author: YOUNG, Justice.

text:
    Norman LEVINSON et al., Appellants, v. Gene C. SLATER and Bill J. Johnson, Appellees.
    No. 1233.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 13, 1978.

      Larry G. Myers, Byrnes, Myers, Adair, Campbell & Sinex, Houston, for appellants.
    Stanley C. Woods, Miller B. Walker, Jr., Houston, Ken D. Lipseombe, Wharton, for appellees.
   OPINION

YOUNG, Justice.

In this venue case, appellants, defendants below, Norman Levinson, Virginia Levin-son, Ka-Hugh International, Inc., and Ka-Hugh Enterprises, Inc., were sued by appel-lees, plaintiffs below, Gene C. Slater and Bill J. Johnson to recover from appellants’ overriding royalty interests in certain oil and gas leases. Appellants filed a. plea of privilege to be sued in the county of their residence and appellees controverted asserting the suit should remain in Wharton County, Texas, where the disputed leases were located, under Tex.Rev.Civ.Stat.Ann. art. 1995(14) (1964). After a hearing the District Court overruled appellants’ plea.

Findings of fact and conclusions of law were not filed nor need they be filed in a plea of privilege case. See Rule 385(e), T.R.C.P. Where they are not filed, the judgment may be affirmed if there is sufficient evidence to support it upon any lawful theory. Every issue sufficiently raised by the evidence must be resolved in support of the judgment. Holiday Lodge Nursing Home, Inc. v. Huffman, 430 S.W.2d 826 (Tex.Civ.App.—Texarkana 1968, no writ); Bryant v. Kimmons, 430 S.W.2d 73 (Tex.Civ.App.—Austin 1968, no writ).

Appellants bring forward a single point in which they allege the trial court erred in denying their plea of privilege because ap-pellees failed to comply with or show themselves within the provisions of Article 1995 Subdivision 14.

The venue facts under Subdivision 14 are: 1) the nature of plaintiff’s claim and 2) the location of the land. Edgar v. Bartek, 507 S.W.2d 831 (Tex.Civ.App.—Cor-pus Christi 1974, writ dism’d). There is no dispute that the leases in question are located on land in Wharton County, Texas. Thus, appellees need only show that the nature of their claim comes within the terms of the exception. Edgar v. Bartek, supra.

The record on appeal includes the transcript and a 47 page statement of facts with attached exhibits. For purposes of determining the nature of the suit, though, we look only to the facts alleged in appellees’ petition, the rights asserted, and the relief sought. Ren war Oil Corporation v. Lancaster, 154 Tex. 311, 276 S.W.2d 774 (1955); Edgar v. Bartek, supra.

The pertinent allegations of appellees’ second amended original petition appeared as follows:

II.
“On November 28, 1973, Plaintiffs acting as joint venturers entered into an oral agreement with Defendants Norman Le-vinson and wife, Virginia Levinson, individually; and Defendant Norman Levin-son as President of Defendant corporation, Ka-Hugh International, Inc., and Ka-Hugh Enterprises, Inc., whereby Plaintiffs were to furnish geological work already done by them and were to do any necessary additional geological work on an area of oil and gas development commonly referred to as the ‘Hlavinka Area’, located in Wharton County, Texas, and more particularly shown on a Plat attached hereto as Exhibit ‘A’ and incorporated herein for all purposes. The terms of said agreement were as follows:
(a) Defendant Norman Levinson, either through himself or his companies would pay all additional acreage costs on the basis of $25.00 per acre and pay all lease renewal costs.
(b) Defendant -Norman Levinson, or Defendant corporations would pay Plaintiffs $20,000.00 for professional services. ($8500.00 to be paid on or before January 15, 1974, and the remaining $11,500.00 to be paid after first well was drilled on the herein described property).
(c) Defendant Norman Levinson, individually and through his companies, for geological services performed by Plaintiffs would assign to Plaintiffs an overriding royalty equal to 13.3% of all oil, gas and other minerals produced from the oil,' gas and mineral leases which Plaintiffs had in part already acquired and all remaining acreage acquired by and through the efforts of Plaintiffs or acquired and/or renewed by Defendants in the area outlined on Exhibit ‘A’ attached hereto.
(d) Plaintiffs were to drill a well in the name of Vantage Independent Petroleum Company to test the Yegua formation to a depth of 7800 or 7900'. Defendants agreed to raise all money for drilling such well and place the drilling funds in escrow to pay all drilling and completion costs.
(e) Any new leases, top leases, renewals, or assignment from third parties of acreage under lease taken in this area of common interest by Defendants or anyone acting for them would be subject to assignment to Plaintiffs of 13.3% overriding royalty interest as provided in Paragraph 11(c). After this agreement was consummated, Plaintiffs furnished Defendant Norman Levinson all geological information on the herein described property in the form of a selling brochure which included maps, reports, logs and copies of leases, and shortly thereafter Plaintiff Gene C. Slater went with Defendant Norman Levinson to Chicago and on numerous other trips for the purpose of selling working interests in the lease. Defendant Norman Levinson informed Plaintiffs by telephone on December 26, 1973, that he had sold ¼ of the interest but did not have $8500.00 cash which was due and owing to Plaintiffs on January 15, 1974. Plaintiffs granted Defendant Norman Levinson additional time and thereafter on February 8, 1974, Defendant Norman Levinson paid Plaintiffs $4500.00 by and through his company, Ka-Hugh International, Inc., leaving a balance of $15,500.00 owed to Plaintiffs.
III.
On October 16, 1975, Defendant Norman Levinson initialled an agreement incorporated and made a part of this pleading and marked Exhibit ‘B’, whereby he agreed in lieu of any further cash consideration to pay to Plaintiffs a reduced royalty of 8.888% of ⅜ of all oil, gas and other minerals produced by virtue of oil, gas and mineral leases herein described, but would release and assign to Plaintiffs all minerals below 100 feet below production from the first well. After the October 16, 1975, agreement, Plaintiffs relied solely upon the Defendants to proceed to renew the leases and drill a well on said lease to a depth of 7800' or through the Yegua formation, whichever is the lesser depth. Prior to drilling of the first well Defendants were to assign to Plaintiffs a 8.888% Overriding Royalty and 100% of all minerals below 100' below production from the first well.
IV.
The Bratcher No. 1 Well was drilled by Defendants on said leases and a log was run on approximately January 7, 1976. Production from said well, was commenced in May, 1976, and such well is still producing. Therefore, the Plaintiffs seek under the aforementioned contract which would be the delivery by Defendants to Plaintiffs of an assignment of an overriding royalty of 8.888% of % of the oil, gas and other minerals in and under the herein described leases, or any others obtained in the area of interest described by Exhibit ‘A’ attached hereto, and a release and assignment to Plaintiffs of all minerals in said leases, or any others obtained in the area of interest described by Exhibit ‘A’ attached hereto, below 100 feet below production from the Bratcher No. 1 Well, or in the alternative judgment against Defendants for value of said Plaintiffs' services in the amount of 8.888% of ⅜ of all oil and gas produced by virtue of said leases described herein, and the assignment by Plaintiffs of all minerals below 100 feet below production from said first well, which is the reasonable value of such services.
v.
The agreements and understandings between Plaintiffs and Defendants, as referred to in Paragraph II and III above, constituted a joint venture to use their joint and best efforts to obtain the mineral development in the area covered by the leases hereinafter set out in Paragraph VII. By the terms of such agreement and understanding set forth in Paragraph III, Plaintiffs were to receive Overriding Royalty equal to 8.888% of 8/sths of all the oil, gas and other minerals produced from such leases and Plaintiffs would have released and assigned to them by Defendants all minerals below 100 feet below production from the first well drilled on such leases. Defendants used the knowledge which they obtained in the joint venture to acquire said leases and drill the herein referred to Bratcher # 1 Well. Defendants actions as herein set forth constituted a breach of the confidential relationship between Plaintiffs and Defendants and was a fraud upon Plaintiffs. There existed between Plaintiffs and Defendants a relationship of trust and confidence and the leases acquired by Defendants inured to the benefit of both Plaintiffs and Defendants, and an overriding royalty of 8.888% in the minerals in and under the leasehold estates covered by such leases and 100% of all minerals below 100 feet below production from the Bratcher # 1 Well are held by Defendants as constructive Trustees for the benefit of Plaintiffs, and Plaintiffs by this action seek to establish and enforce their equitable title to such interest in said land.
VI.
That as above alleged Plaintiffs are owners of an overriding royalty equal to 8.888% of Vsths of all oil, gas and other minerals produced under and by virtue of the oil, gas and mineral leases more particularly described as follows and are the owners of 100% of the minerals below 100 feet below production from the said Bratcher # 1 Well.

There follows in plaintiffs’ petition descriptions of seven oil, gas and mineral leases, dated in 1974 and 1975, on land in Wharton County.

