author: ELLIS, Chief Justice.

text:
    Mike JUSTICE dba Mike Justice and Associates, Appellant, v. Billy M. WILLARD et al., Appellees.
    No. 8644.
    Court of Civil Appeals of Texas, Amarillo.
    June 14, 1976.

      Stokes, Carnahan & Fields, Ben L. Sturgeon, Amarillo, for appellant.
    Gibson, Ochsner, Adkins, Harlan & Han-kins, Michael C. Musick, Amarillo, for ap-pellees.
   ELLIS, Chief Justice.

Mike Justice, dba Mike Justice and Associates, plaintiff-appellant, brings this appeal from a summary judgment rendered in favor of Billy M. Willard, First National Bank of Borger, Borger, Texas, and John Morrison, defendants-appellees, which decreed that the plaintiff take nothing in his suit seeking recovery against the defendants under a letter agreement providing for the payment of real estate commission to Justice by the Bank and Willard, after deducting therefrom, along with other items, certain attorney’s fees paid to Morrison. The summary judgment is affirmed.

A chronology of events which preceded the filing of this suit on October 24, 1973, reveals that in April, 1970, appellee Willard contracted with a seller to purchase approximately 15,000 acres of ranch land. In January, 1973, Willard contracted to convey his rights under the contract of purchase and sale to appellee First National Bank. A letter memorandum dated April 17, 1973, addressed to Mike Justice, was signed by the president of appellee Bank, appellee Willard and the appellant Mike Justice evidencing their “entire agreement . concerning . . . the commission which may become payable to you [Mike Justice] for services rendered in connection with the contract between . . . ” the original seller of the ranch land, the Bank, Willard and the ultimate purchasers of the land. The agreement provided that upon consummation of the land transaction the Bank and Willard “. . . will pay to you [Mike Justice] . . . out of the proceeds received . . . from the sale .” $37,800, less certain enumerated deductions, one of which was an attorney’s fee in a then undetermined sum to be paid to Morrison and Cross, attorneys representing Mike Justice and the Bank, for work done and yet to be done by them relating to the real estate transaction. The agreement further provided that the payment of such commission would constitute payment “. . .to you, and/or to Justice & Co., of any and all compensation which you and/or Justice & Co. are entitled to receive . . . ” pertaining to the land transaction. It appears that “Justice & Co.” refers to a business operated by Virgil W. Justice, a licensed real estate broker, who was an uncle of the appellant.

The appellant alleged that after consummation of the sale, he received a memorandum from the president of appellee Bank setting forth deductions from the realtor’s fees, which, among other deductions, included an attorney’s fee of $18,700 paid by the Bank to Morrison. The Bank then transferred to the appellant the amount remaining after subtracting the various deductions.

Basic to a decision in this suit is the matter of applicability of portions of the Real Estate License Act, sometimes referred to hereinafter as the Act, Tex.Rev. Civ.Stat.Ann. art. 6573a (1967), which was in effect at the time this cause of action arose. The purpose of the Act is to regulate the practices of those engaged in the business of selling real estate for compensation and to eliminate or reduce fraud in the interest of the public. See Hall v. Hard, 160 Tex. 565, 335 S.W.2d 584 (1960); Gill v. Smith, 233 S.W.2d 223 (Tex.Civ.App. — Galveston 1950, writ ref’d n. r. e.). Section 19 of the Act is captioned “License prerequisite to suit for compensation,” and provides in part:

No person or company may bring or maintain any action for the collection of compensation for the performance in this State of any of the acts set out in subdivision (1) of Section 4 hereof [defining the term “Real Estate Broker”] without alleging and proving that the person or company performing the brokerage services was a duly licensed real estate broker or salesman at the time the alleged services were commenced . .

Section 26, captioned “Unlawful commission,” provides in part:

[N]o Real Estates Salesman shall be employed by or accept compensation from any person other than the Broker under whom he is at the time licensed

The Motion for Summary Judgment filed by the defendants and granted by the trial court alleged, in substance, that as a matter of law: (1) the plaintiff’s suit was one for the recovery of real estate commissions; (2) the only writing evidencing such agreement for commissions was the letter agreement dated April 17,1973; (3) at all times during and throughout the real estate transactions in question, the plaintiff was licensed only as a real estate salesman in the State of Texas; and (4) the plaintiff received and accepted commissions from the defendants. The defendants further asserted that upon the foregoing undisputed facts, as a matter of law, they were entitled to a take-nothing judgment and that there was no genuine issue as to any material fact.

In response to the defendants’ motion for summary judgment, the plaintiff asserted that his cause of action was not a suit to recover a real estate commission, but rather a suit “to recover an unreasonable attorney’s fee wrongfully paid by a fiduciary” under a commission agreement amounting to conversion and “that the balance of the contentions and facts” contained in the defendants’ motion for summary judgment numbered as 1-4 above, were immaterial. Responding alternatively, the plaintiff contended that: (1) he “undertook to provide the services of [a] real estate salesman in the name of Justice and Company duly licensed under Virgil W. Justice, a broker”; (2) the commission paid “was for [the] services of Justice and Company under the license of Virgil W. Justice, a duly licensed real estate broker”; (3) such services were accepted by the defendants and payment was made by the defendants to the plaintiff as agent for Justice & Co.; (4) the defendants waived any complaint as to legality of the contract; (5) the defendants are not proper parties to claim the benefit of the Real Estate License Act; and (6) the plaintiff complied with the provisions of the Real Estate License Act.

The judgment of the trial court was based upon the pleadings (and exhibits attached thereto), the depositions, the answers of the plaintiff in response to the defendants’ written interrogatories, and opposing affidavits of the plaintiff. The appellant attacks the judgment in seven points of error. They relate, primarily, to the nature of the cause of action, the appellant’s standing to sue, and the requirements of the Real Estate License Act.

In his first two points of error the appellant contends that the trial court erred in holding that this suit was one for recovery of a real estate commission rather than a suit to recover the improper payment of an unreasonable attorney’s fee. His Third Amendment Original Petition included allegations of fraud, conversion, breach of fiduciary relationship, and alternatively, excessive attorneys fees wrongfully paid.

From a review of the pleadings, we conclude that any recovery to which the appellant may be entitled must be based upon his legal right to receive a real estate commission. Under any of the theories advanced by the appellant, he must first establish his rights to funds allegedly converted, held in constructive trust, or out of which the alleged excessive attorney’s fee was paid. The attorney’s fee paid to Morrison by the Bank was deducted from the sum designated as real estate commission as provided in the April 17 letter agreement. In effect, the appellant asserts that one holding funds (commission) as his agent wrongfully paid a part of those funds to Morrison as attorney’s fees. His right to recover in any amount is dependent upon his right to recover commission under the appropriate provisions of the Real Estate License Act. See Breeding v. Anderson, 152 Tex. 92, 254 S.W.2d 377 (1953). Under Section 19, he must be licensed; he was licensed as a salesman, but not as a broker, at the time of this transaction. Under Section 26, he, as a salesman, was prohibited from accepting a commission from any person other than the broker under whom he was licensed.

The net result of a recovery of all or part of the money paid by the Bank to Morrison as attorney’s fees out of the particular funds in question would be a recovery of real estate commission by the appellant from one who was not the broker under whom the appellant was licensed. We find no error in the granting of the defendants’ motion for summary judgment on the basis that as a matter of law the plaintiff’s suit was primarily an action to recover real estate commission referable to the appropriate provisions of the Real Estate License Act, rather than an action to recover an unreasonable attorney’s fee. Points 1 and 2 are overruled.

By his point number 3, the appellant challenges the court’s holding as a matter of law that there was not a genuine issue of a material fact as to whether the appellant contracted in his own behalf for a real estate commission in violation of the Real Estate License Act. The appellant states in his brief that the trial court, in effect, concluded that the suit was for the recovery of a real estate commission by one who was licensed not as a real estate broker but as a real estate salesman at the time the cause of action arose. The appellant contends that the appellees, as the movants under Tex.R.Civ.P. 166-A, failed to discharge their summary judgment burden of proof. As support for his contention appellant relies upon his response to the defendants’ motion for summary judgment and the affidavits accompanying it. The appellant contends that the services he rendered were performed and the commissions he received were paid under a duly licensed real estate broker doing business under the name of Justice & Co.

The appellant’s deposition testimony discloses that he operated a Dalhart, Texas, real estate office with none of the income from that office going to Virgil Justice, the licensed broker, who operated a real estate office in Hereford (formerly in Dimmitt), Texas. Whatever the Dalhart operation earned, the appellant kept as his own, and whatever the Hereford operation earned Virgil Justice retained as his own. There was no agreement for division of income between the appellant and Virgil Justice. However, the record reflects that there was an agreement for division of commission on this transaction between Mike Justice and Richard Culberson, who also worked out of the Dalhart office. Culberson stated in his deposition “. . .1 was . . . the salesman under Mike Justice. . . .” His testimony indicated that he regarded Mike Justice as a broker, although it was undisputed that at the time of this transaction, Mike Justice was not licensed as a broker.

Neither Virgil W. Justice nor Justice & Co. is a party to this action. The suit was brought by Mike Justice, doing business as Mike Justice and Associates. Although the appellant’s affidavit stated that the payment of the commission was made under the license of Virgil Justice, it is significant that Mike Justice did not bring the suit for and in behalf of the licensed broker; he brought it for himself.

In his Third Amended Original Petition, an unsworn pleading signed by counsel for appellant, it was alleged that the appellant was the lawful owner and holder of all rights, title and interest arising from the contract of sale and the letter agreement. In such pleading, in a paragraph captioned “Pre-Judgment Interest,” it was alleged that the Bank and Morrison retained funds rightfully belonging to Justice & Co., the right, title, and interest to which were assigned to the appellant. It is recognized that pleadings, even if sworn, are noc regarded as summary judgment evidence. Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.1971). The ap-pellees’ motion for summary judgment was supported by proof that the only writing evidencing an agreement to pay a real estate commission was addressed to and signed by the appellant. Neither the affidavits of the appellant and Virgil Justice nor the depositions mention or refer to any assignment of commissions by Virgil Justice, the broker, to the appellant.

