said:

“. . . In that article is found the following language: ‘Provided that in no case shall said commissioner’s court or any member thereof attempt to influence the appointment of any person as deputy or assistant in any office.’ A public policy is thereby manifested in case of county and precinct officers generally to empower such officers to select their deputies or assistants and to forbid the commissioner’s court, or any member thereof, from attempting to influence such officers in their selection of assistants. The reason for this policy is obvious. Officers elected to discharge public trusts, and upon whom the responsibility for the proper discharge thereof rests, should be free to select persons of their own choice to assist them in its discharge . . . ”

The court in Tarrant County v. Smith, 81 S.W.2d 537 (Tex.Civ.App.—Fort Worth 1935, writ ref’d) considering the power of the commissioners court to name individuals as deputy sheriffs said:

“The sheriff is under as much obligation to conduct his office lawfully as is the commissioners’ court its duties. Neither is Tarrant county, but each has a bounden duty to the administration of the county affairs. The commissioners’ court can limit the number and salary of sheriff deputies, but they have no power over the naming of the individuals to be appointed, and are especially prohibited from attempting any such last-named influence. R.S. art. 3902 . . . ”

The naming by the county clerk of personnel to be employed in the office of county clerk is analogous to the naming of deputies by a sheriff. Since such naming is neither “county business” nor authorized by statutes, the commissioners court has no legal right to screen applicants or to veto appointments made by the county clerk to positions at the various salary steps. We overrule appellants’ first point of error.

The trial court found:

“In prescribing forms for use by County officials in filing 1976 and 1977 budget requests, the Commissioners Court required as a condition precedent to consideration of such requests that all county officials, including the County Clerk, complete its ‘Form F’ showing the ethnicity and sex of all employed personnel, the numbers of male and female employees who were Black (B), Spanish Surnamed Americans (SSA), American Indian, Oriental, etc. (G) and non-minority (NM), and also indicating ‘the equal opportunity hiring and promoting efforts that should be attempted during the (current) fiscal year if the current work force composition is overrepresentative of any one ethnicity or sex.’ ” (Emphasis ours)

Appellant challenges the finding contending there is no evidence to support it.

The record establishes that “Form F” was not completed by the county clerk and the clerk’s budget request was returned by the auditor to her on the basis of a letter which stated:

“September 24,1976
TO: Herbert Freitag, Assistant County Auditor
FROM: County Judge and Commissioners’ Court
SUBJECT: Completion of Departmental Budget Forms for 1977
This is to inform you that it is the policy of this Commissioners’ Court not to review or consider Departmental budgets of which all requested forms are not completed. We would therefore ask that you return all budgets in which required data is missing so that the Department can complete the forms and return them in time for the budget review process.”

To establish a requirement as a condition precedent to consideration of budget requests of county officials, including the county clerk, the commissioners court must act as a body. As stated by the court in Eastex Wildlife Conservation Association v. Jasper, Etc., 450 S.W.2d 904 (Tex.Civ.App.-Beaumont 1970, writ ref. n. r. e.):

“. . . the county can act only through the Commissioners’ Court, the individual Commissioners having no authority to bind the county by their separate actions. Canales v. Laughlin, 147 Tex. 169, 214 S.W.2d 451, 455 (1948). The court can act as a body only through its minutes. Hill Farm, Inc. v. Hill County, 425 S.W.2d 414, 419 (Waco Civ.App., 1968), affirmed, 436 S.W.2d 320 (Tex. Sup., 1969). Or, as said by Judge Gaines in Gano v. County of Palo Pinto, 71 Tex. 99, 8 S.W. 634, 635 (1888), ‘The commissioners’ court is a court of record, and speaks through its minutes, and not by the mouths of the members of the body.’ ”

See also Wilson v. County of Calhoun, 489 S.W.2d 393 (Tex.Civ.App.—Corpus Christi 1972, writ ref. n. r. e.).

Giving credence only to the evidence favorable to the trial court’s finding and disregarding all the evidence to the contrary we hold there is no evidence the commissioners court ever made as part of the minutes of the court a requirement that “Form F” must be completed prior to consideration by the court of the budget request of the county clerk. Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex.1963); Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974).

