author: McCLOUD, Chief Justice.

text:
    Shearn MOODY, Jr., Appellant, v. EMPIRE LIFE INSURANCE COMPANY OF AMERICA et al., Appellees.
    No. 5136.
    Court of Civil Appeals of Texas, Eastland.
    Aug. 10, 1978.
    Rehearing Denied Sept. 21, 1978.

      Ronald E. Holub, Newman, Shook & Newman, Dallas, Frederick J. Lawson, Galveston, for appellant.
    Thomas M. Pollan, Asst. Atty. Gen., Shannon H. Ratliff, McGinnis, Lochridge & Kilgore, James R. Irion, III, State Board of Ins., Austin, for appellees.
   McCLOUD, Chief Justice.

At issue in the trial court was the validity of an assignment of the right to receive a portion of the “death proceeds” payable under three “term” life insurance policies. The total amount payable under the policies upon death of the insured was $12,000,000. Shearn Moody, Jr., the insured, the Receiver of Empire Life Insurance Company of America, the owner and beneficiary of the policies, and Protective Life Insurance Company, the assignee of the death proceeds, each sought a declaratory judgment as to the assignee’s “insurable interest” in the life of the insured. Empire State Life Insurance Company, National Western Life Insurance Company, and North America Life Insurance Company, were made parties based upon allegations they were either the insurer or reinsurer of the policies in question. The insured, Moody, contended the assignment was void because the as-signee had no insurable interest in Moody’s life. In a nonjury trial, based on stipulated facts, the trial court found, among other things, the assignee had an insurable interest and the assignment was valid. We will reverse and dismiss the cause. The insurable interest issue did not present a justicia-ble controversy.

Shearn Moody, Jr., was the principal stockholder, chief executive officer, president, and chairman of the board of directors of Empire Life Insurance Company of America, which was domiciled in the State of Alabama. In 1963, Moody assigned to Empire a portion of his life estate interest in a trust created by the will of Libbie Shearn Moody. The assigned interest was thereafter carried by Empire as an asset. $12,000,000 in term life insurance was taken out on Moody’s life with Empire named in the policies as owner and beneficiary. The policies were acquired because the trust asset assigned to Empire by Moody was only an interest in income from the trust for the life of Shearn Moody, Jr., and would terminate on Moody’s death. The trust interest could not be carried as an asset except to the extent that its value was covered by insurance on the life of Moody. On or about December 31, 1972, National Western Life Insurance Company became the insurer under the policies in question. In 1972, Empire was placed in receivership and the Insurance Commissioner of Alabama was appointed Receiver. Thereafter, Herbert Crook was appointed Ancillary Receiver of Empire in the State of Texas. Both the Alabama and Texas receivership courts authorized the Receiver to enter into a Treaty of Assumption and Bulk Reinsurance with Protective. Under the Treaty of Assumption the Receiver agreed to transfer to Protective 40% of the life interest of Shearn Moody in l/8th of the income from the Libbie Shearn Moody Trust. The Treaty, by amendment, provided that the Receiver would transfer “possession” of the insurance policies to Protective and assign to Protective the “right to receive death proceeds” from the policies in the amount of $4,350,000. The Treaty expressly stated that notwithstanding the transfer of possession of the policies to Protective, the Receiver would remain the owner and beneficiary of the policies. Included in the amendment was a provision for annual adjustment of the “assignment of proceeds of said policies ... so that such assignment equals the then current value of the interest of Protective in the Libbie Shearn Moody Trust assigned hereunder . ” The amendment further provided for the assignment of the policies and the naming of Protective as owner and beneficiary under certain conditions. On May 12, 1975, an Agreement to Effectuate the Treaty of Assumption and Bulk Reinsurance was entered into by the Receiver for Empire and Protective. The Alabama receivership court approved the agreement and notice of implementation was given to the Texas receivership court. On May 13, 1975, the Alabama Receiver executed an assignment of all of Empire’s right, title and interest in and to all proceeds due to Empire on account of the insurance policies in question on the life of Moody. The assignment provided that after payment in full to Protective as provided in the Treaty, the remaining proceeds should be forthwith paid over to the Receiver. The Alabama receivership court has approved the assignment. The life estate interest in the Libbie Shearn Moody Trust has been assigned a value of $4,250,000 on the books of Protective.

It is only the assignment of the right to receive these “death proceeds” that is in issue in the instant appeal. Much related litigation, however, has occurred. See: Day v. State, 489 S.W.2d 368 (Tex.Civ.App.—Austin 1973, writ ref’d n. r. e.); Empire Life Insurance Company of America v. State, 492 S.W.2d 366 (Tex.Civ.App.—Austin 1973, no writ); Moody v. Jones, 519 S.W.2d 536 (Tex.Civ.App.—Austin 1975, no writ); Moody v. State, 520 S.W.2d 452 (Tex.Civ.App.—Austin), aff’d per curiam, 547 S.W.2d 958 (Tex.1977); Moody v. Crook, 520 S.W.2d 958 (Tex.Civ.App.—Austin 1975, no writ); Moody v. Moody National Bank of Galveston, 522 S.W.2d 710 (Tex.Civ.App.—Houston (14th Dist.) 1975, writ ref. n. r. e.); Moody v. State, 538 S.W.2d 158 (Tex.Civ.App.—Waco 1976, writ ref. n. r. e.); Moody v. State of Texas, 539 S.W.2d 354 (Tex.Civ.App.—Beaumont 1976, writ ref’d n. r. e.); and Moody v. State ex rel. Payne, 295 Ala. 299, 329 So.2d 73 (1976).

This is an appeal of a severed issue. The only matter before the trial court and the only issue before us on appeal is the issue of “insurable interest”. This is clear from the trial court’s severance order. In its judgment granting the relief sought by Herbert Crook, Ancillary Receiver of Empire Life Insurance Company and by Protective Life Insurance Company, the court declared:

“1. Herbert Crook, Ancillary Receiver of Empire Life Insurance Company of America, as statutory successor to Empire Life Insurance Company of America, has, and at all times pertinent to this suit had, a present insurable interest in the life of Shearn Moody, Jr., for the full amount of the life insurance policies on the life of Shearn Moody, Jr., in which Empire Life Insurance Company of America is the beneficiary, to-wit: Twelve Million Dollars ($12,000,000);
2. That the right to receive the proceeds from such policies upon the death of the insured is presently assignable by Herbert Crook, Ancillary Receiver, acting by and for the named beneficiary Empire Life Insurance Company of America, in an amount equal to Four Million Three Hundred Fifty Thousand Dollars ($4,350,-000), and that he may assign additional amounts equal to any greater value assigned by the Alabama Insurance Departs ment to the life estate heretofore transferred to Protective under the Treaty of Bulk Reinsurance, heretofore approved by this Court;
3. That Neither Empire State Life Insurance Company, National Western Life Insurance Company or North America Life Insurance, nor any of them, have any defense to payment of such policies based upon any claim of a lack of insurable interest in Protective Life Insurance Company of Birmingham, Alabama, from and after the assignment of proceeds as declared valid in the preceding paragraph;
4. That Protective Life Insurance Company has an insurable interest in the life of Shearn Moody, Jr., for so long as it has title to the life estate interest of Shearn Moody, Jr., transferred to it under the Treaty of Bulk Reinsurance, and that such present insurable interest is equal to Four Million Three Hundred Fifty Thousand Dollars ($4,350,000); and
5. That Protective Life Insurance Company’s insurable interest declared above shall increase in the event the life estate interest of Shearn Moody, Jr., is revalued by the Alabama Insurance Department at a greater amount than Four Million Three Hundred Fifty Thousand Dollars ($4,350,000).
All other relief not expressly granted herein is denied.”

The issue between the parties in the trial was whether Protective, the assignee of Empire, had an insurable interest in the life of Moody. The Empire Receiver and Protective argue that Protective has an insurable interest under the rule announced in Drane v. Jefferson Standard Life Ins. Co., 139 Tex. 101, 161 S.W.2d 1057 (1942), since Protective has “a reasonable expectation of pecuniary benefit or advantage from the continued life” of Moody. Moody argues the language relied upon by the Receiver and Protective is not applicable because as stated in Drane, the insurable interest under that classification is determined by monetary considerations as viewed from the standpoint of the beneficiary, and under the facts in the present case, possible death benefits of $12,000,000, Protective might be led to conclude that it would profit by Moody’s death. Moody also points out that Article 3.49-1 of the Texas Insurance Code is not applicable because the insured, Moody, did not designate Protective as the beneficiary or owner under the policies.

The rule was established early in Texas that the assignee of an insurance policy must have an insurable interest in the life of the insured. Price v. Supreme Lodge Knights of Honor, 68 Tex. 361, 4 S.W. 633 (1887); Cheeves v. Anders, 87 Tex. 287, 28 S.W. 274 (1894). Article 3.49-1 of the Insurance Code expressly states that any beneficiary or owner designated by an insured of legal age in a legal reserve or mutual assessment company insurance policy shall have an “insurable interest” in the life of the insured. Sec. 2 of Article 3.49-1 provides that such insured may assign or transfer such policy or any interest therein, and the assignee shall have an insurable interest in the life of the insured. McCain v. Yost, 155 Tex. 174, 284 S.W.2d 898 (1955). Article 10.12 of the Insurance Code authorizes a member of a fraternal benefit society, to the extent permitted by the laws of the society, to designate that the benefits be paid to a person or entity having no insurable interest in the life of the member. Castillo v. Canales, 141 Tex. 479, 174 S.W.2d 251 (1943); and Welch v. Woodmen of the World Life Ins. Soc., 175 S.W.2d 94 (Tex.Civ.App.—Fort Worth 1943, writ ref’d). The statutes do not, however, abolish the requirement of insurable interest where the statutes are inapplicable. United Benefit Life Ins. Co. of Omaha v. Boyd, 453 S.W.2d 332 (Tex.Civ.App.—El Paso), aff’d per curiam, 457 S.W.2d 893 (Tex.1970); North River Insurance Co., New York, N. Y. v. Fisher, 481 S.W.2d 443 (Tex.Civ.App.—Amarillo 1972, writ ref. n. r. e.). An insurable interest, when required, is necessary in Texas both at the time the policy is issued and when the benefits are payable. Cheeves v. Anders, supra, Covington v. Covington, 271 S.W.2d 849 (Tex.Civ.App.—Dallas 1954, no writ); 32 Tex.Law Rev. 346 (1954); 21 Tex.Law Rev. 650 (1943).