The summary judgment proof, giving the appellant every reasonable intendment deducible therefrom, does not serve to raise a genuine issue as to the material fact whether Justice & Co. assigned commission rights to the appellant. The payment was made to Mike Justice, not a broker, but a salesman, directly from the owners of the rights in and to the real estate and not by a broker to the salesman. Further, the appellant admitted in his deposition testimony that Virgil Justice, the licensed broker, had no pecuniary interest in the real estate commission to be derived from the transaction. Thus, Virgil Justice had no interest to assign.

The appellant cites Section 19 of the Act and Hall v. Hard, supra, as support for his contention that he has standing to maintain a suit to collect a real estate commission. A basic issue in Hall was whether the transaction was, indeed, a real estate sale, and thus, whether the Act was applicable. The court there held that the evidence raised a fact issue as to whether the sale involved real estate, and remanded the cause to the trial court because it had erroneously rendered judgment non obstante veredicto. It is our opinion that such holding in Hall is not controlling here.

Section 19 of the Act provides, generally, that only licensed persons may bring suit for the collection of real estate commissions. Although the appellant was licensed as a real estate salesman, Section 26 permits the acceptance of commissions by a real estate salesman only from a broker under whom he is at the time licensed. In Redburn v. French, 216 S.W.2d 284 (Tex.Civ.App. — San Antonio 1949, no writ), it was held that one who was a real estate dealer (broker under the 1967 amended statute) could not legally enforce his claim for compensation against one who was not a real estate dealer (broker). The court in Redburn, citing Gregory v. Roedenbeck, 141 Tex. 543, 174 S.W.2d 585 (1943), recognized that no recovery could be had upon an agreement proscribed by Section 20 (Section 26 under the 1967 amended statute). It is our opinion that under the above cited authorities, the appellant in the instant case, not licensed as a broker at the time of the transaction, failed to overcome the specific provision of Section 26 which prohibits the acceptance of commission by a real estate salesman from anyone “. . . other than the Broker under whom he is at the time licensed . . . .” Further, that the appellant had a valid real estate broker’s license at the time this suit was brought does not satisfy the licensing requirement. He must have had the license at the time the cause of action arose, i. e., when the commission was earned. Furman v. Keith, 226 S.W.2d 218 (Tex.Civ.App. — San Antonio 1949, writ ref’d); Dolan v. Drescher, 250 S.W.2d 915 (Tex.Civ.App. — San Antonio 1952, writ ref’d n. r. e.).

In his fourth point of error, the appellant contends that the trial court erred in holding as a matter of law that he did not have legal standing to maintain this action for the recovery of an unauthorized payment of an unreasonable attorney’s fee. We have held under the appellant’s first two points that this suit is one for the recovery of a real estate commission, not a suit for the recovery of attorney’s fees wrongfully paid. To determine the appellant’s standing to sue for the recovery of a real estate commission, we must look to appropriate provisions of the Real Estate License Act.

Also, under points 3 and 4, the appellant argues at length that the defense of non-compliahce with the Act is not available to appellee Morrison for the reason that Morrison could not have been called upon to pay a commission. The appellant further contends that Morrison is estopped to assert a defense that may be available to an owner or party to a contract calling for the payment of a commission and that Morrison should not be permitted to escape financial responsibility by the use of a guise his alleged fraudulent acts may have produced. In the appellant’s brief he asserts estoppel against the Bank. None of these arguments concerning Morrison and the Bank are embraced in either of the two points of error under which they appear, and are, therefore, not entitled to be considered as grounds for reversal. Wagley v. Fambrough, 163 S.W.2d 1072 (Tex.Civ.App. —Eastland 1942), aff’d, 140 Tex. 577, 169 S.W.2d 478 (1943); Jack R. Allen & Company v. Wyler Textiles, Ltd., 371 S.W.2d 728 (Tex.Civ.App. — Dallas 1963, no writ). However, even if the question of availability of the defenses asserted was properly before us, we would hold that the appellant’s arguments submitted are without merit.

The appellant cites Stroble v. Tearl, 148 Tex. 146, 221 S.W.2d 556 (1949), and Coats v. Windham, 254 S.W.2d 530 (Tex.Civ.App. — Beaumont 1953, writ ref’d n. r. e.), as support for his arguments concerning the relative positions and defenses of Morrison and the Bank. The first cited case dealt with the writing requirement for a contract to pay a real estate commission; moreover, the court there reaffirmed the licensing requirement as a condition to recovering a real estate commission. The facts in the latter case cited did not involve a real estate transaction so as to bring the suit within the provisions of the Act. The court held that the plaintiffs were not acting as real estate brokers and were not, therefore, required to comply with the Act. Neither of these cases supports the appellant’s contentions as to defenses available to Morrison. In Harris v. Phillips, 280 S.W. 895 (Tex.Civ.App. — Fort Worth 1925, writ dism’d), cited by appellant as support for his assertion of estoppel against the Bank, it was held that the seller of the property could not contest the validity of the legally enforceable contract on the ground that the broker misrepresented the terms of the contract. In Harris the seller became aware of the misrepresentation while the contract was still executory, but instead of repudiating the contract, he accepted the benefits thereof. There was no question as to whether the broker was licensed. In the instant case the plaintiff was not a licensed broker at the time of the transaction nor was he seeking recovery against a licensed broker; thus, the appellant’s asserted rights are not enforceable. It is well settled that the theory of estoppel is defensive in nature and presupposes the existence of a legally enforceable right. Where liability does not otherwise exist, it cannot be created by estoppel. Jones v. Texas Gulf Sulphur Co., 397 S.W.2d 304 (Tex.Civ.App. — Houston 1965, writ ref’d n. r. e.); Cotton Belt State Bank v. Roy H. Hatcheries, Inc., 351 S.W.2d 325 (Tex.Civ.App. — Waco 1961, no writ).

Because the appellant did not allege or show that he was a licensed broker during any of the steps leading to the closing of the transaction, and in view of our holding that this suit is one for the recovery of a real estate commission rather than for recovery of attorney’s fees wrongfully paid, we overrule points 3 and 4.

Under points of error numbers 5, 6 and 7 the appellant contends that a fact issue was raised as to whether there were relationships between the appellant and Morrison and between the appellant and the Bank which gave rise to a legal duty owed by them to the appellant and as to whether that duty was breached by each of them. The appellant maintains that the cause of action against Morrison is analogous to one against a third party for interfering with a right to recover a commission. As against the Bank the appellant urges that it failed to use reasonable care in discharging its obligation “. . . as an agent for the appellant in the collection and disbursement of proceeds . . . rather, the Bank conspired with “. Morrison to disburse funds in payment of an unauthorized and unreasonable attorney’s fee.”

In Williams v. Union Producing Co., 259 S.W.2d 572 (Tex.Civ.App. — Galveston 1953, writ ref’d n. r. e.), it was held:

. irrespective of their pled and testified-to claim that the lessor . and the lessee . . . conspired to defraud appellants of their commission they claimed they had earned for the procuring of such lease between those parties thereto, their admitted failure to have real estate licenses . . left them without the “wedding garment” necessary to recover.

The court in Williams, found it unnecessary to pursue the question of conspiracy that, under other circumstances, might have given rise to a cause of action. The cases cited by the appellant under these three points all deal with the failure of the parties to reduce the commission contract to writing. Those cases expressly hold that oral contracts for the payment of a real estate commission are neither void nor illegal, therefore, the unenforceability of the oral contracts was no defense to a suit for tor-tious interference with performance of the contracts. The facts in the instant case are distinguished in that whether the contract was reduced to writing is not questioned. Further, Section 26 of the Act describes the conduct which it prohibits, beginning: “It shall be unlawful . . . .” It is generally accepted that the regulation of those who may makes sales of real estate falls within the police power of the State. Gregory v. Roedenbeck, supra.

It is our opinion that the appellant’s cause of action is based upon a contract providing for the payment of compensation in a manner prohibited by Tex.Rev.Civ.Stat. Ann. art. 6573a, § 26 (1967). Thus, there are no questions of material facts to be reached or determined as to whether various other relationships may have existed between the parties upon which the appellant may seek to base his claim for recovery. Points of error numbers 5, 6 and 7 are overruled.

For the reasons stated, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: ROBINSON, Justice.

license: Public Domain

text:
    Kenneth W. BERNER and wife, Nancy M. Berner, Appellants, v. Henry M. FERRIS, Jr. and William W. Wood, Appellees.
    No. 8675.
    Court of Civil Appeals of Texas, Amarillo.
    June 14, 1976.
    Merchant & Barfield (J. Jerry Merchant), Amarillo, for appellants.
    Underwood, Wilson, Sutton, Berry Stein & Johnson (J. A. Besselman), Amarillo, for appellees.
   ROBINSON, Justice.

Plaintiffs Kenneth W. Berner and Nancy M. Berner sued for damages for personal injuries which they alleged were sustained when the Chevrolet station wagon occupied by the Berners was struck from the rear by a Volkswagen driven by defendant Henry M. Ferris, Jr. Judgment on the verdict was entered for defendants. Plaintiffs appeal contending that the jury findings that Mr. Berner suffered no damage for past pain and suffering or past loss of earnings and that Mrs. Berner suffered no damage for past pain and suffering are against the great weight and preponderance of the evidence. Affirmed.

The collision occurred near Glen Rio in Oldham County, Texas, on Thursday, September 6, 1973, when the Berners were en route to their home on a farm near East Moline, Illinois. The front end of the Volkswagen was caved in and the frame in front of the wheels damaged. The tailgate on the Berner station wagon was damaged. There was no evidence of any visible injury to either of the Berners. The only evidence concerning any personal injuries and resulting damage to the Berners was the testimony of the plaintiffs, Mr. and Mrs. Berner.

The sole question before us is whether, in view of the undisputed testimony of the Berners concerning their personal injuries, the jury findings of no damage are against the great weight and preponderance of the evidence.