It follows from such holding that no jus-ticiable controversy existed between the parties. The commissioners court had not acted upon the alleged requirement of the completion of “Form F” by the county clerk before she filed suit.

The court in Byrd v. Fard, 539 S.W.2d 213 (Tex.Civ.App.—Dallas 1976, no writ) said:

“. . .A justiciable controversy exists between parties asserting protecta-ble, present rights. E. g., Cowan v. Cowan, 254 S.W.2d 862, 865 (Tex.Civ.App.—Amarillo 1952, no writ). Therefore, there must be a real controversy between litigants which would be actually determined by the judgment sought. Board of Water Engineers v. City of San Antonio, supra at 724. The burden of establishing justiciable controversy is on the moving party. Reuter v. Cordes-Hendreks Coiffures, Inc., supra.”

In California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960), the court said:

“All parties agree that there must be a justiciable controversy between the parties before a declaratory judgment action will lie. That is well settled law. Board of Water Engineers v. City of San Antonio, 1955, 155 Tex. 111, 283 S.W.2d 722(1); Parks v. Francis, Tex.Civ.App.1947, 202 S.W.2d 683(5), no writ history; Southern Traffic Bureau v. Thompson, Tex.Civ.App.1950, 232 S.W.2d 742(10), ref., n. r. e.; Anderson, Declaratory Judgments, 2d Ed., Vol. 1, p. 38, § 9; 16 Am.Jur. 282, § 9; Hodges, General Survey of the Uniform Declaratory Judgments Act in Texas, Vernon’s Texas Civil Statutes, Vol. 8, p. VII. The Court of Civil Appeals has cited and discussed some additional authorities and we will not repeat them.
‘The rule with respect to the necessity for a justiciable controversy may be stated in the vernacular in this wise: The Uniform Declaratory Judgments Act does not license litigants to fish in judicial ponds for legal advice.’ Anderson, Declaratory Judgments, 2d. Ed., Vol. 1, p. 47, quoting from Lide v. Mears, 231 N.C. 111, 56 S.W.2d 404.”

See also Anderson v. McRae, 495 S.W.2d 351 (Tex.Civ.App.—Texarkana 1973, no writ); State v. Margolis, 439 S.W.2d 695 (Tex.Civ.App.—Austin 1969, writ ref. n. r. e.); Bean v. Town of Vidor, 440 S.W.2d 676 (Tex.Civ.App.—Beaumont 1969, writ ref. n. r. e.).

There being no justiciable controversy before it, the trial court and this court are without jurisdiction to determine the issue of the validity of a requirement by the Commissioners Court of Travis County that “Form F” must be a part of the county clerk’s budget request. That portion of the judgment is reversed and that portion of the case dismissed. In all other respects, the judgment of the trial court is affirmed.


author: O’QUINN, Justice.

text:
    TEXAS INTERNATIONAL AIRLINES, INC., Appellant, v. TEXAS ALCOHOLIC BEVERAGE COMMISSION, Appellee.
    No. 12715.
    Court of Civil Appeals of Texas, Austin.
    May 10, 1978.
    Rehearing Denied May 31, 1978.

      Sam Coats, Houston, for appellant.
    John L. Hill, Atty. Gen., Gilbert J. Ber-nal, Jr., Asst. Atty. Gen., Austin, for appel-lee.
   O’QUINN, Justice.

Texas International Airlines, Inc., now appellant, brought this suit to recover “special airline beverage service” fees imposed under Article 666-15(21)(e), V.A.P.C., which appellant paid under protest in the amount of $64,310.36.

After paying the assessed fees under protest, Texas International brought suit within ninety days from payment and protest, as permitted under Article 1.05, Title 122A, Taxation-General. The statute requires that suit “. . .be brought against the public official charged with the duty of collecting such tax or fees, the State Treasurer and the Attorney General.” (Art. 1.05(2)). Appellant’s original petition was filed on March 3, 1977, the ninetieth day after payment and protest, and named as defendant only the Texas Alcoholic Beverage Commission.