It would not be proper to determine the insurable interest issue prior to the time death benefits are payable under the policies in question. In declining to declare the insurable interest issue prior to the death of the insured, the court in Roberts v. Southwestern Life Ins. Co., 244 S.W.2d 302 (Tex.Civ.App.—Dallas 1951, writ ref. n. r. e.), said:

“ ‘. . . the courts will not render a declaratory judgment as to future rights, but just as in ordinary actions will wait until the event giving rise to the rights has happened, or, in other words, until the rights have become fixed under an existing state of facts.’ 16 Am.Jur., sec. 18, p. 292. In major respects, a policy of insurance, like a will, speaks at time of death. Cole v. Browning, Tex.Civ.App., 187 S.W.2d 588. The beneficiaries named in these policies may predecease Mr. Roberts; the proceeds then devolving ipso facto upon the executors and administrators of assured, with all questions herein raised becoming moot. If, on the other hand, appellants are living when the proceeds of policies are payable, it will be time enough to determine whether Aliene Roberts is entitled to receive the same perforce of her asserted debtor-creditor relationship; if not, whether Flora Ghris-key, having an undoubted insurable interest, would be qualified to take in the place and stead of a primary but ineligible beneficiary.”

Our Supreme Court in Firemen’s Ins. Co. of Newark, New Jersey, v. Burch, 442 S.W.2d 331 (Tex.1969) pointed out that under the Texas Constitution the judicial power does not embrace the giving of advisory opinions. The court stated:

. . the Declaratory Judgments Act gives the court no power to pass upon hypothetical or contingent situations, or determine questions not then essential to the decision of an actual controversy, although such questions may in the future require adjudication.”

After stating that “iffy” questions would lead to judicial wheel spinning for nothing, the court added:

“We can well appreciate that the parties would prefer a definite answer by this court to the questions posed by petitioner’s points rather than to take an ‘educated guess’ based upon a study of our prior decided cases and authoritative materials as to what we would hold — as, if and when the questions are presented in justiciable form. However, the giving of advice as to proposed or possible settlements is not a judicial function. As a practical matter if for no other reason, this must be left to the profession."

In refusing to render an advisory opinion, the court in Reuter v. Cordes-Hendreks Coiffures, Inc., 422 S.W.2d 193 (Tex.Civ.App.—Houston (14th Dist.) 1967, no writ), stated:

“We are of the opinion that the plaintiffs’ proof in this record presents no ‘actual, genuine, live, controversy.’ A declaratory judgment in this instance would be in the nature of an advisory opinion that might or might not affect the future relations of the parties, that might or might not afford ‘specific relief,’ that might or might not affect the ‘legal relations’ of the parties. Whether or not it did so, in each instance, would have to be later determined by what, if any, subsequent action the parties took. ‘The court will not declare rights on facts which have not arisen or adjudicate matters which are contingent, uncertain, or rest in the future. A future right or interest which is dependent on a contingency or event which may never happen is not the proper subject of a declaratory judgment.’ 26 C.J.S. Declaratory Judgments § 28, p. 104.”

See also: California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960); A. P. Simons Company v. Julian, 531 S.W.2d 451 (Tex.Civ.App.—Eastland 1975, no writ); Fort Worth Lloyds v. Garza, 527 S.W.2d 195 (Tex.Civ.App.—Corpus Christi 1975, writ ref. n. r. e.); Orange Ind. School Dist. v. West Orange Ind. School Dist., 390 S.W.2d 81 (Tex.Civ.App.—Beaumont 1965, writ ref. n. r. e.); Laborers’ Int. U. of N. A., Const., Etc. v. Blackwell, 482 S.W.2d 327 (Tex.Civ.App.—Amarillo 1972, no writ); Cowan v. Cowan, 254 S.W.2d 862 (Tex.Civ.App.—Amarillo 1952, no writ).

The “death proceeds” in issue will only become payable if the policies in question are in effect at the time of Moody’s death. The proceeds may never be payable. If the policies are in effect at Moody’s death, the Empire Receiver or Protective may or may not, be the named beneficiary or owner at that time. The parties seek the answer to a hypothetical or contingent question. If the death benefits become payable, and if at that time Protective is the assignee of all or a portion of such proceeds, then the issue of Protective’s insurable interest will present a justiciable controversy. Those contingent conditions have not occurred and may never occur.

There is no justiciable controversy. The judgment of the trial court is reversed and the cause is dismissed for want of jurisdiction.


source: Caselaw Access Project

author: DODSON, Justice.

license: Public Domain

text:
    RIVERSIDE INSURANCE COMPANY OF AMERICA, Appellant, v. Bettie J. CARGILL, Appellee.
    No. 8906.
    Court of Civil Appeals of Texas, Amarillo.
    Aug. 14, 1978.
    Rehearing Denied Sept. 18, 1978.
    Crenshaw, Dupree & Milam, Cecil C. Kuhne, Lubbock, for appellant.
    Walters & Associates, Carolyn L. Jordan, Lubbock, for appellee.
   DODSON, Justice.

This is an appeal from a summary judgment in which Bettie J. Cargill, appellee-plaintiff, collected $2,549.55 plus attorney’s fees, penalty and interest under an automobile insurance policy issued by Riverside Insurance Company, appellant-defendant. The contested provision provides for the insurer to pay all reasonable expenses incurred within one year from the date of the accident for necessary medical and other specified services not to exceed $5,000. The parties stipulated that Bettie J. Cargill received treatment totaling $2,450.45 within one year of her November 1,1974, accident. She commenced this action to obtain $2,549.55 for treatment incurred more than one year following the accident. Both parties moved for summary judgment. The trial court granted Mrs. Cargill’s motion while denying Riverside’s motion. Riverside appeals. We reverse and render.

The pertinent provision of the insurance policy provides:

PART II — EXPENSES FOR MEDICAL SERVICES
Coverage C — Medical Payments. To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services.

We are called upon to determine the legal effect to be given the language “expenses incurred within one year from the date of the accident.”

Mrs. Cargill began receiving medical treatment for her injuries on the date of the accident and was continuing to receive treatment at the time she filed this cause of action. Her claim is for medically related services which were rendered, charged and paid for more than one year from the date of the accident.

Mrs. Cargill maintains that all of her medically related expenses were incurred in the legal sense when she was injured in the accident. She asserts as immaterial the fact that medical services were not contracted for, rendered or paid within the policy’s one year period. In essence, she says that the one year provision is legally inoperative.

In support of her position Mrs. Cargill directs us to the language in Maryland Casualty Company v. Thomas, 289 S.W.2d 652, 655 (Tex.Civ.App.—Amarillo 1965, writ ref’d n. r. e.) where the court stated:

[W]e think appellant became liable to ap-pellee for ‘all reasonable expenses . caused by the accident’ on the day it occurred. A debt has been incurred when liability attaches; a contingency promise to pay has been incurred when the contingency upon which the payment depends occurs. It was then known that appellant would be liable for Kim’s injuries only to the extent of a total of $1000 (limit of policy) and no more. However, in our opinion, appellant was liable for all reasonable expenses not to exceed $1000 for the repairs of Kim’s injuries caused by the accident whether the services correcting them have or have not been performed within one year from the date of the accident.

This language, however, must be viewed in context with the pertinent facts.

In Thomas, as pointed out in Marroquin v. Trinity Universal Insurance Company, 394 S.W.2d 246, 247 (Tex.Civ.App.—Fort Worth 1965, no writ) (emphasis added), the pertinent facts were:

[A] nine year old boy was injured in an automobile accident. Extensive dental work was necessary but, because of the age of the boy and the necessity of a bridge, the work could not be done until he had permanent teeth to which a bridge could be anchored. Within one year following the date of the accident, the father of the boy contracted with and paid a fixed amount to a dentist for the services to be rendered. Under the facts, it was held that the expenses had been “incurred” within the one year period.

Thus, in Thomas,'the significant factor was the prepayment, within one year of the accident, of contemplated but postponed dental services to the young boy which were medically infeasible to be performed within the one year period.

Mrs. Cargill also relies on Humphries v. Puritan Life Insurance Co., 311 So.2d 534 (La.App.1975); Valladares v. Monarch Insurance Co., 282 So.2d 569 (La.App.1973), and Farr v. Travelers Indemnity Co., 84 Misc.2d 189, 375 N.Y.S.2d 229 (Sup.Ct.1975) which took the view that all reasonable medical services for the treatment of injuries sustained in the accident are incurred on the date of the accident, regardless of when such services are performed, charged or paid. We note, however, that Farr properly cites Thomas for the proposition that liability attaches when payment is made within the policy’s prescribed period for services later performed.