Mrs. Berner testified that she did not have any problem at the scene with her neck and that she did not want to go to the hospital because she thought that she was all right, but that her husband insisted that she go. She testified that she was given a shot at an Amarillo hospital and pills which she took that night, and on the trip back to Illinois. She testified that she had trouble with her neck for a week or two weeks, but not thereafter.

Mr. Berner testified that Mrs. Berner complained of neck injuries immediately after the accident; that he took Mrs. Ber-ner to the hospital in Amarillo to be checked; that he did not seek or receive treatment himself; that they spent Thursday night in a motel in Amarillo; that they then drove to Illinois; that he took some of the pills prescribed for Mrs. Berner on the trip home; that his neck injuries did not show up until he got back to his farm home on Saturday. He testified that Saturday night he became feverish and suffered headaches. He said that he developed pain in his shoulders and neck which caused him to lose 29 weeks of work at his job at International Harvester. He did not seek lighter work, but did what work he could on his farm. He testified to various treatments by two Illinois physicians. Mrs. Ber-ner’s testimony corroborates Berner’s testimony concerning his injuries.

The rule regarding interested party testimony was stated by our Supreme Court in Gevinson v. Manhattan Construction Company of Oklahoma, 449 S.W.2d 458, 467 (Tex.1969), as follows:

The general rule is that evidence given by an interested witness, even though uncontradicted, presents an issue to be determined by the trier of fact. This rule is not without exception, however, and conclusive effect may be given to the testimony of an interested witness provided the testimony is clear, direct and positive and there are no circumstances tending to discredit or impeach the same. There is an added reason for recognizing the exception when the opposite party had the means and opportunity of disproving the testimony, if it were not true, and failed to do so. On the other hand the basis for recognizing an exception is weakened somewhat when the testimony is such that it could not readily be contradicted if untrue.

And in James T. Taylor and Son, Inc. v. Arlington Independent School District, 160 Tex. 617, 335 S.W.2d 371, 376 (1960), the Court said:

* * * it seems settled that when testimony comes from an interested party and is of such a nature that it cannot be readily contradicted if untrue, an issue relating to the credibility of the witness is presented.

Applying the foregoing rule and after considering all of the evidence, we are of the opinion that the jury answers finding no damage are not so against the great weight and preponderance of the evidence as to be manifestly unjust. See Whittenburg v. Bunting, 525 S.W.2d 914 (Tex.Civ.App. — Waco 1975, no writ); Heckathorn v. Tate, 355 S.W.2d 845 (Tex.Civ.App. — Amarillo 1962, no writ).

The judgment of the trial court is affirmed.


author: REYNOLDS, Justice.

text:
    LEWIS COX & SON, INC., Appellant, v. HIGH PLAINS UNDERGROUND WATER CONSERVATION DISTRICT NO. 1, Appellee.
    No. 8687.
    Court of Civil Appeals of Texas, Amarillo.
    June 21, 1976.
    Rehearing Denied July 19, 1976.

      Day, Owen, Lyle & Voss, Paul Lyle, Plainview, for appellant.
    Nelson, McCleskey, Harriger & Brazill, Don Graf and Mack Ed Swindle, Lubbock, for appellee.
   REYNOLDS, Justice.

The question presented is whether the enforcement of an underground water conservation district’s order to close or re-equip an irrigation well so as not to be in violation of regulations is subject to the defenses of limitation, laches and estoppel. We hold that the enforcement of the order is immune from the defenses and affirm the trial court’s summary judgment, the right to which was resisted only by the imposition of these defenses.

Article 16, section 59, of the Texas Constitution authorizes the legislature to create conservation and reclamation districts, which “shall be governmental agencies and bodies politic and corporate with such powers of government and with the authority to exercise such rights, privileges and functions ... as may be conferred by law,” to control, store, preserve and distribute waters for irrigation, power and other useful purposes. Under this authorization, legislation was enacted in 1949 to provide for the organization of, and to designate the powers delegated to, underground water conservation districts. The general statutory provisions relating to these districts were revised and promulgated as Chapter 52, a division of Title 4, of V.T. C.A., Water Code § 52.001 et seq. (1972). Although § 52.118(c) prohibits the district from restricting the production of any well that produces less than 100,000 gallons of water a day, § 52.116 specifies that a well which could reasonably be expected to produce more than 100,000 gallons a day may not be drilled in the district unless a permit is first obtained from the district. Provisions for the spacing of wells to minimize the drawdown of water and the reduction of artesian pressure, or to prevent waste, may be made. § 52.117. The district is given rule-making power by § 52.101, and it is declared that any rule, order or act of the district shall be prima facie valid. § 52.303.

Pursuant to the constitutional provision and the 1949 legislation, the High Plains Underground Water Conservation District No. 1 was established in 1951. Its creation and establishment under the provisions of Vernon’s Ann.Tex.Const. art. 16, § 59, was ratified, confirmed and validated by a 1953 act of the legislature. The water district adopted and published its rules or regulations. Rule 8 sets the minimum spacing of wells according to the size of the pumps and the ordinary or usual pumping rates for the pumps. Under the rule it is mathematically calculable that any well usually capable of producing 100,800 gallons a day shall be spaced a minimum of 200 yards from the nearest well or authorized well site; and, among other spacings enumerated in the rule, a well to be equipped with a 6-inch pump capable of producing 390 to 560 gallons per minute shall be located at least 300 yards from the nearest well or authorized well site. It is provided in Rule 6 that an application for a permit to drill a well shall contain the exact location of the well to be drilled and the location of the three nearest wells within a quarter of a mile of the proposed well site. To wilfully give erroneous information in the application is designated a fraud in Rule 8.

In January of 1968, J. B. Cox, then the owner of land in Hale County, which is within the boundaries of High Plains Underground Water Conservation District No. 1, made application for a permit to drill an irrigation well to be eqipped with a 6-inch pump for a maximum yield of 560 gallons of water per minute. It is stated in the application that a well is located 440 measured yards from the proposed site and no other wells are within 440 yards. The permit was granted, the well was drilled in February of 1968 on the site shown in the application, and it has been producing irrigation water since that time. J. B. Cox sold the land to his brother, Lewis Cox, who thereafter conveyed it to Lewis Cox & Son, Inc., a corporation of which Lewis Cox is president.

In November of 1974, nearly seven years after the Cox permit was granted, the water district notified the corporation that the well was in violation of the spacing rule and set a hearing on the matter. The violation was predicated on the fact that at the time J. B. Cox made his application, there was a 6-inch irrigation water well located on an adjacent owner’s land 149 yards from the proposed and actual site of the Cox well. Following a hearing on 17 December 1974, the water district issued its order that the Cox well be either abandoned and closed or re-equipped so as to be incapable of producing in excess of 100,000 gallons of water a day prior to 17 January 1975.

Claiming the legal defenses of the four year statute of limitation, the equitable doctrine of laches, and estoppel to the enforcement of the water district’s order, Lewis Cox & Son, Inc., asked the district court for a declaration of the parties’ rights and to enjoin the enforcement of the order pending an adjudication. Enforcement of the order was temporarily enjoined, but, on a hearing after the water district had answered, a temporary injunction was denied to the corporation. Thereafter, the water district counterclaimed for an injunction enjoining the corporation from producing water from the well in violation of the water district’s regulations and enforcing its December, 1974 order. After the corporation had answered the counterclaim and re-alleged its claimed defenses, the water district moved for summary judgment on the pleadings with attached exhibits and the affidavit of its manager. The motion contained the allegation that the trial court, in denying the corporation’s request for a temporary injunction, had ruled that the defenses of limitation, laches and estoppel neither bars nor estops the water district from enforcing its order.

Hearing the motion, the court granted summary judgment in favor of the water district. Specifically, the court, finding the complete absence of any genuine issue of material fact, held that the corporation was not entitled to injunctive relief and ordered that it comply with the water district’s order and abandon and close the irrigation well or, alternatively, re-equip the well so that it is not capable of producing in excess of 100,000 gallons of water per day. The corporation was enjoined from the use of the well except in accordance with the judgment.

The basis of the corporation’s appeal is that the trial court was in error in ruling that none of its asserted defenses is viable in this action by the water district. The corporation does not dispute the authority of the water district to issue the order, and it candidly concedes that if none of its asserted defenses is available against the enforcement of the order, the summary judgment should be sustained.

The question is new, but the controlling principles of law have been long established. Although an exception has been engrafted where the state engages in proprietary functions, the uniform rule is that the state and its essential instrumentalities are immune from the defenses of limitation, laches, McKinney v. Freestone County, 291 S.W. 529, 530 (Tex.Com.App.1927), and es-toppel, Scaling v. Williams, 284 S.W. 310, 314 (Tex.Civ.App. — Fort Worth 1926, no writ), unless limitation is permitted to run by statute. Hatcher v. State, 125 Tex. 84, 81 S.W.2d 499, 500 (1935). Indeed for many years, the state has been statutorily exempt from operation of the limitation statutes. Vernon’s Ann.Civ.St. art. 5517. It is stated in Bexar County v. Linden, 110 Tex. 339, 220 S.W. 761, 762-63 (1920), that state government must be carried on by means of certain agencies or instrumentalities, and that counties are essentially instrumentalities of the state, exercising state powers by performing those obligations which the state owes the people at large and in executing the general policy of the state.

The answer to the question, then, lies in the character or nature of the water district. The sources which generated and sanctioned the water district constituted it a political subdivision of the State of Texas performing governmental functions. See Willacy County Water Control and Improvement Dist. No. 1 v. Abendroth, 142 Tex. 320, 177 S.W.2d 936, 937 (1944). It is, in other words, an arm of the state created to administer the enumerated governmental powers delegated to it. As constituted, the water district exists and functions as a governmental agency, a body politic and corporate, Harris County Flood Control Dist. v. Mann, 135 Tex. 239, 140 S.W.2d 1098, 1101 (1940), and stands upon the same footing as counties and other political subdivisions of the state. Bennett v. Brown County Water Imp. Dist. No. 1, 153 Tex. 599, 272 S.W.2d 498, 500-01 (1954).

