author: COULSON, Justice.

text:
    R. B. BRADLEY et al., Appellants, v. HOUSTON STATE BANK, Appellee.
    No. B2075.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 11, 1979.
    Rehearing Denied Aug. 15, 1979.

      Gary D. Mathews, Larry R. Jones, Law Offices of W. Harold Sellers, Houston, for appellants.
    William E. Wylie, James Elder, III, Charles B. Wolfe, Brown & Wylie, Houston, for appellee.
    Before CURTISS BROWN, C. J., and COULSON and MILLER, JJ.
   COULSON, Justice.

This is an appeal by R. B. Bradley, Stephen D. Spencer, T. S. Terry (appellants), and Spencer, Terry/Padgett & Associates, Inc. (corporate appellant), from a directed verdict in favor of appellee Houston State Bank (the Bank) in a suit based upon appellants’ claims of usury, fraud, and breach of contract. We affirm the judgment of the trial court.

Appellants Bradley, Spencer and Terry approached appellee Houston State Bank in May or June of 1974 for the purpose of obtaining a loan in order to move their indebtedness in the amount of $60,000.00 from Spring Branch State Bank. Houston State Bank made a loan in that amount to appellant Spencer, Terry/Padgett & Associates, Inc., a corporation, at an interest rate of 12% per year. Appellant Terry executed the promissory note on behalf of the corporation, as its president, and the three individual appellants, Terry, Spencer and Bradley, signed as individual guarantors of the corporation’s note. Under the agreement between the Bank and appellants this ninety-day note was reduced by ten percent of the original principal amount at the end of ninety days and a renewal note was executed for the remaining amount due on the principal plus interest. The $60,000.00 amount was eventually reduced to $36,-000.00 and a renewal note for that amount was executed in June of 1975. This note was due to be paid in September of 1975 but at that time appellants were unable to make the necessary $6,000.00 payment on the principal. The Bank agreed to accept a payment of interest only and a new note bearing the principal amount of $36,000.00 was executed in October. No payment was made on this note when it was due in December of 1975 and the Bank made demand for payment of the total amount of the note.

When payment was not forthcoming the Bank filed suit against appellants to collect the $36,000.00 plus interest and attorney’s fees. Appellants filed an answer to this lawsuit and a counterclaim against the Bank claiming usury as a defense. Appellants and the Bank entered into negotiations which culminated in an agreement executed in June of 1976. Under the terms of this document the Bank agreed to advance the sum of $40,475.00 to the individual appellants, Terry, Bradley and Spencer, to fully satisfy the $36,000.00 note, with interest, of Spencer, Terry/Padgett & Associates, Inc. Terry, Bradley and Spencer in return executed a promissory note in favor of the Bank in the total amount of $40,-475.00 (the $40,000.00 note). This note bore interest at the annual rate of 8½% and was secured, under a security agreement, by a promissory note in the principal sum of $45,000.00 executed by two doctors and payable to a limited partnership owned by the individual appellants (the doctors’ note or the collateral note). The Bank further agreed to dismiss its lawsuit against appellants on their $36,000.00 note.

The first payment on the $40,000.00 note was due on August 1, 1976 but was not made by appellants. Thereupon the Bank made demand upon appellants for the entire balance due on that note. Appellants did not pay the note and the Bank posted notice of its intent to sell the collateral note. At this point appellants arranged with River Oaks Bank and Trust Company (River Oaks Bank) to obtain appellants’ notes from Houston State Bank to prevent the sale of the collateral note. The Bank required payment for the total due on appellants’ $40,000.00 note, for the total due on appellant Terry’s individual note in the principal sum of $3,600.00 and payment of $4,130.35 for attorney’s fees.

The Bank having dismissed its suit against appellants on the original promissory note, trial was subsequently had upon appellants’ second amended original counterclaim based upon fraud, usury, and breach of contract. At the close of appellants’ evidence the Bank made a motion for a directed verdict which was granted by the trial court. Judgment was entered that appellants take nothing against the Bank. Appellants appeal from that judgment.

Appellants’ first two points of error contend that the trial court erred in excluding evidence of fraudulent misrepresentations made to them by the Bank which are alleged to have induced appellants to execute the agreement settling their counterclaim on the original note and releasing all their claims of usury based on that note, as well as inducing them to execute the new note. Appellants further contend that such fraudulent misrepresentations caused them to sell certain real property at a price well below its actual value and to suffer damages thereby. The evidence which appellants claim would prove fraud consisted of testimony by appellant Terry as to what he was told by the Bank concerning payment of the new note. In substance he testified that the Bank, in settlement of the Bank’s claim against appellants, informed them that it would accept a note from the two doctors as collateral, that the Bank would use the funds from payment of that note to reduce the indebtedness of appellants on their new note, and that the due date upon appellants’ note would be the same as the due date on the doctor’s note to appellants so that they would coincide. Terry further stated that, relying upon such representations by the Bank, appellants sold their interest in ranch property to the doctors at a price below its market value in order to obtain such a note from the doctors to be given as collateral to the Bank.

This testimony was excluded from evidence on objection that it violated the parol evidence rule. Appellants contend that the evidence was admissible under the Texas rule that parol evidence is admissible, although it may contradict the terms of a written agreement, to prove that the agreement was induced by fraud. Dallas Farm Machinery v. Reaves, 158 Tex. 1, 307 S.W.2d 233 (1957); Instant Credit Service, Inc. v. McClanahan, 497 S.W.2d 954 (Tex.Civ.App. —Austin 1973, writ dism’d).

The Supreme Court of Texas has recently held that “the mere representation by a payee to the maker [of a promissory note] that the maker will not be liable on the note does not constitute fraud in the inducement so as to be an exception to the parol evidence rule” without a showing of some additional type of trickery, artifice, or device employed by the payee. Town North National Bank v. Broaddus, 569 S.W.2d 489, 492 (Tex.Sup.1978). In the case before us appellants’ own evidence discloses that the Bank did not make representations that appellants would not be liable on the note. Statements that payments on the collateral note would be applied to appellants’ note, even indulging every inference to be drawn therefrom in favor of appellants, does not amount to a representation that appellants would not be liable for payment of their note in the event that no payments were made on the collateral note. The evidence was properly excluded under the parol evidence rule.

Appellants argue that the Bank made fraudulent representations as to the time of payment of the two notes because, although the payment dates on both notes were the same, the collateral note contained a provision for a ten-day grace period within which payment could be made by the doctors without the note being in default whereas appellants’ note to the Bank contained no such provision. We observe that the collateral note was prepared by appellants and that appellants were represented by counsel at all times material to the formation of the notes and agreements with the Bank and no reference was made to the addition of such provision. We find no misrepresentation in the provisions for time of payment of the note.

Appellants’ next points of error deal with the exclusion of evidence that the Bank required, as a condition to making the $40,000.00 loan at an interest rate of 8½%, that a $20,000.00 “compensating balance” be maintained on deposit with the Bank. Appellants argue that this evidence was admissible under the Texas rule that parol evidence is admissible for the purpose of showing usury. We find however that, under the facts of this case, the requirement that a compensating balance be maintained with the Bank does not constitute usury and therefore the evidence was properly excluded under the parol evidence rule. This is not a case like First State Bank of Bedford v. Miller, 563 S.W.2d 572 (Tex.Sup.1978) where the lending bank made a loan with the principal amount of $70,000.00, but required that $14,000.00 of that amount be “frozen” in a non-interest bearing account for payment of the first two years’ interest on the loan. The supreme court in that case found that the true principal amount of the loan was $56,000.00, because the borrower had use of only that amount from the proceeds of the loan, and that therefore the interest rate was usurious. In the case before us however the excluded evidence showed that appellants had full use of the entire proceeds of the loan. The $20,000.00 compensating balance was provided with funds deposited by Guardian Title Company, a corporation of which appellant Bradley was president, into that corporation’s existing account with the Bank. There is no indication that any of appellants’ own funds were deposited in this account to provide the compensating balance or were in any way expended in an effort to provide such a balance. Therefore the principal amount of the note would not be reduced by the amount of the compensating balance with a resulting increase in the rate of interest, and the compensating balance requirement under the facts of this case does not render the transaction usurious. See also, Moss v. Metropolitan Nat. Bank of Houston, 533 S.W.2d 397 (Tex.Civ.App.— Houston [1st Dist.] 1976, no writ).

Appellants’ remaining points of error contend that the trial court erred in directing a verdict against appellants because material fact issues were raised on several points. In reviewing the propriety of a directed verdict the appellate court is to determine whether any material issues of fact were raised by the evidence to submit to the jury. In making this determination we must view the evidence in the light most favorable to the appellants, indulge in every reasonable inference in favor of the appellants, and disregard all contradictory evidence unfavorable to the appellants. Tryad Service Corp. v. Machine Tool Center, Inc., 512 S.W.2d 785, 786 (Tex.Civ.App. — Houston [14th Dist.] 1974, writ ref’d n. r. e.). However, where the appellants’ evidence when viewed in this manner, establishes that they are not entitled to recover then an instructed verdict for the appellee is proper. Jackson v. Marshall, 243 S.W.2d 205 (Tex.Civ.App. — Dallas 1951, no writ).

