author: YOUNG, Justice.

text:
    INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL UNION NO. 2390 and Alonzo Lopez, Jr., Charles Bishop, David Strubhart and Roberto Garcia, Individually and as Representative of a Class consisting of Fire Fighters employed by the City of Kingsville, Appellants, v. CITY OF KINGSVILLE, Appellee.
    No. 1249.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 27, 1978.
    Rehearing Denied May 24, 1978.

      David L. Perry, Corpus Christi, for appellants.
    Reynaldo S. Cantu, Jr., Nelson R. Sharpe, Glusing & Sharpe, Kingsville, for appellee.
    Francis S. Ainsa, Jr., Ainsa & Ainsa, El Paso, R. Don Cheatham, City Atty., Amarillo, amici curiae, for appellee.
   OPINION

YOUNG, Justice.

The primary issue to be determined in this appeal is whether Section 16 of The Fire and Police Employee Relations Act, Tex.Rev.Civ.Stat.Ann. art. 5154c-l § 16 (Supp.1978) provides for an unconstitutional delegation of a legislative function to the judiciary. We hold the provision to be unconstitutional.

The cause was submitted on stipulated evidence which indicates the following events. On June 7,1975, the City of Kings-ville, Texas, held an election pursuant to the provisions of Article 5154c-l, hereafter the “Act”, and the Texas Election Code. At this election, a majority of the qualified electors voting, voted for the adoption of the Act as it applied to Kingsville Firefighters.

On June 9, 1975, at a regularly called meeting of the City Commission, the City Secretary read the order declaring results of the special city election, canvassing the election returns. The commission unanimously voted to pass the order and approved the canvassing of the election returns. By a letter dated October 31, 1975, appellant, International Association of Firefighters Local Union No. 2390 contacted appellee, City of Kingsville, informing the City of its intention to begin contract negotiations as soon as possible. The City agreed to begin negotiations on January 20, 1976.

On January 20, 1976, representatives of both the City and the Union met and the City asked for proof of the Union’s majority representation. On February 6, 1976, the City agreed to have Honorable W. C. McDaniel, County Judge of Kleberg County, certify the majority representation status of the Union, and on February 16,1976, Judge McDaniel certified the Union herein as the sole bargaining agent for the City’s firefighters.

The City and Union met and bargained from time to time commencing February 17, 1976, and ending June 30, 1976. By agreement dated June 30, 1976, bargaining was extended to July 1, 1976.

By letter dated July 1, 1976, the Union requested arbitration, as provided for in the Act, and the City refused.

On July 12, 1976, the Kingsville City Commission passed a resolution- calling for an election to repeal the adoption of the Act. Pursuant thereto, an election was held on August 14,1976, at which a majority of the qualified electors voting voted for such repeal.

In the meantime, on July 16, 1976, the Union filed this suit asking the District Court to declare the wages and other terms of employment of Kingsville firefighters as required by Section 16 of the Act according to the standards set forth in Section 4 of the Act. In an amended petition the Union also asked the Court to set aside the August 14, 1976, election as being void and in contravention of the Act’s provision which allows a repeal election to be called only when the provisions of the Act have been in effect for a period of one year. On August 16,1976, the City Commission passed a resolution adopting the canvassing of the election which repealed the adoption of the Act.

Subsequently, in March of 1977, the City filed a motion for summary judgment alleging that the District Court was without jurisdiction to set wages and other terms of employment because Section 16 of the Act violated the separation of powers provision of the Texas Constitution; i. e., Article II Section 1.

On April 15, 1977, the District Court ordered a severance of the Union’s action to declare the August 14, 1976 election void. (The severed cause will be later dealt with in the cause bearing our number 1234, City of Kingsville v. International Association of Firefighters.) The Court then granted the City’s motion for summary judgment thereby declaring Section 16 of the Act to be an unconstitutional delegation of legislative functions to the judicial branch of government.

The Union brings this appeal alleging two points of error. We will first consider the second point which contends that the trial court erred in concluding that Section 16 of the Act is an unconstitutional delegation of legislative authority to the judicial branch.

This Court recently dealt with the recurring problem of delegation of legislative power to the judiciary in In Re Johnson, 554 S.W.2d 775, 779 (Tex.Civ.App.—Corpus Christi 1977, no writ). There we stated:

“Whenever an attack on the constitutionality of a statute is presented for determination, we start with the presumption that such statute is valid and that the legislature has not acted unreasonably or arbitrarily in enacting the statute . The burden rests on the individual who challenges the Act to establish its unconstitutionality ... If a statute is capable of two constructions, one of which sustains its validity, the court will give to it that interpretation which upholds the statute . . . (citations omitted).

The City seeks to uphold the trial court’s judgment by arguing that the statute violates Article II, Section 1 of the Texas Constitution which prohibits any of the three branches of government from exercising any power properly attached to the other branch of government. It should also be noted that Article III, Section 44 of the Texas Constitution provides that the Legislature shall provide by law for the compensation of all officers, not provided for elsewhere in the Constitution.

The pertinent sections of Article 5154c-l provide:

“Sec. 4. Cities, towns, and other political subdivisions within the state employing firefighters and/or policemen shall provide those protective service employees with compensation and other conditions of employment that are substantially the same as compensation and other conditions of employment which prevail in comparable private sector employment; therefore, compensation and other conditions of employment for those employees shall be based on prevailing private sector wages and working conditions in the labor market area in other jobs, or portions of other jobs, which require the same or similar skills, ability, and training, and which may be performed under the same or similar conditions.
Sec. 16. Should a public employer choose not to elect arbitration when arbitration has been requested by an association pursuant to Sections 9, 10 and 11 hereof, on the application of the association, the state district court of the judicial district in which a majority of the affected employees reside shall have full power, authority, and jurisdiction to enforce the requirement of Section 4 hereof as to any unsettled issue relating to compensation and/or other terms and conditions of employment for firefighters and/or policemen. ... In the event the court finds the public employer in violation of Section 4 hereof, it shall: (1) order the public employer to make the affected firefighters and/or policemen whole as to their past losses; (2) declare the compensation and/or other terms and conditions of employment required by Section 4 hereof for the period as to which the parties had been bargaining, but not to exceed a period of one year, and (3) award the employees’ association reasonable attorney’s fees.”

The City further directs our attention to a recent Attorney General’s opinion No. H-965, which holds that Section 16 of the Act violates Article II, Section 1 of the Texas Constitution.

It is well-settled that the Legislature cannot impose a function upon the judiciary that is legislative in nature. State v. Southwestern Bell Telephone Company, 526 S.W.2d 526 (Tex.Sup.1975); In Re Johnson, supra. The legislature, however, may delegate to a subordinate body the duty to administer and enforce its legislative function as long as the legislature prescribes sufficient and adequate standards to guide the discretion conferred. In Re Johnson, supra; Moody v. City of University Park, 278 S.W.2d 912 (Tex.Civ.App.—Dallas 1955, writ ref’d n. r. e.).

Thus, the issue here becomes whether or not the Legislature prescribed sufficient guidelines to guide the District Court’s discretion. We find that the Legislature did not.

Section 16 provides that in the event the public employer refuses arbitration, the District Court may consider all unsettled issues and determine whether the public employer is in violation of Section 4. If a violation of Section 4 is found, the District Court is then to set both the compensation and conditions of employment that are substantially the same as compensation and other conditions of employment which prevail in comparable private sector employment based upon prevailing private sector wages and working conditions in the labor market area in other jobs or portions of other jobs which require the same or similar skills, ability, and training and which may be performed under the same or similar conditions. The guideline for directing the District Court’s discretion, that compensation and conditions of employment shall be “substantially the same” as those that prevail in private sector employment, is too subjective to prevent arbitrary and unequal application of its provisions notwithstanding the enumeration of factors the Legislature prescribed for the courts to consider.

In our complex society, the terms and conditions of employment are no longer a simple hourly wage or other easily determinable amount. In addition to a flat salary or hourly rate, conditions such as: overtime pay; seniority; sick leave; severance and lay-off pay; fringe benefits including paid vacations, training and further education, insurance benefits, and profit sharing; and special working facilities such as lunchrooms, showers, athletic clubs, and staff medical personnel, all defy quantification or comparison in a uniform manner. See Casualty Underwriters v. Whitman, 135 Tex. 37, 139 S.W.2d 261 (Tex.Comm’n App.1940, opinion adopted); see also Austin Fire & Police Departments v. City of Austin, 149 Tex. 101, 228 S.W.2d 845 (1950) (discussing differing conditions of employment). For a court to decide which of the above conditions of employment are appropriate for any particular group of firemen, subject only to a guideline of “substantially the same” would represent a policy determination which is legislative in nature. Glass v. Smith, 150. Tex. 632, 244 S.W.2d 645, 650 (1951); Texas Highway Commission v. El Paso Bldg. & Const. Trades Council, 149 Tex. 457, 234 S.W.2d 857, 862 (1950); City and County of San Francisco v. Cooper, 13 Cal.3d 898, 120 Cal.Rptr. 707, 534 P.2d 403, 417 (Cal.1975); see also Christy-Dolph v. Gragg, 59 F.2d 766 (W.D.Tex.1932); Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686 (Tex.Sup.1964). The generality of the guideline would force District Courts to make certain rules for the future as to how conditions of employment would be determined. Compare Scott v. Texas Board of Medical Examiners, supra.

In Missouri, K. & T. Ry. Co. v. Empire Express Co., 221 S.W. 590 (Tex.Comm’n App.1920, jdgmt. adopted), an express company sought the issuance of a writ of mandamus to compel a railroad to provide it “reasonable and equal” facilities and rates on the railroad’s lines. The trial court granted the writ and essentially set the terms of a contract between the express company and the railroad. The Court of Civil Appeals affirmed and the Commission of Appeals reversed stating that if a contract between the parties had already been negotiated, it was a proper judicial function to decide whether its provisions were reasonable and equal, but a Court’s promulgating a “reasonable and equal” rate for the parties is legislative in character. Thus, the Court there refused to allow a District Court the jurisdiction to set a rate under a standard not unlike the one in the instant case; i. e., “substantially the same.”