On the other hand, the Insurance Company maintains that by paying all medical services charged or rendered to Mrs. Cargill during the one year period from the date of the accident its liability under the policy is consummated. To support its contention the Insurance Company relies on Marroquin v. Trinity Universal Insurance Co., supra; Hein v. American Family Mutual Insurance Co., 166 N.W.2d 363 (Iowa 1969); Lefebvre v. Government Employees Insurance Co., 110 N.H. 23, 259 A.2d 133 (1969); Nagy v. Lumbermens Mutual Casualty Company, 100 R.I. 734, 219 A.2d 396 (1966); Reserve Life Insurance Co. v. Coke, 254 Miss. 936, 183 So.2d 490 (1966); Czarnecki v. American Indemnity Co., 259 N.C. 718, 131 S.E.2d 347 (1963). See also Northwestern National Life Insurance Co. v. Glenn, 568 S.W.2d 693 (Tex.Civ.App.—Fort Worth, 1978). These cases represent the prevailing view that medical expenses are incurred (under the same or similar policy provisions as before us) when the expenses are charged, paid, obligated to be paid, prepaid or the services are rendered or performed within one year from the date of the accident. This view supports the result reached in Thomas upon its pertinent and controlling facts (prepayment of expenses within one year for postponed services).

Mrs. Cargill makes no contention that within one year from the date of the accident she prepaid for any postponed, planned or contemplated medical treatment which was medically infeasible to be performed within one year from the date of the accident. Absent such showing, we do not credit the quoted language from Thomas relied upon by Mrs. Cargill, which is consistent with the out-of-state view expressed in Valladares, Humphries and Farr, as representing the current view in Texas. Rather, we conclude that under the prevailing view the policy provision in the case at bar obligates the Insurance Company only for the medical services rendered to Mrs. Cargill or paid within one year from the date of the accident, and consequently the company is not liable for any services rendered, charged or paid for by Mrs. Cargill after the expiration of the one year period.

This holding is in keeping with the rule of construction that requires us to give plain and ordinary meaning to the term “expenses incurred within one year from the date of the accident” since the term is not defined in the insurance policy. De La Cruz v. Combined American Insurance Co., 527 S.W.2d 820, 821 (Tex.Civ.App.—Amarillo 1975, writ ref’d n. r. e.). For us to hold the Insurance Company liable for all reasonable services rendered to Mrs. Cargill (not to exceed the $5,000 policy limit) for injuries received by her in the accident, we would necessarily have to rewrite the provision “[t]o pay all reasonable expenses incurred within one year from the date of the accident . . .’’to read “to pay all reasonable expenses incurred from the date of the accident,” thereby deleting the phrase “within one year.” This we decline to do. The Insurance Company’s points of error are sustained.

Accordingly, the judgment of the trial court is reversed and judgment is here rendered that Bettie J. Cargill take nothing by her cause of action against Riverside Insurance Company of America. All costs are charged to Mrs. Cargill.


author: ROBINSON, Chief Justice.

text:
    Linda Elayne REXROAT, Individually and as next friend of Melony Marie Rexroat, a minor, et al., Appellants, v. Terry Wayne PRESCOTT, Appellee.
    No. 8892.
    Court of Civil Appeals of Texas, Amarillo.
    Aug. 14, 1978.
    Rehearing Denied Aug. 18, 1978.

      Templeton & Garner, John Judge, Amarillo, for appellants.
    Gibson, Ochsner & Adkins, Danny M. Needham, Amarillo, for appellee.
   ROBINSON, Chief Justice.

Plaintiffs appeal from an order of the trial court sustaining the plea in bar of the defendant Prescott, one of two alleged joint tortfeasors in an accident causing plaintiffs’ injuries. Reversed and remanded.

Plaintiffs filed suit for damages for injuries sustained in an intersection collision involving three vehicles. Defendant Terry Wayne Prescott was stopped in his jeep, preparing to make a left turn at an intersection. Plaintiffs’ vehicle approached the intersection from the opposite direction. Defendant John Thomas Cooksey’s car struck defendant Prescott’s jeep from the rear with such force that it crossed the intersection and collided with plaintiffs’ car. Plaintiff Linda Rexroat suffered injuries, including a fractured elbow and tendon damage to her arm. Her daughter Melony Rexroat, a minor, suffered facial and dental injuries. Two other passengers in the Rex-roat car, Kevin and Kerin Crone, both minors, received cuts and bruises. Intervenor, John Paul Evans, a passenger in the Prescott jeep, sustained a knee injury. Plaintiffs alleged that the collision and resulting damages were proximately caused by acts of negligence on the part of both Cooksey and Prescott.

Cooksey’s insurance company filed a plea in intervention, tendered into court the $20,000.00 bodily injury liability policy limits, and asked the court to apportion the sum among the claimants. After a hearing, the trial court signed an instrument denominated “ORDER APPROVING SETTLEMENT BETWEEN CERTAIN PARTIES AND DIRECTING DISBURSEMENT OF FUNDS HELD IN THE REGISTRY OF THE COURT.” The order recited that the parties were ready for hearing before the Court on the question of distribution and apportionment. The order further recited that settlement had been reached with John Thomas Cooksey so that the funds could be distributed and Cooksey and his insurance carrier released without a trial on the merits. The court approved the settlement. The order included the following language:

IT IS ACCORDINGLY ORDERED, ADJUDGED AND DECREED by the Court that LINDA ELAYNE REXROAT, individually and in her representative capacity, MELONY MARIE REXROAT, PAULETTE CRONE, individually and in her representative capacity, KEVIN ALLAN CRONE, KERIN ALICE CRONE and JOHN PAUL EVANS recover judgment against JOHN THOMAS COOKSEY in the sum of $19,642.00.

The court then apportioned and ordered distributed the $19,642.00 sum. Three hundred fifty eight dollars ($358), representing the amount of money previously paid to Terry Wayne Prescott in settlement for his personal injuries, was returned to the insurance company. After rendition of the order approving settlement, Linda Rexroat, individually and as next friend of Melony Marie Rexroat, Paulette Crone, individually and as next friend of Kevin Allan Crone and Kerin Alice Crone, and John Paul Evans executed a release of Cooksey and his insurance carrier. The funds apportioned to each were withdrawn from the registry of the court. Prescott was not a party to the settlement.

Defendant Prescott then filed a plea in bar contending that the plaintiffs’ claims against Prescott were extinguished when plaintiffs “severally obtained judgment against John Thomas Cooksey and received and accepted the funds tendered in full satisfaction and discharge of that judgment.” The trial court sustained the plea in bar. Plaintiffs appeal.

The sole question for our determination is whether payment of a judgment or order apportioning and approving a settlement involving a minor is a bar to further action against a concurrent tortfeasor who is not a party to the settlement and is not mentioned in any attendant releases.

There is a difference between satisfaction of damages and a release.

A satisfaction is an acceptance of full compensation for the injury; a release is a surrender of the cause of action, which may be gratuitous, or given for inadequate consideration.
* * * * * *
Until quite recent years, most of the courts have continued to hold that a release to one of two concurrent tortfeasors is a complete surrender of any cause of action against the other, and a bar to any suit against him, without regard to the sufficiency of the compensation actually received.

Prosser, Law of Torts, § 49 at 301 (4th Ed. 1971). The Supreme Court of Texas in McMillen v. Klingensmith, 467 S.W.2d 193 (Tex.1971), repudiated the rule that a release of one of two or more tortfeasors is a release of the others. The Supreme Court said:

We hold that a release of a party or parties named or otherwise specifically identified fully releases only the parties so named or identified, but no others.

467 S.W.2d at 196. The Court expressly preserved the rule that a claimant in no event will be entitled to recover more than the amount required for full satisfaction of his damages.

Thus under Klingensmith a contractual release discharges only the parties named therein. On the other hand, acceptance of satisfaction of a judgment against one of two or more joint tortfeasors releases all defendants, and they may plead judgment and satisfaction in another suit by the same plaintiff involving the same action. T. L. James & Co., Inc. v. Statham, 558 S.W.2d 865 (Tex.1977); Hunt v. Ziegler, 271 S.W. 936 (Tex.Civ.App.—San Antonio 1925), affirmed 280 S.W. 546 (Tex.Com.App.1926, jdgmt adopted); Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703 (1935).

The question before us arises because a minor plaintiff may not settle with and release one joint tortfeasor without the approval of the court. Rule 44, Tex.R. Civ.P., provides for representation of minors by a next friend and for settlement of their causes of action as follows:

Minors, lunatics, idiots, or persons non compos mentis who have no legal guardian may sue and be represented by “next friend” under the following rules:
* * * * * *
(2) Such next friend or his attorney of record may with the approval of the court compromise suits and agree to judgments, and such judgments, agreements and compromises, when approved by the court, shall be forever binding and conclusive upon the party plaintiff in such suit.

The procedure used for settlement under Rule 44 has been the so-called “friendly suit.” See Brightwell v. Rabeck, 430 S.W.2d 252 (Tex.Civ.App.—Ft. Worth 1968, writ ref’d n. r. e.).

The Court in Leong v. Wright, 478 S.W.2d 839 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ ref’d n. r. e.) considered whether such a judgment apportioning and approving a settlement involving a minor in a case against two or more tortfeasors would bar a cause of action against non-settling tortfeasors. The Court held:

The judgment was entered solely because a minor was involved and because the law requires such a procedure. Liability was denied, the customary releases and covenants not to sue were executed, and the judgment released. Under the circumstances, the formal judgment entered carried no more weight than the ordinary settlement agreement, covenant not to sue, and the indemnity agreement.

We believe that the foregoing language from Leong is applicable to the facts before us. To hold otherwise would mean that a minor would be forced to either forego any benefits that he might obtain by settling with and releasing one defendant or give up his entire claim against the other defendant without full compensation. We conclude that the judgment apportioning and approving the settlement with Cooksey and the withdrawal of the funds thereunder is not a bar to plaintiffs’ cause of action against Prescott.