Appellants claim that a material fact issue was raised by evidence that the Bank stated that it could not make the loan at a 10% rate of interest and suggested that the original loan, in the amount of $60,-000.00, be made to a corporation, rather than to the individuals, so that a higher rate of interest could be charged. According to appellants this raised a material issue of fact as to whether this loan transaction was usurious. Appellants’ evidence shows that they were aware of and assented to the condition that the loan be made to a corporate borrower, that a properly incorporated corporation which had been created prior to the loan transaction in question was the borrower, that the stockholders of that corporation signed a corporate resolution authorizing the loan, and that the loan proceeds were in fact advanced to the corporation and deposited in the corporation’s bank account. In a recent case involving almost identical facts the court found that these facts were insufficient to raise a material fact issue in support of the contention that the loan transaction was merely a subterfuge to evade the usury statute. That conclusion was based on those cases which have held that a lender may lawfully require, as a condition to making a loan, that the loan be made to a corporation rather than to an individual without such condition rendering the transaction usurious, even though the purpose of the condition is to enable the lender to charge a higher rate of interest. Houston Furniture Distributors, Inc. v. Bank of Woodlake, 562 S.W.2d 880, 883 (Tex.Civ.App. — Houston [1st Dist.] 1978, no writ). See also, Peters v. Lomas & Nettleton Financial Corp., 572 S.W.2d 809 (Tex.Civ.App. — Houston [14th Dist.] 1978, no writ); American Century Mtg. Investors v. Regional Ctr. Ltd., 529 S.W.2d 578 (Tex.Civ.App. — Dallas 1975, writ ref’d n. r. e.); Skeen v. Glenn Justice Mtg. Co., Inc., 526 S.W.2d 252 (Tex.Civ.App. — Dallas 1975, no writ). In such a transaction the law “has not been evaded but has been followed meticulously in order to accomplish a result which all parties desired and which the law does not forbid.” Skeen v. Glenn Justice Mtg. Co., Inc., supra. Thus no material issue of fact was raised by appellants’ evidence concerning the original $60,000.00 loan, and the point of error is overruled.

Appellants next contend that evidence of the collection of unearned “attorney’s fees” by the Bank at the time the $40,000.00 note was transferred to River Oaks Bank raised a material fact issue as to whether such collection was usurious. The note in question contained a provision which stipulated that if the note were placed in the hands of an attorney for collection then appellants would pay an additional 10% for attorney’s fees. Such a provision has long been regarded in Texas as valid and has never been held to render a transaction usurious at its inception. See Crowder v. First Federal Sav. & Loan Ass’n, 567 S.W.2d 550 (Tex.Civ.App. — Tyler 1978, writ ref’d n. r. e.); General American Life Ins. Co. v. Hamor, 95 S.W.2d 975 (Tex.Civ.App. — Amarillo 1936, writ ref’d); Stanford v. United States Inv. Corp., 272 S.W. 568 (Tex.Civ.App. — Waco 1925, writ dism’d). Appellants argue however that the collection of attorney’s fees, which have not actually been incurred, does constitute the collection of usurious interest. We note however that the transaction between ap-pellee and River Oaks Bank was a purchase of appellants’ note by River Oaks Bank, and was not a payment of the amount due on the $40,000.00 note by appellants. Jeff Sut-iles, the loan officer at River Oaks Bank who participated in the transaction, testified that it was structured as a purchase of the note by River Oaks Bank rather than as a payment of the amounts owed to Houston State Bank by appellants at the request of appellant Bradley because that was the easiest and least expensive way to carry out the transfer of appellants’ debts from Houston State Bank to River Oaks Bank. He further stated that his purpose in going to Houston State Bank was “to purchase the loan from Houston State Bank” and that he informed Houston State Bank’s representatives, upon inquiry, that he was there to purchase the notes. An agreement assigning the notes in question to River Oaks Bank was introduced into evidence. This assignment shows that the notes and collateral were in fact sold to River Oaks Bank & Trust Company. Houston State Bank was free to place any price upon these notes as a condition of sale, and to require the payment of any sums it felt necessary to protect itself, including the payment of amounts it felt would be required as attorney’s fees in the future. These amounts were not demanded as a condition prior to permitting appellants to pay off their debt, but as a condition of selling the notes to River Oaks Bank. Therefore the payment of unearned attorney’s fees, in these circumstances, would not constitute usury.

The same principles apply to appellants’ contention that the Bank’s requiring purchase of appellant Terry’s individual note in the principal sum of $3,600.00 from the Bank was usurious. Because the transaction was a purchase from the Bank, it was free to impose any condition, including the purchase of an individual note of one of the debtors, on its sale of the $40,000.00 note to River Oaks Bank without rendering the transaction usurious. River Oaks Bank, unlike appellants, was not obligated to pay the $40,000.00 note and therefore Houston State Bank did not impose the requirement of payment of these additional sums as a condition precedent to accepting payment for the $40,000.00 note but as a condition precedent to selling that note, with its accompanying collateral, to River Oaks Bank. We observe again that structuring the transaction as a purchase rather than as a pay-off of the $40,000.00 note was requested by appellant Bradley and arranged by River Oaks Bank. Appellants must bear the responsibility for the form of the transaction.

In their next point of error appellants contend that a directed verdict was improper because their evidence raised a material issue of fact as to whether the Bank had breached the settlement contract by not dismissing its suit against appellants on the original note within a reasonable time. It is uncontroverted that that lawsuit was not dismissed until over three months after the settlement agreement was executed. However, the determination of whether this was within a reasonable time is not material to the resolution of this case as appellants neither pled nor introduced evidence that would establish any damages incurred by them as a result of this alleged breach of contract. The necessary elements of a cause of action for breach of contract include not only allegation and proof of the breach itself, but also of some damages flowing therefrom. As appellants neglected to pursue a necessary element of their cause of action they could not recover thereon and a directed verdict was proper as to their breach of contract claim.

In view of our resolution of the foregoing points of error it is unnecessary for us to address appellants’ points of error dealing with the exclusion of expert testimony relating to the amount of damages for alleged usury claimed by appellants.

Appellants’ evidence failed to raise a material issue of fact as to any of their claims of fraud, usury or breach of contract. The trial court was therefore correct in directing a verdict for appellee and its judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: PAUL PRESSLER, Justice.

license: Public Domain

text:
    In the Matter of G R J, Jr., a child, Appellant, v. The STATE of Texas, Appellee.
    No. A2104.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Aug. 1, 1979.

      D. Brooks Cofer, Jr., Cofer & Van Over-beek, Bryan, for appellant.
    Sarah Ryan, Child Services Atty., Bryan, Travis B. Bryan, III, Dist. Atty., W. W. Torrey, Asst. Dist. Atty., Bryan, for appel-lee.
    Before MILLER, PAUL PRESSLER and SALAZAR, JJ.
   PAUL PRESSLER, Justice.

This is an appeal from an order of the County Court at Law of Brazos County in which the court waived its jurisdiction over the subject juvenile (appellant) and certified such individual to stand trial in the appropriate state criminal district court. Appellant is charged with aggravated rape. Appellant has perfected this appeal from the ruling of the county court.

The appeal before us alleges three points of error. Appellant first argues that the county court erred in denying his motion to disqualify the state’s attorney whom he alleged was acting in violation of the Texas Constitution by reason of the fact that the state’s attorney, while employed in her capacity as the juvenile prosecutor on this case, was also a lecturer at Texas A & M University. This point of error is overruled. Appellant failed to present a sworn written motion contesting the state’s attorney’s authority as required by Tex.R.Civ.P. 12, and is thus now barred from so contending. Victory v. State, 138 Tex. 285, 158 S.W.2d 760 (1942); Postell v. Texas Department of Public Welfare, 549 S.W.2d 425 (Tex.Civ.App.—Fort Worth 1977, no writ); Taylor v. Texas Department of Public Welfare, 549 S.W.2d 422 (Tex.Civ.App.—Fort Worth 1977, writ ref’d n. r. e.).

Appellant further contends that the trial court erred in admitting one of the state’s exhibits in violation of section 54.02, Tex.Family Code Ann. (1975). Section 54.-02(e) provides that:

At the transfer hearing the court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses. At least one day prior to the transfer hearing, the court shall provide the attorney for the child with access to all written matter to be considered by the court in making the transfer decision.

The exhibit in issue is state’s exhibit two, which is a psychological evaluation report of appellant by Lynn Weems. The evaluation is dated December 15, 1978, and was filed with the county court on December 20, 1978. On the first day of the transfer hearing, January 22,1979, appellant’s attorney admitted that he had received a copy of the psychological evaluation report prior to December 28, 1978. Such testimony indicates compliance with section 54.02(e). Further, at the time of the January 22, 1979, hearing, appellant objected to the admission of the report alleging that the state had not complied with the one-day requirement of section 54.02. In order to insure compliance with such section, the county court recessed for two days in order to allow appellant’s attorney to review the report. Based upon these facts appellant’s second point of error is overruled.

Finally, appellant urges before this court that there was insufficient evidence presented at the transfer hearing to support the findings and order of the county court. We have reviewed the entire record and find that sufficient evidence existed to support the county court’s judgment waiving jurisdiction over the appellant.

The ruling of the trial court is affirmed.


text:
    Ed LUCKY, Ind. and d.b.a. International Stainless, Appellant, v. WORLD OF STAINLESS, Appellee.
    No. A2100.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Aug. 1, 1979.
    Rehearing Denied Oct. 17, 1979.
    Donald E. Nagle, Houston, for appellant.
    Jon D. Totz, Mark P. Blenden, Lapin, Totz & Mayer, Houston, for appellee.
    Before MILLER, PAUL PRESSLER and SALAZAR, JJ.
   PAUL PRESSLER, Justice.

Ed Lucky, Ind. and d.b.a. International Stainless (appellant) seeks to review by petition for writ of error the summary judgment granted against him in World of Stainless’ (appellee) suit on a sworn account. Appellant contends that the trial court erred in granting the summary judgment on the basis of appellee’s pleadings and the exhibit attached thereto.

Appellee filed its original petition, which consisted of its pleadings, the affidavit of its president, and an exhibit listing the goods the sale of which is the basis of this lawsuit. Appellant answered by general denial. Appellee filed a motion for summary judgment and a hearing on the motion was set. Appellant was properly notified of the date for the hearing on the motion for summary judgment. Appellant was not present at the hearing, and a summary judgment was entered in favor of appellee on the sworn account in the amount of $2,006.50, and $500.00 for attorney’s fees, with interest.

Appellant’s pleadings consisted of a general denial.

Tex.R.Civ.P. 185 provides that in a suit on a sworn account plaintiff’s petition, properly verified, “shall be taken as pri-ma facie evidence thereof.” Such rule also provides that unless the defendant files a written denial, denying the plaintiff’s allegations under oath, in the form provided, the defendant shall not be permitted to deny the plaintiff’s claim.