Moreover, in order to determine the wage rate and conditions of employment the district court would have to ascertain what constitutes the “labor market area.” Such determination would clearly be a policy decision, in that the court would have unbridled discretion to decide the size of the labor market area. Indeed, in today’s highly mobile economy and society a labor market area could conceivably be as large as an entire region of the United States. See Texas Highway Commission v. El Paso Bldg. & Const. Trades Council, supra, and Christy-Dolph v. Gragg, supra. Furthermore, a labor market area could arguably be cities of similar size and makeup located throughout an entire state rather than the proximate geographical area.

As we stated in In Re Johnson, supra, at 781, a delegation of a legislative power is valid if it is so complete in all its terms and provisions when it leaves the legislative branch that nothing is left to the judgment of the recipient of a delegated power. We find that several matters are left to the judgment of the District Court, as we have pointed out, and accordingly find Section 16 of the Act to be unconstitutional.

The Union argues, however, that the determination to be made by the trial judge is no different from that made in a workmen’s compensation case, Tex.Rev.Civ.Stat. Ann. art. 8309 § 1 subd. 2 (1967). We do not find this argument persuasive. A workmen’s compensation case does not involve a broad policy making determination which is legislative in nature. See Scott v. Texas State Board of Medical Examiners, supra. But rather a workmen’s compensation case concerns only those parties immediately affected. The decision to be made in a workmen’s compensation case can be easily decided by a judge or a jury on evidence introduced in court. Moreover, the court’s determination in a workmen’s compensation case only involves the setting of “average weekly wages”. 62 Tex.Jur.2d, Workmen’s Compensation § 3 (1965). No subjective decision as to the other conditions and terms of employment is involved.

The brief of Amicus Curiae primarily argues that Key Western Life Insurance Company v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839 (1961) is dispositive of the instant case. We disagree. Key Western held that a District Court could hold a trial de novo applying preponderance of the evidence review in an appeal from a Board of Insurance decision which suspended an insurance company’s use of a particular insurance form. The Court there stated that the trial court could decide whether an already existing insurance form met with certain statutory standards. Key Western does not, however, stand for the proposition that a court may also promulgate an insurance form, or for that matter set a rate of compensation for public employees. It is a legislative act for a court to establish what a policy form should contain or to fix a rate or prescribe a future charge; it is a judicial act, as in Key Western, to merely review a policy form or to review a rate or charge which is already fixed. State v. Southwestern Bell Telephone Company, supra. The Union’s second point is overruled.

The Union’s first point contends that the trial court erred in dismissing the action for want of jurisdiction for the reason that, even if the statute improperly attempts to delegate legislative authority to the judiciary, such circumstances do not deprive the court of jurisdiction and the union is nevertheless entitled to a substantial evidence review.

This point is too general to be considered. The point of error coupled with the argument in the brief allege only that the Union is entitled to a substantial evidence review of the City’s actions, without directing the Court to which actions it wants reviewed. Rule 418, T.R.C.P., requires a point to direct the attention of the court to the particular error relied upon, rather than all possible actions of the City which might merit some form of substantial evidence review. See Missouri-Kansas Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956); Hamaker v. American States Insurance Company of Texas, 493 S.W.2d 893 (Tex.Civ.App.—Houston [1st Dist.] 1973, writ ref’d n. r. e.). More over, a substantial evidence review, or trial under the substantial evidence rule, is the legal test for reviewing the reasonableness of an order of an administrative agency. Gerst v. Nixon, 411 S.W.2d 350 (Tex.Sup. 1966); Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619, 622-23 (1958); Kelley v. Texas State Board of Dental Examiners, 530 S.W.2d 132 (Tex.Civ.App.—Fort Worth 1975, writ ref’d n. r. e.). The Act herein merely provides for an arbitration panel, agreed to by both parties, to make certain findings and orders. Appeal from the arbitrator’s decision is to the District Court as a trial under the substantial evidence rule. Article 5154c-l § 14. No other administrative board or agency is established by the Act, and if the employing city refuses to arbitrate, as it did in the instant case, the Act’s stipulated remedy for a Union is to bring suit in the District Court pursuant to Section 16. We find no order or agency decision in the record, nor does the Act provide for one which the court below could have reviewed by the substantial evidence rule. The Union’s second point is overruled.

The judgment of the trial court is affirmed.

OPINION ON MOTION FOR REHEARING

On motion for rehearing, the Union contends that we erred in finding that its first point of error was too general to merit consideration and that it was not entitled to a substantial evidence review in the trial court. While we find that these contentions are without merit, we also note that the Union did not plead its right to a substantial evidence review in the court below nor does the record show that it brought this point to the trial court’s attention. Indeed, the trial court’s judgment specifically states that after the court declared Article 5154c-l § 16 unconstitutional the “parties represented to the Court that the only thing remaining before the Court for consideration was the [Union’s] petition for declaratory judgment as to the validity of the election of August 4, 1976.” This issue cannot be raised for the first time on appeal. State of California Dept, of Mental Hygiene v. Bank of the Southwest National Association, 163 Tex. 314, 354 S.W.2d 576 (1962). The Union’s motion for rehearing is overruled.

      . All statutory references are to Vernon’s Civ.Stat.Ann. unless otherwise noted.

      . § 1. Division of powers; three separate departments; exercise of power properly attached to other departments.
      Section 1. The powers of the Government of the State of Texas shall be divided into three distinct departments each of which shall be confided to a separate body of magistracy, to-wit: those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

      . Sec. 44. The Legislature shall provide by law for the compensation of all officers, servants, agents and public contractors, not provided for in this Constitution.


source: Caselaw Access Project

license: Public Domain

text:
    CITY OF KINGSVILLE, Appellant, v. INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL UNION NO. 2390, and Alonzo Lopez, Jr., et al., Ap-pellees.
    No. 1234.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 27, 1978.

      Reynaldo S. Cantu, Jr., Nelson R. Sharpe, Glusing & Sharpe, Kingsville, for appellant.
    David L. Perry, Corpus Christi, for appel-lees.
   OPINION

YOUNG, Justice.

This is a companion case to International Association of Firefighters, Local Union No. 2390 v. City of Kingsville, bearing our number 1249. Both causes were submitted on the same stipulated evidence so that we need not herein repeat the evidence which was set out in the companion case.

This particular cause was brought as a declaratory judgment, and was severed from the original suit brought by the International Association of Firefighters, Local Union No. 2390. In this action the Union contends that the August 14, 1976 election which repealed the City’s adoption of Tex. Civ.Stat.Ann. art. 5154c-l (Supp.1978) was void and in contravention of the Act’s provision which allows a repeal election to be called only when the provisions of the Act have been in effect for a period of one year.

The trial court, sitting without a jury, considered the stipulated facts and entered judgment that the August 14, 1976 repeal election was void. The City, appellant in this cause, brings this appeal. We affirm.

The City’s first point of error contends that the instant cause is in essence an election contest rather than a suit for declaratory judgment, and that accordingly appellee’s failure to give the statutorily required notice for an election contest precludes the bringing of this action. A review of the record discloses that the City’s above contention was not pleaded, nor does it indicate that the issue was raised at trial. Therefore the issue cannot be raised for the first time on appeal. State of California Department of Mental Hygiene v. Bank of the Southwest National Association, 163 Tex. 314, 354 S.W.2d 576 (1962); Setiiff v. Gorrell, 466 S.W.2d 74 (Tex.Civ.App.— Amarillo 1971, no writ).

Even if we were to consider the City’s election contest contention on its merits, we could not sustain the point, as we will demonstrate. According to Clark v. Stubbs, 131 S.W.2d 663, 666 (Tex.Civ.App.— Austin 1939, no writ) an election contest challenges matters which “tend to show that an election was not properly ordered or fairly conducted, such as the failure to give notice of the time and place where the election is to be held or that illegal votes were cast thereat, or some other matter that would impeach the fairness of the result.” In other words, an election contest challenges the election process. Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1012, 1018 (1924); Hodges v. Cofer, 449 S.W.2d 836, 838 (Tex.Civ.App. Houston [1st Dist.] 1970, writ ref’d n. r. e.).

Neither the pleadings nor the stipulated facts of the instant suit allege any unfairness or wrongdoing in the process of the repeal election of August 14, 1976. The Union’s action, on the contrary, seeks to determine whether the City had the proper statutory authority to hold the repeal election. Such determination is not within the scope of an election contest. Magnolia Petroleum Co. v. Jackson County Water Control and Improvement District No. 1, 290 S.W.2d 310, 312 (Tex.Civ.App.—Galveston 1956, no writ); Ladd v. Yett, 273 S.W. 1006, 1011 (Tex.Civ.App. Austin 1925, writ dism’d); McCall v. Lewis, 263 S.W. 325, 327 (Tex.Civ.App. Austin 1924, no writ). But authority can be properly determined by a declaratory judgment suit. Commissioners' Court of San Augustine County v. Rayburn, 264 S.W.2d 552, 555 (Tex.Civ.App.—Beau-mont 1954, no writ). See also City of Honey Springs v. Templeton, 194 S.W.2d 620 (Tex.Civ.App.—Dallas 1946, writ ref’d n. r. e.), (stating in dicta that a declaratory judgment is a proper way to challenge the statutory authority to hold an election); and compare Wichita Common School Dist. v. Dickens Ind. Sch. Dist., 206 S.W.2d 885 (Tex.Civ.App.—Amarillo 1947, writ ref’d) (a declaratory judgment case determining whether a county board of school trustees was authorized to call an election). Because this was not an election contest, no notice of the type contended was required.

During oral argument the City apparently altered its contentions somewhat and did not argue that the instant matter was an election contest, but rather argued that the instant suit should have been brought seeking an injunction rather than declaratory relief. This contention, however, was not raised below nor was it briefed by the City. Therefore we need not decide this question. Lone Star Gas Company v. Sheaner, 157 Tex. 508, 305 S.W.2d 150 (1957). Appellant’s first point is overruled.