A suit for specific performance of a contract to assign an interest in land is not within Subdivision 14 of Article 1995. Calvert v. Greene, 326 S.W.2d 592 (Tex.Civ.App.—San Antonio 1959, no writ); Milburn v. Minette, 278 S.W.2d 269 (Tex.Civ.App.—El Paso 1955, no writ); Edgar v. Bartek, supra. But a suit claiming equitable title to land by means of a constructive trust comes within Subdivision 14. Carstairs v. Bomar, 119 Tex. 364, 29 S.W.2d 334 (Comm’n App.1930, opinion adopted); Edgar v. Bartek, supra.

Appellants direct our attention to paragraphs 11(c) and (e), III, IV, and the statements concerning appellees’ right to have an “assignment” of or to “be assigned” an overriding royalty and all minerals below 100 feet below production from the first well. They contend the statements show the primary purpose of the suit to be one for specific performance of a contract to convey an interest in land, and thus that such a suit does not come within the purview of Subdivision 14.

Upon reviewing the allegations of appellees’ petition we find that the primary nature of this suit is not one for specific performance of a contract. Rather we find the allegations show that the primary purpose of the suit is to establish, through a constructive trust, an equitable title to an 8.888% overriding royalty in the minerals in the leasehold estates covered by such leases and 100% of all minerals below 100 feet below production from the first well drilled on the land covered by the mineral leases involved, and all mineral interests below 100 feet below production of the Bratcher # 1 Well.

A primary circumstance from which the law will raise a constructive trust is the breach of a confidential relationship. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962). Appellees’ petition specifically avers not only that “there existed between plaintiffs and defendants a relationship of trust and confidence” (Paragraph V.) but also that the parties took several trips together jointly promoting the leases; that each had an investment in the business which by their joint efforts they were seeking to protect; that appellees were willing to trust appellants’ judgment in executing new leases and renewing old ones; and that appellees freely extended the payment schedule for certain debts owed by appellants to appellees. See Min-ton v. Stewart, 359 S.W.2d 925 (Tex.Civ.App.—Eastland 1962, no writ).

Furthermore, appellees allege in Paragraph II that the parties were working as joint venturers. This relationship can give rise to a constructive trust. Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401 (1960). Moreover, appellees assert in Paragraph V that appellants’ actions constituted a fraud. Fraud also may give rise to a constructive trust. Gourley v. Fields, 348 S.W.2d 787 (Tex.Civ.App.—Eastland 1961, no writ); Brown v. Gilmore, 267 S.W.2d 908 (Tex.Civ.App.—El Paso 1954, writ dism’d). Finally, appellees assert in Paragraphs II and VI that several leases were executed subsequent to appellees giving the geological information to appellants. Use of a confider’s knowledge or information by a confidant who stands in confidential relationship may give rise to a constructive trust. Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954). Restatement of the Law, Restitution Chap. 12, § 200 (1937).

We recognize that the nature of a suit is to be determined by the “facts” alleged in the petition, Edgar v. Bartek, supra, and that it might be asserted that some of the above allegations supporting our decision are in the nature of conclusions. But challenges to the legal sufficiency of the allegations in the petition which are incorporated in the controverting affidavit should be made by special exceptions. This then gives the plaintiff an opportunity to amend his pleadings if they are not specific enough. Crim v. Logan, 277 S.W.2d 298 (Tex.Civ.App. — Waco 1955, no writ);1 1 McDonald, Texas Civil Practice §§ 4.49,4.51 (II) (1962). Appellants’ failure to so except in the instant case constituted a waiver of such deficiencies for purposes of venue. Cactus Drilling Corporation v. Hager, 487 S.W.2d 758 (Tex.Civ.App.—El Paso 1972 no writ); Great Southwest Life Insurance Company v. Camp, 464 S.W.2d 702, 704 (Tex.Civ.App.—Fort Worth 1971, no writ); 1 McDonald, Texas Civil Practice § 4.49 n. 38 (1962). Consequently, the Court will construe the allegations liberally and indulge every reasonable intendment to sustain the controverting plea. Strickland Transportation Company v. Carmona, 303 S.W.2d 851 (Tex.Civ.App.—Waco 1957, no writ), 1 McDonald, Texas Civil Practice § 4.49 n. 37 (1962).

Accordingly, we find the nature of appel-lees’ suit to be one asserting an equitable title which comes within Subdivision 14.

The judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: SPURLOCK, Justice.

license: Public Domain

text:
    COMMERCIAL CREDIT CORPORATION, Appellant, v. Henry J. CHASTEEN et ux., Appellees.
    No. 17947.
    Court of Civil Appeals of Texas, Fort Worth.
    April 13, 1978.
    Rehearing Denied May 11, 1978.