The judgment of the trial court sustaining the plea in bar and decreeing that plaintiffs take nothing against Thomas Wayne Prescott is reversed and the cause remanded to the trial court.


author: McDONALD, Chief Justice.

text:
    Lee Etta BOOKER, Appellant, v. Charles Oscar HILL, Appellee.
    No. 5912.
    Court of Civil Appeals of Texas, Waco.
    Aug. 17, 1978.

      Charles B. McGregor, Beard & Kultgen, Waco, for appellant.
    Don Hancock, Waco, for appellee.
   OPINION

McDONALD, Chief Justice.

Defendant Booker seeks review by petition for writ of error of a summary judgment rendered against her, in plaintiff Hill’s suit to set aside a deed from Amanda Johnson, grantor to defendant Booker, grantee.

Plaintiff Hill filed this suit alleging he was Executor of the Estate of Amanda Johnson, deceased; that Amanda Johnson was a person of unsound mind 85 years old; that defendant Booker on February 28, 1977 unduly influenced Amanda Johnson to execute a deed to defendant to a house and lot in the City of Hillsboro; that Amanda Johnson died March 18,1977, that such deed is void because of Amanda Johnson’s mental condition; and because the description in such deed is fatally defective. Plaintiff further plead title to the property by limitations. Plaintiff prayed for judgment against defendant for the land.

Attorney Samuel R. Jones of Waco, Texas filed answer for defendant.

The transcript reflects that on September 8, 1977 plaintiff filed motion for summary judgment, praying the February 28, 1977 deed be declared invalid and ineffective for want of a proper description; that said real estate be held to be property of the estate of Amanda Johnson; and possession placed with plaintiff Executor of such estate; that the trial court on September 8, 1977 set such motion for summary judgment for trial for 1 PM September 21,1977 and directed plaintiff to give defendant notice of such setting; that Don Hancock attorney for plaintiff certified that he on “September 9th” mailed a copy of the foregoing motion for summary judgment to Mr. Samuel R. Jones, Attorney at Law, 204 N. 6th St., Waco, Texas 76701.

And the transcript reflects a motion filed September 12, 1977 by Samuel R. Jones, to withdraw as defendant’s attorney; that the trial court granted such motion on the same day.

The judgment recites that on September 21, 1977 the trial court heard plaintiff’s motion for summary judgment “and proper service thereof having been made, and came plaintiff by and through his attorney, and defendant Lee Etta Booker, although due notice had been timely served on her attorney prior to his withdrawal on September 12,1977, failed to appear either in person or through an attorney even though notice was mailed to her by Certified Mail No. 375508, on the same day plaintiff was advised of the withdrawal of the attorney for defendant”. Such judgment decrees the February 28, 1977 deed “cancelled and held for naught”; that plaintiff have fee simply title and possession to a tract of land differ ent from the tract described in the deed; and that plaintiff have immediate possession of such property. Such judgment recites it was signed on October 8, 1977.

Defendant filed her petition for Writ of Error on January 20, 1978 by and through Charles B. McGregor, Attorney at Law.

Article 2249a VATS limits the right of review by writ of error by providing: “No party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the Court of Civil Appeals through means of writ of error”.

The record reflects defendant did not participate either in person or by attorney in any way in the case after withdrawal by her attorney on September 12, 1977, and specifically did not participate in the September 21, 1977 hearing either in person or by attorney.

Defendant not having participated either in person or by attorney in the actual trial of this case is entitled to review the summary judgment rendered herein by her petition for writ of error which was filed within 6 months from date of rendition of final judgment. Article 2255 VATS. Wilson v. Brickstone Products Corp., Tex.Civ.App. (San Antonio) NRE, 465 S.W.2d 183; Phillips Petroleum Co. v. Bivins, Tex.Civ.App. (Amarillo) NRE, 423 S.W.2d 340.

Defendant asserts among other matters:

1) The trial court erred in rendering summary judgment for plaintiff because same was not rendered pursuant to a valid hearing.
2) The trial court erred in rendering summary judgment for plaintiff because proper notice of the hearing thereon was not served on defendant as required by law.

Summary judgment should not be granted, and if granted should be affirmed only if the summary judgment proof establishes a right thereto as a matter of law. Gibbs v. General Motors Corp., Tex.S.Ct., 450 S.W.2d 827. All burdens are on the movant. Swilley v. Hughes, Tex.S.Ct., 488 S.W.2d 64. The party against whom summary judgment is sought is not required to establish his right to prevail. Glenn v. Prestegord, Tex.S.Ct., 456 S.W.2d 901; Lewter v. Dallas County, Tex.Civ.App. (Waco) NRE, 525 S.W.2d 885; Mosley v. Ramos, Tex.Civ.App. (Waco) NWH, 559 S.W.2d 894.

A party appealing to the Court of Civil Appeals by writ of error within 6 months of final judgment may obtain relief if invalidity of the judgment is disclosed by papers on file in the case. Pace Sports, Inc. v. Davis Bros. Publishing Co., Tex.S.Ct., 514 S.W.2d 247; McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706; Mullen v. Roberts, Tex.S.Ct., 423 S.W.2d 576; Smith v. Smith, Tex.S.Ct., 544 S.W.2d 121; DeGroot v. Hall, Tex.Civ.App. (Waco) NRE, 526 S.W.2d 696.

Rule 166-A TRCP as amended July 21, 1970, effective January 1, 1971 was in effect in 1977, and provided the “motion [for summary judgment] shall be served at least ten days before the time specified for the hearing”; and further: “Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith”.

The transcript reflects plaintiff’s attorneys certificate that he mailed Attorney Samuel R. Jones a copy of the motion on “September 9th”. It does not reflect that Attorney Jones ever received such; and does not reflect that notice of the setting was mailed to Attorney Jones, or that sworn or certified copies of the papers referred to in the affidavits were served on Attorney Jones.

The judgment recites “proper service thereof having been made * * * and defendant Lee Etta Booker, although due notice had been timely served on her attorney prior to his withdrawal on September 12, 1977, failed to appear in person or through an attorney even though notice was mailed to her by Certified Mail No. 375508, on the same day plaintiff was advised of the withdrawal of attorney for defendant”.

Assuming notice was mailed to defendant on September 12, 1977 (the record reflects she lived in California), it is physically impossible she could have had 10 days notice prior to September 21, 1977.

Further, while ordinarily presumptions are made in support of a.judgment (including presumptions of due service of citation when the judgment so recites), no such presumptions are made in a direct attack upon a default judgment. McKanna v. Edgar, Tex.S.Ct., 388 S.W.2d 927; Edmond, Inc. v. Schilling, Tex.Civ.App. (Waco) NWH, 501 S.W.2d 432; Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934.

Defendant’s contentions, supra, are sustained. The trial court erred in rendering the summary judgment; and such errors are disclosed by the papers on file.

REVERSED AND REMANDED.

      . Plaintiffs’ trial petition (filed September 7, 1977) recites on page 1 a description of property allegedly owned by Amanda Johnson; and later recites on page 3, the description contained in the February 28, 1977 deed, which is an altogether different description. The judgment set aside the February 28, 1977 deed, but then decreed title and possession to plaintiff of the property described on page 1. Such could not be properly adjudicated on the summary judgment.


author: RALEIGH BROWN, Justice.

text:
    MITCHELL RESORT ENTERPRISES, INC., et al., Appellants, v. C & S BUILDERS, INC., Appellee.
    No. 5144.
    Court of Civil Appeals of Texas, Eastland.
    Aug. 17, 1978.
    Rehearing Denied Sept. 21, 1978.
    James V. Hammett, Jr., (appeal only) Stubbeman, McRae, Sealy, Laughlin & Browder, Kirt H. Kiester, Law Offices of J. Hubert Lee, Austin, for appellants.
    Robert J. Werner and Thomas H. Watkins, Hilgers, Watkins & Hays, Austin, for appellee.
   RALEIGH BROWN, Justice.

C & S Builders, Inc., sued Mitchell Resort Enterprises, Inc., Mitchell Development Corporation of the Southwest and William Canfield seeking recovery of “the reasonable profit to the joint ventures” between the parties and punitive damages because of defendants’ conduct. Plaintiff’s motion for nonsuit as to Canfield was granted. Based on the jury’s verdict, judgment was entered in favor of C & S for $75,000 lost profits and $200,000 exemplary damages. Mitchell Resort and Mitchell Development appeal. We reverse and remand.

The parties entered into joint venture agreements for the construction and sale of High Point and Comanche Point Townhouses. The terms of the agreements generally provided that C & S was to construct the townhouses within a certain cost range and appellants were to provide the land, financing and marketing of the constructed townhouses. Upon sale of a townhouse, appellants were to receive a payment for land cost, a proportionate share of the interim financing was to be paid, and the profits remaining after payment of sales commissions and closing costs were to be split equally between the parties.

C & S became dissatisfied with the results of the sales of the townhouses. It contended that the Mitchell entities failed to provide as effective a sales program as a person using ordinary care would have provided under the same or similar circumstances; that such failure was intentional; and, was motivated by malice, in an effort to squeeze out fellow joint venturers.

The jury found (1) that the Mitchell entities failed to provide as effective a sales program as a person using ordinary care would have; (2) that such failure was intentional; (3) that such failure was the proximate cause of loss of profit to the townhouses joint ventures; (4) that C & S’s 50% of the lost profit was $75,000; (5) that the failure was motivated by malice on the part of Mitchell entities; and, (6) C & S was entitled to $200,000 exemplary damages.