Counties were, by an amendment to V.A.T.S. art. 5517 effective 8 June 1953, placed on a parity with the state insofar as immunity from limitation was concerned. Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99, 132 (1961). This statutory exemption was in conformity with prior law. Previously, when counties sued in their governmental capacity, they were tested, with respect to the issue of limitation, as if they were the state, and the common law exemption of the state from operation of statutes of limitation was applied in favor of the counties. Delta County v. Blackburn, 100 Tex. 51, 93 S.W. 419, 422 (1906). Consequently, the application of general limitation statutes was not available as a bar to a governmental action by a county. Jackson v. Nacogdoches County, 188 S.W.2d 237, 238 (Tex.Civ.App. — Dallas 1945, no writ). In a like manner, laches is not imputable to the government and does not bind the county when it is acting purely in governmental affairs. Lancaster v. Gray County, 127 S.W .2d 385, 388 (Tex.Civ.App. —El Paso 1939, no writ). Similarly, estop-pel cannot properly be applied to a county acting as a subdivision of the state and in aid of the state’s sovereign powers. Scaling v. Williams, supra, at 314. Moreover, although municipalities usually do not enjoy the immunity accorded the state, it has been held that when municipal water control and improvement districts are acting in their governmental capacities, as distinguished from private or proprietary functions, the exercise of those governmental powers is not lost through estoppel or lach-es. City and County of Dallas Levee Imp. Dist. v. Carroll, 263 S.W.2d 307, 310 (Tex.Civ.App. — Dallas 1953, writ ref’d n. r. e.).

Because underground water conservation districts are governmental agencies or instrumentalities exercising state powers and stand upon the same footing as counties, and because governmental actions by counties are not subject to the general limitation statutes, the equitable doctrine of laches, or estoppel, it logically follows that the exercise of delegated state powers by underground water conservation districts is immune from these defenses. We hold, therefore, that neither the four years statute of limitation, nor the equitable doctrine of laches, nor estoppel is available to bar or estop the enforcement of the December, 1974 order of the High Plains Underground Water Conservation District.

The judgment is affirmed.

      . TexXaws 1949, ch. 306 at 559.

      . Subsequent citations of sections refer to the sections appearing in V.T.C.A., Water Code (1972).

      . Vol. 1, p. 40, Conservation District Records of Lamb County, Texas; Vol. 1, p. 158, Deed Records of Lamb County, Texas.

      .Tex.Laws 1953, ch. 10 at 17.

      . Vernon’s Ann.Civ.Stat. art. 5529. The statute reads: “Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward.”


author: CORNELIUS, Justice.

text:
    W. D. DeSANDERS, Appellant, v. TEXOMA PIPE LINE COMPANY, Appellee.
    No. 8361.
    Court of Civil Appeals of Texas, Texarkana.
    June 22, 1976.

      Howard Smith, Smith, Johnson & McDowell, Sulphur Springs, Woodrow Edwards, Mt. Vernon, for appellant.
    Ramey & Allison, Sulphur Springs, Ken-ley, Boyland, Hawthorn, Starr & Coghlan, Longview, for appellee.
   CORNELIUS, Justice.

This is a condemnation ease in which appellee acquired a pipeline easement across appellant’s ranch. The jury awarded appellant $2,193.00 for the value of the easement taken, but found that no damage was done to the remainder of the ranch. The appeal contends that (1) the jury finding of no damage to the remainder is against the great weight and preponder-' anee of the evidence, (2) since no damage to the remainder was found the damages awarded are manifestly too small, and (3) the judgment should be set aside because the jury was allowed to consider statements in appellee’s petition and expressions by certain witnesses to the effect that appellant could continue to use his land the same after the taking as before.

The easement is fifty feet (50') in width, encompasses 7.31 acres and bisects the ranch in a Northwesterly-Southeasterly direction. The ranch contains 1627 acres and is partly open and partly timbered. All evidence indicated that its highest and best use is for agricultural or cattle grazing and for recreational purposes. Improvements consist of barns, outbuildings, a ranch manager’s house and appellant’s cabin. In addition, there are some ten to fourteen lakes and pools on the property. The nearest improvements are located some three-fourths of a mile from the easement. Two creeks cross the ranch, and some of the land is subject to overflow from these creeks. Present use is for a stocker cattle operation and for hunting and fishing. Appellant produced five value witnesses who testified that the existence of the pipeline easement reduced the market value of the remainder of the ranch $100.00 to $125.00 per acre. Reasons for this diminution in value were said to be that the bisecting of the ranch by the easement would affect its marketability, no structures other than fences and no lakes or ponds could be placed upon the easement, the right of inspection given to the appellee would adversely affect the privacy of the owner, lack of control over the use of the easement, and the possible adverse effect upon the use of the land for hunting. Another witness for appellant, Mr. Potter, testified to various ways which he felt the easement had damaged the remainder, but did not place a monetary estimate on the reduction in value. Appellee produced four value witnesses, all of whom expressed the opinion that the remainder of the ranch was not damaged at all by the presence of the easement. Their reasons were that the pipeline was buried, it was far removed from any improvements, there was no suitable place on the easement where one would want to place improvements or a lake or a pond, it could still be used for grazing the same as before, the hunting would be enhanced rather than impaired, and the presence of an underground pipeline at that point would not adversely affect the use or the marketability of the remainder whatever considering the ranch’s large size and the nature of the use for which it was adapted and was actually being put.

In condemnation, where the right of the condemnor to acquire a portion of the land is not contested, the condemnee has the burden to prove the value of the portion taken, as well as the damages, if any, to the remainder. State v. Walker, 441 S.W.2d 168 (Tex.1969). As to the remainder, both the fact of injury, as well as the amount of damages resulting therefrom, are questions for the trier of fact when the evidence is conflicting. Texas Pipeline Co. v. Hunt, 149 Tex. 33, 228 S.W.2d 151 (1950). The reviewing court is not authorized to overturn those fact findings unless they are not supported by sufficient evidence or are so against the great weight and preponderance of the evidence as to be manifestly unjust.

Appellant contends that since the easement bisects the ranch and the owner’s use of the strip is restricted, there is necessarily some damage to the remainder, and a finding of no damage is therefore against the great weight and preponderance of the evidence. But in determining if the remainder has been damaged, the ultimate question is not whether there has been some interference with the owner’s use or enjoyment of the remainder, but whether its market value has been diminished as a result of the taking. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936, opinion adopted); Wolsch v. State, 77 S.W.2d 1062 (Tex.Civ.App. Eastland 1934, no writ). See also Ansley v. Tarrant Cty. Water Con. & Imp. Dist. No. One, 498 S.W.2d 469 (Tex.Civ.App. Tyler 1973, writ ref’d n. r. e.). The evidence here was sharply conflicting as to whether the presence of the easement caused a diminution in the market value of the remainder of the ranch. Five witnesses testified it did and four testified it did not, and all supported their conclusions with credible reasons. In those circumstances, we cannot say the finding is against the great weight and preponderance of the evidence. To do so in the face of the evidence in this record would be to hold, in effect, that the taking of a portion of a tract of land diminishes the market value of the remainder as a matter of law, a position our courts have repeatedly refused to take. Clifco, Inc. v. State, 450 S.W.2d 157 (Tex.Civ.App. Fort Worth 1970, writ ref’d n. r. e.); Herfurth v. City of Dallas, 410 S.W.2d 453 (Tex.Civ.App. Dallas 1966, writ ref’d n. r. e.); Dyer v. State, 388 S.W.2d 226 (Tex.Civ.App. El Paso 1965, no writ); Ingram v. County of Nueces, 365 S.W.2d 838 (Tex.Civ.App. San Antonio 1963, writ ref’d n. r. e.); Coastal Transmission Corporation v. Lennox, 331 S.W.2d 778 (Tex.Civ.App. San Antonio 1960, no writ); Couch v. Gulf, Colorado & Sante Fe Ry. Co., 292 S.W.2d 901 (Tex.Civ.App. Dallas 1956, writ ref’d n. r. e.). The fact that land is separated by an easement does not necessarily mean that its marketability or market value has been adversely affected. It is a matter of proof, and if there is sufficient credible evidence that the value is not affected, the jury is entitled to believe it. Breithaupt v. State, 321 S.W.2d 361 (Tex.Civ.App. Waco 1959, writ ref’d n. r. e.). The cases relied upon by appellant are distinguishable. They are personal injury cases where the fact of injury was found by the jury or was undisputed, and then there was a finding of no damage. In that situation, the later finding cannot stand, because if there is injury, some compensation is due. See, for example, Dupree v. Blackmon, 481 S.W.2d 216 (Tex.Civ.App. Beaumont 1972, writ ref’d n. r. e.) and Lincoln v. McCubbin, 475 S.W.2d 811 (Tex.Civ.App. Texarkana 1971, no writ). But in the case at bar, the jury finding that the market value of the remainder had not diminished was a finding of no injury. Points of Error 1, 2 and 3 are respectfully overruled.

Appellant next urges that the judgment should be reversed because of the reception in evidence of portions of appel-lee’s Statement in Condemnation and expressions by witnesses to the effect that appellant could continue to use his land after the taking essentially the same as before. It is contended that these statements amounted to representations that ap-pellee would not exercise, the full rights it obtained from the acquisition, and were but expressions of future intentions which are neither binding nor effective to limit damages, and that it was reversible error for the jury to consider them. It is true that representations or promises by the con-demnor that it will not exercise its rights to the fullest extent allowed by the taking are not to be received as a limitation of its rights or of the compensation to which the condemnee is entitled. Creighton v. State, 366 S.W.2d 840 (Tex.Civ.App. Eastland 1963, writ ref’d n. r. e.); Perkins v. State, 150 S.W.2d 157 (Tex.Civ.App. San Antonio 1941, writ dism’d). But it is permissible to introduce evidence of the reasonably foreseeable and probable uses to be made of the land which at the time of taking would be required in accomplishing the purposes for which it was taken, and the jury may consider these facts along with all other facts a prospective purchaser might consider in reaching a conclusion as to whether the market value of the remainder has been reduced. See City of Pearland v. Alexander, 483 S.W.2d 244 (Tex.1972). As we view the record, the witnesses were not representing that appellee would be restricted to less rights than its taking afforded, but were merely expressing their opinion as to the use which could normally be expected in a taking of that kind and the effect, if any, which that use would have on the market value of the remainder. In addition, we notice that those portions of the Statement in Condemnation which were read to the jury were introduced by appellant’s counsel, and no objection was made to the testimony of the witnesses relating to probable use. Points of Error 4, 5 and 6 are respectfully overruled.