      Garrett & Burkett and Michael R. Burk-ett, Fort Worth, for appellant.
    Staples & Foster and Ross T. Foster, Hurst, for appellees.
   OPINION

SPURLOCK, Justice.

This is a usury case. Henry J. Chasteen and his wife (appellees) purchased a mobile home from Big Country Homes, Inc. on October 5, 1973, and signed a retail installment contract. All the terms in the retail installment contract were controlled and inserted by Commercial Credit Corporation (CCC — appellant) for its benefit. After a nonjury trial, the trial court ruled that appellant charged interest and time-price differential in excess of double the amount allowed by law. The trial court rendered judgment against CCC in the amount of $32,561.45, which included attorney’s fees.

We modify the judgment of the trial court, and as so modified, the judgment is affirmed.

In its first point of error, CCC contends that the trial court erred in holding that it charged a usurious rate of interest. In its argument under this point of error, it contends that the “notice of private sale” letter sent to the Chasteens constitutes the sole basis for the claim that it charged a usurious rate of interest. (Appellees argue that the “notice of sale” letter does not constitute the sole basis of their claim.) The following is a part of this letter:

NOTICE OF PRIVATE SALE
Dear Customer:
This is to notify you that on or after 12-12-74 the above described goods will be sold at Private Sale, at this address, pursuant to the terms of the Security Instrument you signed and the Uniform Commercial Code for the State of Texas which provides for the sale and disposition of the goods by a Secured Party following default by a debtor. You may recover the goods before the sale only if you make payment of the unpaid balance to us of $23137.58 plus the expenses incurred by us in retaking, holding and preparing the goods for disposition and the attorney’s fees and legal expense. If you do not redeem the collateral, it will be sold to the highest bidder and the proceeds of the sale will be applied to your account.
Under the terms of the Security Instrument, you will receive any proceeds in excess of the amounts owed by you and you will be held responsible for any deficiencies sustained if the proceeds are less than the amounts owed by you.
Sincerely yours,
/s/ D. Weaver
D. Weaver
Branch Manager

Dewey L. Weaver, branch manager for CCC, testified that one of the reasons for sending out the “notice of sale” letter is to advise people of their legal responsibility.

By the terms of the retail installment contract, CCC extended credit to the Chas-teens in the amount of $13,087.00. The Chasteens were to repay this sum, together with a finance charge of $11,777.48, in 144 monthly installments of $172.69 each. The Chasteens made ten monthly payments pri- or to their default and the peaceful repossession of their mobile home by CCC.

In the event of default, the retail installment contract provides:

“If Purchaser defaults on any obligation or breaches any agreement or warranty under this Security Agreement, or if Seller in good faith, believes that the prospect of payment or performance by Purchaser is impaired, the unpaid portion of the Total of Payments, shall, without notice, at the option of Seller, become due forthwith.”

The evidence established that the “unpaid portion of the total of payments” was equal to the total amount financed plus the total finance charge, less any payments made by the Chasteens. The evidence also established that the seller assigned all of its rights under the retail installment contract to CCC and that all the terms in the retail installment contract had been controlled and inserted by CCC.

In the event of prepayment, the retail installment contract provides:

“Upon prepayment, Purchaser is entitled to a rebate of the FINANCE CHARGE (Item 10) computed in accordance with the Rule of 78. An acquisition charge of $25.00 will be deducted from the FINANCE CHARGE before making the Rule of 78 computation.”

The retail installment contract does not provide for a rebate in the event of default. Mr. Weaver, the branch manager for CCC, testified that Mr. Chasteen would have to come in and pay off the indebtedness in order to constitute prepayment.

After the Chasteens’ default and CCC’s repossession, CCC accelerated the Chas-teens’ obligation, pursuant to its right under the retail installment contract.

At the same time that the December 2, 1974 “notice of sale” letter was sent to the Chasteens, CCC sent a voluntary report to Credit Bureau Services, which report said that the amount owing by the Chasteens was $23,137.58. We note that this is the same amount contained in the “notice of sale” letter sent to the Chasteens.