Mitchell entities contend the court erred in rendering judgment for damages because C & S failed to plead, prove or request jury findings that the partnership between the parties had been dissolved and terminated which is an essential element of a cause of action for damages between partners. We agree.

The court in Staggers v. Vaughan, 527 S.W.2d 791 (Tex.Civ.App.—Texarkana 1975, writ ref. n. r. e.), said:

“The law is well settled that one partner may not sue another partner on a claim arising out of partnership business until an accounting and settlement of partnership affairs is made. Chipley v. Smith, 292 S.W. 209 (Tex.Com.App.1927, jdgmt. adopted); 44 Tex.Jur.2d, Partnership, Sec. 156; 68 C.J.S. Partnership § 108; 60 Am.Jur.2d, Partnership, Sec. 365.”

In Amberson v. Horton, 255 S.W.2d 580 (Tex.Civ.App.—San Antonio 1953, writ ref. n. r. e.), the court said:

“. . . Subject to certain exceptions, the general rule is that an accounting between partners is a condition precedent to an action on partnership claims and transactions. Greene v. Condor Petroleum Co., Tex.Civ.App., 121 S.W.2d 381, reversed on other grounds, Com.App., 135 Tex. 215, 140 S.W.2d 844; Miller v. Howell, Tex.Civ.App., 234 S.W.2d 925; Rose v. Motes, Tex.Civ.App., 220 S.W.2d 734; Warner v. Winn, Tex.Civ.App., 191 S.W.2d 747; Masterson v. Allen, Tex.Civ.App., 69 S.W.2d 539. See Annotation 168 A.L.R. 1088; 68 C.J.S. Partnership §§ 110, 374, 407; 32 Tex.Jur., Partnership, § 210.”

The court in Chipley v. Smith, 292 S.W. 209 (Tex.Com.App.1927), recognized exceptions to the general rule quoting from 21 A.L.R. page 22 as follows:

“ ‘. . . However, this broad general rule is subject to many exceptions — such, for instance, as where the partnership was formed for the carrying out of a single venture or transaction, or the action involves a segregated or single unadjusted item of account, or a personal covenant or transaction entirely independent of the partnership affairs. These exceptions, of course, are based upon the theory that such cases do not necessarily involve an accounting, and, therefore, that resort need not be had to an equity forum. Broadly speaking, it might be said that one partner may maintain an action at law against a copartner if the relief sought does not involve the taking of an accounting of complicated or numerous partnership transactions, but not if such accounts are involved.’ ”

C & S argues the applicability in the instant case of one of the exceptions to the general rule. We disagree.

This is not a case where the cause of action is not connected with partnership accounts and is distinct and separate from partnership dealings. Schwarz v. Lee, 287 S.W. 519 (Tex.Civ.App.—Fort Worth 1926, writ dism’d); Clamp v. Nolan, 300 S.W. 105 (Tex.Civ.App.—San Antonio 1927, no writ); Hoffman v. Godlin, 128 S.W.2d 865 (Tex.Civ.App.—El Paso 1939, no writ). Nor is the case one in which the partnership involves a single venture which is completed. Chipley v. Smith, supra; Mullins v. Archer, 176 S.W.2d 763 (Tex.Civ.App.—Amarillo 1943, no writ). Neither is the instant case one for breach of a contract to form a partnership where the partnership has never existed. Morgan v. Steinberg, 23 S.W.2d 527 (Tex.Civ.App.—Amarillo 1929, no writ). This partnership was formed to build and sell townhouses. C & S seeks lost profits to that partnership.

C & S contends that it is not suing for assumpsit or breach of contract, but on breach of a fiduciary duty and negligence. Its claim, however, either in contract or tort, involves partnership affairs and the ultimate purpose of the partnership. C & S’s pleadings disclose a partnership relationship existing between it and Mitchell Enterprises; a partnership that has not been terminated; the claim sued upon is not one separate and distinct from partnership affairs, nor does the partnership involve a single completed venture bringing the claim within an exception to the general rule, but to the contrary the claim involves loss of profits to the partnership.

As stated in 44 Tex.Jur.2d Partnership § 156, citing Chipley v. Smith:

“An accounting and settlement between partners is generally a condition precedent to an action by one against another based on partnership claims and transactions. For this reason a suit for a share of property or profits or an action for contribution to losses or debts may not be maintained by a partner.”

C & S having failed to plead or prove an accounting and settlement of partnership affairs, the court erred in rendering judgment for damages against Mitchell Enterprises. This holding makes it unnecessary for us to consider appellants’ other points of error.

C & S argues that since Mitchell Enterprises failed to specifically except to such lack of pleading or proof, the defect has been waived. We disagree. In its motion for an instructed verdict, appellants contended, “There is no pleading for an accounting and that a plea in accounting is a condition precedent and/or mandatory pre-requisite to the plaintiff’s cause of action . .

Rule 90, T.R.C.P., provides that defects in pleadings are not waived if brought to the attention of the trial court before the instruction or charge is read to the jury. In the instant case, appellants’ motion for an instructed verdict was brought to the attention of the trial court before the charge was read to the jury and was timely made. Stephens v. Lott, 339 S.W.2d 405 (Tex.Civ.App.—San Antonio 1960, no writ); 2 McDonald, Texas Civil Practice § 5.18.

We reverse the judgment of the trial court and remand the cause.


text:
    A. R. DILLARD, Jr., Appellant, v. Glen BALL, Appellee.
    No. 5058.
    Court of Civil Appeals of Texas, Eastland.
    Aug. 17, 1978.
    Rehearing Denied Sept. 21, 1978.

      Randy J. Hall, Fillmore & Camp, Fort Worth, John D. Moore, Mineral Wells, for appellant.
    Elton M. Montgomery, Jennings Montgomery & Dies, Graham, for appellee.
   McCLOUD, Chief Justice.

At issue is the liability for damages of a surface lessee who denies the mineral lessee access to the leased property by intentionally locking the entrance gate to the property and not providing the mineral lessee with a key.

The mineral estate and surface estate had been severed prior to the surface lease of the ranch in question. The surface lessee, Glen Ball, on April 11, 1973, entered into a surface lease covering approximately 7,000 acres, effective to May 31, 1978, with the surface owners who also owned an undivided interest in the minerals. Subsequent to April 11, 1973, the mineral owners, including the surface owners, entered into oil, gas and mineral leases owned by the mineral lessee, A. R. Dillard, Jr., at the time in question. On or about September 9, 1975, while the oil, gas and mineral leases were in effect, and the mineral lessee was in the process of building a road on the leased property, the surface lessee locked the gate at the entrance of the ranch. The surface lessee did not furnish the mineral lessee a key to the lock. On September 22, 1975, the mineral lessee sued the surface lessee seeking an injunction enjoining the surface lessee from interfering with the mineral lessee’s rights of ingress and egress to and from the property for the purpose of exploring and developing the oil, gas and other minerals. The mineral lessee specifically requested that the surface lessee be restrained from placing a lock on the gate at the entry way to the ranch. The surface lessee filed a cross-action seeking, among other things, a declaratory judgment as to the respective rights of the parties under their leases, and the effect of an alleged oral agreement between the parties respecting the payment by the mineral lessee to the surface lessee of certain surface damages. The surface lessee sought an injunction enjoining the mineral lessee from using the “mountain road” located on the ranch. The surface lessee alleged that the mineral lessee was not authorized to use such road and under the surface lessee’s lease, he was or might be liable for damages resulting to such road. On October 17, 1975, the court entered an order agreed to by the surface lessee, mineral lessee, and surface owners, which stated that the mineral lessee, his employees, assigns, agents and contractors were perpetually enjoined from using that “part of the road up the mountain which is presently covered by asphalt.” The order provided that the surface lessee, his agents and assigns were perpetually enjoined from interfering with, blocking or otherwise preventing ingress and egress to and from the property by the mineral lessee, his employees, assigns, agents and contractors, while exploring and developing the property for oil and gas purposes. The agreement stated that the surface owners relieved the surface lessee of liability “for the maintenance of the road from the gate at the south end of the ranch ... to the point where the asphalt road begins . ” The order also stated that the mineral lessee had the duty to maintain any roads that he, his employees, assigns, agents or contractors used.

Following entry of the above described interlocutory order, the parties proceeded to trial on the issues of the alleged oral agreement regarding surface damages and the alleged damages resulting because of the surface lessee’s conduct in denying the mineral lessee access to the property. The mineral lessee contended that the surface lessee’s conduct delayed the drilling of certain wells and he incurred additional expenses as a result of the delay. In answer to special issues, the jury found that the mineral lessee suffered damages as a result of the surface lessee’s conduct in denying him access to the property; that $10,834.22 would reasonably and fairly compensate the mineral lessee for the damages; and, that the parties did not enter into the alleged oral agreement regarding payment to the surface lessee of certain damages for use of the surface.

The mineral lessee’s motion for judgment on the verdict was denied. The surface lessee filed a motion for judgment “upon the jury's verdict, or notwithstanding such verdict . . . ” The court entered judgment that neither party recover against the other party. The judgment stated:

“The court’s attention was called to the fact that the plaintiff’s damage issues were submitted to the jury without any related liability issues and that under Rule 279 of the Texas Rules of Civil Procedure the court may not make findings on such omitted issues inasmuch as the same must necessarily be relied upon by the plaintiff as a part of his case, and the court therefore is of the opinion and so finds, based upon the verdict of the jury, the evidence and the law applicable thereto:
That neither party is entitled to recover damages from the other and that both plaintiff and cross-plaintiff should be denied any recovery.”