The judgment of the trial court is affirmed.


author: JAMES, Justice.

text:
    Ex parte J. A. HARWELL, Petitioner.
    No. 5602.
    Court of Civil Appeals of Texas, Waco.
    June 24, 1976.
    Tommy P. Herring, McClintock, Herring & Youts, Waco, for relator.
    Laird Palmer, Steve M. Orr, Austin, for respondent.
   OPINION

JAMES, Justice.

This is a habeas corpus proceeding. Petitioner J. A. Harwell filed this application for writ of habeas corpus contending that he is being restrained of his liberty by virtue of a writ of attachment issued out of the 53rd District Court of Travis County, Texas, as a result of an order signed by said court holding him in contempt of a previous order. We grant the relief sought and discharge Petitioner from custody.

The background facts are these:

Petitioner J. A. Harwell and his former wife B. K. Harwell were divorced by a decree of the 53rd District Court of Travis County, Texas, in Cause No. 190,156, on April 16, 1973, in which decree J. A. Har-well was ordered to pay as child support the amount of $100.00 per month. In addition thereto said divorce decree provided that an arrearage of $1965.00 which J. A. Harwell theretofore owed by way of temporary alimony and child support was reduced to judgment bearing 6% per annum interest from the date of said decree until paid. Thereafter, B. K. Harwell utilized post judgment discovery remedies in attempts to discover assets out of which said judgment could be collected and satisfied.

In February 1975, a Motion for Contempt was filed by the attorney representing B. K. Harwell alleging two grounds for contempt, to wit, (1) a current arrearage in the amount of $100.00, and (2) the $1965.00 arrearage of temporary alimony and child support which was reduced to judgment by the divorce decree of April 16,1973. These contempt matters (along with other related visitation and child support matters) were heard on March 7,1975, in the 53rd District Court by Judge B. B. Schraub, a visiting district judge. After said hearing, Judge Schraub made findings of fact and conclusions of law, among which he found that the $100.00 current arrearage had been paid prior to the date of the hearing; and in addition thereto, said court denied B. K. Harwell’s motion for contempt on the count alleging the $1965.00 arrearage which had been reduced to judgment. Said court held that said money judgment “may be enforced by any means available for the enforcement of judgments for debts, but may not be enforced by an action for contempt,” and that “the amount of money referred to in said judgment was an obligation imposed upon the said J. A. Harwell to be made from his own income or property (in the future) as distinguished from an amount of money to be delivered to the said B. K. Harwell as a portion of the community property.”

B. K. Harwell appealed from the trial court’s judgment, which included Judge Schraub’s refusal to hold J. A. Harwell in contempt. The Austin Court of Civil Appeals affirmed the trial court’s judgment, pointing out in the appellate opinion that the trial court’s refusal to hold J. A. Har-well in contempt was not appealable. After this, the attorneys on both sides conceded that this was correct. Thereafter, the attorneys for B. K. Harwell filed an application for writ of error to the Supreme Court of Texas; however, said application did not raise any point of error about the contempt issue.

And now we come to the contempt proceeding out of which arose the writ of habeas corpus presently before us: On March 25,1976, the said B. K. Harwell (now Horne) filed a new motion for contempt setting out two grounds: (1) alleging that J. A. Harwell was at the time of filing said motion $100.00 in arrears in current child support, and (2) the $1965.00 arrearage of temporary alimony and child support which had been reduced to judgment in the divorce decree of April 16, 1973. This $1965.00 arrearage of course was the same arrearage for which Judge Schraub had refused to hold J. A. Harwell in contempt in the 1975 proceeding hereinabove referred to.

Pursuant to this last motion for contempt, the court on March 25,1976, entered an order commanding the Clerk to issue notice to “J. A. Harwell, Route 6, Box 843, Waco, McLennan County, Texas, to appear before this court on the 15th day of April 1976, at 2 o’clock P.M. to show cause_ why he should not be held in contempt for the $100.00 current arrearage and the $1965.00 arrearage hereinabove mentioned.

For reasons not shown by the record, J. A. Harwell was never personally served by any notice of any kind, but instead a notice was sent by certified mail, return receipt requested, to Hon. Tommy P. Herring, Attorney at Law, of Waco, Texas, who had represented J. A. Harwell in the previous 1975 contempt hearing before Judge Schraub and the appeal therefrom. Upon receipt of this notice by certified mail, Mr. Herring wrote a letter to the District Clerk of Travis County, advising that J. A. Har-well had not been served with personal service of any kind, but that he (Herring) had received the notice by certified mail. Herring further advised the Clerk that “I am not authorized and do not accept service for him in this matter.” Also, Herring advised that neither he nor J. A. Harwell would be present for the hearing.

Hearing was had on the last named contempt action on April 16, 1976, before Judge James R. Meyers, sitting for the 53rd District Court of Travis County, at which hearing neither J. A. Harwell nor Attorney Herring were present. At this hearing B. K. Harwell Horne and her husband Ed Horne testified that they both talked to J. A. Harwell on the telephone more than ten days before the hearing and that J. A. Harwell actually knew about the hearing and the time and place was same was to be held:

On April 22, 1976, Judge Meyers entered an order which recited that J. A. Harwell had paid the $100.00 current arrearage after the motion for contempt had been filed, but prior to the hearing. Then Judge Meyers’s order adjudged J. A. Harwell to be in contempt of court on two counts, to wit, (1) the $100.00 current arrearage and (2) the $1965.00 arrearage which had been reduced to judgment in the April 16, 1973, divorce decree. Punishment for both counts of contempt was set at a $500.00 fine and confinement in jail for 60 days and thereafter until J. A. Harwell has “fully purged himself of contempt- by paying _ the sum of $2465.00 fine and back child support.”

Pursuant to Judge Meyers’s order of April 22, 1976, a writ of attachment was issued upon which J. A. Harwell was arrested and placed in custody, which precipitated the filing of the application for writ of habeas corpus now before us. We granted the writ, ordered the Petitioner to be brought before us, and authorized a $500.00 bond pending decision herein.

Petitioner asserts that the writ of attachment is void and that he is being illegally restrained of his liberty for the following three reasons: (1) That he was denied due process of law for failure to have been served with personal service of the contempt hearing in question; (2) that the contempt order of April 22, 1976, is void because it amounts to imprisonment for debt in violation of Article I, Section 18, of the Texas Constitution; and (3) that Judge Schraub’s order of March 7, 1975, wherein the court declined to hold Petitioner in contempt concerning the $1965.00 arrearage reduced to judgment was res judicata of this matter, and contempt being quasi-criminal in nature, he pleads also former jeopardy. We sustain these contentions and hereby order Petitioner discharged from custody.

We revert to Petitioner’s first ground, to wit, that he was denied due process of law because he was not served with personal service of the contempt hearing. Rule 308-A, Texas Rules of Civil Procedure, provides, inter alia, that upon the filing of a motion for contempt, “_the court may issue a show cause for order to the person alleged to have disobeyed such support order,_ Notice of such order shall be served on the respondent in such proceedings in the manner provided in Rule 21a, not less than ten days prior to the hearing on such order to show cause.” (emphasis supplied).

Now, Rule 21a provides: “Every notice required by these rules, other than the citation to be served upon the filing of a cause of action, and except as otherwise expressly provided in these rules, may be served by delivering a copy of the notice or of the document to be served, as the case may be, to the party to be served, or his duly authorized agent, or his attorney of record, either in person or by registered mail to his last known address, or it may be given in such other manner as the court in its discretion may direct.” (Rule 21b authorizes certified mail in lieu of registered mail).

In the contempt hearing in question, the court specifically ordered and directed that the Clerk “issue notice to J. A. Harwell, Route 6, Box 843, Waco, McLen-nan County, Texas.” This address of J. A. Harwell used in the court’s order was furnished to the court by B. K. Harwell in her motion for contempt. The court’s specific order was not obeyed, and J. A. Harwell was never served with any personal service, either by citation or by certified or registered mail, at the address designated in the order or at any other address. Instead a notice by certified mail was sent to Tommy P. Herring at his law office, Post Office Box 4355, Waco, Texas. We hold that Petitioner has been denied due process of law because he was not served in the manner set out by the court in its order directing in what manner and at what address Petitioner was to be served. There is no showing in the record, nor is it contended that J. A. Harwell was secreting himself for the purpose of evading process. There is also no showing that Attorney Herring was the attorney of record for J. A. Harwell in the contempt action in question at the time of such purported service. The record does show that Mr. Herring represented J. A. Harwell in the previous contempt hearing in 1975 before Judge Schraub, and in the appeal therefrom. The mere fact that Mr. Herring was Petitioner’s Attorney in the previous litigation does not necessarily mean that he was still Harwell’s “attorney of record” in a new, separate and distinct contempt action at the time the certified notice was mailed to him. In fact, Herring’s letter to the Clerk of April 9, 1976, stated that he was not authorized to accept service for Harwell and was not accepting same. In other words, the litigation in which Harwell had employed Mr. Herring to represent him had been theretofore completed, and we fail to see how Mr. Herring could be Harwell’s “attorney of record” within the context of Rule 21a unless and until he had been once more employed by Harwell. See Yol. 7 (Part 1) Tex.Jur.2d “Attorneys at Law,” par. 67, p. 100, and the cases therein cited. For these reasons we sustain Petitioner’s first point and hold that he has been denied due process of law for want of service of notice of the contempt hearing.