Wilson v. Browning Arms Company, 501 S.W.2d 705, 706 (Tex.Civ.App.-Houston [14th Dist.] 1973, writ ref’d). Further, Tex. R.Civ.P. 90 provides in part that:

Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by motion or exception in writing and brought to the attention of the Judge in the trial court . . . before the rendition of judgment, shall be deemed to have been waived by the party seeking reversal on such account .

Appellant has urged this court to reverse the judgment of the trial court. He contends that the trial court erred in granting the summary judgment in favor of appellee on the basis of appellee’s pleadings and the attached exhibit claiming them to be insufficient to support a judgment on a sworn account. Appellant filed neither a sworn denial nor special exceptions to appellee’s pleadings. He is, therefore, precluded from raising such points on appeal at this time.

The judgment of the trial court is affirmed.


text:
    FOLEY’S DEPARTMENT STORE et al., Appellants, v. James GARDNER, Appellee.
    No. A2052.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Aug. 15, 1979.

      Michael Phillips, Susan E. Crowley, Law Offices of Boswall, O’Toole, Davis & Pickering, Houston, for appellants.
    Dale Friend, James E. Robinson, Law Offices of Kronzer, Abraham & Watkins, Houston, for appellee.
    Before MILLER, PAUL PRESSLER and SALAZAR, JJ.
   PAUL PRESSLER, Justice.

This is an appeal from a jury award of $40,901.40 in damages to James Gardner (appellee) for injuries sustained while loading merchandise from Foley’s (appellant) Warehouse dock onto a trailer. Appellee alleged at trial that the ramp was placed improperly between the dock and his employer’s trailer causing it to fall when he walked across it.

Eighteen points of error are raised by appellants. The first six points concern the presence and sufficiency of the evidence for Special Issues 1 and 2. Points seven and eight allege that there is a comment on the evidence in the wording of Special Issues 1(b) and 2(b). Points nine through twelve allege that the jury erred in not finding negligence on the part of the appellee in answer to Special Issue number 5. Points thirteen and fourteen contend that the refusal of the trial court to submit certain issues and a definition of “unavoidable accident” was error. Points fifteen through eighteen allege that the damage issues are not supported by the evidence.

Points one, two, three, four, five, six, nine, ten, eleven, twelve, fifteen, sixteen, seventeen and eighteen concern the sufficiency of the evidence. The record gives ample evidence upon which the jury could have reasonably made the determination which it did, and they are, therefore, overruled. In such cases, the appellate court has no right to substitute its judgment for that of the jury to resolve factual disputes. Neuhaus v. Kain, 557 S.W.2d 125 (Tex.Civ.App. — Corpus Christi 1977, writ ref’d n. r. e.); Bradwell v. Anderson, 325 S.W.2d 929 (Tex.Civ.App. — Houston 1959, writ ref’d n. r. e.).

In points seven and eight appellants contend that the phrase “considering the distance separating the trailer from the dock” contained in Issues 1(b) and 2(b) made it appear that the trial court was pointing out to the jury that there was something unusual about the distance.

To constitute a comment on the weight of the evidence, the special issue must be worded so as to indicate an opinion by the trial judge as to the verity of the fact inquired about.

Metal Structures Corporation v. Plains Textiles, Inc., 470 S.W.2d 93, 102 (Tex.Civ.App. —Amarillo 1971, writ ref’d n. r. e.). The wording of Special Issues 1(b) and 2(b) is not a comment on the weight of the evidence under this definition, and, therefore, appellants’ seventh and eighth points of error are overruled.

Appellants’ points thirteen and fourteen contend that the refusal of the trial court to submit certain special issues along with a definition of unavoidable accident constituted reversible error. The trial court refused to submit appellants’ requested special issues which inquired whether, at the time of the incident made the basis of this suit, appellee failed to follow instructions given to him to stay out of the way, and whether such failure, if any, was negligence and a proximate cause of the incident. The trial court also refused to submit appellants’ requested definition of unavoidable accident as being an event not proximately caused by the negligence of any party involved.

Three issues of contributory negligence as to appellee were submitted to the jury. The jury failed to find that appellee was negligent either in his lockout, in his failure to inspect the ramp in question, or his attempting to push the crate loaded with marble while standing on the ramp. The trial record contains no evidence that appel-lee was in anyone’s way at the time he was injured. The trial court correctly excluded this proposed set of issues.

The Texas Supreme Court has stated that unavoidable accident is raised when evidence is presented to show that some nonhuman condition such as fog, wet pavement, or obstructions to vision is involved. Yarborough v. Berner, 467 S.W.2d 188 (Tex.Sup.1971); Hodges, Special Issue Submission in Texas, sec. 19 (1959). Appellants presented no evidence of the presence of any non-human condition at the time of appellee’s injury. Appellant’s thirteenth and fourteenth points of error are overruled. The judgment of the trial court is, therefore, affirmed.


author: CLAYTON, Justice.

text:
    Virginia BROWN, Appellant, v. AUSTIN AREA TEACHERS FEDERAL CREDIT UNION, Appellee.
    No. 8311.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 6, 1979.
    Rehearing Denied Oct. 4, 1979.

      Stephen H. Gardner, Austin, for appellant.
    Richard L. Alexander, Austin, for appel-lee.
   CLAYTON, Justice.

This is an appeal from an adverse summary judgment entered against appellant. Appellee is a federal credit union chartered under the Federal Credit Union Act, 12 U.S.C.A. § 1751 et seq. (1969), and regulated by the National Credit Union Administration. From 1974 through 1976, appellant executed several promissory notes evidencing money borrowed from appellee. The rate of interest on each such note was one percent per month on the unpaid balance, which is equivalent to a simple annual interest rate of twelve percent. Appellant’s cause of action is based upon violations of certain disclosure provisions of Chapter Four of the Texas Consumer Credit Code, Tex.Rev.Civ.Stat.Ann. art. 5069-4.01 et seq. (Vernon 1971). Appellee admits that, for purposes of this appeal, each note sued upon fails to comply with some disclosure requirements of Chapter Four. The trial court granted appellee’s motion for summary judgment upon the grounds that the notes executed by appellee were “not subject to the coverage of Tex.Rev.Civ.Stat. Ann. art. 5069-4.01 et seq.”

The sole question before this court is whether the provision of Chapter Four of the Texas Consumer Credit Code, i. e., art. 5069-4.01, applies to the loans made by appellant.

As a general rule, pursuant to the provisions of Tex.Rev.Civ.Stat.Ann. art. 5069-1.-02 (Vernon 1971), lenders in this state cannot charge more than ten percent interest. There are numerous statutory exceptions to this general rule, however. Several exceptions to the general usury rate are found in the Texas Consumer Credit Code, Tex.Rev. Civ.Stat.Ann. art. 5069-1.01 et seq. (Vernon 1971): Chapter Three, on regulated loans; Chapter Four, on installment loans; Chapter Five, on secondary mortgage loans; Chapter Six, on retail installment sales; Chapter Seven, on motor vehicle installment sales; and Chapter Twelve, on financing of insurance premiums. Each chapter provides for special circumstances under which loans can be made or credit can be extended at an interest rate greater than ten percent. Under such special circumstances and conditions, each chapter authorizes a charge of interest in excess of ten percent and provides for compliance with certain disclosure requirements and prohibitions of certain practices.

A creditor may avoid the disclosure requirements and prohibitions of the Consumer Credit Code by charging no more than the ten percent interest sanctioned by art. 5069-1.02. See Anguiano v. Jim Walter Homes, Inc., 561 S.W.2d 249 (Tex.Civ.App. — San Antonio 1978, writ ref’d n. r. e.).

It is our view that Chapter Four of the Consumer Credit Code, as it relates to other Texas interest statutes, is not a comprehensive consumer loan disclosure statute. It is an interest statute that allows certain lenders to charge interest in excess of ten percent and requiring compliance with all its provisions. This is made clear by the provisions of Tex.Rev.Civ.Stat.Ann. art. 5069-4.03(1) (Vernon 1971), which requires that the enumerated disclosures be made “when a loan is made under the authority of this Chapter . . .” Pursuant to this language, it is reasonable to infer that Chapter 4 disclosures need not be made when a loan is not made “under the authority” of this Chapter Four. The primary question then is whether appellant, a federal credit union, must rely upon Chapter Four of the Consumer Credit Code as authority to exceed the ten percent interest rate.

Under the Federal Credit Union Act, federal credit unions have the authority to make loans at a rate of interest not exceeding one percent per month on the unpaid balance inclusive of all service charges, which is equivalent to twelve percent simple annual interest. 12 U.S.C.A. § 1757(5XAXvi) (Supp.1978). Even though we have not found a Texas case upon the point, there is ample authority from other jurisdictions that state usury laws are not applicable to federal credit unions. See Van Pelt v. P. & L. Federal Credit Union, 39 Tenn.App. 363, 282 S.W.2d 794 (1955); Christian v. Atlanta Army Depot Federal Credit Union, 140 Ga.App. 277, 231 S.E.2d 7 (1976); McAnally v. Ideal Federal Credit Union, 428 P.2d 322 (Okl.1967).

Pursuant solely to the authority of the National Credit Union Act, a federal credit union can make a loan bearing interest at twelve percent per annum notwithstanding the ten percent rate set forth in art. 5069-1.02. In so doing, appellee did not make the loan under the authority of art. 5069 — 4.01, and, under the provisions of the Federal Credit Union Act, could not have charged the additional interest permitted by art. 5069-4.01. Therefore, the disclosure requirements of such statute are not applicable to such loans. Appellant relies upon Casillas v. Government Employees Credit Union, 570 S.W.2d 57 (Tex.Civ.App. — El Paso 1978, writ ref’d n. r. e.), as authority for the applicability of art. 5069 — 4.03 to the loans made by appellee. We do not agree. The Casillas case merely holds that such statute is applicable to state chartered credit unions by virtue of the definitions contained in art. 5069 — 2.01(f). It does not discuss or hold that such credit unions are subject to the provisions of art. 5069 — 4.03 in the absence of a charge of interest allowable by such statute, or made under the authority of such statute.