The City’s second point contends the repeal election was valid because the Act was placed in effect more than one year before the August 14, 1976 repeal election.

No findings of fact or conclusions of law were requested or filed. It must then be presumed upon appeal that the trial judge found every fact necessary to sustain the judgment, and the judgment should be affirmed if it can be upheld on any legal theory that finds support in the evidence. Lassiter v. Bliss, 559 S.W.2d 353 (Tex.Sup.1977). Further, in considering the sufficiency of the evidence in support of presumed findings, we must construe the evidence in the light most favorable to the judgment and disregard all evidence to the contrary indulging every legitimate conclusion which tends to uphold the judgment. Texas Construction Associates, Inc. v. Balli, 558 S.W.2d 513 (Tex.Civ.App.—Corpus Christi 1977, no writ); Fenlon v. Jeffee, 553 S.W.2d 422 (Tex.Civ.App.—Tyler 1977, writ ref’d n. r. e.).

Tex.Rev.Civ.Stat.Ann. art. 5154c-l § 5(c) (Supp.1978) provides that a repeal election may be called:

“In any city ... in which the provisions of this Act have been in effect for a period of one year, . . . ”

The controlling question for decision then is whether the provisions of the act were in effect for greater than one year prior to the repeal election. Stated differently, the question is: when did the Act go into effect?

In determining when an Act goes into effect as law the intention of the Legislature as manifest from the Act as a whole must govern. Norton v. Kleberg County, 149 Tex. 261, 231 S.W.2d 716, 718 (1950). See also 5 McQuillin-Municipal Corporations § 15.39 (rev. ed. 1969); 48 C.J.S. Intoxicating Liquors § 66 (1947). Article 5154c-l .§ 5(b) provides that after an election adopting the Act:

“ . . . then such governing body shall place this Act into effect within 30 days after the beginning of the first fiscal year of said city or town after said election . . . ”

The parties stipulated that the Kingsville fiscal year begins on October 1 of each year and further stipulated that no action was taken by the City Commission concerning the adoption or repeal of the adoption of the provisions of Article 5154c-l except as shown by the stipulations. The only other stipulated evidence relevant to the effective date of the Act was the order canvassing the June 9, 1975 election. But the order does not purport to place the Act into effect; it merely recites the results of the election and states that “said proposition is hereby declared to have passed.” We do not think the Legislature intended that the canvassing of an election by a governing body would necessarily place the Act into effect. It is clear that the Texas Election Code’s provisions relative to canvassing an election applied to the first election herein. Tex. Election Code Ann. art. 8.29a (1967). The Election Code provides that an election shall be canvassed on the Monday next following the day of election or sooner. Tex. Election Code Ann. art. 8.34 (1967), Shelor v. Commissioners Court of Harris County, 304 S.W.2d 153 (Tex.Civ.App.—Fort Worth 1957, no writ). Article 5154c-l § 5 provides on the other hand, though, that the governing body has a certain limited discretion as to when the Act shall be placed into effect. To conclude that the canvassing of an election is the event which places the Act into effect would render these discretionary provisions of Article 5154c-l § 5 surplusage and useless. It is presumed that the Legislature intended that the provisions dealing with this election and enactment process should operate in harmony. See Freels v. Walker, 120 Tex. 291, 26 S.W.2d 627, 630 (Tex.Comm’n App.1930, jdgmt adopted); Hayek v. Western Steel Company, 469 S.W.2d 206 (Tex.Civ.App.—Corpus Christi 1971), aff'd, 478 S.W.2d 786 (Tex.Sup.1972). We think therefore that the Legislature intended that the governing body take some action in addition to canvassing the vote to place the Act into effect.

According to the stipulations, after the canvassing of the vote no further action relative to the Act was taken until October 31, 1975, at which time the Union’s negotiating committee sent a request to the City to initiate bargaining. Because it is clear the City of Kingsville did not put the Act into effect prior to October 31, 1975, we conclude that there was sufficient evidence for the trial court to impliedly find that the August 14,1976 election was void because it was held prior to the expiration of one year from the date the Act went into effect.

The City also contends that the City Code of Kingsville does not contain any provision which requires the City Commission to adopt any resolution or ordinance to put into effect the results of the election adopting the Act. The City, though, did not plead or offer into evidence any proof of the City Codes, and thus they were not before the trial court. “Judicial notice is not taken of municipal ordinances, but they must be pleaded and proven like other facts.” City of Waco v. Earhart, 511 S.W.2d 549 (Tex.Civ.App.—Waco 1974, writ ref’d n. r. e.); 40 Tex.Jur.2d Rev. Part 1, Municipal Corporations § 309 (1976).

Finally, the City argues that because no election contest was filed within 30 days after the return day of the election, then the result of the election was binding and in effect no later than 30 days after June 9, 1975. The City is apparently arguing that an election contest is the only possible way to challenge the result of an election and because no election contest was filed within 30 days, the Act went into effect automatically. As we stated earlier, an election contest is not the only means of challenging the validity of an election. Commissioners’ Court of San Augustine County v. Rayburn, supra. Furthermore, the City cites us to no authority nor have we found any which supports its contention. The City’s second point is overruled.

The judgment of the trial court is AFFIRMED.


author: PEDEN, Justice.

text:
    AZTEC PIPE AND SUPPLY COMPANY, INC., Appellant, v. SUNDANCE OIL COMPANY, Appellee.
    No. 17116.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 11, 1978.
    Rehearing Denied June 8, 1978.

      Dunn Law Offices, S. P. Dunn, Orange, for appellant.
    Byrnes, Myers, Adair, Campbell & Sinex, Jay S. Siskind, Houston, for appellee.
   PEDEN, Justice.

Defendant, Aztec Pipe and Supply Company, appeals from the granting of a motion for summary judgment to Sundance Oil Company on a sworn account. When the motion was filed, Aztec had submitted only a general denial, but it filed three amended answers and three affidavits before the trial judge granted the summary judgment. Aztec contends on appeal that Sundance’s pleadings did not conform to Rule 185 of the Texas Rules of Civil Procedure, that Aztec’s subsequent pleadings and affidavits raised material fact questions and that there was no evidence to support the award of attorney’s fee. We reverse and remand.

Sundance attached to its petition a statement of the account with Aztec Pipe and an affidavit of its agent that complies with the provisions of Rule 185. Its motion for summary judgment was set for hearing on October 3,1977, and Aztec Pipe timely filed its verified first amended answer on September 30. The hearing was reset to October 10, 1977, so under the provisions of Rule 166-A then in effect, Aztec Pipe’s verified second amended answer was timely when filed on October 7. It contained these allegations:

1. The claim on which plaintiff’s claim is founded “is wholly not just or true.”
2. “Defendant specifically denies the allegation in paragraph I of Plaintiff’s Original Petition in which Plaintiff alleges that ‘. . . Plaintiff, at the special instance and request of Defendants, did sell and deliver to the Defendants the goods, wares, merchandise and/or services described (in Plaintiff’s Exhibit “A”) at the prices therein charged.’ Said allegation is not just or true.”
3. “Defendant specifically denies requesting ‘. . . the goods, wares, merchandise and/or services’ described in Plaintiff’s Exhibit ‘A’. Said allegation is not just or true.”
4. “Defendant specifically denies the allegations in paragraph II of Plaintiff’s Original Petition. Said allegations are not just or true in that Defendant specifically denies ever promising to pay Plaintiff for the material described in Plaintiff’s Exhibit ‘A’.”

(Paragraph II of the plaintiff’s petition alleged that the defendant had promised to pay for the goods listed on Exhibit “A” but had failed to do so.).

These denials do not meet the strict requirement of Rule 185 that the claim, if supported by proper affidavit, “shall be taken as prima facie evidence thereof, unless the party resisting such claim shall, before an announcement of ready for trial in said cause, file a written denial, under oath, stating that each and every item is not just or true, or that some specified item or items are not just or true . . . ” Rule 93 (k) requires the same terminology, and the Texas courts are extremely exacting in the nature of the language used. P. T. Poultry Growers v. Darr Equipment Co., 537 S.W.2d 773, 775 (Tex.Civ.App.1976, writ ref. n.r.e.) and cases cited therein.

The judgment in our case recites that when the motion for summary judgment came on for hearing on October 10, it was taken under advisement until the decision was rendered and judgment was signed on October 17. Aztec Pipe continued to file amended pleadings and affidavits until the judgment was signed. We find no indication as to which pleadings and which summary judgment evidence were considered by the trial judge, although he was asked by plaintiff’s counsel, in a letter dated October 13, not to consider the defendant’s motion for continuance, third amended answer, motion to allow trial amendment, and memorandum of law.

In DeBord v. Muller, 446 S.W.2d 299 (Tex.1969), the court stated the Texas rule to be that the trial court is not obligated to consider any pleading or summary judgment evidence filed after the hearing on plaintiff’s motion. The court held that rule not applicable because a hearing had been held on the plaintiff’s motion for summary judgment and the matter was under advisement when the defendant filed his motion and accompanying summary judgment evidence. We conclude that the facts in our case do not raise the DeBord v. Muller exception to the general rule, so the trial court was not required to consider the pleading and affidavit filed after the hearing on October 10, 1977. The record does not reflect that such materials were filed “with permission of the court,” as provided in the amendment to Rule 166-A that later went into effect (on January 1, 1978).

The Defendant filed an affidavit with the trial court on October 10, the day of the hearing on plaintiff’s motion. Although Rule 166-A then provided that opposing affidavits may be served prior to the day of hearing, it was proper for the trial court to consider it. Brown v. Aetna Casualty & Surety Co., 366 S.W.2d 673 (Tex.Civ. App.1963, writ ref. n.r.e.). It is not shown that the trial court exercised its discretion to disallow the late filing, to refuse to consider it, or to order it stricken. The affidavit was apparently considered by the trial court. Jones v. Houston Materials Co., ill S.W.2d 694 (Tex.Civ.App.1972, no writ).