We next proceed to Petitioner’s second point, to wit, that the contempt order is void in that it authorizes imprisonment for debt in violation of Article I Section 18 of the Texas Constitution. We sustain this contention. As hereinabove stated, in the divorce decree of April 16, 1973, B. K. Har-well was awarded judgment against Petitioner J. A. Harwell in the amount of $1965.00 for arrearages then existing of temporary alimony and child support, plus 6% per annum interest from the date of judgment until paid. At the time of divorce decree that is, April 16, 1973, there was no provision for the trial court to enter a judgment for arrearages of temporary alimony and child support. See Burger v. Burger (1957), 156 Tex. 584, 298 S.W.2d 119; Ex parte Hooks (Tex.1967), 415 S.W.2d 166. As of that time our Supreme Court had held that an obligation to make child support payments was not a debt and could be enforced only by contempt proceedings. Hutchings v. Bates (Tex.1966), 406 S.W.2d 419.

However, on January 1, 1974, section 14.-09 of the Family Code went into effect, section (c) of which reads as follows:

“(c) On the motion of any party entitled to receive payments for the benefit of a child, the court may render judgment against a defaulting party for any amount unpaid and owing after 10 days’ notice to the defaulting party of his failure or refusal to carry out the terms of the order. The judgment may be enforced by any means available for the enforcement of judgments for debts.” (emphasis supplied). In other words, section 14.09(c) of the Family Code now authorizes a judgment to be entered for arrearages of child support.

In spite of Burger v. Burger and the other cases hereinabove cited, the judgment for $1965.00 back temporary alimony and child support contained in the Harwell divorce decree of April 16, 1973, was not appealed from and became a final judgment, even though it was erroneous at the time of its entry and was subject to reversal had an appeal been timely prosecuted. Since it was and now is a final judgment, and now sanctioned by section 14.09(c) of the Family Code, it is unquestionably a debt, and any attempt to incarcerate Petitioner J. A. Harwell for contempt for failure to pay it amounts to imprisonment for debt and runs afoul of Article I, Sec. 18 of the Texas Constitution.

As stated before, the contempt order now in question adjudged Petitioner guilty of contempt on two grounds, to wit: (1) for failure to pay $100.00 in current arrearage of child support, and (2) for failure to pay the $1965.00 arrearage theretofore reduced to judgment. Since we have held that Petitioner could not be jailed for failure to pay the $1965.00, then the whole contempt order is void. Where one penalty is affixed for more than one act of contempt, and it is found that the relator could not be held in contempt for one of the acts, the whole judgment is tainted and void, and a person held under it is illegally restrained of his liberty. Ex parte Turner (Tex.Civ.App., Houston 1st, 1972) 478 S.W.2d 256, no writ; Ex parte Werner (Tex.Civ.App., San Antonio, 1973), 496 S.W.2d 121, no writ; In re Newton (Tex.Civ.App., Houston 14th, 1976), 534 S.W.2d 194, no writ.

Petitioner has pleaded res judicata and double jeopardy, and in his final point of error asserts that he was tried once before (in the contempt hearing before Judge Schraub hereinabove described) concerning his failure to pay the $1965.00 ar-rearage and was found to be not guilty for that alleged ground of contempt. We sustain this contention. The former contempt proceeding was between the same parties litigating over the same issues concerning the same $1965.00 arrearage, in which litigation Petitioner was adjudged to be not guilty of contempt. See Vol. 34 Tex.Jur.2d “Judgments”, par. 450, p. 487, and par. 451, p. 492. If we were to hold otherwise, we would sanction a man being required to stand trial for asserted contempt time after time upon the same grounds. The complaining party if unsuccessful would merely have to file a new contempt motion on the same grounds in another court, to be tried by another judge who might view the matter differently.

Finally, our Supreme Court has held that a contempt action, although civil in nature, has some of the incidents of a trial for crime, and is quasi-criminal in nature. Ex parte Cardwell (Tex.1967), 416 S.W.2d 382; Ex parte Genecov (1945), 143 Tex. 476, 186 S.W.2d 225. Bearing this background rule in mind impels us to be mindful of our obligation to uphold constitutional safeguards of individual liberty.

For all the reasons herein stated, we hold that Petitioner J. A. Harwell has been illegally restrained of his liberty, and he is hereby discharged.

PETITIONER DISCHARGED.


author: McCLOUD, Chief Justice.

text:
    C. E. CARTER et al., Appellants, v. HAMLIN HOSPITAL DISTRICT et al., Appellees.
    No. 4932.
    Court of Civil Appeals of Texas, Eastland.
    June 24, 1976.
    Rehearing Denied July 15, 1976.

      Frank Scarborough, Scarborough, Black, Tarpley & Scarborough, Abilene, for appellants.
    Jack G. Willingham & John S. Watts, Willingham & Watts, Hamlin, Harry C. Green, Asst. Atty. Gen., Austin, for appel-lees.
   McCLOUD, Chief Justice.

Plaintiffs, C. E. Carter, Leon Kelso, Frank Carter, Henry Ueckert, Darwin Hill, and Carl Jackson, sued the Hamlin Hospital District, its Board of Directors, John Scarborough, John Brown, Jr., Joe Cowan, Bill Harbert, Donald Young, Joe Hudspeth, and John C. Bryant, and the Attorney General of Texas, seeking a declaratory judgment that Chapter 561, Acts of the 63rd Legislature of the State of Texas, Regular Session, 1973, which authorized the creation of the Hamlin Hospital District, violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Plaintiffs also sought a permanent injunction enjoining the Hamlin Hospital District from assessing or collecting any taxes on their property. Trial was to a jury. The court granted defendants’ motion for judgment notwithstanding the verdict. Plaintiffs have appealed. We affirm.

Plaintiffs contend the Act violates the Equal Protection Clause in two respects:

(1) The Act is unreasonable and arbitrary because plaintiffs were included within the boundaries of the district for the purpose only of acquiring additional revenue and plaintiffs will receive no benefit from the district; and
(2) the plaintiffs were not given an “equal weight vote” in the establishment and operation of the district.

Plaintiffs’ property is located south of U. S. Highway 180 in Jones County and they argue that there are seven times the number of qualified voters living in the district north of U. S. Highway 180, than there are qualified voters residing south of U. S. 180. They also contend that they, along with other individuals residing south of U. S. Highway 180, own between thirty-five to forty percent of the total value of the taxable property within the Hamlin Hospital District. The jury found that at the time of the passage of the Act authorizing the creation of the district (1) the people in the proposed district residing south of U. S. 180 used trade centers other than Hamlin as their principal trade center; (2) the people in the proposed district residing south of U. S. 180 used hospitals and medical services other than the hospitals and medical services in Hamlin; (3) it could reasonably be expected that the people who lived south of U. S. 180 would not use the hospital and medical services of the proposed Hamlin Hospital District; and, (4) the people residing south of U. S. 180 had no need for the creation of the hospital district or the services to be offered.

Article IX, Section 9 of the Texas Constitution authorizes the Legislature to provide for the creation, establishment, maintenance and operation of hospital districts “composed of one or more counties or all or any part of one or more counties. . . ” Pursuant to this authority, the 63rd Legislature enacted the Act in question which has been codified as an amendment to Article 4494q, Vernon’s Ann.Civ.St.

The Act’s provisions, in pertinent part, may be summarized as follows. Section 1 contains a metes and bounds description of the district. Section 3 provides that the district shall not be created nor any tax authorized, unless and until these matters are approved by a majority of the qualified electors residing within the district. The Act provides for a “one man-one vote” election scheme for all elections in the district, including the election to determine whether the district should be created, all bond elections, tax authorization elections, and elections of the district’s board of directors. The Act charges the board of directors with the duty of providing medical facilities and services for the residents of the district, and Section 22 expressly states that in carrying out the purpose of the Act, the district will be performing an essential public function. The Act authorizes the board to levy general ad valorem taxes and to issue bonds, upon approval of a majority of the qualified electors residing within the district.

On December 18, 1973, the qualified electors within the proposed district voted to create the Hamlin Hospital District. On August 24,1974, the qualified electors voted to authorize the board of directors to issue bonds, and to levy, assess, and collect ad valorem taxes on all taxable property within the district.

Defendants argue the court properly entered judgment notwithstanding the verdict because the determination of the boundaries in the instant case is a “political question” solely within the power, prerogative and discretion of the Legislature and is not justiciable under the Equal Protection Clause of the Fourteenth Amendment. We agree.

The principle that the determination of territorial boundaries is ordinarily a political function, not subject to judicial review, was announced by the United States Supreme Court in the early case of Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907). There, the City of Allegheny was consolidated with the City of Pittsburgh pursuant to a state statute which permitted consolidation upon an affirmative vote of a majority of the voters residing in both municipal corporations. A majority of the electors residing in Allegheny voted against consolidation. The court said:

“Municipal corporations are political subdivisions of the State, created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them. .
The number, nature and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the State.
The State, therefore, at its pleasure may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation ... In all these respects the State is supreme, and its legislative body, conforming its action to the state constitution, may do as it will, unrestrained by any provision of the Constitution of the United States. Although the inhabitants and property owners may by such changes suffer inconvenience, and their property may be lessened in value by the burden of increased taxation, or for any other reason . The power is in the State and those who legislate for the State are alone responsible for any unjust or oppressive exercise of it.”

Some of the broad language contained in Hunter has been limited by subsequent cases, and the nonjustieiable “political question” insulation has been significantly penetrated. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110; Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663; Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506. However, the principle announced regarding judicial review in Hunter appears to be viable in cases such as the one under consideration.

In Hammonds v. City of Corpus Christi, Texas, 343 F.2d 162 (5th Cir. 1965), cert. denied, 382 U.S. 837, 86 S.Ct. 85, 15 L.Ed.2d 80 (1965), the court followed Hunter and affirmed the dismissal of a suit by property owners who were contending that the annexation of their property was arbitrary and denied them equal protection of the law.