Appellee had the authority pursuant to the provisions of the National Credit Union Act, 12 U.S.C.A. § 1751 et seq. (1969) to make the loans and to charge the interest rates thereon in the amount of twelve percent per annum. It did not act under the authority of art. 5069-4.01, and therefore the disclosure requirements of such statute were not applicable to the loans involved in this proceeding.

The trial court properly granted appel-lee’s motion for summary judgment, and the judgment is affirmed.

AFFIRMED.


author: DIES, Chief Justice.

text:
    EAGLE LIFE INSURANCE COMPANY, Appellant, v. The ESTATE of Everett Earl FRANKS, Deceased, Appellee.
    No. 8306.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 6, 1979.
    Rehearing Denied Oct. 4, 1979.

      Charles M. Jefferson, San Antonio, for appellant.
    John V. Elick, Bellville, for appellee.
   DIES, Chief Justice.

On May 26, 1977, Eagle Life Insurance Company issued a six months $20,000 credit life insurance policy to Everett Earl Franks. Mr. Franks died on October 5, 1977. The Estate of Franks filed suit to recover this amount on May 22, 1978, and the defendant below, Eagle Life, was served in San Antonio on May 31, 1978. Answer was due Monday, June 26, 1978. No answer was filed, and on that date a default judgment against Eagle Life was entered. Defendant filed a motion for new trial on July 6, 1978, and an amended motion on July 26, 1978. Hearing on the motion was held on August 28, 1978, and on September 5, 1978, the court denied a new trial. It is from this order, defendant below, Eagle Life Insurance Company, brings this appeal.

Our Supreme Court, in Ivy v. Carrell, 407 S.W.2d 212, 213-214 (Tex.1966), laid down these rules governing default judgments:

“ ‘A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided that the motion for new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.’ ” [Quoting Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939).]
“. . . This does not mean that the motion should be granted if it merely aileges that the defendant ‘has a meritorious defense.’ The motion must allege facts which in law would constitute a defense to the cause of action asserted by the plaintiff, and must be supported by affidavits or other evidence providing pri-ma facie that the defendant has such meritorious defense.”

The comptroller of Eagle Life testified that Eagle Financial Services was a licensed agent of Eagle Life who solicited credit insurance for Eagle Life, and under an administrative contract it administered both the processing of premiums and the payment of claims for Eagle Life; that this business was one hundred percent reinsured with Phoenix Fidelity Life Insurance Company, some portions being subsequently passed back to Eagle Life under the terms of a retrocession agreement. Eagle Financial Services is an individual proprietorship which was owned by Jerry Gordon and his wife, Gloria Lee Gordon. Phoenix Fidelity is likewise owned by the Gordons. In their dealings, Eagle Financial Services was responsible for handling all claim functions for business written through their operation. In earlier lawsuits wherein Eagle Life was defendant, the papers were forwarded to Eagle Financial in Houston.

In 1977 difficulties arose between Eagle Life and Eagle Financial in that the latter was not properly administering its functions, was not properly recording all transactions, as far as premiums or claims, “and based on the apparent inaccuracies that were going on, Eagle Life Insurance Company terminated its business relationship with both entities,” effective November 1, 1977. Eagle Financial and Phoenix Fidelity came under investigation by the State Board of Insurance in the spring and summer of 1978 and were subsequently placed in receivership (approximately July 15, 1978).

On June 28, the comptroller for Eagle Life received a call from Houston attorney Mike Webb advising that he had just received the Franks’ papers.

Even though the relationship between Eagle Life and Eagle Financial was terminated in November 1977, the latter was required by contract to “defend that [the Franks’] lawsuit,” and pay the claims; Eagle Financial was the agent of Eagle Life in the Franks’ lawsuit.

John A. Jensen, vice president of Eagle Life, testified when suit is brought for credit life, originally sold by Eagle Financial, the lawsuit was returned to them “for full administration.”

The claims manager for Eagle Life testified that when Eagle Financial was involved it would ordinarily either pay or deny their own claims; that on occasion, Eagle Financial would seek his advice. “The [Franks’] claim was sent down to me from Eagle Financial Services for a decision inasmuch as we were the reinsurance company in the amount of $10,000. . In other words, they wanted our $10,000.” He recommended that the claim not be paid, but Eagle Financial Services never either granted or denied this claim.

The relationship between Eagle Life and Eagle Financial as far as the Franks’ claim is concerned was admittedly a general agency agreement.

In 2 Tex.Jur.2d Agency § 2 (1959), we find:

“When a person acts through an agent, the agent is a representative of the principal for the conduct of the transaction. Consequently, acts done by the agent, whenever they are within the scope of his actual or apparent authority, are binding on the principal. In other words, the agent’s acts in such cases are the acts of the principal himself. This rule is expressed in the maxim that he who acts through another acts for himself.”

A default judgment has been upheld where the failure to answer was traced to the carelessness of the general manager. In so doing, the court noted the appellant was responsible for the careless act of his agent. Rankin v. Clemons, 358 S.W.2d 701, 704 (Tex.Civ.App. — Austin 1962, writ ref’d).

So, to set aside this default judgment, it is Eagle Financial, not Eagle Life, which must bring the proof required in the Ivy case, supra. Not only is our record devoid of any proof why Eagle Financial failed to answer on time, the above set out testimony could be taken by the trial court to conclude it did not desire to contest the claim. All of appellant s points are overruled, and the order of the trial court is affirmed.

AFFIRMED.


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    Bob BULLOCK, Comptroller of Public Accounts, Appellant, v. DUNIGAN TOOL & SUPPLY CO., INC., Appellee.
    No. 8303.
    Court of Civil Appeals of Texas.
    Sept. 6, 1979.
    Rehearing Denied Oct. 4, 1979.

      Myra A. McDaniel, Asst. Atty. Gen., Austin, for appellant.
    Frank R. Douglass, Austin, for appellee.
   DIES, Chief Justice.

Appellee, Dunigan Tool & Supply Co., Inc., plaintiff below, brought suit to recover local sales taxes paid under Tex.Rev.Civ. Stat.Ann. art. 1066c Sec. 6 B(l) (Vernon, Supp.1978). Dunigan had paid the assessment and penalty under protest, filed a claim for refund which was denied, and timely instituted a refund suit under Tex. Rev.Civ.Stat.Ann., Chapter 20, Title 122A, art. 20.10 (Vernon 1969). A non-jury trial was held; judgment was rendered that Du-nigan recover $278,504.02; and the trial judge filed Findings of Fact and Conclusions of Law.

Dunigan Tool & Supply Co. sells various supplies and equipment associated with oil and gas production. Dunigan deals primarily in goods that may be classified as tubular or non-tubular. Dunigan has five retail stores located in Texas that carry the non-tubular goods. However, the bulk of tubular goods in which Dunigan deals is stored at pipe facilities until purchased by a particular customer. Four of the pipe facilities are located in cities that have adopted the local sales tax, five pipe facilities are located outside Texas cities, and some pipe facilities are located outside of Texas.

Dunigan also has sales offices in Dallas, Houston, Abilene, and Midland, but the salesmen who work out of these offices spend 90 percent of their time outside the office calling on Dunigan’s customers. Du-nigan has no staff working at the pipe facilities, but it does have access to these facilities twenty-four hours a day, and Du-nigan’s salesmen go there regularly to check inventory or to show the goods to their customers. Dunigan’s goods are segregated within these storage facilities.

The usual sale of tubular goods has the salesman receiving an order from the customer, checking to see whether they have the product available, writing up a purchase order, and releasing the pipe to the customer from the facility where it is stored. Du-nigan does not transport the pipe; the customer chooses the transporter.

Dunigan’s sales may be by another route — the sale may be direct from a mill located in Texas or outside of Texas to the customer. In this direct sale the product is shipped directly to the customer without passing through an intermediate step. Du-nigan also sells drilling mud and bits with the actual selection of quantity and quality being done at the well site.

There is no question concerning state sales tax as to any of Dunigan’s sales; however, the comptroller is asserting that Duni-gan owes a local sales tax on tubular goods sold from the storage facilities, on direct sales from the mills, and on the sale of drilling mud and bits. Bullock has filed a motion urging that this court affirm that part of the trial court’s judgment relating to purchases made outside Texas and delivered outside any local taxing jurisdiction pursuant to the decision in Bullock v. Lone Star Gas, 567 S.W.2d 493 (Tex.1978).

In assessing the amount Dunigan owed, the comptroller assigned any sale made in Texas to some city and used Dunigan’s allocation of sales for commission purposes to determine which city each sale should be assigned.

THE COURT: “Now then is it your position that the Comptroller can assign that sale to any city where the taxpayer has a place of business?
A: “It would be to any — It would be to the city that that sale was registered in the books and records of account of that total business in the case of delivery from a warehouse.
THE COURT: “Now say that again. It would be where?
A: “The sale would be allocated or would be set up based on the location whose records recorded that sale when the sale was made or the delivery was made from a — just a warehouse or storage facility. Where the asset was realized, I think, is one of the terms that we use.”

Thus, the comptroller is urging that the local tax should be based on the point where the segregation in inventory, the paper separation, takes place and not on the point where physical segregation occurs.

As to the sales involving tubular goods stored at pipe facilities, the comptroller is contending that these storage facilities are not Dunigan’s places of business and that the sale must be assigned to one of Duni-gan’s places of business (the comptroller assigned them as discussed earlier by the commission records). Dunigan, on the other hand, successfully contended below that these storage facilities were the “place or places where the purchaser or lessee takes possession.”

The trial judge found for Dunigan, and the Comptroller perfected this appeal urging that the trial judge erred in his interpretation of the terms “place of business of the retailer” and “retailer’s place or places,” as used in the Local Sales & Use Tax found in Tex.Bev.Giv.Stat.Ann. art. 1066c Sec. 6 B(l) (Vernon Supp.1978). Specifically, in his first point of error, appellant complains of Conclusions of Law Nos. 4 and 5 holding that pipe storage facilities are Dunigan’s place of business.