The Attorney General, in behalf of the Texas Alcoholic Beverage Commission, filed on March 18 a plea to the jurisdiction in which it was pointed out that Texas International had failed to bring suit against W. S.McBeath, Acting Administrator of the Texas Alcoholic Beverage Commission, who is the public official charged with the duty of collecting the fees, and also failed to sue the Attorney General and the State Treasurer, as required by Article 1.05. Seven days 'thereafter, on March 25, Texas International filed an amended petition naming as defendants the three public officials required by Article 1.05 to be sued as defendants.

Upon a finding that Texas International “. . . did not meet the jurisdictional requirements of Article 1.05 . . . ” the trial court entered an order dismissing the suit with prejudice.

Texas International on appeal relies on two points of error:

(1) First, that it was error to dismiss the suit for noncompliance with Article 1.05 because suit is authorized as well by Article 7057b, Title 122, Taxation. Under this point appellant insists that section 7 of the latter article makes the statute cumulative of other laws relating to payment of fees and taxes of undetermined status and for holding such charges in the suspense account fund of the State Treasurer. By reason of these provisions, appellant urges its right to bring an action in assumpsit, for money had and received by the State, within two years as permitted by Article 5526.

(2) Second, appellant claims error in failure of the trial court to grant the amended petition a liberal construction under Texas pleading rules, even though compliance with Article 1.05 be found mandatory-

We will overrule the points of error and affirm judgment of the trial court.

The provisions of Article 1.05(1)(2), enacted in 1959, and provisions of Article 7057b, secs. 1 and 2, enacted in 1933 and as amended in 1939, are substantially identical in language and prescribe the same standards for compliance by the taxpayer who desires to bring suit to recover taxes. Both statutes require payment of the tax or fee, accompanied by a written protest setting out the grounds for protest, and that suit, if brought, be filed within ninety days after payment and protest. Both statutes require that the official having the duty to collect the fee or tax, the Attorney General, and the State Treasurer be made parties defendant in a suit for recovery of the taxes or fees paid. The issues to be determined in the lawsuit are limited to those arising from grounds stated in the taxpayer’s written protest. Venue for such suits is fixed by the statutes in Travis County.

The Supreme Court held in State v. Isbell, 127 Tex. 399, 94 S.W.2d 423 (1936), . .a state cannot be sued without its consent, and then only in the manner, place, and court or courts designated.” The Supreme Court also held that consent may be obtained only through action of the Legislature, either by general law, or by concurrent resolution or special act of the Legislature. (94 S.W.2d 424).

By passage of Articles 7057b and 1.05 the Legislature provided a specific method and procedure to enable taxpayers who question validity of a tax or fee to bring suit against the State in an effort to recover the taxes or fees after payment under protest. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 713 (1945). These statutes, sometimes referred to as “protest” statutes, created a right which did not exist at common law and prescribed a remedy to enforce such right, and “. . . the court can act only in the manner provided by the statute which created the right.” Union Central Life Insurance Co. v. Mann, 138 Tex. 242, 158 S.W.2d 477, 481 (1941). See also Stelter v. Calvert, 456 S.W.2d 202, 203 (Tex.Civ.App. Austin 1970, no writ); Bullock v. Electro-Science Investors, Inc., 533 S.W.2d 892, 894 (Tex.Civ.App. Austin 1976, no writ); Nu-Way Oil Co. v. Bullock, 546 S.W.2d 336, 340-1 (Tex.Civ.App. Austin 1976, no writ); Robinson v. Bullock, 553 S.W.2d 196, 197 (Tex.Civ.App. Austin 1977, writ ref’d n. r. e.).

Although in Stelter, supra, this Court decided the suit was not timely filed because brought more than ninety days after payment and protest, consideration was given to the fact that only one official was named a party defendant in the suit. “We do not determine,” the Court stated, “whether appellant, had he timely filed his suit, could amend after the expiration of the ninety day period so as to sue the officials named in the above statutes [Arts. 7057b and 1.05].” The Court did state, nevertheless, “We believe, and hold, that these statutes plainly require suit to recover taxes paid under protest to be filed against the officials named or indicated within 90 days from the date such taxes are paid.” (Emphasis added) 456 S.W.2d 203.