The agreed interlocutory order dated October 17, 1975, was incorporated into and made a part of the final judgment. The court’s judgment clearly shows that it was “based upon the verdict of the jury”. The court did not enter a judgment non obstan-te veredicto nor judgment after having disregarded a special issue finding by the jury.

The mineral lessee argues the court erred in denying his motion for judgment on the jury’s verdict because the surface lessee’s liability was conclusively established and he was not required to submit any additional issues. We agree.

The surface lessee knew that the mineral lessee had an oil, gas and mineral lease on the property at the time the surface lessee locked the gate. The surface lessee argues that he locked the gate because the mineral lessee’s “tractor was tearing up sections of the hill road and his employees were using the road” and he was afraid they would hold him responsible for any “damages that they might come up with”.

The surface lessee relies upon the following language contained in his surface lease:

“3. LESSEE is responsible for the maintenance and upkeep of the hill road leading into the subject property. This road is the property of the LESSOR, and any load of over 12,-000 # going up and 24,000 # coming down is specifically prohibited. LESSEE shall have no authority to authorize the use of this road except for uses authorized by this lease.”

The surface lease also provided:

“The LESSOR reserves the right to itself, its agents, assigns or employees to enter the property at any reasonable time for the purpose of:
C. Developing oil, gas and other mineral resources.”

The surface owners’ oil, gas and mineral lease covering the property in question provided:

“Lessee shall not use the present road up the mountain in the Southeast corner of the property. Lessee shall take adequate precautions to prevent any of his employees, agents, invitees, or others from using said road.”

The surface lessee’s lease expressly provided that the surface owners’ assigns had the right to enter the property for the purpose of developing the property for oil, gas and other minerals. The mineral lessee’s estate is the dominant estate. Sun Oil Company v. Whitaker, 483 S.W.2d 808 (Tex.1972). He had the right to enter the property for the purpose of exploring and extracting the minerals. Harris v. Currie, 142 Tex. 93, 176 S.W.2d 302 (1943); Stanolind Oil & Gas Co. v. Wimberly, 181 S.W.2d 942 (Tex.Civ.App.—El Paso 1944, no writ).

The surface lessee was asked the following questions and he gave the following answers:

“Q You knew that after you took this lease, the grass lease or the surface lease someone could come in there and build a road, have the right to come in and cross that property and develop it for oil property, you knew that?
A Yes, I knew they could come in, it says so in the lease.
Q All right. And on or about September the 3rd, 1975, you locked the property and denied access to Bud Dillard, is that not correct?
A On the first part of September, yes, I locked the front gate.
Q All right. That would be on or about September the 3rd, 1975?
A I believe that it was — would you like for me to look and see what the date was?
Q Whatever it takes.
A I believe it was on the 9th of September.
Q You think it was the 9th?
A Yes.
Q All right. At any rate, it remained locked until the Court ordered you to open it?
A I think that’s right, yes.
Q All right. Do you recall when you opened it?
A Well, it was sometime in October.
Q All right.”

The mineral lessee argues that the evidence conclusively establishes that the surface lessee became a trespasser when he intentionally and deliberately interfered with a property right of the mineral lessee. We think the proper inquiry in a case of this nature is whether the surface lessee unreasonably interfered with the mineral lessee’s right to enter the property in question. The “unreasonable interference” issue was recognized in Getty Oil Company v. Royal, 422 S.W.2d 591 (Tex.Civ.App.—Beaumont 1967, writ ref’d n.r.e.), wherein the jury found that the erection of gates by the surface owner across the mineral lessee’s roads would not constitute an unreasonable interference with the mineral lessee’s use of the roads in the operation of its oil and gas lease. The evidence in Getty Oil Company, supra, showed that the gates were not to be locked. There was evidence that the land was being damaged by trespassers using the roads who discarded litter, trash and other objects harmful to cattle. The courts in Texaco, Inc. v. Parker, 373 S.W.2d 870 (Tex.Civ.App.—El Paso 1963, writ ref’d n.r.e.) and Carleton v. Dierks, 203 S.W.2d 552 (Tex.Civ.App.—Austin 1947, writ ref’d n.r.e.) observed that usually “unreasonable interference” is a fact question when the owner of the servient estate locks a gate and furnishes the owner of the dominant estate with a key. In the instant case, the mineral lessee was not furnished a key. It is clear from the record that the surface lessee, by locking the gate, fully intended to deny the mineral lessee access to the property. We hold that the evidence conclusively establishes that the surface lessee unreasonably interfered with the mineral lessee’s right to enter the property. The fact that the mineral lessee had made some use of the “mountain road” did not authorize the surface lessee to lock the gate and deny the mineral lessee access to the property. There is some evidence of an “old road” that entered the ranch from the north. The evidence, however, conclusively establishes that because of the rough terrain it would be impractical for the mineral lessee to use the “old road” in the development of the property.

Since the evidence conclusively established that the surface lessee unreasonably interfered with the mineral lessee’s right to enter the property, it was not necessary to submit the issue. Rule 279, T.R. C.P.

The trial court erred in denying the mineral lessee’s motion for judgment on the jury’s verdict. Rule 301, T.R.C.P., states that the judgment shall conform to the verdict, unless upon proper motion and notice, the trial court renders judgment non obstante veredicto or disregards a jury finding. The surface lessee has no cross-points. His counterpoints fail to uphold the court’s entry of judgment “based upon the verdict of the jury”.

Judgment of the trial court is reversed and judgment is rendered that the mineral lessee, A. R. Dillard, Jr., recover from the surface lessee, Glen Ball, the sum of $10,-834.22 plus interest thereon at the rate of nine percent per annum from February 7, 1977. American Paper Stock Company v. Howard, 528 S.W.2d 576 (Tex.1975).


author: MOORE, Justice.

text:
    CALVARY BAPTIST CHURCH AT TYLER, Texas, Appellant, v. Jeff ADAMS et al., Appellees.
    No. 1144.
    Court of Civil Appeals of Texas, Tyler.
    Aug. 17, 1978.
    Rehearing Denied Sept. 7, 1978.

      Mike A. Hatched, Ramey, Flock, Hutch-ins, Jeffus, McClendon & Crawford, Jack W. Flock, Tyler, for appellant.
    Michael E. Jones, Potter, Guinn, Minton, Roberts & Ireland, H. Kelly Ireland, Tyler, for appellees.
   MOORE, Justice.

This is an appeal from the issuance of a temporary injunction. Defendant, Calvary Baptist Church, purchased a 5-acre tract of land which is contiguous to Unit 12 of the Heritage South Subdivision of the City of Tyler. In connection with its project to build a church on the 5-acre tract, defendant purchased two vacant lots within Unit 12, being lots 9 and 10, which abutted the 5-acre tract along the east side. At the time the church purchased the lots they were burdened with “residential only” restrictions. Defendant drew up proposed plans for the construction of a driveway and parking facility on lots 9 and 10 and cleared the lots in preparation for the construction. Plaintiff individual homeowners residing in Unit 12 of the Heritage South Subdivision of Tyler brought suit to permanently enjoin defendant from constructing the parking lot and driveway and from doing any other activities which are not in conformity with the “residential only” restrictions.

A temporary restraining order was issued and the cause was set down for hearing on temporary injunction. Prior to that hearing, defendant filed a plea in abatement seeking a dismissal on the ground that the action was premature and without a judicial controversy. The motion was overruled and, after a hearing, the trial court entered a temporary injunction enjoining defendant from violating the restrictions until final hearing. From this order defendant appeals.

We affirm.

After the purchase of lots 9 and 10, the church developed plans for an initial phase of construction upon the 5-acre tract, which consisted of a main church building and ancillary access and parking lots. The preliminary plans included a proposal to construct a 24-foot driveway or street from the east boundary of the 5-acre tract across the south portion of lot 9, extending east to Yale Drive, the street on which all the plaintiffs reside.

Construction commenced on the 5-acre tract in April of 1977 and has proceeded continuously. At the time of the commencement of the injunction proceeding no construction was taking place on lots 9 and 10. However, it is undisputed that defendant had laid a sewer line and a water pipeline across the lots and had cleared the lots of “forrestry, shrubbery and junk.” Further, there is ample testimony showing that defendant intended to go ahead with its plans for the construction of a parking facility and driveway unless restrained.

Unit 12, of which lots 9 and 10 are a part, is burdened with a residential-only restrictive covenant, which reads, in part, as follows:

“2. LAND USE AND BUILDING TYPE.
No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than a single family residence . . ..”

Also a part of the restrictions was the creation of an “Architectural Control Committee,” which was vested with authority to receive plans for the proposed construction of any structure in the unit and to determine whether the same was in conformity with the restrictions. The provisions creating the committee and outlining its procedure are as follows:

“19. ARCHITECTURAL CONTROL.
No building shall be erected, placed or altered on any lot until the construction plan, front elevation, specifications and a plan showing the location of the structure have been permanently filed with and approved by the Architectural Control Committee as to materials, harmony of external design with existing structures and as to location with respect to topography and finish grade elevation. . . ”
“21. PROCEDURE.
The Committee’s approval or disapproval as required in these covenants shall be in writing. In the event the Committee fails to approve or disapprove within thirty days after plans and specifications have been submitted to it, or in any event if no suit to enjoin the construction has been commenced prior to the completion thereof, approval shall not be required and the related covenants shall be deemed to have been fully complied with. . . . ”

It is undisputed that the proposed plans for any construction on lots 9 and 10 had not been submitted to the Architectural Control Committee for approval when this action was commenced.