The dispute centers around the interpretation of Article 1066c Sec. 6 B(l) (see note 1 supra) as it relates to Article 20.01 et seq., Chapter 20, Title 122A, Limited Sales, Excise and Use Tax Act; See. 6 A of the Local Acts states:

“All applicable provisions contained in Chapter 20 of Title 122A shall apply to the collection of the tax imposed by this Act, except as modified in this Act.”

Comptroller’s argument that the rules and regulations of the Comptroller should determine Dunigan’s “place of business” for purposes of the local sales tax is based upon an erroneous reading of Article 1066c Sec. 6 B(l) which clearly states that such rules and regulations control where the retailer has no permanent place of business in the state. In the instant case Duni-gan has several places of business in the state; therefore, the controlling portion of the statute is as follows:

“If the retailer has more than one place of business . . . the place or places at which retail sales, leases, and rentals are consummated shall be the retailer’s place or places where the purchaser or lessee takes possession and removes from the retailer’s premises the articles of tangible personal property . . . .” (Emphasis supplied.)

While it is clear from a reading of Sec. 6 B(l) that the above section controls all of Dunigan’s sales, it is not clear what “retailer’s place or places” involves.

Senate Bill # 482 amending Article 1066c and signed by the Governor on June 14,1979, will not be considered for purposes of this case as it is effective only after the date of passage.

In Finding of Fact No. 8, the trial judge found the storage facilities where the purchaser took physical possession to be places of business of the retailer, and appellant did not complain of this finding. See Lovejoy v. Lillie, 569 S.W.2d 501, 504 (Tex.Civ.App.—Tyler 1978, writ ref’d n. r. e.), holding that an appellant is bound by material fact findings unless he challenges them.

While, as noted by the trial judge in Conclusion of Law No. 5, neither the state or the local act defines place of business, Texas case law and the facts in the instant case are consistent with Finding of Fact No. 8 that the storage facilities were Duni-gan’s places of business for purposes of the local sales tax. The goods were separated there; Dunigan’s employees had access to them at any time; the goods were shown to the customers there; and, most importantly, the customers took physical possession of the goods at that place.

In both Bullock v. Lone Star Gas Co., 567 S.W.2d 493 (Tex.1978) and Day and Zimmerman, Inc. v. Calvert, 519 S.W.2d 106 (Tex.1975), the assessment of the 4 percent state tax and the 1 percent local tax were considered to have occurred at the same sales step for taxation purposes. In Day the sale took place at the facility where the material was segregated and loaded upon the truck. See also Gifford-Hill and Company v. State, 442 S.W.2d 320, 323 (Tex.1969).

As both 20.01(K) and 1066c place the exact point of sale where physical separation or segregation took place, there is no need to consider the comptroller’s recent definition. Accordingly we affirm the conclusion of the trial judge and overrule appellant’s first point of error.

In his second point, appellant complained of the trial judge’s Conclusions of Law Nos. 6, 7, and 8 arguing that the definition of time of sale found in the State Sales Tax Act determines place of allocation of the local sales tax, under the trial judge’s conclusions, and that it should not.

As these sales are not made by a company that has no place of business in Texas, the first part of 1066c Sec. 6 B(l) allowing the comptroller to determine where the sale should be assessed does not come into play. However, since 1066c Sec. 6 B(l) does not specify where direct sales from mills take place, the State Act should be examined. See 1066c Sec. 6 A quoted above. Article 20.01(K) quoted in full (in note 3) defines sale as taking place where there has been “a transfer of title or possession or segregation in contemplation” of such a transfer.

Under this definition sales where the product goes directly from the mill to the customer should be taxed at the point where the goods are segregated and the customer takes possession of them. See Gifford-Hill & Co., Inc. v. State, 442 S.W.2d 320 (Tex.1969); Bullock v. Lone Star Gas Co., 567 S.W.2d 492 (Tex.1978).

As segregation of drilling mud and bits takes place at the well site itself, there would not be a local tax assessment unless the well site was within a city that had adopted the local tax provision.

Finding Conclusions of Law Nos. 6, 7, and 8 to be correct in assessing where the sale takes place for local tax purposes, we overrule appellant’s second point of error.

The judgment of the trial court is affirmed.

AFFIRMED.

      . “For the purposes of the local sales tax imposed by this Act, all retail sales . . except sales of natural gas or electricity, are consummated at the place of business of the retailer . . . . If the retailer has more than one place of business in the State, the place or places at which retail sales, leases, and rentals are consummated shall be the retailer’s place or places where the purchaser or lessee takes possession and removes from the retailer’s premises the articles of tangible personal property, or if the retailer delivers the tangible personal property to a point designated by the purchaser or lessee, then the sales, leases, or rentals are consummated at the retailer’s place or places of business from which tangible personal property is delivered to the purchaser or lessee.” Tex.Rev.Civ.Stat.Ann. art. 1066c Sec. 6 B(l) (Vernon Supp.1978).

      . This view is bolstered by Tex.Rev.Civ.Stat. Ann., Chapter 20, Title 122A, art. 20.01(K) (Vernon 1969), which defines sale as “any transfer of title or possession, or segregation in contemplation of transfer of title or possession, exchange, barter, lease or rental, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property for a consideration.”

      . Conclusion of Law No. 4: “With respect to sales . . from Plaintiffs inventory located at its pipe facilities, under the facts of this case the purchaser takes possession . at Plaintiffs pipe facility and, for purposes of the Local Act, that is where the sales are consummated. It is not necessary to determine under these facts whether Plaintiffs pipe Plaintiffs pipe facilities are “places of business.” To the extent Plaintiffs pipe facilities were located outside of a city limits or inside of a city limits which has not adopted the Local Act, Plaintiff owes no local sales tax. . . . ”
      Conclusion of Law No. 5: “A ‘place of business’ is not defined by either the State Act or the Local Act. The Comptroller’s determination of a place of business ... is not controlling here where a plain reading of the statute clearly sets forth the place where a sale is consummated with respect to Plaintiff’s inventory sales . .”

      . Appellant did complain about Conclusion of Law No. 4 which stated that a determination of whether pipe facilities are places of business was unnecessary under the facts of this case.


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    Michael Arlen WASH, Appellant, v. Sharon Henson MENN, Appellee.
    No. 8302.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 6, 1979.
    Rehearing Denied Oct. 4, 1979.

      Bob Gibbins, Austin, for appellant.
    Roy Q. Minton, Austin, for appellee.
   CLAYTON, Justice.

This is an appeal from an order denying a temporary injunction sought by appellant to restrain appellee from removing the parties’ minor child from the State of Texas and also from an order granting appellee permission to remove the child from the State.

Appellant, Michael Wash, and appellee, Sharon Menn, were divorced May 28, 1976. Appellee was named managing conservator of the child. The decree provided, inter alia, that appellee was not to “move from the State of Texas with said minor children for a period of more than ninety days without the permission of Michael Arlen Wash or until the court approves such move after notice and hearing.”

Appellee married her present husband in December 1976, and on April 20, 1978, pursuant to the provisions of the divorce decree, appellee filed a motion seeking permission to remove the minor child from the State. Appellant received notice of this motion on April 21, 1978. Appellant then, on April 28, 1978, filed his petition seeking modification of the divorce decree in that he be appointed managing conservator of the minor child, and for a temporary injunction against appellee from removing the child from the State. The hearing on the application for temporary injunction was set for May 1, 1978. At the time of the hearing, the trial court heard appellant’s application for temporary injunction and appellee’s motion to approve the child’s removal. At the conclusion of the hearing, the court dissolved the restraining order which had previously been entered, denied appellant’s application for temporary injunction, denied his request that he be named temporary managing conservator, and granted appellee’s motion to remove the child from the State.

Appellant’s first point complains of error by the court in hearing appellee’s motion to approve the removal of the child from the State in the absence of proper notice being given of such hearing.

When both parties and their attorneys appeared for the hearing on appellant’s request for a temporary injunction, the trial court decided to hear also appellee’s motion to approve the removal of the child from the State. This decision was made for the reason, as stated by the court, that “. . .it seems to me also that the facts and considerations in support of the application for temporary injunction would be essentially the same as those with respect to Mrs. Menn’s motion to take this child out of the State. I am going to hear it all at the same time.” At this time counsel for appellant stated, “Will you just note our exception. . . . My only problem was that we really weren’t prepared to go forward with this hearing today. ... In other words, I was hoping to have the usual and customary something approaching ten days. . I don’t feel that I am prepared to go forward, while I recognize that some of these issues might parallel or dovetail, but I did want to make that abundantly clear not to waive anything under the rules. . Appellant admits he was delivered a copy of appellee’s motion ten days before this hearing. Appellant’s petition for a temporary injunction raised the same issues and involved the same proof as the issues and proof raised in appellee’s motion. It is apparent appellant’s attempt to obtain a temporary injunction was his response to appel-lee’s motion to approve the removal of the child from the State. He sought the very opposite relief which was sought by appel-lee. At the time of the hearing, appellant merely stated orally that he had not received proper notice and stated he was not prepared to hear appellee’s motion because of such short notice. He did not file any written motions setting up any reason for not being ready on such hearing. He merely stated his objections. He did not file a motion for a continuance or for postponement.

If appellant was surprised or needed time in which to prepare or defend against ap-pellee’s motion, it was incumbent upon him to file a written motion for a continuance or otherwise seek, from the trial court, a postponement before he can be heard to complain on appeal. Long v. State, 423 S.W.2d 604 (Tex.Civ.App. — Houston [14th Dist.] 1968, writ ref’d n. r. e.); Texas Power & Light Co. v. Holder, 385 S.W.2d 873 (Tex.Civ.App. — Tyler 1964), writ ref’d n. r. e. per curiam, 393 S.W.2d 821 (Tex.1965). Tex.R. Civ.P. 251 required that continuance be granted only “for sufficient cause supported by affidavit . . .” Before the trial court may exercise its discretion there must be a motion presented in conformity with Rule 251. Arvedson v. Luby, 498 S.W.2d 253 (Tex.Civ.App. — Austin 1973, no writ); Drake v. State, 488 S.W.2d 534, 536 (Tex.Civ.App. — Dallas 1972, writ ref’d n. r. e.).