In Detroit Edison Company v. East China Township School District No. 3, 378 F.2d 225 (6th Cir. 1967), cert. denied, 389 U.S. 932, 88 S.Ct. 296, 19 L.Ed.2d 284 (1967), the court distinguished the voting rights cases as follows:

“Two other Circuits, the Fifth and Tenth, have had occasion to pass on cases where the constitutionality of a state annexation procedure was raised. As the District Court noted, both Courts of Appeals relied on Hunter v. City of Pittsburgh in affirming dismissals of their respective cases. In Hammonds v. City of Corpus Christi, 343 F.2d 162 (5th Cir.), cert. denied, 382 U.S. 837, 86 S.Ct. 85,15 L.Ed.2d 80 (1965), the court found no error in the District Court’s decision which dismissed the complaint on the ground, among others, that ‘the annexation of lands to a city has been held without exception to be purely a political matter, entirely within the power of the State Legislature to regulate’. And in International Harvester Co. v. Kansas City, 308 F.2d 35 (10th Cir. 1962), cert. denied, 371 U.S. 948, 83 S.Ct. 503, 9 L.Ed.2d 498 (1963) after quoting from Hunter, stated:
‘Neither the due process clause nor the concept of equal protection is available to persons seeking to obstruct the ordinary and necessary exercise of a state’s political functions. * * * ’
With respect to the annexation issue, plaintiffs’ reliance on the relatively recent apportionment cases is misplaced. The Court in Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1954), for example, recognized that ‘all qualified voters have a constitutionally protected right to vote’ (referring of course to the right to vote for a ‘candidate of one’s choice’ in a ‘representative government’ system), and thus the Court, relying on the equal protection concept, limited the states’ power to disregard population in defining political boundaries for election purposes. However, as the District Court noted, the reapportionment cases ‘create no constitutional rights in affected citizens concerning the procedure for creating or altering’ any type of state district. The judgment of the District Court with respect to the annexation issue will hereinafter be affirmed; reference is made to the well reasoned opinion of District Judge Theodore Levin reported at 247 F.Supp. 296, wherein the cases of Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960) and Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) are shown to be inapposite.”

The Texas Supreme Court in State of Texas ex rel. Pan American Production Co. v. Texas City, 157 Tex. 450, 303 S.W.2d 780 (1957), appeal dismissed per curiam, 355 U.S. 603, 78 S.Ct. 533, 2 L.Ed.2d 523, held that the determination of property to be included in an annexation ordinance was a legislative matter, and not subject to judicial review. There the ordinance included submerged lands on which Pan American Production Company owned oil and gas leasehold estates. The court said:

“ . . . But at any rate the conclusion of the petitioners here that the annexation ordinance was unreasonable and arbitrary is only to say that it was unreasonable and arbitrary because the land was not suitable, and had no relation to the City’s needs, and it was for the purpose only of acquiring additional revenue and could afford no benefit to the owners of the property annexed. The decisions of this State have repeatedly held that such facts do not warrant intervention or review by the courts . . . ”

In distinguishing Myles Salt Co. v. Board of Commissioners, 239 U.S. 478, 36 S.Ct. 204, 60 L.Ed. 392, the court observed:

“A valid distinction is to be made, however, between a special tax or assessment to finance special improvements designed to benefit property or persons located within the particular taxing district, and on the other hand an ad valorem tax on all property within the taxing jurisdiction of the general welfare of the entire community. Benefits may be intangible and incapable of exact ascertainment, but it is constitutionally sufficient if taxes are uniform and are for public purposes in which the City has an interest. Morton Salt Co. v. City of Hutchinson, 10 Cir., 177 F.2d 889 .. . ”

See also: People v. City of Palm Springs, 51 Cal.2d 38, 331 P.2d 4 (1958); Winship v. City of Corpus Christi, 373 S.W.2d 844 (Tex.Civ.App. — Corpus Christi 1963, writ ref. n. r. e.), appeal dismissed per curiam, 379 U.S. 646, 85 S.Ct. 611, 13 L.Ed.2d 551.

The court in Norris v. City of Waco, 57 Tex. 635 (1882) stated:

“To hold that each person must receive the same benefit as another may from the expenditure of money raised by taxation would be to hold that the law required an impossibility, for, in the very nature of things, some persons will derive greater pecuniary benefit from the expenditure of money for strictly public purposes than will others. In fact, some may receive no benefit whatever, save such as results to them from the preservation of order, protection to property, and the general prosperity which results therefrom, while others may and will be directly benefited by the increased value of their property and increase to their business which results from the expenditure of money raised by taxation, for purposes in every respect strictly public.”

Plaintiffs’ contention that the Act is unreasonable and arbitrary because they were included within the boundaries of the district for the purpose only of acquiring additional revenue and that they would receive no benefit from the district, does not present a justiciable matter under the Equal Protection Clause of the Fourteenth Amendment.

We also hold that the “one man-one vote” election scheme required by the Act does not violate the Equal Protection Clause. City of Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); Stewart v. Parish School Board of Parish of St. Charles, 310 F.Supp. 1172 (E.D.La.1970), aff’d mem., 400 U.S. 884, 91 S.Ct. 136, 27 L.Ed.2d 129 (1970).

We have considered all of plaintiffs’ points and they are all overruled. The judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    Jim T. LINDSEY, Appellant, v. O. D. CHANSLOR, Appellee.
    No. 5582.
    Court of Civil Appeals of Texas, Waco.
    June 24, 1976.

      Hewett, Johnson, Swanson & Barbee, Gaynell C. Methvin, Dallas, for appellant.
    McMullen & Snyder, Richard F. McMul-len, Waylon McMullen, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal from an order granting appellee Chanslor’s motion for late filing of controverting affidavit, and overruling appellant Lindsey’s plea of privilege.

Appellee sued appellant for alleged breach of a purported contract, and in the alternative, for damages for alleged false representations.

Lindsey on August 22, 1975, filed his plea of privilege to be sued in Bowie County, the county of his residence. On September 11, 1975, Chanslor filed a motion requesting late filing of controverting affidavit, and on the same date tendered controverting affidavit.

No counter affidavit was filed by Lindsey, and no motion to strike was filed by Lindsey.

On November 14, 1975, hearing was had and the trial court entered its order granting appellee’s motion for late filing of his controverting plea, and overruled appellant’s plea of privilege.

Appellant appeals on 2 points:

1) Appellee did not have good cause for his failure to timely file his controverting affidavit, and the trial court was without authority to do anything but sustain appellant’s plea of privilege.
2) The trial court erred in overruling appellant’s plea of privilege.

Rule 86 TRCP provides: “* * *. When a plea of privilege is filed in accordance with this rule, it shall be prima facie proof of the defendant’s right to change of venue; * * *. If such adverse party desires to controvert the plea of privilege, he shall within ten days after he or his attorney of record received the copy of the plea of privilege, file a controverting plea under oath, setting out specifically the grounds relied upon to confer venue of such cause on the court where the cause is pending.”

Rule 5 TRCP provides: “When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion * * * (b) upon motion permit the act to be done after the expiration of the specified period where good cause is shown for the failure to act *

Appellee filed its motion for late filing of controverting plea to appellant’s plea of privilege some 20 days after appellant’s plea of privilege was filed, and was admittedly tardy by some 10 days.

At the hearing appellee offered no proof or evidence whatsoever in support of his motion.

When a controverting affidavit to a plea of privilege is not filed within 10 days after the adverse party has received a copy of the plea of privilege, the trial court is required to sustain the plea of privilege, unless for good cause shown by pleading and proof, the court extends the time within which to file the controverting affidavit. Bond v. Lewis, Tex.Civ.App. (Waco) NWH, 496 S.W.2d 181; Farr v. Weeden, Tex.Civ.App. (Waco) NWH, 308 S.W.2d 74; Buddies Super Markets, Inc., v. Metcalf, Tex.Civ.App. (Austin) NWH, 515 S.W.2d 927; LPG, Inc., v. Development Associates, Inc., Tex.Civ.App. (El Paso) NWH, 498 S.W.2d 736.

As noted here appellee offered no proof.

Appellant’s points are sustained.

The judgment is reversed and judgment here rendered transferring the cause to the District Court of Bowie County.

REVERSED AND RENDERED.


text:
    AUSTIN SHOE STORES, Appellant, v. The ELIZABETH COMPANY et al., Appellees.
    No. 5542.
    Court of Civil Appeals of Texas, Waco.
    June 24, 1976.
    Rehearing Denied July 22, 1976.

      Wynne & Jaffe, James S. Pleasant, Dallas, for appellant.
    McDonald, Sanders, Ginsburg, Phillips, Maddox & Newkirk, Luther W. Ellis, Fort Worth, Green, Gilmore, Crutcher, Rothpletz & Burke, David A. Newsom, Dallas, for appellees.
   OPINION

JAMES, Justice.

This is an appeal from a summary judgment. We reverse and remand.

Plaintiff-Appellant Austin Shoe Stores, Inc., brought this suit against Defendant-Appellees The Elizabeth Company, Inc., Ridgway Management Corporation and I. Boyd Ridgway for reimbursement of rents in the amount of $3089.48 plus reasonable attorneys’ fees. All parties filed motions for summary judgment. The trial court entered summary judgment in favor of all three Defendants that Plaintiff take nothing, from which Plaintiff appeals.

Plaintiff’s pleadings allege in effect substantially the following: That on or about March 14, 1969, Plaintiff Austin Shoe Stores as tenant, and Defendant I. Boyd Ridgway as owner entered into a written lease agreement calling for a fifteen year lease by Defendant Ridgway to Plaintiff of a portion of a building then owned by Defendant Ridgway. The lease agreement calls for rentals in the amount of $562.00 per month plus an amount equal to the amount that 5% of Plaintiff’s monthly gross sales from the building exceeds $562.00. Plaintiff alleges and contends that it was entitled to a rebate (on an annual basis) of rental money paid by virtue of a letter which Defendants Ridgway Management Corp. and I. Boyd Ridgway wrote to Plaintiff about two weeks prior to the execution of the lease agreement. The letter is dated February 28, 1969, addressed to “Mr. Chuck Hockenberry, Austin Shoe Stores,” is signed by I. Boyd Ridgway, President of Ridgway Management Corp. and I. Boyd Ridgway individually, the body of which letter is as follows:

“Per our agreement, I hereby promise to reimburse Austin Shoe Stores, a Texas Corporation, on an annual basis, at the rate of five (5) percent of that figure wherein sales in the demised premises in Navarro Mall fail to reach $135,000.00 during any full calendar year.