In Electro-Science Investors, supra, this Court found that although “Electro-Science sued the proper officials . . since the suit was not filed within ninety days from payment and protest, “. . . the trial court was without jurisdiction to entertain the suit.” 533 S.W.2d 894-5.

We hold that Texas International’s failure to comply with the statute and name as parties defendant the officials required by statute to be sued constituted a jurisdictional defect and foreclosed its cause of action under Articles 7057b and 1.05.

Texas International contends that because Section 7 of Article 7057b provides that the statute “shall be cumulative of all laws relating to payments of taxes or fees of undetermined status and for the holding thereof in the suspense account fund,” the remedy by way of Articles 1.05 and 7057b is not exclusive. Section 7 was examined by the Supreme Court in Union Central Life Insurance Co. v. Mann, supra, and the Court stated, “As applied to the facts of this case, the statutory provision . . . [Section 7] evidently means to say that the protest statute of which it is a part is not intended to destroy the legal right of reimbursement for taxes wrongfully demanded and collected under duress, but that such protest statute is merely cumulative of such right; or, stated in another way, is in addition thereto.” 158 S.W.2d 481.

Texas International cannot escape the rule, however, that a suit for refund of taxes on grounds of another cause of action may be brought only when authorized by the Legislature. National Biscuit Company v. State, 134 Tex. 293, 135 S.W.2d 687 (1940); Union Central Life Insurance Co. v. Mann, supra; State of Texas v. Connecticut General Life Insurance Co., 382 S.W.2d 745 (Tex.Sup.1964); Commercial Standard Fire and Marine Co. v. Commissioner of Insurance, 429 S.W.2d 930 (Tex.Civ.App. Austin 1968, no writ).

The holdings in these cases make it clear that consent of the State to be sued in tax and fee matters, as established by Articles 7057b and 1.05, does not by virtue of Section 7 extend also to other causes of action.

Texas International presents no authority, and claims none, to bring suit against the State, except such consent of the State as may be found in Articles 7057b and 1.05. Appellant cannot now assert another and different cause of action against the State. See Electro-Science Investors, supra, 533 S.W.2d 895.

The judgment of the trial court, dismissing the suit with prejudice, is in all things affirmed.

Affirmed.

      . The same fees are now imposed under Sec. 34.04(b), Texas Alcoholic Beverage Code, a re-codification of the Texas Liquor Control Act, which was repealed with adoption of the Code by Acts 1977, 65th Leg., ch. 194, pp. 391-558, effective September 1, 1977.


text:
    SUN OIL COMPANY (DELAWARE), Appellant, v. Fred W. HALL, et al., Appellees.
    No. 12725.
    Court of Civil Appeals of Texas, Austin.
    May 10, 1978.

      Stuart C. Hollimon, Strasburger & Price, Dallas, for appellant.
    Ivan D. Hafley, Scott & Douglass, Austin, for appellees.
   O’QUINN, Justice.

Fred W. Hall and others, asserting their interests as lessors in certain oil and gas leases in Concho County, brought suit in Concho County against Sun Oil Company (Delaware) as lessee, claiming damages for breach of lease covenants to drill offset wells and to pay royalties.

Sun Oil filed its plea of privilege to be sued in Dallas County, the county of its legal domicile. Hall and associates controverted the plea in reliance on subdivision 5(a) of Article 1995, V.A.C.S., to retain venue in Concho County.

The parties joined issue in the main on Sun Oil’s claim that plaintiffs below, in alleging failure of the oil company to drill offset wells to prevent drainage, did so “in bad faith and solely for the purpose of maintaining venue of this cause in Concho County.”

The trial court overruled Sun Oil’s plea of privilege, from which action the company appeals and brings two points of error. Under the first point Sun Oil takes the position that the evidence as a matter of law established that plaintiffs fraudulently asserted drainage and failure to drill an offset well in order to retain venue in the county of suit. Under the second point appellant asserts there was no evidence that covenants of the lease make royalties payable in Concho County.