In summary, we emphasize the following facts. (1) In the event of default, under the terms of the retail installment contract, CCC had the right to accelerate and demand payment of all the unpaid principal and finance charge contracted for, both earned and unearned. (2) The terms of the notice of sale letter make it clear that CCC was exercising its rights under the retail installment contract, one of which was to charge and collect unearned interest upon acceleration. (3) CCC sent a letter to the credit bureau, which notified them that the Chasteens owed it $23,137.58. (4) At the time that CCC accelerated the Chas-teens’ obligation, the Chasteens had had the use of the $13,087.00 less than fifteen months, for which they were charged interest in excess of $10,000.00. We hold that CCC charged the Chasteens usurious interest, in an amount in excess of twice the amount allowed by law. Moore v. Sabine National Bank of Port Arthur, 527 S.W.2d 209 (Tex.Civ.App.—Austin 1975, writ ref’d n. r. e.). We overrule CCC’s first point of error.

By its second point of error, CCC contends that the trial court erred by awarding damages to the Chasteens that are in excess of the proper measure of damages allowed by law. In its discussion of this point, CCC raises a number of complaints. Although its argument is multifarious, we have considered each of its complaints under this second point of error. One of CCC’s arguments is to the effect that the trial court erred in its award of attorney’s fees to be paid to the Chasteens in the event of an appeal. By its calculations in the judgment, the trial court awarded the Chasteens the following attorney’s fees: (1) $2000.00 through judgment, (2) $2000.00 for an appeal to the Court of Civil Appeals, (3) $500.00 for application for a writ of error to the Supreme Court, and (4) $500.00 if an application for writ of error is granted by the Supreme Court. The judgment further ordered the Chas-teens to file a remittitur in one of the following amounts: (1) $500.00 if an application for writ of error is refused by the Supreme Court, (2) $1000.00 if no application for a writ of error is filed in the Supreme Court, or (3) $3000.00 if no appeal is taken to the Court of Civil Appeals.

CCC cites us to the case of King Optical v. Auto. Data Processing, Etc., 542 S.W.2d 213 (Tex.Civ.App.—Waco 1976, writ ref’d n. r. e.), where the court wrote:

“The awards of attorneys’ fees in this case in the event of appeals by the appellant are unconditional and do not purport to turn upon whether or not the appellant succeeds in the appellate courts. The awards are improper.” Id. at 218.

In affirming the trial court’s judgment with certain modifications, the Court of Civil Appeals deleted the award of attorney’s fees from the judgment. We do not consider the King Optical, supra, case to be controlling, in view of our Supreme Court’s opinion in the case of International Security Life Insurance Co. v. Spray, 468 S.W.2d 347, 348 (Tex.1971), which addresses the problem of how to draft a judgment providing for attorney’s fees in the event of appeal. In that case, our Supreme Court wrote:

“A final judgment must be definite and certain, but this certainly is not dissipated simply because the district clerk has to compute costs to add to the amount of the judgment or to deduct a remittitur that is ordered. So long as the judgment of the court makes the figure which the clerk is to place in the writ of execution determinable by ministerial act, the judgment cannot be said to lack definiteness.
“The point is that the clerk of court is faced with no greater problem in subtracting a $500 attorney fee, when the papers on file with him show that no application for writ of error was made to the Supreme Court, than he would have in adding a $25 court cost filing fee. Furthermore, the form of the judgment is not the controlling matter here so long as certainty is achieved. . . . ” (Emphasis added.) Id. at 350.

We agree with the opinion of our Supreme Court in International Security Life Insurance Co., supra. We hold that the trial court did not award damages to the Chasteens in excess of the amount of damages allowed by law. We overrule CCC’s second point of error.

By their first cross-point of error, the Chasteens contend that the trial court erred in failing to conclude as a matter of law that CCC contracted for interest in excess of twice the amount allowed by law. By their second cross-point of error, they contend that the trial court erred in failing to award them twice the amount of interest contracted for.

The Chasteens’ argument is thus: if they had defaulted in their first installment payment, CCC would contractually have been entitled to collect from them $13,-087.00 as principal and $11,777.48 as interest, because of the acceleration clause. Thus, they argue that under Tex.Rev.Civ. Stat.Ann. art. 5069-8.01(a) (Supp.—1978), they were entitled to an interest penalty of twice the amount of interest “contracted for, charged or received,” or $23,554.96, rather than the $20,408.02 awarded by the trial court as an interest penalty. We agree with the Chasteens’ argument. We sustain the Chasteens’ first and second cross-points of error. The Chasteens’ total recovery shall be increased by $3,146.94. We shall render the judgment that the trial court should have rendered. Tex.R.Civ.P. 434.

We render judgment that the Chasteens have judgment against Commercial Credit Corporation for $35,708.39, plus interest at 9% per annum from March 1,1977, the date of the judgment by the trial court, until paid. As so modified, the judgment of the trial court is affirmed.