Under the first point of error defendant contends that the trial court erred in overruling its plea in abatement. Defendant argues the action is not ripe for litigation and no judicial controversy exists, because at the time suit was filed the Architectural Control Committee had not passed on the plans and specifications relating to defendant’s proposed construction on the two lots in question. Defendant takes the position that the individual lot owners in the restricted unit have no authority to institute suit unless and until the Architectural Control Committee has initially acted to determine the controversy. Accordingly, defendant argues there could be no judicial controversy until the occurrence of one of two things: (1) commencement of construction subsequent to an actual disapproval of plans and specifications by the control committee, or (2) an attempt by the constructing owner to bypass the administrative process altogether by commencement of a prohibited or unapproved form of construction. We find no merit in this contention.-

The language of the restrictive covenant dealing with the procedure of the Architectural Control Committee specifically provides that “. . . if no suit to enjoin the construction has been commenced prior to the completion thereof, approval [by the committee] shall not be required . . ..” Thus, the covenant contemplates the right of injunctive action by a homeowner regardless of whether any determination had first been made by the committee. The duty to submit the proposed construction plans to the committee and have them approved rests with the potential builder, not with the homeowner. The body of coven-antal restrictions makes it clear that homeowners are given express authority to bring a suit to restrain a violation or an attempted violation of any covenant, without any condition precedent to the commencement of the suit. See First State Bank of Corpus Christi v. James, 471 S.W.2d 868 (Tex.Civ.App.—Corpus Christi 1971, no writ history); Martin v. Moore, 562 S.W.2d 274 (Tex.Civ.App.—Austin 1978, no writ history). Appellant’s first point is overruled.

In the second point defendant contends that the trial court erred in granting the temporary injunction because plaintiffs failed to prove any potential violation of the subdivision restrictions by defendant’s construction upon or contemplated use of its property. Under this point defendant argues that the proposed construction is prospective and speculative and therefore does not qualify for relief by temporary injunction. We do not agree.

While an injunction will not, as a rule, issue upon mere fear, apprehension or possibility of injury, this does not mean that the remedy may not be granted to prevent future wrongs. Where the danger is probable and threatened, the party may invoke the aid of equity to prevent it, and need not delay his application for injunction until injury has actually been inflicted. 42 Am. Jur.2d Injunctions sec. 31, p. 768.

The evidence shows that prior to the time plaintiffs filed suit, defendant had theretofore laid water and sewer lines across lots 9 and 10. The evidence further shows that defendant had delivered a brochure to the plaintiffs explaining to them the proposed parking lot and driveway. Moreover, the chairman of the building committee testified that it was the intention of the defendant to construct the driveway and parking lot at some future date. There is no question, then, but that defendant manifested an intent to construct the driveway and parking lot across lots 9 and 10 in violation of the residential-only restrictions. See Fowler v. Brown, 535 S.W.2d 46 (Tex.Civ.App.—Waco 1976, no writ history).

The purpose of a temporary injunction is to preserve the status quo. Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962). The trial court is not only authorized, but has a duty to grant a temporary injunction when it appears that there is substantial controversy between the parties and one party is committing or threatening immediate commission of an act that will destroy the status quo before a hearing can be had on the merits. Pendleton v. Crabtree, 214 S.W.2d 675 (Tex.Civ.App.—Amarillo 1948, no writ history).

In considering this point it must be kept in mind that the order appealed from is a temporary, not a permanent, injunction. To be entitled to a temporary injunction the plaintiffs have the burden of proving only that they have a probable right and that they will sustain a probable injury during the pendency of the trial on the merits if the temporary injunction is not ordered. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953). The trial court has broad discretion as to the finding of such probable injury, and its order will be reversed only on a showing of a clear abuse of discretion. Transport Co. of Texas v. Robertson Transports, supra. We think there was adequate proof of probable and threatened injury, and the trial court was warranted in granting the temporary injunction in order to preserve the status quo pending a final determination on the merits. See Anderson v. Tall Timbers Corp., 162 Tex. 450, 347 S.W.2d 592 (Tex.1961); Chandler v. Darwin, 281 S.W.2d 363 (Tex.Civ.App.—Dallas 1955, no writ history).

By the third point, the defendant contends that the trial court erred in granting a temporary injunction because plaintiffs failed to prove they would suffer irreparable injury as a result of the proposed construction. Defendant argues that in order to prove irreparable injury, plaintiffs had the burden of showing that completion of a proposed “structure” on the property would not only violate the restriction but would render the lots unusable, in perpetuity, for residential purposes. We are not in accord with this proposition.

The general rule is that to entitle a petitioner to injunctive relief there must be established an actual and substantial injury or an affirmative prospect thereof. Protestant Episcopal Church Council v. McKinney, 339 S.W.2d 400 (Tex.Civ.App.—Eastland 1960, writ ref’d). The evidence introduced must also show that irreparable injury will occur before the cause can be heard on the merits, not merely that harm will occur. Town Plaza Fabrics v. Monumental Properties, 544 S.W.2d 775 (Tex.Civ.App.—Dallas 1976, no writ history); 43 C.J.S. Injunctions § 27, p. 815. That is to say, the jurisdiction or power to grant in-junctive relief should be exercised only when intervention is essential to effectually protect property or other rights, of which equity will take cognizance against irreparable injuries. Conduct which results in destruction, or serious change in the nature of property, either physically or in the character in which it is being used, does irreparable injury and justifies interlocutory injunctive relief. Speedman Oil Co. v. Duval County Ranch Co., Inc., 504 S.W.2d 923 (Tex.Civ.App.—San Antonio 1973, writ ref’d n. r. e.); 43 C.J.S. Injunctions § 28b, p. 823. Unquestionably, the construction of a parking lot and a driveway or street within the restricted residential subdivision would interfere with the character in which the residential lots in the subdivision were used or enjoyed. In our view there was ample proof of irreparable injury.

Even if the above conclusion should later be found to be untenable, an exception to the rule requiring proof of irreparable injury is recognized in cases in which a landowner in the subdivision seeks to enjoin a violation of a residential-only covenant. In such cases it is held that a plaintiff need not show irreparable injury where there has been a substantial breach of the covenant. Protestant Episcopal Church Council v. McKinney, supra; Ireland v. Bible Baptist Church, 480 S.W.2d 467 (Tex.Civ.App.—Beaumont 1970, no writ history). It follows that the same holding would apply where, as here, an affirmative prospect of a substantial breach of the covenant is shown. Thus, for this additional reason the trial court’s implied finding of irreparable injury will not be disturbed. The third point is overruled.

tinder the fourth point, defendant contends that the court erred in granting the temporary injunction because plaintiffs failed to establish that they suffered an actual and substantial injury or an affirmative prospect thereof. In this connection defendant argues that a “use” of land in violation of a “residential purposes” restriction must be such a “use” that destroys the utility of the property or the status protected, and that the offending “use” must be wholly incompatible with the protected use. In essence defendant argues that its proposed construction amounts to nothing more than a “trivial” violation of the residential restriction and therefore plaintiffs failed to establish substantial injury or any affirmative prospect thereof. We fail to find any merit in this contention.

The residential-only restriction prohibits the use of any lot in the subdivision except for residential purposes. First State Bank of Corpus Christi v. James, supra; Braes Manor Civic Club v. Mitchell, 368 S.W.2d 860 (Tex.Civ.App.—Waco 1963, writ ref’d n. r. e.). Obviously, the proposed parking lot and driveway or street were designed to be used for other than residential purposes. Defendant admits in its brief that had it proposed to construct a church on the lots in question, such would have amounted to a substantial violation of the restrictive covenant. Nevertheless, defendant seems to take the position that where a church builds a driveway or a parking lot on a subdivision protected by a restrictive covenant, such conduct amounts to a trivial violation, as opposed to a substantial one, and for that reason plaintiffs are not entitled to injunc-tive relief. We think the construction of a driveway and parking facilities, whose only purposes would be to serve the needs of the church, would amount to a substantial violation of the restrictive covenant in the same manner as if the church had been constructed thereon. See Smith v. Mobile Oil Corp., 495 S.W.2d 628 (Tex.Civ.App.—Waco 1972, writ ref’d n. r. e.); H. E. Butt Grocery v. Justice, 484 S.W.2d 628 (Tex.Civ.App.—Waco 1972, writ ref’d n. r. e.).

As pointed out before, we think it obvious that the construction of a parking lot and a driveway or street in a subdivision protected by a residential-only use would substantially interfere with the use and enjoyment of the other lots in the subdivision devoted solely to residential use. Consequently, we think the trial court was authorized to conclude that the defendant’s proposed construction plan, if carried out, would result in substantial injury to the plaintiffs. The fourth point is overruled.

By the fifth point defendant contends that the order granting the temporary injunction is in error to the extent it applies to lot 10. Under this point defendant asserts that the evidence fails to show that any construction was contemplated with regard to lot 10. Contrary to such contention we think there was ample evidence of defendant’s intention to utilize both lots 9 and 10 for its construction activities as herein-above noted. Accordingly, the fifth point is overruled.

The judgment of the trial court is affirmed.


text:
    TRINITY UNIVERSAL INSURANCE COMPANY, Appellant, v. W. F. PATTERSON, d/b/a Patterson Insurance Agency, Appellee.
    No. 1154.
    Court of Civil Appeals of Texas, Tyler.
    Aug. 17, 1978.

      Gary W. Maxfield, Elliott,' Churchill, Hansen, Dyess & Maxfield, Dallas, for appellant.
    J. E. Jackson, Carthage, for appellee.
   MOORE, Justice.