“This agreement is valid and binding during the primary fifteen (15) year term of the lease between Austin Shoe Stores, a Texas Corporation, and I. Boyd Ridgway.”

Plaintiff alleges: that because of an oversight when drafting the lease agreement, the rebate provision was inadvertently left out of the lease agreement; and that it was the intent of the parties to the lease that the letter agreement be read into and become a part of the lease agreement throughout the 15 year term; and that these two documents have been read as one for the calendar years ending December 31, 1969, 1970, 1971 and 1972.

Plaintiff further alleges that subsequent to March 14,1969, the leased premises were acquired by Mayflower Investment Co. who in turn transferred and conveyed its interest to Defendant The Elizabeth Company; that the validity of the letter agreement was acknowledged by Mayflower during the calendar year during which it was landlord under the lease agreement. In fact, Mayflower Investment Company wrote a letter addressed to “Mr. A. M. Vrla, Austin Shoe Stores” dated November 30,1970, concerning the subject property, the body of which letter is as follows:

“Consistent with our conversation November 30, I would like to set forth in writing our agreement regarding the $4081.44 owed to your company by Navarro Mall, based on an agreement set forth between Mr. I. Boyd Ridgway and Mr. Chuck Hockenberry with Austin Shoe Stores. It is our mutual agreement that the $4081.44 be credited to the rental account for the Austin Shoe Store location at Navarro Mall, Corsicana, Texas, at the rate of $589.68 per month, until the credit balance mentioned above is retired. I have informed my Accounting Department of our agreement and this letter is to bring my files up to date. If this agreement is as you had thought, please indicate your approval by signing one copy and returning it to me. Your anticipated cooperation in this matter is most appreciated.

“Yours very truly, MAYFLOWER INVESTMENT COMPANY /s/ Steve Elliott, Assistant Property Manager.

“Accepted: /s/ A.M. Vrla.”

Plaintiff further alleges that by letter dated September 19,1974, Plaintiff notified Defendant Elizabeth Co. that Plaintiff’s annual sales in its store for the calendar year 1973 were only $73,483.66 and requested a refund pursuant to the letter agreement in the amount of $3089.48 be made to Plaintiff; that after this and several other demands, Deféndant Elizabetli has failed and refused, and still fails and refuses to pay said refund to Plaintiff. Plaintiff sued for the $3089.48 asserted refund due it plus reasonable attorneys’ fees and costs.

After all Defendants had answered, Plaintiff filed its Motion for summary judgment for the $3089.48 against all three Defendants, attaching in support of same the affidavits of Charles Hockenberry, executive vice-president of Plaintiff Austin Shoe Stores, and that of Ron Parham, vice-president of Mayflower Investment Company as well as of Fidelity Union Life Ins. Co. Attached as exhibits to such affidavits were: (1) the lease agreement of March 14, 1969, (2) the letter signed by I. Boyd Ridgway to Plaintiff dated February 28, 1969, herein-above quoted, wherein the rental rebate was promised (hereinafter referred to as the “rebate letter”), and (3) the letter of November 30,1970, from Mayflower Investment Company to Plaintiff, hereinabove quoted, wherein the Plaintiff’s right to rental reimbursement was acknowledged (hereinafter referred to as the “Mayflower letter”).

The Hockenberry and Parham affidavits assert substantially the same facts as alleged in Plaintiff’s pleadings, with these additional facts contained in Parham’s affidavit: that Mayflower Investment Co. was substitute trustee under an assignment of rents dated July 11, 1969, executed by I. Boyd Ridgway and Ridgway Management Corp., as assignors, to Fidelity Union Life Ins. Co., as assignee, by which assignment the subject lease contract was assigned to Fidelity Union; that as such Trustee, Mayflower collected rents under the lease agreement from December 1, 1969, to June 1, 1971, on which last-named date the subject property was conveyed by Trustee’s deed to Fidelity Union; that subsequent to said last-named date the rents were collected by Fidelity Union; that on December 21, 1973, the subject property was conveyed to The Elizabeth Co.; that on October 28, 1970, Austin Shoe Stores furnished Mayflower a copy of the rebate letter, and thereafter Mayflower made refunds to Plaintiff on the strength of said letter as long as Mayflower collected the rents; that after Fidelity Union acquired the property, it likewise made refunds on the same basis to Plaintiff. The Parham affidavit went on to assert that he (Parham) negotiated the sale of the subject property to The Elizabeth Co., and that he (Parham) furnished The Elizabeth Co. copies of the lease agreement and the rebate letter, and that these instruments were discussed by Parham and officers of The Elizabeth Co.

As we construe Plaintiff’s pleadings, there is contained therein allegations to the effect that the provisions of the rebate letter were left out of the lease agreement by mutual mistake. Moreover, it appears to us that Plaintiff’s pleadings allege in substance that the rebate letter was an inducement for Plaintiff’s entering into the subsequent lease agreement.

Defendants Ridgway Management Corp. and I. Boyd Ridgway filed nine special exceptions to the Hockenberry and Parham affidavits, all of which were sustained by the trial court as recited in the summary judgment. The net effect of sustaining these special exceptions was to delete from Plaintiff’s summary judgment proof all assertions of mutual mistake, inducement, and ratification by the Ridgways, Mayflower and Fidelity Union of the rebate letter for the years 1969, 1970, 1971, and 1972.

With Plaintiff’s summary judgment proof in this emasculated condition, Defendants Ridgway Management Corp., I. Boyd Ridg-way, and The Elizabeth Co. all filed motions for summary judgment. The trial court entered summary judgment in favor of all three Defendants that Plaintiff take nothing, and in this judgment it is recited that the court sustained all of the Defendants’ special exceptions levelled at the affidavits filed by Plaintiff in support of its motion for summary judgment.

Plaintiff appeals, complaining of the trial court’s overruling of its motion for summary judgment and granting the Defendants’ motions for summary judgment. We hold that the trial court properly overruled Plaintiff’s motion and improperly granted Defendants’ motions. The trial court’s error is apparent on the face of the summary judgment wherein it sustained the Defendants’ special exceptions to Plaintiff’s affidavits as hereinabove pointed out. That is to say, the trial court by sustaining the special exceptions to Plaintiff’s affidavits, deleted from Plaintiff’s summary judgment proof, all proof concerning mutual mistake of the Plaintiff and the Ridgways in leaving the rebate provisions out of the lease agreement, all proof concerning the rebate letter serving as an inducement for Plaintiff’s entering into the lease agreement, all proof of ratification by the Ridgways, Mayflower and Fidelity Union to the effect that the rebate letter was intended to be incorporated into the lease agreement, and all proof that the Defendant Elizabeth Co. acquired the property with actual knowledge of the rebate letter.

The lease contract of March 14, 1969, contained what is sometimes called a “merger provision” in the following language:

“This lease contains all of the agreements and conditions to which the parties hereto have agreed, and this lease shall not be orally modified, altered, amended or rescinded inasmuch as it is specifically agreed that this instrument can be changed, modified, altered or amended only by an agreement in writing, signed by the parties hereto or by their proper representatives or their respective successors and interests.”

Defendants Ridgway Corporation and Ridgway individually stress heavily the parol or extrinsic evidence rule, to wit, that extrinsic evidence (such as the rebate letter) is not admissible to vary the terms of the written lease contract, particularly where the lease contract contains a “merger” provision such as the lease contract before us provides. For discussion and application of the parol or extrinsic evidence rule, see Milliken v. Callahan County (1887), 69 Tex. 205, 6 S.W. 681; Guarantee Life Ins. Co. v. Davidson (Tex.Com.App.1921), 234 S.W. 883, judgment adopted; Hubacek v. Ennis State Bank (1958), 159 Tex. 166, 317 S.W.2d 30. It is equally well-settled that in the absence of fraud, accident, or mutual mistake, the parol or extrinsic evidence rule is particularly applicable where the written contract contains a recital that it contains the “entire agreement between the parties,” or a similarly worded merger provision. Super-Cold Southwest Co. v. Elkins (1942), 140 Tex. 48, 166 S.W.2d 97; Rogers v. J. I. Case Co. (Waco, Tex.Civ.App.1954), 272 S.W.2d 429, no writ; Kingsbery v. Phillips Petroleum Co. (Austin, Tex.Civ.App.1958), 315 S.W.2d 561, NRE; Ragland v. Curtis Mathes Co. (Waco, Tex.Civ.App.1969), 446 S.W.2d 577, no writ.

On the other hand, our Supreme Court has held that parol or extrinsic evidence may be introduced to show mutual mistake whereby a contract fails to express the actual agreement, and to prove the modifications necessary to be made, in cases where mutual mistake has been alleged. Texas Pacific Coal and Oil Co. v. Crabb (Tex.Com.App.1923), 249 S.W. 835, opinion adopted.

Likewise, extrinsic evidence is admissible if it shows merely the inducements that led to the execution of a written agreement or the circumstances under which it was executed. See 23 Tex.Jur. (2) “Evidence,” Section 358, p. 532, and the cases therein cited.

In short, in the case at bar the parol or extrinsic evidence rule does not apply because of the material fact issues concerning mutual mistake and inducement which are raised by Plaintiff’s pleadings. Likewise in our opinion there are other material fact issues raised herein not necessary to be specifically enumerated. Therefore the Defendants are not entitled to judgment as a matter of law, Rule 166-A, Texas Rules of Civil Procedure, and the trial court erred in granting the summary judgment.

Defendant Elizabeth Co. raises other defenses in addition to the parol evidence rule which we make no attempt to evaluate in this state of the record. Having found error in the trial court’s judgment, and this being a discretionary matter, in the interests of justice we hereby reverse and remand the entire cause to the trial court for trial on the merits. See Morrow v. Shotwell (Tex.1972), 477 S.W.2d 538; Bates v. First National Bank of Waco (Waco, Tex.Civ.App.1973), 502 S.W.2d 181, no writ.

REVERSED AND REMANDED.