Such affidavit filed on October 10 bore the caption and trial court number of this cause and contained these assertions:

“DON BRIGGS, being duly sworn, deposes and says: T am the President of AZTEC PIPE AND SUPPLY COMPANY, INC., the defendant corporation in the above and foregoing entitled and numbered cause, and I was acting in my individual capacity as an agent for Dynamic Exploration, Inc. That AZTEC PIPE AND SUPPLY COMPANY, INC., never received any of the pipe or goods that are the subject of this law suit. That the pipe or the goods were delivered to Dynamic Exploration, Inc. all according to their instructions.
“ ‘No one on behalf of AZTEC PIPE AND SUPPLY COMPANY, INC. ordered the pipe or goods from Sundance Oil Company, AZTEC PIPE AND SUPPLY COMPANY, INC. did not receive the pipe or goods and AZTEC PIPE AND SUPPLY COMPANY, INC. denies owing Sun-dance Oil Company the purchase price.
“T do not know what arrangements Sundance Oil Company made in regard to employment of any attorney at law to sue on any debts. And, I personally do not know what reasonable attorney’s fees are in a case of this nature.
“ T personally have never seen the pipe or goods, and I do not know what condition the pipe or goods was in at the time of the alleged sale, and I do not know whether the pipe or goods conformed to any representation and warranties made to Dynamic Exploration, Inc.
“ T personally as a favor to Dynamic Exploration, Inc. and as their agent placed a phone call to an agent or employee of Sundance Oil Company. The subject pipe or goods was delivered according to instructions from Dynamic Exploration, Inc. to Sundance Oil Company’s agent or employee.
“ ‘AZTEC PIPE AND SUPPLY COMPANY, INC. did not receive any consideration for the transaction which took place by and between Sundance Oil Company and Dynamic Exploration, Inc.’ ”

It is well settled that the rule making a verified account prima facie evidence unless a written denial under oath is filed does not apply to or cover transactions between third parties or parties who were strangers to the transactions. 1 Tex.Jur.2d 321, Accounts and Accounting, § 71; Eng v. Wheeler, 302 S.W.2d 263 (Tex.Civ.App.1957, writ dis.). In our case the allegation in Briggs’s affidavit that he ordered the pipe in question for Dynamic Exploration leaves a material issue of fact unresolved: for whose account the pipe was ordered. Sun-dance has not demonstrated that it is entitled to judgment as a matter of law. We sustain appellant’s first point of error, that the trial court erred in granting summary judgment, and its twenty-eighth point, that Briggs’s affidavit raises an issue of material fact as to whether Aztec Pipe is a third party.

Sundance’s suit is based on a statement covering the sale of 289 “jts.” of casing of specified dimensions and prices. In the light of the admission of the president of Aztec Pipe that he personally ordered the “subject pipe or goods,” we are at a loss to understand how the appellant 1) can wonder for eight pages early in its brief whether “casing” as used in the account means sausage covering, a tire, dried cow dung used for fuel, or pipe, 2) can argue that it is not obvious that “jts.” means joints, and 3) can contend “that it is impossible to determine whether plaintiff is suing for merchandise and/or services.”

The appellant complains that the ap-pellee’s petition, account, and affidavit were inadequate to support the summary judgment. It is true that the affidavit attached to the motion for summary judgment concerns only an attorney’s fee. However, in a suit on a sworn account filed under Rule 185, if the account is not denied under oath as provided in that rule, summary judgment does not rest on proof supplied by pleading, but on deficiencies in the opposing pleading. Hidalgo v. Surety Savings & Loan Association, 462 S.W.2d 540 (Tex.1971); Wilson v. Browning Arms Co., 501 S.W.2d 705 (Tex.Civ.App.1973, writ ref.).

Appellant’s brief contains an argument pertaining to its eleventh point of error but in listing the points being argued, fails to include point 11. We believe appellant is entitled to have us consider the point. In it the appellant complains that there is no evidence to support the award of an attorney’s fee.

The only summary judgment evidence as to an attorney’s fee is in an affidavit attached to plaintiff’s motion for summary judgment, where its attorney stated that he is duly licensed to practice law in Texas and is familiar both with fees customarily charged by attorneys in Houston and with the minimum fee schedule of the State Bar of Texas, that he is representing his client on a contingent fee basis, and $10,154.20 is the recommended minimum fee set by the State Bar of Texas for a suit involving the debt in this case. Further, the claim was presented to the defendant thirty days before suit was filed and has not been paid. The trial judge awarded an attorney’s fee of $3,100. We sustain appellant’s point 11. The minimum fee schedule is not, in the absence of proof to the contrary, conclusive in a summary judgment suit to which Article 2226, Vernon’s Texas Civil Statutes, applies. Coward v. Gateway National Bank of Beaumont, 525 S.W.2d 857 (Tex.1975).

We reverse the judgment of the trial court and remand this cause for further proceedings.


text:
    The WALLACE COMPANY, Appellant, v. ROCKWELL INTERNATIONAL, Appellee.
    No. 1247.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 24, 1978.

      William A. Abernethy, Meredith, Donnell & Edmonds, Corpus Christi, for appellant.
    Ronald B. Brin, Maddin, White & Brin, Inc., Charles W. Zahn, Jr., Mahoney, Shaffer, Hatch & Layton, William D. Bonilla, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

This is a venue case. On August 22,1975, by amended petition, Nasario Hernandez, as next friend of Nasario Hernandez, Jr., sued Rockwell International, The Wallace Company, and Reynaldo Rodriguez in Nueces County for injuries sustained by Nasario while he was using a power saw in a junior high school shop class.

Wallace filed a plea of privilege to be sued in the county of its residence, Harris County. Plaintiff Hernandez filed no controverting plea. Thereafter, Rockwell filed a cross-action against Wallace and Rodriguez for indemnity and/or contribution. Wallace then filed a plea of privilege to the cross-action to be sued in Harris County. Rockwell duly controverted Wallace’s plea by alleging venue to be proper in Nueces County under Tex.Rev.Civ.Stat.Ann. art. 1995, sub. 4 (1964).

On May 4, 1977, in the primary suit brought by Hernandez, Wallace’s plea of privilege was sustained and that cause was transferred to Harris County. On May 12, a hearing was held on Wallace’s plea of privilege to Rockwell’s cross-claim. And on May 16, Wallace’s plea was overruled. Wallace appeals.

In the first three points of error, appellant contends that the trial court erred in overruling its plea of privilege because ap-pellee did not meet its burden under Subdivision 4 because he failed to allege either: 1) a joint cause of action against the appellant and Rodriguez; 2) a cause of action against Rodriguez so intimately connected with his cause of action against appellant as that they are properly joinable to avoid a multiplicity of suits; or 3) a cause of action against the appellant which entangles it in the controversy between appellee and Rodriguez. We agree that appellee’s pleadings fail to show that appellant is a proper party within the meaning of Subdivision 4.

Appellee’s controverting affidavit asserts that venue is proper in Nueces County under Subdivision 4. This subdivision provides:

“4. Defendants in different counties.— If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.”

To prevent a change of venue under Subdivision 4 the plaintiff, or in this case the third party plaintiff, must: 1) plead and prove that one of the defendants is a resident of the county of suit; 2) plead and prove a cause of action against the resident defendant; and 3) allege a joint cause of action against the non-resident defendant or a cause of action against the resident defendant which is so intimately connected with his cause of action against the non-resident defendant that both defendants are properly joinable to prevent a multiplicity of suits. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (Tex.Comm’n App.1936, opinions adopted); Pinney v. Cook, 558 S.W.2d 33 (Tex.Civ.App.—Corpus Christi 1977, no writ). Proof of this connection between the resident and non-resident defendant is supplied by the allegations in the plaintiff’s petition. Pinney v. Cook, supra; Heldt Bros. Trucks v. Silva, 464 S.W.2d 931, 935 (Tex.Civ.App.—Corpus Christi 1971, no writ).

The only allegation in appellee’s petition which asserts appellant’s liability states:

“IV.
This defendant is entitled to indemnity and/or contribution from defendants, Reynaldo Rodriguez and The Wallace Company and here now pleads such by cross-action.”

Appellant did not file special exceptions to this pleading, but preserved this point by objecting to its sufficiency during the venue hearing. Leonard v. Maxwell, 365 S.W.2d 340, 344 (Tex.Sup.1963); 1 McDonald, Texas Civil Practice § 4.49 n.36 (1965). Appellee did not apprise the Court about the facts supporting its claim for the indemnity and/or contribution; i. e., whether based upon contract or tort. Appellee is asserting only a legal conclusion which is insufficient to confer venue. See Furr’s Supermarkets v. Patino, 491 S.W.2d 449 (Tex.Civ.App.—El Paso 1973, no writ); C. F. Lytle Co. v. Preston, 175 S.W.2d 440 (Tex.Civ.App.—Fort Worth 1943, no writ); Texas Acceptance Corporation v. Strickland, 91 S.W.2d 1179 (Tex.Civ.App.—Eastland 1936, no writ); 1 McDonald, Texas Civil Practice § 4.49 n.35 (1965). The conclusion provides no basis upon which this Court can conclude that venue should remain in Nueces County to avoid a multiplicity of suits.

The policy underlying Subdivision 4 of the venue statute is to avoid a multiplicity of suits which create unnecessary delay and extra costs. Atlas Roofing Co. v. Hall, 150 Tex. 611, 245 S.W.2d 477, 480 (1952). In this connection, courts generally recognize a second rationale for maintaining the venue of a cross-action in the county of the main suit under Subdivision 4. This rationale states:

“Where the cross-claim has the same primary purpose, arises out of the same transaction, and involves the same issues of law and fact as the plaintiff’s claim to be determined on the same evidence, and the plaintiff’s action is properly maintainable in the county of suit, the policy of avoiding a multiplicity of suits has been invoked on occasion to defeat a plea of privilege directed to such cross-claim.” (Emphasis supplied.)