We will overrule the first point of error and affirm judgment of the trial court.

Subdivision 5(a) of Article 1995 provides: “Subject to the provisions of Subsection (b), if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.” (Emphasis added) Subsection 5(b), referred to in (a), concerns contractual obligations in consumer transactions and does not alter the provisions of (a) as applied to the facts of this case.

The parcel of land upon which the wells are to be drilled under the lease contract is the “definite place” of performance within the provisions of Subdivision 5(a). Petroleum Producers Co. v. Steffens, 139 Tex. 257, 162 S.W.2d 698 (1942). Since the tract lies within Concho County, venue properly falls in Concho County under the implied obligation on the part of the leasee to drill offset wells on the described tract of land, unless it be shown that plaintiffs’ claim of drainage, invoking the obligation to drill offsets, has been asserted fraudulently.

If the claim on which venue could be maintained in the county of suit is fraudulently asserted, the plea of privilege must be sustained. Batex Oil Co. v. La Brisa Land & Cattle Co., 352 S.W.2d 769, 772 (Tex.Civ.App. San Antonio 1961, writ ref’d n.r.e.). The burden to establish that venue allegations by plaintiffs were fraudulently made rests on the defendant. Hagan v. Anderson, 506 S.W.2d 298, 302 (Tex.Civ.App. San Antonio 1973, writ ref’d n.r.e., 513 S.W.2d 818). The defendant discharges the burden by showing (1) that plaintiff did not have a valid cause of action and (2) that plaintiff knew or should have known this fact at the time of filing suit. 513 S.W.2d 818, 819.

Sun Oil sought to discharge its burden to prove that plaintiffs fraudulently asserted as facts the elements needed to maintain venue in Concho County through the testimony of an expert witness and the data he relied on to express his opinions and conclusions. Plaintiffs rebutted testimony of the expert witness through contrary conclusions and opinions of an expert witness of their choice.

Plaintiffs claim that gas which would be produced by a well on the lease property is being drained by a well located on an adjacent tract under lease. Fred Wilson, an expert witness offered by Sun Oil, testified that drainage was impossible, based on evidence that “bottom hole pressure” in the adjacent well, on the other lease, was in fact higher than pressure in the well on the Hall lease, claimed to be drained. Wilson asserted that such evidence, on file with the Railroad Commission, conclusively demonstrated no drainage, and insisted that any person “trained in analysis” who studied the evidence would reach the same conclusion.

Don Ray George, an expert witness in behalf of plaintiffs, testified that there “. . . is definitely a cause of action due to drainage,” and that nothing that Wilson had shown by his testimony had changed George’s mind on the issue. George also questioned the accuracy and reliability of the pressure studies upon which Wilson relied for his conclusion. George did concede that other considerations besides drainage could account for the difference in cumulative production between the two wells in question.

Sun Oil contends that Wilson’s interpretations of the bottom hold pressure data established as a matter of law that plaintiffs did not have a valid cause of action and knew or should have known that fact when suit was filed. Although the testimony of an expert witness must be taken as true, insofar as it establishes facts, the opinions of an expert as to deductions from the given facts are not binding on the trier of facts, even when not contradicted by testimony of another expert witness. Gregory v. Texas Employers Insurance Association, 530 S.W.2d 105 (Tex.Sup.1975).

The opinions expressed by expert witnesses constitute the “character of testimony [which] is but evidentiary and is never binding upon the trier of facts,” and does not establish any material fact as a matter of law. Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345, 346 (1948). In Luttes v. State, 159 Tex. 500, 533, 324 S.W.2d 167, 189 (1958), the Supreme Court observed that “. . . the mere qualification of a witness as an expert does not cut off the fact-finder from exercising considerable judgment of his own about how far his opinions are to be relied on.”

Wilson’s opinion that there is no drainage is the conclusion of an expert witness based on facts introduced by appellant at the hearing on the plea of privilege. George, also a qualified expert, reached a contrary conclusion, which at least demonstrates that it may not be assumed that Wilson’s conclusion is the only possible conclusion warranted by the facts in evidence. In any event, even without the opposing view of George, the trial court was not bound by Wilson’s opinion testimony, and Sun Oil did not establish as a matter of law that plaintiffs fraudulently asserted drainage in order to maintain venue in Concho County.