We have only considered the specific points raised by the parties in their briefs; we express no opinion as to whether or not the Chasteens were entitled to additional damages for CCC’s violations of the Texas usury laws.


author: MASSEY, Chief Justice.

text:
    Dean I. DAULEY, d/b/a Dauley Enterprises, Appellant, v. FIRST NATIONAL BANK OF FORT WORTH, Appellee.
    No. 17953.
    Court of Civil Appeals of Texas, Fort Worth.
    April 13, 1978.
    Rehearing Denied May 11, 1978.

      Thorne, Thorne & Robertson, Inc. and Michael A. Robertson, Grand Prairie, for appellant.
    Cantey, Hanger, Gooch, Munn & Collins, Fort Worth, Kilgore & Kilgore and James A. Kilgore, Dallas, for appellee.
   OPINION

MASSEY, Chief Justice.

Summary judgment for defendant First National Bank of Fort Worth was rendered upon the suit against it by Dean I. Dauley, d/b/a Dauley Enterprises. Dauley appealed.

Judgment affirmed.

One Ridgway was authorized leasing agent for the Meadowbrook Village Shopping Center at Cleburne, Texas. As such he contracted with Buddies Super Markets for a 22 year lease on space therein located. Dauley was instrumental in securing the Buddies’ contract for Ridgway and his principal. For his services the above parties contracted upon the consideration.

The interest of Ridgway’s principal was wiped out by foreclosure of a Deed of Trust lien of the Bank placed upon the premises after the Buddies’ lease had been effected. The Bank bought the property at the sale by the Trustee. There is a question upon the matter of “notice” to the Bank of the claim of Dauley because of having procured the Buddies’ lease, but in the disposition of the case this is deemed immaterial.

Dauley sued the Bank, as the successor in-interest of Ridgway’s principal, hereinafter encompassed by the term Ridgway. Dauley alleged that pursuant to the transaction whereby he had procured the Buddies’ lease the agreed compensation to be paid him was 6% commission based on the value of the lease and any renewals, secured by oral assignment of a 6% interest in the lease; that Ridgway did continue to collect the monthly rental until the Bank’s foreclosure, paying the 6% agreed portion of each payment to Dauley; that though having full notice and knowledge the Bank did fail and refuse to make further payments to him after it foreclosed; that of the oral assignment to him by Ridgway a part was reduced to writing and signed by Ridgway (it is hereinafter copied in the opinion); and that the same was placed of record prior to effecting the lien foreclosed. Concluding, Dauley asserts creation of an equitable lien upon the realty as security for the obligation created by this transaction with Ridg-way. He prayed for the adjudication of indebtedness and for foreclosure of his lien.

The Bank pleaded Texas Business & Commerce Code, Ch. 26, § 26.01, which is the Statute of Frauds. In part its inspiration therefor was found in the case of Blasser v. Cass, 158 Tex. 560, 314 S.W.2d 807 (1958). At time of that opinion the Statute of Frauds was V.A.T.S. Art. 6573a, Sec. 28. The holding in Blasser was followed by Tobin v. J. D. Blanton Construction Company, 392 S.W.2d 881 (Tex.Civ.App.—Texarkana, 1965, writ ref’d n. r. e.) when the Statute bore the same number. In Tobin recovery was denied a real estate agent on the basis of the Statute. In the opinion it was stated that the Construction Company had never agreed to pay and did not owe the commission though it had obtained a mechanic’s lien upon the property subsequent to the lease in question and thereafter foreclosed it. The real estate agent had effected a lease in behalf of the former owner with a third party tenant and had entitlement to the agreed commission incorporated in the lease. Furthermore, the agent had secured from the owner a Deed of Trust to secure payment.

However, it is simpler to show that the disposition of the case is controlled by Blas-ser; that by the holdings of the Supreme Court in that case the rendition of summary judgment in the one before us was undoubtedly correct. Justice Norvell, author of the opinion, showed the rationale of the controlling Rule in Restatement of the Law of Property Ch. 45 “Running of Burdens”, § 537, “Relation of Benefit and Burden”, and also recited the Rule, as follows:

“The successors in title to land respecting the use of which the owner has made a promise can be bound as promisors only if

“(a) the performance of the promise will benefit the promisee or other beneficiary of the promise in the physical use or enjoyment of the land possessed by him, or
“(b) the consummation of the transaction of which the promise is a part will operate to benefit and is for the benefit of the promisor in the physical use or enjoyment of land possessed by him,

“and the burden on the land of the promisor bears a reasonable relation to the benefit received by the person benefited.”