1 McDonald, Texas Civil Practice § 4.39 n.82 (1962). Stated differently, where venue is proper as to all defendants in a primary suit, venue will be proper in the same county as the primary suit for maintaining all cross-actions arising out of the same transaction having essentially identical issues of fact and law. Estes Chemical Company v. Ciba-Geigy Corporation, 501 S.W.2d 469, 471 (Tex.Civ.App.—Amarillo 1973), reversed and remanded for settlement, 505 S.W.2d 249 (Tex.Sup.1974); Jefferson Chemical Co. v. Forney Engineering Co., 466 S.W.2d 361, 364 (Tex.Civ.App.—Houston [1st Dist.] 1971, writ dism’d); Cape Oil Company v. Williams, 427 S.W.2d 122 (Tex.Civ.App.—Tyler 1968, no writ). Compare Miller v. Brown, 528 S.W.2d 107,110 (Tex.Civ.App.—Amarillo 1975, no writ).

This rationale does not apply to the instant suit, though, for two reasons. First, determination of the venue question must be made relative to and consistent with the posture of the case at the time of the venue hearing. Von Scheele v. Kugler-Morris Gen. Contractors, 532 S.W.2d 375, 382 (Tex. Civ.App.—Dallas 1975, writ dism’d); Estes Chemical Company v. Ciba-Geigy Corporation, supra. At the time of this venue hearing, Wallace Company was no longer a defendant in the primary suit. Compare Johns-Manville Sales Corp. v. Haden Co., Inc., 543 S.W.2d 415, 420 (Tex.Civ.App.—Fort Worth 1976), writ ref’d n. r. e., 553 S.W.2d 759 (Tex.Sup.1977). Second, the allegation in appellee’s petition relative to indemnity and/or contribution, set forth above, is insufficient to show whether the same issues of law and fact are involved. We sustain appellant’s first three points of error.

On appeal, appellee argues that venue is also maintainable in Nueces County under the theory that Tex.Rev.Civ.Stat. Ann. art. 2212a § 2(g) (Sup.1978) provides a mandatory venue for this action. Appellee, however, did not rely upon this provision of Article 2212a to confer venue in Nueces County when he filed his controverting affidavit to appellant’s plea of privilege. The record does not indicate that the applicability of this article was tried by implied consent at the venue hearing. Appellee has waived this argument. Appellee relied solely upon Subdivision 4 to controvert appellant’s plea of privilege. Our agreement with appellant’s first three points of error makes it unnecessary to consider appellant’s remaining points of error.

The judgment of the trial court is reversed, and judgment sustaining Wallace Company’s plea of privilege to Rockwell International’s cross-action is here rendered.


author: EVANS, Justice.

text:
    GENERAL TELEPHONE CO. OF the SOUTHWEST, Appellant, v. Frank H. FENNEN, Appellee.
    No. 17090.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 25, 1978.

      Fulbright & Jaworski, Daniel K. Hedges, Houston, for appellant.
    Britt, Brown & Todd, Roy E. Brown, Alvin, for appellee.
   EVANS, Justice.

This is a venue matter.

The plaintiff, Frank H. Fennen, brought this negligence action against the appellant, General Telephone Co. of the Southwest, and five other defendants, seeking a recovery of damages for personal injuries sustained in a crash of an airplane in Fort Bend County, Texas. A plea of privilege was filed by General Telephone Co. of the Southwest to be sued in Tom Green County, the place of its residence. The trial court overruled this plea of privilege and General Telephone Co. of the Southwest brings this appeal from that order.

The plaintiff’s controverting plea alleges that venue is maintainable in Fort Bend County, Texas under the provisions of Subdivisions 9, 9a and 29a, Article 1995, Tex. Rev.Civ.Stat.Ann. However, the facts alleged and proved at the venue hearing do not show that venue is maintainable under Subdivisions 9 and 29a, and the plaintiff properly concedes that those subdivisions are inapplicable to the case at bar.

Under Subdivision 9a, the plaintiff was required to prove: (1) that an act or omission of negligence occurred in the county of suit; (2) that such was the act or omission of the defendant or its agent acting within the scope of his employment; and (3) that such negligence was the proximate cause of plaintiff’s injuries. Farmers Butane Gas Co. v. Walker, 489 S.W.2d 949 (Tex.Civ.App.—Waco 1973, no writ).

It is the plaintiff’s contention that the evidence offered at the venue hearing shows that the crash of his airplane and his resulting injuries were caused by the defendant’s negligence in maintaining concealed telephone poles and high wires along a dirt road at the south end of a cotton field which he was dusting with chemicals. The defendant, raising no evidence and great weight points, contends that the plaintiff failed to meet his burden of proving a cause of action for negligence under Subdivision 9a.

The plaintiff was the only witness who testified at the venue hearing. He is a commercial pilot and was crop-dusting for Farm & Ranch Aerial Services of Wharton, Texas, when the accident occurred. When the plaintiff first reached the cotton field, he circled the field for about 8 minutes, waiting for the flagman to arrive and inspecting the field for wires and any obstructions. He saw no obstructions in the field, and noticed only “a large high line on one side of the field and a small telephone line on the opposite side of the field.” When the flagman arrived, he flew over the field in a north and south direction, and then he made a “dressing” pass in an east and west direction. He testified that as he made this dressing pass “there was one pole in the edge of the field which I pulled up, up over it and back down at a 180-degree turn to dress the south edge of the field and approximately a third of the way across the south edge of the field, I struck a telephone pole.” Upon striking the telephone pole, the airplane became tangled with the telephone wires, causing it to roll in a vertical position. The wing of the airplane struck the ground, resulting in damage to the airplane and injury to the plaintiff. The plaintiff further testified that he saw no telephone poles in the trees at the south end of the field and that the telephone poles were hidden by the trees in that area.

The plaintiff further testified that he returned to the scene of the accident approximately five to six weeks later, and observed that the telephone lines had been removed and put under ground. Over objection by defendant’s counsel, which the trial court apparently sustained, the plaintiff was permitted to testify that he observed a marker on the underground line “saying General Telephone.”

The record before this court does not contain any evidence that the defendant or its agents were chargeable with an act or omission of negligence in the county of suit. The fact that an accident occurred is not evidence of negligence. Hardy v. McMillar, 492 S.W.2d 381 (Tex.Civ.App.—Waco 1973, no writ). The plaintiff contends that the concealed poles and lines created a dangerous condition and that the defendant was negligent in failing to warn of the existence of this condition. However there is no evidence in the record that the defendant owned or was responsible for the lines at the time of the accident, nor is there evidence that such condition had existed for any considerable length of time so as to charge the defendant with notice. Texarkana Telephone Co. v. Burge, 192 S.W. 807 (Tex.Civ.App.—Texarkana 1917, writ ref’d). Although the trial court might reasonably have inferred from the evidence that the telephone poles and lines were obscured from aerial view by trees along the south end of the field, there is no evidence showing how long the telephone poles and lines had been maintained on the land or when the land had first been used for cotton farming. Thus, there was no evidence from which the trial court could have inferred a duty on the part of the defendant to correct the alleged dangerous condition or to warn of its existence. The trial court’s order cannot be sustained under the provisions of Subdivision 9a, Article 1995, Tex.Rev.Civ. Stat.Ann.

It is the plaintiff’s further position that the trial court’s order may be sustained under the so-called Middlebrook Doctrine which was enunciated in Middlebrook v. David Bradley Manufacturing Co., 86 Tex. 706, 26 S.W. 935 (1894). Under the Middle-brook rule, a plaintiff asserting joinable claims against a defendant has ordinarily been permitted, under certain limitations, to maintain venue on all of the claims in the county where venue is proper as to one claim. The purpose of the rule is to avoid a multiplicity of actions. See Brazos Valley Harvestore Systems, Inc. v. Beavers, 535 S.W.2d 797 (Tex.Civ.App.—Tyler 1976, writ dism’d); Baxter v. Wetzel, 511 S.W.2d 540 (Tex.Civ.App.—El Paso 1974, no writ); 1 McDonald, Texas Civil Practice, Vol. 1, § 4.38, pp. 558-564. In the case at bar, the plaintiff asserts only one claim against six named defendants, and the Middlebrook rule is not a proper basis upon which venue can be maintained in the county of suit.

Since the record contains no evidence that the defendant or its agents is chargeable with an act or omission of negligence in the county of suit, the trial court’s order overruling the defendant’s plea of privilege must be reversed. The record does not reflect that the interests of justice require that the defendant have further opportunity to develop the venue facts, and, on the contrary, the record requires that the trial court’s judgment be reversed and rendered. Stewart v. Vaughn, 504 S.W.2d 600 (Tex. Civ.App. — Houston [14th Dist.] 1974, no writ).

The trial court’s order overruling the plea of privilege of defendant, General Telephone Co. of the Southwest, is reversed and judgment is here rendered that such defendant’s plea of privilege is sustained and the cause as to such defendant is ordered transferred to a District Court in Tom Green County, Texas, pursuant to the provisions of Rule 89, Texas Rules of Civil Procedure.


text:
    M. A. SANCHEZ, Jr., et al., Appellants, v. LEWIS REFRIGERATION CO., Appellee.
    No. 17120.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    June 1, 1978.

      O’Leary, Sanchez & Benton, Robert A. Whittington, Brownsville, for appellants.
    Harris & Graul, Howard A. Lang, Jr., Houston, for appellee.
   EVANS, Justice.

Plaintiff, Lewis Refrigeration Company, brought this action against the defendants, M. A. Sanchez, Jr., Jane Doe Sanchez, and Progressive Sea Products, Inc., in the District Court of Harris County, Texas, seeking enforcement of a default judgment entered by the Superior Court of the State of Washington, awarding a recovery in the sum of $34,810.24 plus $1,000.00 attorney’s fees. The trial court entered an order overruling the defendants’ plea of privilege, and in one point of error the defendants contend the trial court lacked jurisdiction to determine the venue matter because the plaintiff failed to timely file its controverting plea.