Since the appeal is disposed of under the first point of error it is not necessary to consider the second point as to place of royalty payments.

The judgment of the trial court, overruling appellant’s plea of privilege, is affirmed.


author: PHILLIPS, Chief Justice.

text:
    NAVARRO INDEPENDENT SCHOOL DISTRICT, Appellant, v. M. L. BROCKETTE, Commissioner of Education, State of Texas, et al., Appellees.
    No. 12726.
    Court of Civil Appeals of Texas, Austin.
    May 10, 1978.
    Karl H. Moeller, Hooper, Robinson & Moeller, Austin, for appellant.
    John L. Hill, Atty. Gen., Robert Giddings, Asst. Atty. Gen., Austin, for Commissioner of Ed.
    J. C. Hinsley, Michael G. Maloney, Austin, for intervenors-appellees Dyess, et al.
   PHILLIPS, Chief Justice.

This is an appeal from the trial court’s refusal to review the decision of an administrative agency for lack of jurisdiction pursuant to article 6252-13a, § 19, Administrative Procedure and Texas Register Act.

The judgment is affirmed.

The county school trustees of Guadalupe County, Texas, pursuant to § 19.261, Tex. Educ. Code Ann., held a hearing in connection with the detachment of certain property from the Navarro Independent School District and reannexation of such property to the Seguin Independent School District. After the hearing, the trustees denied the requested detachment and reannexation.

Intervenors, Robert C. Dyess, et al, appealed this decision to M. L. Brockette, Commissioner of Education of Texas. Brockette held a hearing on the appeal by intervenors. After the hearing, Brockette entered an order allowing the detachment and reannexation.

Appellant Navarro Independent School District appealed Brockette’s decision to the State Board of Education. On September 11, 1976, the Board voted to affirm Brock-ette’s order. Thereafter, appellant filed a motion for rehearing. The Board, on October 9,1976, overruled the motion and incorporated Brockette’s order into its minutes. The Board did not notify appellant of its decision as provided for in § 16(b) of article 6252-13a.

Appellant then sought judicial review of the Board’s decision. Appellant’s original petition was filed January 21, 1977. The trial court, however, dismissed the action for lack of jurisdiction because the petition was filed more than thirty days after the overruling of the motion for rehearing.

On appeal, appellant asserts that the trial court erred in dismissing the cause for lack of jurisdiction, that the order of the State Board of Education is void and unenforceable, and that the cause must be remanded for further agency action.

The threshold issue for our determination is whether the trial court was correct in dismissing the case for lack of jurisdiction.

Appellant argues the trial court erred in dismissing the cause because it was not notified of the Board’s decision as required by § 16(b) of the Administrative Procedure Act, and that failure to give notice tolls the statutory time for appeal. Appellant contends, in effect, that there is no time limitation for instituting judicial review of an agency decision when the agency fails to give notice to a party of the overruling of a motion for rehearing. We do not agree.

Article 6252-13a, § 19(b), Administrative Procedure and Texas Register Act, provides that judicial review of contested cases be instituted within thirty days after the decision of the administrative agency becomes final and appealable. A decision of an administrative agency is final and appealable on the date of rendition of the order overruling the motion for rehearing or on the date the motion is overruled by operation of law. Article 6252-13a, § 16(c). The motion is overruled by operation of law if agency action is not taken within forty-five days of the rendition of the final order or decision. Article 6252-13a, § 16(e).

The procedure for appeal prescribed by article 6252-13a, § 19(b) is mandatory and jurisdictional. It cannot be waived. See Texas State Board of Pharmacy v. Kittman, 550 S.W.2d 104 (Tex.Civ.App. Tyler 1977, no writ); Superior Oil Company v. Railroad Commission of Texas, 519 S.W.2d 479 (Tex.Civ.App. El Paso 1975, writ ref’d n.r.e.); Stanfield v. Texas Department of Public Safety, 422 S.W.2d 14 (Tex.Civ.App. Dallas 1967, writ ref’d n.r.e.).