One ultimate holding in Blasser was: Where lease provided that landlord agreed to pay undersigned agent commission for negotiating lease or renewals thereof and in the event of assignment, landlord, his assigns, successors and heirs would be liable for all agent’s commissions due under lease, promise was purely for benefit of one having no interest in land and would not be enforced against successive owners of realty as a covenant running with the land.

Another ultimate holding in Blasser was: Where lease contained provisions that realty agent was entitled to commissions on renewal of lease and that in event of assignment successors in interest as well as landlord would be liable for commissions, grantees by accepting deed subject to leases on property did not assume payment of lease renewal commissions.

Upon the theory that they hold to the contrary of Blasser, Dauley cites cases: Riley v. Palmer, 237 S.W. 326 (Tex.Civ.App.— Amarillo 1922, no writ history); Dean v. Gill, 18 S.W.2d 784 (Tex.Civ.App.—Texarkana 1929, no writ history); Fidelity & Deposit Co. v. Kelsay Lumber Co., 29 S.W.2d 1052 (Tex.Comm’n.App., 1930, modified 33 S.W.2d 731); C. W. Hahl & Co. v. Hutcheson, Campbell & Hutcheson, 196 S.W. 262 (Tex.Civ.App.—Galveston 1917, error ref’d); and Davis and Goggin v. State Nat. Bank, 156 S.W. 321 (Tex.Civ.App.—El Paso 1913, error ref’d.). (Note that prior to June 14, 1927, notation of “error refused” or “writ refused” meant that Supreme Court, though approving result did not necessarily approve opinion; and not even mean that where error was not preserved and presented to the Supreme Court.)

We consider Riley inapplicable; it involved an assignment of an interest in and to a fund, not real estate. The same is true of Dean, Fidelity & Deposit Co., C. W. Hahl & Co., and Davis and Goggin. All the cases involved liens applicable to personalty, not realty.

Dauley strives to overcome the inhibitions we must impose by Blasser. He insists that he should be held entitled to introduce parol testimony despite the Statute of Frauds to show the character of his assignment from Ridgway to have been an interest in realty, something which could only be accomplished by parol. The only memorandum in writing read as follows:

“Re Buddies Lease in Cleburne
“I am forwarding an acceptance letter to you whereby you agree to pay me a 6% commission on the Buddies lease in Cle-burne for the life of the lease, which is 22 years plus any renewals. My calculation indicates that the commission should be $283.50 per month. This is based upon 27,000 square feet X $2.10 X 6% and dividing this amount by 12.
“If this is acceptable, please indicate by signing below.
“With kindest personal regards,
“Sincerely yours,
/s/ “Dean I. Dauley
“ACCEPTED: /s/ I. Boyd Ridg-way.”

Recognizing that the letter, in and of itself, is insufficient to meet the requirement of a promise or agreement (or memorandum of such) in writing which would establish an assignment of an interest in the real estate — as distinguished from an interest in a fund, as personalty — Dauley seeks to assert existence of his right to show that the “true consideration” moving from Ridgway to him included the assignment of an interest in realty. Thereby he attempts to avoid the restrictions of the Statute of Frauds. See Texas Business & Commerce Code, Ch. 26, “Statute of Frauds”, § 26.01, “Promise or Agreement Must be In Writing”. He likewise seeks to avoid the restrictions of the Statute of Conveyances. See V.A.T.S., Title 31, “Conveyances”, Art. 1288, “Instrument of conveyance”. The article provides that no estate in lands and tenements shall be conveyed from one to another unless the conveyance be declared by an instrument in writing, subscribed and delivered by the party disposing of the same, or by his agent thereunto authorized by writing.

These statutes bar the recovery of Dauley in view of their operation to render his evidence inadmissible unless he may show himself entitled to introduce evidence that the “true consideration” from Ridgway to him was assignment of the realty interest— as distinguished from an interest in a fund.

As pointed out by the Bank Dauley’s attempt is to recover from it the debt, default, or miscarriage of Ridgway, and this would be within the inhibitions of the Statute of Frauds in the absence of written memorandum. Further, since the agreement accepted by Ridgway created a mere personal obligation to pay a calculable amount of money contingent upon Ridgway’s receipt of rentals from the tenant, reception by the court of testimony that the parties orally agreed to any assignment of rentals, or to the imposition of any charge or lien would be to violate the Parol Evidence Rule. Consequently there would be no admissible evidence which would sustain Dauley’s allegations; any issue as to oral agreements between him and Ridgway would not be material. Even if the court were to find that such an agreement existed the determination would not entitle Dauley to judgment against the Bank.