The record on appeal consists only of a transcript which shows that the defendants’ plea of privilege was filed on October 28, 1976 and that the plaintiff’s controverting affidavit was filed on November 29, 1976, some 32 days later. A controverting affidavit ordinarily must be filed on behalf of the plaintiff within 10 days after he or his attorney of record receives a copy of the plea of privilege. Rule 86, Texas Rules of Civil Procedure; McDonald, Texas Civil Practice, Vol. 1, § 4.48, pp. 589 et seq.

The certificate of service affixed to the defendants’ plea of privilege reflects that a copy of the plea was mailed to the plaintiff’s counsel on October 7, 1976. Thus, if the defendants’ plea of privilege then had been on file, the plaintiff would have had thirteen days after being served with a copy of the plea in which to file its controverting affidavit. Rule 21a, T.R.C.P.; Thompson v. Thompson, 487 S.W.2d 436 (Tex.Civ.App.—Houston [1st Dist.] 1972, no writ).

A plaintiff is not required to controvert a plea of privilege until he receives appropriate notice of the plea of privilege. Ross v. Katy Employees Credit Union, 430 S.W.2d 49, 52 (Tex.Civ.App.—Dallas 1968, no writ). This notification is usually accomplished by sending a copy of the filed plea of privilege to the plaintiff. Where, as in the case at bar, a copy of an unfiled plea of privilege is sent to the plaintiff, the time for filing a controverting plea does not begin to run until the plaintiff receives notification that the plea of privilege has been filed. To hold otherwise would place an unreasonable and onerous burden on the plaintiff to make continuous inquiry of the court as to whether the plea of privilege had, in fact, been filed.

Even if the controverting affidavit had not been timely filed, the trial court was authorized to extend the time for filing the plaintiff’s controverting affidavit upon a showing that the plaintiff had a reasonable excuse for the late filing. Rule 5, Texas Rules of Civil Procedure; Texas-Louisiana Power Co. v. Wells, 121 Tex. 397, 48 S.W.2d 978 (Tex.1932); Perkins v. Super-Cold Southwest Co., 241 S.W.2d 311 (Tex.Civ. App.—Dallas 1951, writ dism’d). In the absence of a statement of facts, it will be presumed in support of the trial court’s judgment that a proper showing was made and that a reasonable excuse was found. Commercial Credit Corp. v. Smith, 143 Tex. 612, 187 S.W.2d 363 (1945); McCarter v. Ransom, 473 S.W.2d 235 (Tex.Civ.App.— Corpus Christi 1971, no writ). Although it was the plaintiff’s burden to make such showing, it was the defendants’ appellate burden to bring forward a record of the proceedings in the trial court if the plaintiff failed to meet its burden. The facts of the case at bar are distinguishable from Poston Feed Mill Co. v. Leyva, 438 S.W.2d 366 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ dism’d), where it appears that the record before the reviewing court affirmatively established that no evidence of good cause had been offered or received in the trial court.

The trial court’s order overruling the defendants’ plea of privilege is affirmed.


author: ODEN, Justice.

text:
    E. W. CROSBY, Appellant, v. SAFEWAY STORES, INC., Appellee.
    No. 8556.
    Court of Civil Appeals of Texas, Texarkana.
    June 6, 1978.
    Rehearing Denied July 5, 1978.
    Welby K. Parish, Parish & Smith, Gilmer, for appellant.
    Allen Butler, Clark, West, Keller, Sanders & Butler, Dallas, for appellee.
   ODEN, Justice.

The appeal is by the plaintiff, E. W. Crosby, from the order of the trial court sustaining the plea of privilege of the defendant, Safeway Stores, Inc. Findings of fact and conclusions of law were neither requested nor filed. The parties to the appeal will be referred to as “Crosby” and “Safeway,” the appellant and appellee, respectively.

Crosby was injured when shoved to the grocery store floor by one of Safeway’s employees. He brought suit in the District Court of Upshur County against Safeway and the general manager of its Upshur County store, Jack Walton, alleging that his injuries were proximately caused by their negligence. The “shoving” employee was not joined in the suit nor was the doctrine of respondeat superior urged. Safeway timely filed a plea of privilege which was duly controverted whereupon the court heard the evidence without the intervention of a jury and sustained Safeway’s plea of privilege. Jack Walton did not file a plea of privilege.

Crosby’s only meritorious point of error is that the trial court erred in sustaining Safeway’s plea because the record compels a finding that Safeway was a foreign corporation with an “agency or representative” in Upshur County. Subdivision 27 of Article 1995, Tex.Rev.Civ.Stat.Ann., provides, inter alia, that a foreign corporation may be sued in any county where such company may have an “agency or representative.” Under the part of Subdivision 27 here referred to, Crosby did not need to make proof of a cause of action at the venue hearing. Commercial Insurance Co. of Newark, NJ. v. Adams, 366 S.W.2d 801 (Tex.Civ.App. Houston), writ ref’d per cu-riam, 369 S.W.2d 927 (Tex.1963).

Crosby alleged that Safeway was a foreign corporation in its controverting affidavit. Since this allegation was not denied under oath, it is deemed admitted. United States Fire Ins. Co. v. Moseley, 551 S.W.2d 429 (Tex.Civ.App. San Antonio 1977, no writ); Insurance Co. of North America v. Fire Insurance Exchange, 508 S.W.2d 703 (Tex.Civ.App. Waco 1974, no writ); Tex.R. Civ.P. 52 and 93(g).

The only other venue fact which must be established to make Subdivision 27 applicable is that Safeway had an “agency or representative” in Upshur County as those terms are used in such subdivision. Jack Walton testified that he was general manager of the Safeway Store in Upshur County and had been employed in that capacity in excess of thirteen continuous years. He was responsible for Safeway em-plyees. Subdivision 27 of Article 1995, Tex. Rev.Civ.Stat.Ann., refers to a situation in which the business of the defendant is, in more or less regular and permanent form, actually conducted in the county of suit or one in which a party possessing broad powers for the defendant resides in the county, the one instance being that of “agency” and the other of “representative.” Milligan v. Southern Express, 151 Tex. 315, 250 S.W.2d 194 (1952); Mobil Oil Corporation v. Smith, 482 S.W.2d 398 (Tex.Civ.App. Waco 1972, no writ). It is not necessary for us to find whether or not Jack Walton possessed such broad powers so as to be a “representative” of Safeway because we can infer from his testimony that Safeway had an “agency” in Upshur County due to its actually conducting business therein in a regular and permanent form in excess of thirteen continuous years.

The judgment of the trial court sustaining Safeway’s plea of privilege is reversed and judgment is here rendered that the plea of privilege be denied.


author: KLINGEMAN, Justice.

text:
    Hazel E. BEAM et al., Appellants, v. Ralph VOSS, Appellee.
    No. 15942.
    Court of Civil Appeals of Texas, San Antonio.
    June 7, 1978.
    Supplemental Opinion June 14, 1978.

      Daniel R. Rutherford, John L. Ray, San Antonio, for appellants.
    Nicholas & Barrera, San Antonio, for ap-pellee.
   OPINION

KLINGEMAN, Justice.

This suit arises out of a landlord-tenant relationship. Appellants, Hazel Beam and Victor Earl King, seek reversal of a money judgment received by Ralph Voss against them for wrongfully obtaining a temporary restraining order restraining appellee from conducting his business on the leased premises, and for converting appellee’s personal property and improvements installed on such premises in connection with the business use of such property.

Trial was to a jury, who, in answer to the pertinent special issues here involved, found: (a) Voss did not permit the premises to be wasted during the term of the lease involved; (b) Voss sustained actual damages by reason of the issuance and service of the temporary restraining order restraining him from operating his business; (c) the sum of $1,500 would reasonably compensate Voss for damages sustained as a result of the issuance and service of the temporary restraining order; (d) appellants acted with malice and without probable cause in causing the issuance of the temporary restraining order forcing Ralph Voss to close his business and vacate the property in question in May of 1975; (e) Voss is entitled to punitive damages in the amount of $25,-000; (f) on or about January 1, 1976, and subsequent thereto, appellants converted certain personal property, equipment and business fixtures belonging to Voss listed in Exhibits DX-48 and DX-75; (g) the market value of the property found to be converted in Exhibit DX-48 at the place and time of the conversion was $27,000; (h) the market value of the property found to be converted in Exhibit DX-75 immediately before the conversion of the property was $3,406 and immediately after was $1,780.

Based upon the jury’s findings, the court entered judgment that appellee recover from appellants the sum of $29,626, which sum represents: damages sustained by Voss as a result of the issuance and service of the temporary restraining order in the amount of $1,000; market value of the personal property belonging to Voss which was converted in the amount of $27,000; and diminution in the market value of the items of personal property belonging to Voss which were recovered by him in a damaged condition in the amount of $1,626. All relief sought by appellants was denied.

Appellant Hazel E. Beam is the owner of the land involved and the lessor in the lease to Voss. Appellant Victor Earl King is Beam’s son-in-law who operated the shooting range on the premises involved after Voss vacated the premises. Appellee Ralph Voss is the lessee in the Beam lease and the operator of a public shooting range on the premises during the term of the lease.

The live pleadings on which appellants went to trial allege that Voss was leased the premises involved under which lease Voss was authorized to operate a public shooting range and a gun shop, and he also had hunting, fishing and grazing privileges; that lessee could sublet with the owner’s consent and that the owner could come on the premises for purposes of inspection. Appellants asserted that Voss had made numerous subleases of hunting and grazing rights without the owner’s consent; that Voss had denied the owner entry to the premises to inspect the premises and to fish in a small lake; that lessee made improvements on the premises without permission; and that lessee had caused waste to the premises. Appellants seek termination of the lease and possession of the property, and damages for waste.