This is an appeal from a summary judgment. Plaintiff, W. A. Patterson, d/b/a Patterson Insurance Agency, brought suit on a sworn account seeking to recover past due insurance premiums against Mrs. F. M. Tindall, individually and as independent executrix of the Estate of F. M. Tindall, deceased, d/b/a A & M Plumbing and Electric Company (A & M Plumbing) and Defendant, Trinity Universal Insurance Company (Trinity Universal). Insofar as Defendant A & M Plumbing is concerned, the record is incomplete and shows only that a summary judgment was entered against it for the sum of $10,042.04 with interest thereon at the rate of 6% per annum from and after January 1,1964. The judgment recites that the cause against Defendant Trinity Universal was to continue on the docket. A & M Plumbing has not perfected an appeal and as a result the judgment against it became final. Defendant, Trinity Universal, answered the Plaintiff’s petition with a general denial and a motion for summary judgment. Thereafter, Plaintiff filed a motion for summary judgment against Trinity Universal. After a hearing on the motions the trial court granted Plaintiff’s motion and entered a summary judgment against Trinity Universal for the sum of $18,439.39, reciting that such sum included the “account of $10,042.04 and interest to date of judgment in the amount of $8,397.35.” Defendant, Trinity Universal, duly perfected this appeal.

We reverse and remand.

The record reveals that the Plaintiff was in the insurance business and over the years had supplied A & M Plumbing with workmen’s compensation and liability insurance on open account. According to the sworn account attached to the Plaintiff’s petition, the account was opened on January 1,1956, and was closed on February 1, 1963. During this period of time more than two hundred debits and credits are shown to have been entered on the account. The sworn account shows that as of February 1, 1963, the balance due and owing to the Plaintiff amounted to $10,042.04. Although the Plaintiff’s petition does not allege that Trinity Universal contracted for purchase of any of the insurance policies listed in the account, the affidavit attached to the account is in the conventional form and recites, among other things, that the account is the account of both A & M Plumbing and Trinity Universal and that the same is just and true and that all lawful offsets have been allowed.

Although Plaintiff joined Trinity Universal as a party to the action on sworn account, the real basis of Plaintiff’s claim against Trinity Universal arises out of a certain performance and payment bond executed by Trinity Universal guaranteeing payment to all persons who supplied labor, “services,” etc., to A & M Plumbing on a subcontract which the latter undertook to perform for Temple Associates, a general contractor engaged in the construction of a building for Texas A & M University. Under the terms of the subcontract A & M Plumbing was required to carry workmen’s compensation and liability insurance. Plaintiff alleged that he furnished policies covering A & M Plumbing during the time it performed the subcontract and that the premiums thereon amounted to $10,042.04, which A & M Plumbing failed and refused to pay.

Plaintiff alleged that since Trinity Universal guaranteed payment to all persons furnishing “services” to A & M Plumbing, Trinity Universal became liable to him for the “services” he performed in furnishing the insurance policies to A & M Plumbing during the time it attempted to perform the subcontract.

The evidence shows that A & M Plumbing defaulted on its subcontract prior to completion and it became necessary for Trinity Universal to complete the job in accordance with its performance bond issued to Temple Associates, the general contractor.

Under the first point of error, Trinity Universal contends that the trial court erred in granting Plaintiff a summary judgment because Plaintiff’s summary judgment proof failed to establish as a matter of law, insofar as Defendant is concerned, the genuineness of the sworn account or the amount thereof. We sustain this contention.

Apparently, the trial court construed the Plaintiff’s cause of action against Trinity Universal as a suit on a sworn account since the judgment recites “. . . that the sworn account contained in Plaintiff’s pleadings has not been denied under oath . . .."

The sworn account attached to Plaintiff’s petition was directed only to A & M Plumbing Company. Although the affidavit attached to the account recites that the attached account was against both Trinity Universal and A & M Plumbing, the pleadings, as well as the plaintiff’s brief, make it clear that Trinity Universal had no contractual relationship with the Plaintiff in purchasing the insurance policies. The record clearly shows that the contract for the insurance policies was between Plaintiff and A & M Plumbing. Therefore, no debtor-creditor relationship existed between Plaintiff and Trinity Universal. Thus, even though the account was verified, it was hearsay as to Trinity Universal which was a stranger to the transaction between the Plaintiff and A & M Plumbing. McCamant v. Batsell, 59 Tex. 363 (1883); Nichols v. Acers Company, 415 S.W.2d 683 (Tex.Civ.App.—Austin 1967, writ ref’d n. r. e.). Inasmuch as Trinity Universal was a stranger to the transaction between Plaintiff and A & M Plumbing, Trinity Universal was not obligated to file a written denial under oath. Robertson v. Rexall Drug and Chemical Company, 410 S.W.2d 200 (Tex.Civ.App.—Fort Worth 1966, no writ history); Nichols v. Acers Company, supra; Copeland v. Hunt, 434 S.W.2d 156 (Tex.Civ.App.—Corpus Christi 1968, writ ref’d n. r. e.); 1 Tex.Jur.2d Accounts & Accounting sec. 71, p. 321, Upon applying the foregoing rules of law, it becomes obvious that the summary judgment proof fails to establish a cause of action against Trinity Universal upon a sworn account. It therefore follows that the trial court was not authorized to render a summary judgment against Trinity Universal on this theory.

Under the second point, Trinity Universal contends that the trial court erred in granting plaintiff a summary judgment since Plaintiff’s proof failed to establish, as a matter of law, that the alleged insurance services were furnished to A & M Plumbing in connection with its subcontract. As we view the record, the contention must be sustained.

In moving for summary judgment, Plaintiff assumed the burden of establishing that there was no genuine issue as to any material fact and that he was entitled to a judgment as a matter of law. Rule 166-A(e), Tex.R.Civ.P.; Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970).

Trinity Universal admitted in its pleadings that it issued the performance bond and acted as surety for A & M Plumbing on the subcontract. In order for the Plaintiff to establish liability against Trinity Universal upon its performance bond, the Plaintiff had the burden of establishing by summary judgment proof that (1) A & M Plumbing contracted to purchase the insurance policies alleged in his petition, (2) such policies were used exclusively by A & M Plumbing for insurance coverage on the subcontract in question, and (3) the amount of premiums charged therefor were by agreement or such charges were the customary and reasonable charges for such policies. Blue Bell, Inc. v. Isbell, 545 S.W.2d 563 (Tex.Civ.App.—El Paso 1976, no writ history). Since the Plaintiff’s suit on sworn account was not applicable to Trinity Universal, Plaintiff had the burden of establishing the account at common law.

At the time of the hearing, the trial court had before it Plaintiff’s petition on sworn account; Defendant’s answer and motion for summary judgment; Plaintiff’s sworn motion for summary judgment and a deposition given by Henry Yates, Defendant’s claims supervisor. The record contains no independent affidavit or deposition testimony either by the Plaintiff or any other person acting in his behalf.

In our view the record contains no summary judgment evidence establishing the foregoing elements of proof necessary to establish a cause of action against Defendant. Contrary to Plaintiff’s contention, we do not believe that, as between Plaintiff and Trinity Universal, Plaintiff’s suit on the sworn, account constitutes any summary judgment proof in support of Plaintiff’s claim against Trinity Universal. Insofar as Trinity Universal is concerned, the Plaintiff’s sworn account is hearsay and therefore is of no probative force.

Plaintiff argues that his sworn motion for summary judgment constitutes summary judgment proof that A & M contracted for the policies in question. We do not agree. In summary judgment proceedings the trial is conducted on independently produced proofs, such as admissions, affidavits and depositions. Hidalgo v. Surety Savings & Loan Association, 462 S.W.2d 540 (Tex.1971); Richards v. Allen, 402 S.W.2d 158 (Tex.1966). Pleadings, even if sworn, do not constitute competent summary judgment evidence. Hidalgo v. Surety Savings & Loan Association, supra. The same rule applies to a motion for summary judgment. Perry v. Great Southern Life Insurance Company, 492 S.W.2d 352 (Tex.Civ.App.—Houston [1st Dist.] 1972, no writ history). Even if it could be considered competent summary judgment proof, we find no statement in the motion showing that A & M Plumbing contracted for the nine policies described in Plaintiff’s pleadings.

Plaintiff further argues that summary judgment proof may be found in the deposition testimony of Henry Yates, claims examiner for Trinity Universal. Mr. Yates testified that when A & M Plumbing began having financial difficulties, he requested that he be furnished with copies of the monthly bills. Among these bills, he testified, he found a bill from Patterson Insur-anee Agency. Nowhere in his testimony, however, did he describe what policies were covered by the bill, nor did he state the amount of the bill. While it can be gathered from his testimony that the bills showed that the Plaintiff was asserting a claim against A & M Plumbing, his testimony fails to constitute any summary judgment proof showing that A & M contracted for the nine policies of insurance on which Plaintiff seeks to recover unpaid premiums.

Even if the deposition testimony of Mr. Yates were sufficient to constitute summary judgment proof that A & M contracted for the nine policies, there is nothing in his testimony or in any of the other summary judgment evidence showing that the policies in question were utilized solely in connection with the subcontract on which Trinity Universal acted as surety. Further, there is no summary judgment proof whatever showing that the premiums charged by the Plaintiff on the policies in question were agreed upon or were the reasonable and customary charges for such policies.

Finally, Plaintiff argues that the summary judgment must be sustained because Trinity Universal offered no summary judgment proof in rebuttal. We cannot agree with this proposition. In our summary judgment practice, the opponent’s silence never improves the quality of a movant’s evidence. Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972). Since Plaintiff’s summary judgment proof failed to establish several of the essential elements of his cause of action, defendant was not obligated to offer summary judgment proof in rebuttal. 4 McDonald, Texas Civil Practice, sec. 17.26.8, p. 155.

For the reasons stated, the judgment is reversed and the cause is remanded for a trial on the merits.