The hearing on the temporary injunction and motion to remove involved the same issues and involved the same matter of proof. A suit properly invoking the jurisdiction of a court with respect to custody and control of a minor child vests that court with decretal powers in all relevant custody, control, possession, and visitation matters involving the child. The courts are given wide discretion in such proceedings. Leithold v. Plass, 413 S.W.2d 698 (Tex.1967); Ex parte Eaton, 151 Tex. 581, 252 S.W.2d 557 (1952). The trial court properly heard both matters of removal of the child and for temporary injunction at the same hearing, and could properly enter an order in either or both motions. The court properly proceeded to trial in the absence of any proper motions for continuance or request for postponement. This point is overruled.

Appellant next complains of error by the trial court in proceeding with the hearing of appellee’s motion to remove the child from the State “without a jury.”

Appellant does not cite any authority, and we have found none, giving him the right of a trial by jury on appellee’s motion. We hold he was not entitled to a jury upon this type of hearing. The determination of whether to grant permission to appellee to remove the child from the State for a period to exceed ninety days was solely within the discretion of the court. Even if he had been entitled to a jury trial the record discloses he waived the same. Appellant had made a jury fee deposit, but at the time he appeared in court, and immediately preceding the hearing, he did not make any request to the court for a jury; and, in the absence of any such request, the court did not deny him a jury. Appellant had the choice between submitting the fact questions to the court or jury as the trier of facts, but his right to a jury could be waived if he chose that course, which he did by entering upon the hearing without making a request for a jury and making no complaint or objection. Richardson v. Raby, 376 S.W.2d 422 (Tex.Civ.App. — Tyler 1964, no writ); Hernandez v. Light Pub. Co., 245 S.W.2d 553 (Tex.Civ.App. — San Antonio 1952, writ ref’d); Garcia v. Garcia, 526 S.W.2d 152 (Tex.Civ.App. — Corpus Christi 1975, writ ref’d n. r. e.). This point is overruled.

Appellant, by his third and fourth points, urges error in that the trial court abused its discretion by granting appellee permission to remove the child from the State and erred in denying appellant’s request for a temporary injunction against so removing the child.

The appeal from an order granting or denying a temporary injunction is an appeal from an interlocutory order. Appellate review of an order granting or denying a temporary injunction is strictly limited to determination of whether there has been a clear abuse of discretion by the trial court in granting or denying the interlocutory order. Davis v. Huey, 571 S.W.2d 859 (Tex.1978); State v. Southwestern Bell Telephone Co., 526 S.W.2d 526 (Tex.1975); State v. Cook United, Inc., 469 S.W.2d 709 (Tex.1971). Where the evidence is in conflict, an abuse of discretion by the trial court is not shown either in granting or refusing a temporary injunction. Carroll v. Lee, 451 S.W.2d 766, 777 (Tex.Civ.App. — Texarkana 1970, writ ref’d n. r. e.); Scanlan v. City of Houston, 137 S.W.2d 204, 205 (Tex.Civ.App. —Galveston 1940, writ dism’d judg. corr.).

We have carefully reviewed the entire statement of facts and, based upon a review of the evidence and the rules enunciated by the above authorities, we conclude that the trial court, in refusing to grant the temporary injunction in this case, did not abuse its discretion. In refusing to grant appellant’s requested temporary injunction, based upon the same evidence and the matter being within its discretion, the trial court did not abuse its discretion in granting permission to appellee to remove the minor child from the State for a period in excess of ninety days.

The judgment of the trial court is affirmed.

AFFIRMED.


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    RAILROAD COMMISSION of Texas et al., Appellants, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee.
    No. 8295.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 6, 1979.
    Rehearing Denied Oct. 4, 1979.
    J. Scott Wilson, Asst. Atty. Gen., Austin, for appellants.
    William C. Dowdy, Dallas, for appellee.
   CLAYTON, Justice.

This is an appeal from a judgment of the trial court reversing and remanding an order of the Railroad Commission.

Appellee, Missouri Pacific Railroad Company (Railroad), filed its application with the Railroad Commission (Commission) of Texas seeking to discontinue its agency at Atlanta, Cass County, Texas, and to transfer agent service for Atlanta patrons to its Texarkana station. The hearing examiner in his report recommended that the Railroad be granted authority to discontinue its agency at Atlanta, Texas, to make Atlanta a non-agency station, and to transfer the agency functions performed there to its Texarkana Customer Service Center (CSC). The examiner also recommended denial of authority to dismantle the depot (which ruling is not in dispute here). The Commission sustained an exception to this recommendation on the grounds that the Texarkana CSC “is situated in the State of Arkansas and is outside the jurisdiction of the . Railroad Commission,” and denied the Railroad’s application in its entirety.

The Commission overruled Railroad’s motion for rehearing, and the Railroad filed a petition in the district court seeking judicial review of the Commission’s order. Upon hearing by the trial court, motions to dismiss were overruled, and the court “REVERSED and REMANDED to the RAILROAD COMMISSION ... for further proceedings consistent with this Judgment.” From this judgment, the Commission has perfected its appeal.

The Commission’s first point complains of error in overruling its motion to dismiss this cause for lack of jurisdiction for the reason that the Railroad, in its motion for rehearing filed with the Commission, failed to allege any specific error upon which the Commission could reconsider Railroad’s application. The Administrative Procedure and Texas Register Act, Tex. Rev.Civ.Stat.Ann. art. 6252 — 13a, § 16(e) (Vernon Supp.1978), makes the filing of a motion for rehearing a prerequisite to an appeal from any order of an administrative agency. This requirement has been held to be jurisdictional. Hurlbut v. State Board of Insurance, 555 S.W.2d 180 (Tex.Civ.App. —Austin 1977, no writ); Texas State Board of Pharmacy v. Kittman, 550 S.W.2d 104, 107 (Tex.Civ.App. — Tyler 1977, no writ).

The Railroad’s motion for rehearing before the Commission states the order issued by the Commission “is contrary to the law applicable to the case, and is without support in the evidence. . . . ” The purpose of such a motion is to provide notice to the Commission that the moving party is dissatisfied with the Commission’s final order and that an appeal will be prosecuted if the ruling is not changed. Such motion provides the Commission an opportunity for review and reconsideration of its order. The Legislature did not see fit to insert any language into Sec. 16(e), Article 6252-13a, concerning specificity in such motion for rehearing. Moreover, where pleadings are required in administrative proceedings, their validity should not be tested by the technical niceties of pleadings and practice required in court trials. Railroad Commission v. Magnolia Petroleum Company, 130 Tex. 484, 109 S.W.2d 967 (1937); Thacker v. Texas Alcoholic Beverage Commission, 474 S.W.2d 258 (Tex.Civ.App. — San Antonio 1971, no writ). We hold that such motion for rehearing filed by the Railroad with the Commission is sufficient as a prerequisite for appeal, as required by Tex.Rev.Civ.Stat. Ann. art. 6252-13a, § 16(e) (Vernon Supp. 1978).

An appeal from an order of the Railroad Commission is governed by the substantial evidence rule. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (1946). The motion filed by the Railroad was sufficiently specific regarding the primary question for review in the District Court, since it points out the fact that the order issued by the Commission “is contrary to the law applicable to the case, and is without support in the evidence,” thereby specifically pointing out that the order fails to meet the substantial evidence test which is the test for review in this administrative proceeding. Purolator Courier Corp. v. Railroad Commission, 548 S.W.2d 486 (Tex.Civ.App. — Austin 1977, writ ref’d n. r. e.).

The Commission’s second, third, and fourth points complain, in essence, that the trial court erred in concluding the Commission had jurisdiction to grant authority to the Railroad to discontinue the Atlanta agency and to transfer the agency’s functions to the Texarkana station because the latter station was without the jurisdiction of the Commission. The examiner’s Proposal for Decision contains certain findings of fact which were “affirmed, adopted and incorporated” in the Commission’s final order, and thus became the findings by the Commission, as follows:

1. The work force at Atlanta consists of one employee whose time is devoted primarily to receiving and relaying telephone calls for the Texarkana CSC. The clerical work has been handled by Texarkana for three or four years and the carload portion since 1976.
2. Time studies conducted on two typical work days at the Atlanta agency showed the agent spent 52 minutes and 20 minutes, respectively, of productive time during 8-hour shifts.
3. The workload at Atlanta can be readily absorbed by the Texarkana CSC.
4. The Texarkana CSC offers Atlanta patrons direct access to (Railroad’s) • computer facilities which are not available at Atlanta. They can thus obtain information on car orders, billings, tracings, and rates, directly from the CSC at no additional cost.
5. Traffic for Atlanta will continue to be handled out of Texarkana by over-the-road trucks with store-to-door delivery at Atlanta. There will be no change in the handling of freight.
6. As a result of the discontinuance of the Atlanta agency, the Railroad will realize a savings of $20,000 per year.
7. There will be no change in train schedules or operations as a result of the granting of this application.
8. The proposed change makes reasonable provision for the performance of its duties to serve the public.
9. The proposed change will result in improved service to the public at Atlanta.
10.Public convenience and necessity no longer require the physical presence of an agent at Atlanta.

The only basis for denying the application to discontinue the Atlanta agency and to transfer its functions to the Texarkana agency was that “the Texarkana Customer Service Center is situated outside the jurisdiction of the Railroad Commission.” The evidence presented to the Commission was that, with reference to the Texarkana CSC, “part of our offices are in Texas and part of them are in Arkansas.” The address itself is on the Arkansas side, but the building complex and facilities are on both sides. The Texas and Arkansas state line is a common street and “runs right through the middle of our facility at Texarkana.” In view of this evidence, we hold the finding of the Commission that “the Texarkana Customer Service Center is situated outside the jurisdiction of the Railroad Commission” is not supported by substantial evidence.