Appellee filed a cross-action and counterclaim in which he acknowledged that he was the lessee under the lease which granted him certain rights and privileges; that pursuant to the provisions of such lease he installed and built valuable facilities on said premises for the purpose leased, and placed valuable personal property and supplies thereon; that from the inception of the lease he had sublet hunting and grazing privileges on said premises with the owner’s knowledge and acquiescence; that his relationship with the owner, Beam, was excellent and to such an extent that the lease was renewed for an additional 5-year term at the end of the original 5-year term; that such good relationship continued until Beam’s son-in-law, King, came into the picture; and that upon the advice of such son-in-law, Beam and King conspired to trump up alleged violations of the lease in order to obtain possession, and began to harass and obstruct appellee in the operation of his business; that appellants instituted this suit and wrongfully obtained a temporary restraining order which compelled appellee to close his business and caused him extensive damages; that after the lease terminated, appellants locked the gates and denied him access to the property, in violation of the terms of the lease, and converted his property to their own use. Appellee sought both actual and exemplary damages.

Appellants assert 36 points of error which complain basically that the trial court erred in entering judgment based upon certain jury findings because of the state of the evidence. We will discuss the points of error in different categories which we deem most expedient for purposes of this opinion.

Appellants’ first point of error asserts that the trial court erred in entering judgment based upon the jury’s findings in Special Issue No. I, because the finding is against the great weight and preponderance of the evidence. Appellants’ second point of error asserts that the trial court erred in entering judgment based upon the failure of the jury to make a finding on Special Issue No. 4, in that the failure of the jury to make such a finding is against the great weight and preponderance of the evidence.

Both of these points of error attack special issues on which appellants had the burden of proof. In both points of error, appellants assert that the trial court erred in entering judgment on the verdict because of the state of the evidence, which is a “no evidence” point of error. Our Supreme Court, in Chemical Cleaning, Inc. v. Chemical Cleaning and Equipment Service, Inc., 462 S.W.2d 276 (Tex.1970), said:

A trial court may commit error in overruling a motion for new trial because vital jury findings are contrary to the great weight and preponderance of the evidence, but it does not for that reason commit error in rendering judgment on the verdict. Hence, a point of error which states that the trial court erred in rendering judgment on a verdict because of the state of the evidence — if adequate for any purpose — is only a ‘no evidence’ point of error.

Appellants also attempt to couch these points of error in terms of “factual insufficiency.” However, it benefits appellants little to complain of the factual insufficiency of the jury’s answers to special issues on which they had the burden of proof. The jury’s failure to find affirmatively on a special issue merely means that party proponent failed to meet his burden of proving the fact, and evidence is not required to support the negative answer. C & R Transportation, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966); Prunty v. Post Oak Bank, 493 S.W.2d 645, 646 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ ref’d n. r. e.).

While we regard appellants’ first two points of error as “no evidence” points of error, we have concluded that the jury’s findings are both legally and factually sufficient and that appellants have not met their burden of proof.

There is considerable evidence, both pro and con as to the matter of waste. Appellant Beam testified as to damages she had suffered and stated that the ranch was in good shape when Voss took over, but that during the term of the lease it had been neglected. John Martin, a general contractor, who had been asked by appellants’ attorney to go on the ranch and estimate the damages, testified as to the damages he observed. However, he also testified that when he went back to the ranch with Voss thereafter, almost everything had been fixed. Victor King, Beam’s son-in-law, and one of the appellants, also testified as to damages to the leasehold, but admitted that he himself had done some damages to the leased premises.

The jury also heard considerable testimony contradicting the testimony of appellants’ witnesses. George Waitz, the lessee of the premises before Voss, testified that the house was old and rundown, that the premises were in bad shape, the well dry, the water trough in disrepair, and many gates in bad shape. James Barlow, who helped Voss build the shooting range on the leased premises, testified that the house was in bad shape and the barns rundown.

Appellee testified in considerable detail as to the state of the property when he took it over, which indicated that the premises were in a state of disrepair and in poor condition. He also testified in considerable detail as to the extensive repairs he made on the place and various improvements he made on the premises in order to make the premises usable.

It should be noted that the premises were leased to Voss for the explicit purpose of utilizing same as a public shooting range, a gun shop, and for hunting, fishing, and grazing purposes.

While the evidence is conflicting as to the damages to the leased premises, there is testimony that Voss restored any alleged damages done by him, and one of the appellants’ own witnesses, John Martin, testified that when he went back to the property after his original inspection, almost everything had been fixed. The jury was the judge of the credibility of the witnesses and the weight to be given their testimony. Under the evidence, it cannot be said that there is no evidence to support the jury’s answer to Special Issue No. 1, or that such answer is against the great weight and preponderance of the evidence.

The jury having found that there was no waste, did not answer Special Issue No. 4, inquiring as to damages suffered through such waste. Appellants’ second point of error complains that the trial court erred in entering judgment based upon the failure of the jury to make any finding on Special Issue No. 4, in that the failure of the jury to make such finding is against the great weight and preponderance of the evidence. Without reiterating the hereinbe-fore discussion as to “no evidence” and “factually insufficient” points of error, we hold that appellants’ Points of Error Nos. 1 and 2 are both without merit and both are overruled.

Appellants’ Points of Error Nos. 3 through 16 pertain to the jury’s answers to Special Issues Nos. 5 and 6.

Some of these points of error complain that (a) the only supporting evidence is hearsay; (b) the only supporting evidence is uncertain and speculative; (c) the only supporting evidence violates the best evidence rule; (d) the only supporting evidence was based on attorneys’ fees, an element not recoverable. The rest of such points of error complain that there is no evidence to support the jury’s answer to Special Issues 5 and 6, that there is insufficient evidence, and that such answers are against the great weight and preponderance of the evidence.

It is undisputed that appellee was shut down for three days because of the issuance of the temporary restraining order. Voss testified that he lost about $3,000 during the three days he was shut down. His testimony was supported by the testimony of appellant King who operated the shooting range after taking over from Voss. King testified that in his operations he made well over $1,000 a day; that from an observation of Voss’s business when Voss was operating the shooting range and the volume of Voss’s business, that Voss likewise would be making at least that much a day, and that based upon his knowledge and experience and his observation and a comparison of his business to Voss’s business, Voss would have even made more than this amount a day.

Appellants’ complaint as to the best evidence rule pertains to Defendant’s Exhibit No. 47, which is a photocopy of a letter written to Voss by the Southwestern Research Shooting Club, canceling its meetings at the place because it could not get in the premises because the range was .closed pursuant to the temporary restraining order on the day the club reserved the range. Irrespective of the contents of this letter, Voss himself testified that Southwestern Research Institute canceled their meetings there because they could not get on the shooting range. There is other competent evidence to support the jury’s finding.

Appellants’ complaint that the judgment is based upon attorney’s fees is apparently predicated on some testimony in the record by Voss that he had paid attorneys about $3,000. We find nothing in the record to support appellants’ contention that the judgment is based in any part upon attorney’s fees.

There are numerous cases holding that where a party has been enjoined and has suffered damages by reason of the wrongful issuance of such injunction, he may recover the actual amount of his damages. Cone v. City of Lubbock, 431 S.W.2d 639 (Tex.Civ.App.—Amarillo 1968, writ ref’d n. r. e.); Womack v. McMillan, 47 S.W.2d 437 (Tex.Civ.App.—Amarillo 1932, no writ); Johnson v. McMahan, 40 S.W.2d 920 (Tex.Civ.App.—Amarillo 1931, writ ref’d).

A loss occasioned by an interference with one’s business from the actionable conduct of another is a proper element of damages, and profits lost as a result of such interference are properly recoverable. Southwest Battery Corp. v. Owen, 131 Tex. 423,115 S.W.2d 1097 (1938); Cain v. Fonta-na, 423 S.W.2d 134 (Tex.Civ.App.—San Antonio 1967, writ ref’d n. r. e.).

The jury found that Voss suffered damages in the amount of $1,500 from the issuance of the temporary restraining order, and the trial court entered judgment of $1,000. There is ample credible probative evidence to uphold the jury’s finding and the court’s award, including Appellant King’s own testimony, which would support an award of $3,000. Appellants’ Points of Error Nos. 3,4, 5, 6, 7, 8, 9,10,11,12,13,14, 15 and 16 are all without merit and all are overruled.

Appellants’ Points of Error Nos. 17 through 22 pertain to Special Issue No. 7. By such points of error, appellants assert that there is.no evidence and insufficient evidence to support the jury’s answer to such special issue and that the jury’s answer is against the great weight and preponderance of the evidence.

The evidence as to malice, like the other evidence, is conflicting. There is testimony that Beam wanted to get appellee off the leased premises before the term expired; that King stated that he had asked Beam to file the suit; that King, in one instance, reported theft of a septic tank which was not on the leased premises when Voss made the lease. A former employee on the leased premises testified that he never heard Beam complain of Voss’s operation of the business or any damage to the property until after King arrived, but that after King arrived the relationship deteriorated; that during the term of the lease King and his wife wanted to locate a trailer house on the leased premises, and, after some discussion, King told Voss that the trailer could be placed anywhere King decided.

Voss testified extensively with regard to damages to his property, which he attributed to King, and testified that after he reacquired possession of the leased premises after the restraining order, his property was in a big mess.

Beam admitted that she wanted to get out of the existing lease or to change the terms of the said lease under which appellee was to increase his rentals to Beam, and also pay her a percentage of his profits on the business. Appellee testified that in one instance King slammed the lease down on his desk and said “I am terminating your lease right now!”; and that Beam stated that she was going to break him if he didn’t get off the place.

The jury’s answer to such special issue is supported by evidence that is both legally and factually sufficient. Appellants’ Points of Error Nos. 16, 17, 18, 19, 20, 21, and 22, are all overruled.