Appellant asserts that because it was not notified of the decision of the Board of Education on appellant’s motion for rehearing, suit was not instituted within thirty days of the overruling of the motion for hearing.

We do not agree with appellant that noncompliance by an agency with the notice requirement of § 16(b) of article 6252-13a should be held to excuse his failure to seek judicial review of a decision of an administrative agency within the time limit specified in § 19(b) of article 6252-13a. Since nothing in § 16(b) purports to grant an extension of time to initiate judicial review of an agency decision when the agency fails to send notice, and since the provisions of § 19(b) are mandatory and jurisdictional, we hold that appellant failed to institute judicial review within the time prescribed by law.

Accordingly, the judgment is affirmed.


text:
    Lee MOORE, d/b/a Robo Car Wash Sales and Service, Appellant, v. CITATION MANUFACTURING COMPANY, Appellee.
    No. 12749.
    Court of Civil Appeals of Texas, Austin.
    May 10, 1978.
    John R. Henderson, Meyers, Miller & Middleton, Dallas, for appellant.
    C. Robert Dorsett, Austin, for appellee.
   O’QUINN, Justice.

Appellant Lee Moore was one of several defendants below and appeals from order of the trial court overruling his plea of privilege to be sued in Dallas County as his county of residence.

Citation Manufacturing Company sued Bill Doyle and wife, Betty Doyle, doing business as Citation of Texas, Mido Chemical & Equipment, Inc., and Lee Moore, doing business as Robo Car Wash Sales and Service, the latter a resident of Dallas County.

Citation Manufacturing pleaded a suit on sworn account against the Doyles and Mido Manufacturing, and alleged that since these defendants provided Moore with the goods sold, Moore was “contractually obligated” to Citation Manufacturing. Plaintiff below also sued all defendants in quantum meruit.

In its affidavit controverting Moore’s plea of privilege, Citation Manufacturing relied on Subdivision 4 of Article 1995, V.A. C.S., to hold venue in the county of suit, claiming that all defendants except Moore resided in Travis County.

Appellant Moore rests his appeal on three points of error. Under the first point Moore contends that Citation Manufacturing, as plaintiff below, failed to prove that one of the defendants resides in the county of suit. Moore also urges, under the second and third points, that Moore is not a proper party to the suit against the resident defendants, and that Citation Manufacturing failed to prove that the corporation had a bona fide claim against the resident defendants.

We will sustain Moore’s contention that Citation Manufacturing failed to prove that any one of the defendants is a resident of Travis County, and therefore will not reach the remaining points, since in deciding the first point against plaintiff below we dispose of the appeal.

Subdivision 4, as one of the enumerated exceptions under Article 1995, provides in instances of defendants in different counties that “If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.”

Under this exception plaintiff is required to prove by competent evidence that at least one of the defendants resides in the county where suit is brought. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302 (1936). Citation Manufacturing did not meet this burden.

No evidence was offered to show that Mido Chemical and Equipment, Inc. had an address in Travis County or was properly sued in the county.

Counsel for Citation Manufacturing testified, as alleged in the petition, that the Doyles lived at 134 Sailfish in Austin, Texas, but admitted as a witness at the hearing that he learned the address of the Doyles from a third person and had sought to “verify” the information by reading a “criss-cross” directory. Counsel conceded that he had no personal knowledge of the residence or address of the Doyles.

Counsel’s personal knowledge was limited to finding the Austin address of Citation of Texas, the name under which it was alleged the Doyles carried on business. Proof of the address of the business, Citation of Texas, was insufficient to establish the residence of the Doyles. Dixon v. McDonald, 130 S.W.2d 884 (Tex.Civ.App. Beaumont 1939, no writ). 1 McDonald, Texas Civil Practice, sec. 4.03.3 (1965).

Judgment of the trial court overruling appellant’s plea of privilege is reversed. Judgment is rendered that the plea of privilege be granted, with instruction that the cause as to Lee Moore be transferred to county court at law of Dallas County.