We are not convinced that the situs of the building in which paperwork for Atlanta is to be performed is the controlling factor. The key inquiry is: What control will the Commission have over Atlanta traffic in order to assure that the public will continue to be adequately served? The Commission’s point of control is, and will continue to be, Atlanta, Texas. Even though the station work is done in Texar-kana, Atlanta will still be the point of arrival and destination for freight, with the same service and schedule as now provided. Atlanta will continue to be a station in the tariffs, and the entire operation will be under the jurisdiction and control of the Railroad Commission which can impose whatever conditions it deems advisable and proper. It can retain jurisdiction for further re-opening and review, should such action become necessary, as is expressly stated in Missouri-Kansas-Texas Railroad Co. v. Fowler, 290 S.W.2d 922 (Tex.Civ.App.— Austin 1956, writ ref’d n. r. e.).

Finding no error, the judgment of the trial court is affirmed.

AFFIRMED.


author: MILLER, Justice.

text:
    Melvin T. EASLEY, Trustee, Appellant, v. PORTFOLIO MANAGEMENT, INC., et al., Appellees.
    No. A2114.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Sept. 12, 1979.
    Rehearing Denied Oct. 10, 1979.
    Larry R. Jones, W. Harold Sellers, Houston, for appellant.
    Joel W. Cook, Schlanger, Cook, Cohn, Mills & Grossberg, Joe Roady, Cox, Paken-ham & Roady, Houston, for appellees.
    Before BROWN, C. J., and MILLER and PAUL PRESSLER, JJ.
   MILLER, Justice.

This is an appeal from a summary judgment in favor of Portfolio Management, Inc. and Sussex Towers, Inc., defendants below. We hold that the judgment was not final and we dismiss the case for want of jurisdiction.

Melvin Easley, Trustee, and plaintiff below, brought suit against five defendants: Portfolio Management, Inc.; Sussex Towers, Inc.; Portfolio Management of Texas, Inc.; Community Investors VIII, Ltd.; and Russell T. Bumbalek, an individual. The plaintiff’s petition alleged the following facts. He had contracted with A.M.I. Investors, Inc. (sometimes called AMI Investments, Inc.) to purchase certain land with improvements located in Harris County. This property was an apartment house known as Sussex Towers which he planned to convert to condominiums. Defendant, knowing of the existing contractual and business relationship, intentionally and maliciously interfered by inducing the plaintiff’s employee, defendant Bumbalek, to reveal to them the plaintiff’s development plans, a trade secret, for the condominium conversion. Defendants then used these plans in order to be able to purchase the property from A.M.I. themselves, thereby preventing the plaintiff from purchasing pursuant to his contract. Plaintiff prayed for specific performance of the contract or, alternatively, that a constructive trust be imposed upon the property for the benefit of plaintiff. He also prayed for $1,000,-000.00 exemplary damages and caused a lis pendens to be placed on the property.

Defendant Portfolio Management, Inc. answered the suit by denying that it at any time had purchased the property at issue but that it was aware that defendant Portfolio Management of Texas, Inc. did enter into a contract with A.M.I. to acquire the land. It subsequently assigned its rights in said contract to defendant Community Investors VIII, Ltd. which purchased the property and then sold it to Sussex Towers, Inc. It also denied knowledge of the trade secrets, and the contractual or business relationships between the plaintiff and A.M.I. Before being served with process Sussex Towers, Inc. filed a petition in intervention asking for declaratory relief. At the time of suit it was the record owner of the property. It claimed it acquired title without notice of any claims to it by the plaintiff and that it never made any use of the plaintiff’s development plans. It also alleged that the plaintiff was estopped to assert that the activities of Portfolio Management of Texas, Inc. were tortious. It prayed for judgment that plaintiff take nothing by his suit and that the lis pendens be removed.

Defendants Portfolio Management, Inc. and Sussex Towers, Inc. moved for summary judgment on the grounds that there was no contract between the plaintiff and A.M.I.; that they never had use of the development plans; that the data for the two projects were not the same; that the plaintiff’s work was not used; and that the development package did not constitute a trade secret and was not the consideration for their purchase. The plaintiff answered the motion by reasserting his original claims. Both sides filed affidavits with attached exhibits. The trial court severed the three nonmoving defendants and rendered summary judgment in favor of Portfolio Management, Inc. and Sussex Towers, Inc. It is from this judgment that plaintiff appeals.

Liberally construed, Gulf, Colorado & Santa Fe Railway Co. v. Bliss, 368 S.W.2d 594 (Tex.1953), the plaintiffs pleadings alleged four causes of action: suit on a contract, tortious interference with contractual relationships, tortious interference with advantageous business relationships and theft of trade secrets. The allegations in his pleadings are directed toward the defendants as a group and do not single out one or the other as to each cause of action; therefore, it appears that each cause of action was alleged against each defendant. The defendants filed no special exception pursuant to Tex.R.Civ.P. 90 in order to clarify or refute this inference. The judgment severs three defendants and proceeds to render judgment against plaintiff on his “claim to a constructive trust and to a right for specific performance” and for defendant Portfolio Management, Inc., and intervenor, Sussex Towers, Inc. The question remains as to whether this judgment also disposes of the plaintiff’s tort claims against these two defendants. Under North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966) we must find that it did unless there is a contrary showing in the record, a showing which would make the judgment “intrinsically interlocutory.” Among other things, the judgment recites that “it is further ordered, adjudged and decreed that the rights, if any, of the plaintiff to maintain an action claiming monetary damages is not prejudiced by entry of this judgment.” As one of the remedies for the tort causes of action is monetary damages, we think that this portion of the judgment expressly leaves these issues to be decided at a later time. The summary judgment before us is only partial and interlocutory and therefore not appealable. The appeal must be dismissed.

      . Any answers filed by the other defendants are not part of this record on appeal.


text:
    TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. James F. BOMER, Appellee.
    No. A2128.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Sept. 19, 1979.
    Charles H. Homer, III, L, Giles Rusk, Werner & Rusk, Houston, for appellant.
    Michael Y. Saunders, Helm, Pletcher, Hogan & Burrow, Houston, for appellee.
    Before J. CURTISS BROWN, C. J., and MILLER and PAUL PRESSLER, JJ.
   MILLER, Justice.

In this worker’s compensation case appellant Insurance Co. urges: (1) error by the trial court in permitting a trial amendment alleging good cause for dilatory filing of appellee’s worker’s compensation claim; (2) there was insufficient evidence for the jury to conclude that good cause existed for such late filing; also insufficient evidence the accident in the course of appellee’s employment was the producing cause of appellee’s disability; and insufficient evidence that appellee is permanently disabled as a result.

For convenience, we will refer to the parties as they existed in the trial court after realignment.

In general, the facts are uncontroverted. On August 6,1974, plaintiff, James F. Bomer, a truck driver employed by Chemical Express Carriers, Inc., was injured when his truck and trailer jack-knifed on Interstate 10 during a rainstorm. He suffered a head injury and his left hand was broken. He was taken to the hospital, treated, and released. On August 26, plaintiff returned to work, but on this day he suffered the first of a series of attacks of dizziness. He has not worked since. Then on October 8 Bomer was hospitalized; later on October 15 he was released without being given a specific cause of his problems.

On March 3, 1975, he was readmitted to the Veterans Administration Hospital where it was determined that the cause of dizziness was a spinal cervical bony spur that compressed the vertebral artery and interrupted the flow of blood when the plaintiff turned his head.

During this hospitalization, on or about March 19, plaintiff filed his notice of claim with the Texas Industrial Accident Board.

On June 13, the spur was reduced surgically, and for a time the dizziness abated, but soon thereafter returned.

In his original pleadings plaintiff alleged timely notice — i. e. within six months — to the Industrial Accident Board. Defendant in its answer specifically denied that timely notice had been filed. There this matter rested until trial.

At the trial, prior to submission of evidence, the trial judge granted plaintiff permission to file a supplemental pleading which alleged good cause for failure to file a timely notice of his claim. The record fails to reveal that defendant objected to this motion, pled surprise, or asked for a continuance at that time. The first objection came in defendant’s objection to the court’s charge to the jury.

In assigning their point of error to the court’s granting leave to file the trial amendment defendant relies on Texas Employers’ Ins. Ass’n v. Dillingham, 262 S.W.2d 748 (Tex.Civ.App. — Fort Worth 1953, writ ref’d n. r. e.) and Burroughs Corp. v. Farmers Dairies, 538 S.W.2d 809 (Tex.Civ.App. — El Paso 1976, writ ref’d n. r. e.). However, neither of those cases are on point. In each, the trial amendment was offered at the conclusion of the testimony and changed the theory of the suit. Here the defendant raised the issue, no claim of surprise or request for continuance was made, and the amended petition was filed prior to the taking of any evidence. Allowance of trial amendments is within the sound discretion of the trial court. No abuse of such discretion is shown here. Tex.R.Civ.P. 63 and 66; Alcazar v. Southwestern Bell Telephone Company, 353 S.W.2d 933 (Tex.Civ.App. — Austin 1962, no writ); State v. Beever Farms, Inc., 549 S.W.2d 223 (Tex.Civ.App. — San Antonio 1977, writ ref’d n. r. e.).

Defendant additionally urges as points of error that no evidence or insufficient evidence was presented for the jury to find that good cause existed for the late filing of the notice to the Industrial Accident Board and that such finding was against the great weight and preponderance of the evidence. The test for determining good cause has been laid down by the Texas Supreme Court as . whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances.” Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370, 372.

There is evidence that plaintiff had been informed by his doctor that he was recovering, and that his suffering was unrelated to his injury. Plaintiff further testified that he was mentally confused prior to the filing of his claim with the Industrial Accident Board.

We conclude that there was sufficient evidence to support the jury’s finding that plaintiff exercised the necessary diligence in filing his claim, and that good cause existed for late filing. Liberty Mut. Ins. Co. v. Stanley, 534 S.W.2d 191 (Tex.Civ.App.—Texarkana 1973, writ ref’d n. r. e.). Harkey v. Texas Employers’ Ins. Ass’n, 146 Tex. 504, 208 S.W.2d 919 (1948).