Appellants’ Points of Error Nos. 23 through 32 pertain to conversion. By such points of error, appellants complain that the trial court erred in entering judgment on Special Issues Nos. 9 and 10 because: (a) the only supporting evidence is hearsay; (b) such issues are supported by no evidence; (c) such issues are against the great weight and preponderance of the evidence; (d) such issues are supported by insufficient evidence; (e) Special Issue No. 9 should not have been submitted; (f) the evidence supporting Special Issue No. 10 was a shorthand rendition made by one not a party and was not present memory refreshed.

Charles Wade Melvin, Jr., was an employee of appellee who lived on the subject property during the existence of the lease. Melvin testified that they closed up appel-lee’s place of business on December 31, 1975, the last day of the lease term, and on that date he did not notice any damages to the property of appellee; that all of appel-lee’s personal property was in good order, intact and accounted for, and that the premises were properly secured when he left on December 31, 1975. He stated that on the next day at approximately 10 a.m., he and his dad went out to the premises to begin the removal of appellee’s property, but that he could not get on the property because there was a new colored chain and a large padlock on the gate and a posted “Keep Out” sign on the gate; that he again tried to get on the property on January 4, 1976, but the gate was still padlocked; that later, after a court order was issued giving appellee the right to enter the property and remove and take possession of his property, he went to the property of appellee, and that all of appellee’s ammunition and quite a few of his tools were gone. The father of Melvin, Jr., corroborated the testimony of his son.

Appellee testified that all of the items listed in the Exhibits DX-48 and DX-75 were in his possession and subject to his control on the leased premises on December 31,1975; that he left town on December 31, 1975, and January 4, 1976, was the first time he attempted to get back on the property; that he was prevented from getting on the property because his lock had been replaced and there was a new lock thereon that he had never seen before; that there was a sign saying “Posted — Keep Out”; that, thereafter, he called Mrs. Beam and asked what was going on and she told him that he couldn’t have anything; that he had waited too long. The lease provided that appellee could remove his property and belongings not later than sixty days after the lease expired.

Appellee testified that the next time he went to the property was on January 17, 1976, accompanied by a deputy sheriff, but at such time they were unable to get on the property and there was a letter from appellants’ attorney posted on the gate advising that all trespassers would be prosecuted. He testified that the first time he was able to get back on the property was on January 21, 1976, and that at such time he found his property in a state of disarray, either missing or damaged, that the sheriff was called and a report made.

King admitted that he had placed the lock on the gate, but was uncertain as to the day.

To constitute a conversion, it is not necessary that there be a manual taking of the property in question. The unauthorized and unlawful assumption and exercise of dominion and control over the personal property of another, to the exclusion of, or inconsistent with the owner’s rights, is in law a conversion. Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444 (Tex.1971); Allen v. Alison Mortgage Investment Trust, 548 S.W.2d 783 (Tex.Civ.App.—San Antonio 1977, no writ); Cox’s Bakeries of North Dakota, Inc. v. Homart Development Corp., 515 S.W.2d 326 (Tex.Civ.App.—Dallas 1974, no writ); Fenberg v. Fenberg, 307 S.W.2d 139 (Tex.Civ.App.—Amarillo 1957, no writ); American Surety Co. of New York v. Hill County, 254 S.W. 241 (Tex.Civ.App.—Dallas 1923) aff’d 267 S.W. 265 (Tex. Comm’n App. 1924, opinion adopted).

The jury’s answer to Special Issue No. 9 is supported by competent probative evidence that it is both legally and factually sufficient.

The jury found the market value of the property converted in Exhibit DX-48 to be $27,000. Appellants assert that the only supporting evidence is hearsay, and that the evidence supporting such special issue was a shorthand rendition made by one not a party and was not present memory refreshed. Such contention seems to be premised on appellants’ contention that Exhibit DX — 48 was not prepared by appellee but was manually prepared by his attorney. Appellee testified that it was his list. In any event, after the exhibit was introduced into evidence, appellants’ attorney conducted an extensive cross-examination of appellee as to the items listed on such exhibit. Such list, in addition to listing the various items involved, has values shown after the respective items, and appellee testified that the values therein shown were the fair and reasonable market value of the respective items in Bexar County on the date of the conversion. He further testified that the value of all of the items was $29,599.50. No attempt was made by appellants to rebut or refute the values placed on the items listed in such exhibit. The jury found the values of such property to be $27,000.

The jury’s answer to Special Issue No. 10 is supported by sufficient competent probative evidence.

Appellants’ Points of Error Nos. 23, 24, 25, 26, 27, 28, 29, 30, 31, and 32, are without merit and all are overruled.

Appellants’ Points of Error Nos. 33, 34, and 35 assert that the trial court erred in entering judgment on Special Issue No. 11 because of the state of the evidence.

The general rule for measuring damages to personalty is the difference in the market value immediately before and immediately after injury to such property at the place where the damages were occasioned. Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.2d 127 (1950); Jaleo, Inc. v. Tool Traders, Inc., 535 S.W.2d 898 (Tex. Civ.App.—Houston [1st Dist.] 1976, no writ).

We find no evidence in the record as to either the value of property immediately before the injury or as to the value of the property immediately after the injury. There is nothing in the record showing that the value of the property was $3,406 at the time of conversion, and that the value of the property was $1,780 immediately after the conversion. Appellee did testify that the difference in the value of his property before and after its conversion was $3,000.

Appellee, in his brief, although contending that there is some evidence to support the jury’s answer, indicates a willingness upon suggestion of remittitur to make a proper remittance of the sum of $1,626, if the case is affirmed.

We have concluded that the judgment is excessive in the amount of $1,626 and that a remittitur as to this amount is proper.

Appellants’ last point of error complains that the trial court erred in overruling their motion for new trial because the cumulative effect of error was so substantial as to deny appellants a fair trial. We have thoroughly discussed all of the errors urged by appellants, the testimony in the record, and the applicable law, and we overrule appellants’ last point of error without further discussion.

By one cross-point, appellee asserts that the trial court erred in failing to enter judgment on the finding of the jury to Special Issue No. 8 [punitive damage], and asks this court to reform the judgment of the trial court so as to include the sum of $25,000 as punitive damages.

Appellee argues in his cross-point that the facts of this case justify damages which are punitive in nature. Appellee cites no Texas decisions permitting punitive damages in this situation nor have we been able to find any.

There are numerous decisions holding that where a party has been enjoined and suffers damages by reason of the wrongful issuance of an injunction, he may recover the actual amount of his damages. Cone v. City of Lubbock, supra; Womack v. McMillan, supra; 31 Tex.Jur.2d, Injunctions § 233 at 363 (1962).

In Womack v. McMillan, supra, the court said that it is a rule of general application that only such damages are recoverable as are the actual, necessary and proximate result of the injunction during the time it was operative. The court also stated:

The appellee did not attempt by allegation or proof to recover vindictive damages, but, if he had, the law seems to be settled in Texas that punitive damages cannot be recovered for wrongfully suing out an injunction, no matter how malicious the motive may have been.

In Lomax v. Trull, 232 S.W. 861 (Tex.Civ. App.— Dallas 1921, writ dism’d), the court held that punitive damages are not recoverable for wrongfully suing out a writ of injunction no matter how improper or malicious the motive.

The' trial court properly disregarded the jury’s finding and properly denied punitive damages. Appellee’s cross-point is overruled.

As hereinbefore discussed, we have concluded that the verdict and judgment is excessive in the amount of $1,626, but that in all other matters the judgment is correct.

The judgment of the trial court, therefore, will be affirmed if the appellee will file in this court within twenty-five (25) days hereof, a remittitur in writing in the amount of $1,626; otherwise, said judgment will be reversed and remanded for a new trial.

Affirmed on condition of remittitur.

MURRAY, J., did not participate in the disposition of this appeal.

SUPPLEMENTAL OPINION

Appellee having filed in writing the re-mittitur as suggested in our original opinion, it is ORDERED that the judgment, as reduced by the remittitur, be in all things affirmed.

      . In Special Issue No. 1, the jury found that Voss did not permit appellants’ premises to be wasted during the term of the lease agreement.

      . Special Issue No. 4 which inquired as to the amount of damages from such waste was not answered.

      . The hereinabove discussion as to “legal insufficiency” and “factual insufficiency” points of error pertain to a great number of appellants’ points of error, all of which complain that the trial court erred in entering judgment based upon jury findings [Points of Error Nos. 1,2, 7, 8, 9, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, 30, 31, 32, 33, 34 and 35] and while these points of error will be separately discussed, we will not repeat the discussion herein as to “legal insufficiency” and “factual insufficiency” points of error, except perhaps by reference.

      . In answer to Special Issue No. 5, the jury found that Voss sustained actual damages by reason of the issuance and service of the temporary restraining order restraining him from operating his business, and in Special Issue No. 6 found that the sum of $1,500 would reasonably compensate Voss for the damages suffered by him as a result of the issuance of such temporary restraining order.

      . In answer to Special Issue No. 7, the jury found that Beam and King acted with malice and without probable cause in causing the issuance of a temporary restraining order forcing Voss to close his business and vacate the property in May of 1975.

      . Like the other points of error hereinbefore discussed, all these points of error assert that the trial court erred in entering judgment on such special issue because of the state of the evidence. Such points of error are subject to the same discussion hereinbefore set forth.

      . In Answer to Special Issue No. 9, the jury found that on or about January 1, 1976, and subsequent thereto, Beam and King converted certain personal property, equipment and business facilities belonging to Voss described in Exhibits DX-48 and DX-75. In answer to Special Issue No. 10, the jury found that the market value of the property shown to be converted in DX-48 at the time and place of conversion was $27,000.

      . Special Issue No. 11 queried the jury as to the market value on the converted property listed in DX-75 before and after the date of conversion. DX-75 involves property which was recovered by appellee but supposedly in a damaged condition. The jury found the before market value to be $3,406, and the after market value to be $1,780, a difference of $1,626. The judgment includes such sum of $1,626.

      . In Special Issue No. 8, the jury awarded ap-pellee $25,000 as punitive damages, but the judgment does not include any amount for punitive damages.