As further points of error, defendant asserts that no evidence and insufficient evidence were adduced to support the jury’s finding that plaintiff’s injury was a producing cause of any total incapacity, and that such finding was against the great weight and preponderance of the evidence. This court must therefore weigh all of the evidence, including that supporting and contrary to the verdict. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The jury had testimony before it that on plaintiff’s first day at work following the accident he suffered a dizzy spell, that the onset of this disability occurred within a reasonably short time after the accident, and that it was medically possible that the trauma of the accident could cause the symptoms complained of.

Sufficient evidence was presented to support the jury’s finding that the injury in question was a producing cause of the incapacity and such finding was not so against the great weight and preponderance of the evidence as to be manifestly unjust. Texas Employers’ Ins. Ass’n v. Stephenson, 496 S.W.2d 184 (Tex.Civ.App.—Amarillo 1973, no writ).

Finally, the defendant asserts as error the jury’s finding that plaintiff’s disability is permanent, on the basis of no evidence, insufficient evidence, or that such finding is so against the great weight and preponderance of the evidence as to be manifestly unjust.

At the trial, plaintiff’s wife, Norma Bomer, testified that currently the plaintiff “is a man that wants to work and cannot work”. Plaintiff testified that he did not feel any better at the time of the trial than he did immediately after surgery, that he still suffered dizzy spells and that he can never return to truck driving. Thomas A. Bomer, plaintiff’s stepson, testified to the same effect. “Proof of duration and extent of a disability resulting from injury is, like the assessment of damages in a personal injury action, at best an estimate which must be determined by a jury from all the pertinent facts before it”. Texas Employers’ Ins. Ass’n v. Washington, 437 S.W.2d 340, 346 (Tex.Civ.App.—Dallas 1969, writ ref d n. r. e.) and cases cited therein.

There was evidence from which the jury could reasonably conclude that plaintiff’s incapacity is permanent. Texas Employers’ Ins. Ass’n v. Washington, supra; Hartford Accident & Indemnity Co. v. Williams, 516 S.W.2d 425 (Tex.Civ.App.— Amarillo 1974, writ ref’d n. r. e.).

Defendant’s points of error are overruled and the judgment of the trial court is affirmed.

Affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    Howard Jerome OLSON, Appellant, v. The TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. A2122.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Sept. 19, 1979.

      John C. Connolly, Houston, for appellant.
    Joe Resweber, County Atty., David H. Melasky, Asst. County Atty., Houston, for appellee.
    Before J. CURTISS BROWN, C. J., and MILLER and PAUL PRESSLER, JJ.
   J. CURTISS BROWN, Chief Justice.

In a trial de novo in a county court at law, appellant’s driver’s license and automobile registration were suspended. He appeals on the grounds that there was no evidence or, alternatively, factually insufficient evidence to support the judgment.

On August 20,1976, an automobile driven by Howard Olson (appellant) was involved in an accident with an automobile driven by Jayson Stewart. The Texas Department of Public Safety (appellee) thereafter administratively suspended appellant’s driver’s license and automobile registration for his failure to comply with Texas law requiring liability insurance. Appellant sought and obtained a trial de novo in a county court at law. In response to special issues the jury found by a “preponderance of the evidence” that appellant negligently “failed to keep his vehicle on the proper side of the center line of the roadway”; that such negligence was a proximate cause of the accident; that Jayson Stewart suffered compensable personal injuries; and that the car driven by Jayson Stewart had been substantially reduced in market value. Based on those findings, the trial court determined that there was a reasonable probability of a judgment being entered against appellant as a result of the accident and ordered the suspension of appellant’s driver’s license and automobile registration, conditioned on appellant’s deposition of security in the amount of $15,000.00 and filing proof of financial security with the appellee, Texas Department of Public Safety.

In his first three points of error, appellant urges that there was “no evidence” to support the jury’s answers to the liability issues. In determining whether there is “no evidence” to support the jury answers, we must consider only the evidence and inferences which tend to support the findings of the jury and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965).

Article 6701h, § 5(a), (b), and (c), Tex. Rev.Civ.Stat.Ann. (1977), provides that if the owner of an automobile involved in an accident in which personal injuries or property damages of at least $250.00 have resulted, and if “there is a reasonable probability of a judgment being rendered against the person as a result of the accident” the Department of Public Safety may suspend the driver’s license and vehicle registration of such owner. If, after a hearing, the Department has suspended the license and registration of that person, he or she is entitled to an appeal de novo in the county court of the county in which the hearing was held.

It has been determined that “the Department, in an appeal to the county court from an administrative order suspending a driver’s license, if the suspension is to be upheld, is required to prove by competent evidence: 1) the occurrence of an automobile accident in which the affected driver is involved; 2) the geographical location of the accident; 3) the probability of judgment being rendered against such person if suit should be brought against him or her by either the owner or occupants of the other vehicle involved in the accident; and, 4) damages for personal injuries and/or property loss, if any, sustained by any of the other persons.” Texas Dept. of Public Safety v. Nesmith, 559 S.W.2d 443, 445 (Tex.Civ.App.-Corpus Christi 1977, no writ). An essential element of the Department’s burden would be a showing that the owner or operator was at fault, since the lack of such liability would defeat the probability of a judgment being rendered against the person.

In the case at bar, the driver of the other car, Jayson Stewart, testified that he could recall nothing about the accident. The investigating officer stated that he had no opinion as to how the accident may have occurred and no eye witnesses to the accident testified. Photographs introduced into evidence give no indication as to how the accident occurred, nor were they introduced for that purpose. Appellant did not testify by deposition or otherwise. As a result, the record contains insufficient evidence from which any deductions as to liability could be drawn by the jury.

The officer testified that the debris from the collision was concentrated mainly in the southbound lane, perhaps indicating that one car had crossed the center stripe of the road. The record does not show, however, the direction the cars were traveling when the collision occurred. Thus, there is not even circumstantial evidence from which the jury could determine liability. Appellee contends that the investigating officer prepared a blackboard sketch of the scene to depict the final resting position of the automobiles at the accident and that the jury could infer from that sketch and from the officer’s testimony that appellant negligently drove his automobile over the center line. That sketch was neither offered nor admitted into evidence. As a consequence it was not preserved as a part of the record.

The department must show that there is a reasonable probability of judgment being rendered against the appellant. We agree with appellee’s contention that this involves a lesser standard of proof than required in the usual civil case for damages. The hearing and the trial de novo are not intended to adjudicate the rights and liabilities of the uninsured motorist but rather, the purpose is to determine if there is a reasonable probability that the motorist may be liable in a civil case. A full adjudication of the issue of liability is not required under the statute.

Some credible evidence, however, must be introduced and preserved as part of the record in order to support the findings and the judgment. Since there is some ■evidence to suggest a head on collision, if it could be determined in which direction the cars were traveling at the time of the collision, then the record might contain some evidence sufficient to satisfy this lesser standard of proof. The evidence has not been fully developed on the issue of liability. Therefore, the cause should be remanded for a new trial instead of rendering, in order to better serve the interest of justice. Tex.R.Civ.P. 434.

We reverse and remand the cause to the trial court.

Reversed and remanded.


author: MOORE, Justice.

text:
    Tisbey A. BATH, Individually and as Independent Executor of the Estate of Gertrude Bath, Deceased, Appellant, v. Paul BATH, Appellee.
    No. 1218.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 20, 1979.
    Rehearing Denied Oct. 25, 1979.
    Glenn A. Perry, Wellborn, Houston, Bailey & Perry, Henderson, for appellant.
    Frank Supercinski, Longview, for appel-lee.
   MOORE, Justice.

This is an appeal from an order granting a partial summary judgment. Plaintiff, Tisbey A. Bath, individually and as Independent Executor of the estate of his mother, Gertrude Bath, instituted suit against defendant, Paul Bath, seeking to recover the sum of $10,243.57, alleged to be Paul Bath’s pro rata share of additional federal estate taxes that was assessed and reduced to judgment after Paul’s share of the estate had been distributed to him. Plaintiff also sought a recovery against Paul for his pro rata share of the attorneys’ fees expended in defending the tax suit in the amount of $3,594.98, and further sought a recovery for attorney fees in the amount of $4,500.00 incurred in the prosecution of the present suit. Defendant answered with a general denial and set up several affirmative defenses. Both parties filed a motion for summary judgment. After a hearing the trial court granted the plaintiff, Tisbey A. Bath, as Independent Executor, a summary judgment for $10,243.57, representing Paul’s pro rata share of the additional estate taxes, but refused to grant judgment on plaintiff’s claims for attorney fees. The court denied Paul’s motion for summary judgment. Thereafter each party duly perfected separate appeals from the judgment.

We have concluded that the order of the trial court is interlocutory in nature, and that this court is therefore without jurisdiction to entertain the appeal of either party. A summary judgment that does not dispose of all the parties and all issues involved in the pending suit is not final and is not appealable unless the issues not adjudicated are severed by an express order. In the absence of a formal severance, a partial summary judgment is interlocutory and not appealable. Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200 (1959); Clabaugh v. City of Tyler, 531 S.W.2d 152 (Tex.Civ.App. —Tyler 1975, no writ); Zambrano v. Olives, 477 S.W.2d 299 (Tex.Civ.App. — El Paso 1972, no writ); 4 R. McDonald, Texas Civil Practice sec. 17.04(B) (rev.1971).

While the summary judgment in the present case adjudicates the plaintiff’s claim for reimbursement for additional estate taxes paid by the estate, it leaves the plaintiff’s claims for attorney fees in the tax suit and the attorney fees incurred in this suit untried and unadjudicated. There being no order of severance the judgment is interlocutory and not appealable. A right of appeal will accrue to each party when, and not before, the partial summary judgment is merged in a final judgment disposing of the whole case. Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., supra.

Since we are without jurisdiction, it becomes our duty to dismiss the appeal even though the issue was not raised by either party. Commercial Standard Insurance Co. v. Stonewall Insurance Co., 469 S.W.2d 310 (Tex.Civ.App. — Eastland 1971, no writ); Zambrano v. Olives, supra.

The appeal is dismissed.

      . By an order entered by this court the appeals were consolidated.