Dauley’s statement in his brief is that in the posture of the case on motion for summary judgment the Bank would not be entitled to prevail unless its summary judgment proof demonstrated as a matter of law that there was no enforceable assignment between Dauley and Ridgway. Essentially the statement is correct. Actually the Bank would be entitled to prevail if its proof demonstrated as a matter of law that Dauley would be unable to prove by evidence admissible upon trial that he had an enforceable contract with Ridgway. That having been what the Bank proved the summary judgment was correctly rendered. Sparkman v. MeWhirter, 263 S.W.2d 832, 838 (Tex.Civ.App.—Dallas 1953, error ref’d); Tex.R.Civ.P. 166-A, §§ (c) & (e), “Summary Judgment”.

Judgment is affirmed.


text:
    INTEGRATED INTERIORS, INC., Appellant, v. David R. SNYDER, Appellee.
    No. 17991.
    Court of Civil Appeals of Texas, Fort Worth.
    April 13, 1978.
    Opinion on Motion for Temporary Injunction May 18, 1978.

      Brown, Herman, Scott, Dean & Miles and Shelby Sharpe, Fort Worth, for appellant.
    Brown & Stacker and Michael W. Stacker, Dallas, for appellee.
   OPINION

SPURLOCK, Justice.

This is an appeal from an order of the trial court denying a temporary injunction. Integrated Interiors, Inc. (appellant) sued David R. Snyder (appellee) to enforce the provisions of an employment contract and a covenant not to compete with appellant for a period of three years within fifty miles of its principal place of business.

Reversed and remanded, with instructions.

By its sole point of error, appellant contends that the trial court erred in failing to temporarily enjoin appellee from competing with its business within a fifty mile radius of its principal place of business in Tarrant County, Texas, during the pendency of these proceedings, since the record establishes by undisputed facts that appellant is entitled to enforce the restrictive covenant of the employment contract, and thus, the trial court has abused its discretion in failing to grant the temporary injunction.

Appellee signed an employment contract with appellant on May 21, 1976. The term of the employment contract was for three years, beginning April 1, 1976, and ending March 31, 1979.

The important provisions of the employment contract are as follows:

“Sec. 1:3. Duties of Employee. Employee is initially employed as President of Company, however, it is understood and agreed that Employee is subject to the direction and control of Employee’s immediate supervisors and by the Company’s Board of Directors. . . . ”
“Sec. 3:1. Disclosure of Confidential Information; Covenant Not To Compete. Company possesses secret and confidential equipment, techniques, processes, procedures, technique data and information, and customer lists used or intended for utilization in its operations of which Employee has obtained or may obtain knowledge, and Company would suffer serious harm if this confidential information were disclosed or if Employee used this information to compete against Company. Accordingly, Employee hereby agrees that simultaneously with the execution of this Contract he shall execute and deliver to Company and thereafter abide by the terms of a ‘Confidentiality Agreement and Covenant Not to Compete’, a copy of which is attached hereto as Exhibit A.”

The contract further provides that appel-lee is to be paid a salary of $1150.00 per month.

Appellee also signed the “Confidentiality Agreement and Covenant Not to Compete” on May 21, 1976. The covenant not to compete is limited to the area within fifty miles of appellant’s principal place of business and is effective for a period of three years.

The appellee testified to the following facts: (1) The contract of employment contained all the terms of the agreement between the parties; (2) His salary has never been lowered, but had been increased to $1350.00 per month; (3) While still in appellant’s employment, he requested his attorneys to draft the articles of incorporation for a business known as A C D, Inc.; (4) On May 31, 1977, he delivered to appellant a letter resigning his position as President of the company; (5) He had not been terminated from his employment with appellant and his resignation was not requested; (6) He is now the President and a member of the Board of Directors of A C D, Inc.; (7) A C D, Inc.’s principal place of business is located at 2419-B Weaver Street in Fort Worth, Texas, which is within fifty miles of appellant’s principal place of business; (8) The business of A C D, Inc. is essentially the same as appellant’s business and competes with appellant’s business; (9) After leaving his employment with appellant, he bid (on behalf of A C D, Inc.) on two jobs that he had previously submitted bids on behalf of appellant, and A C D, Inc. had been awarded these contracts.

The controversy narrows down to the meaning of the following sentence in the employment contract, whereby it provides that “Employee is initially employed as President of Company . . . .” (Emphasis added.) The real dispute on appeal concerns the effect of the word “initially” in the employment contract. Basically, ap-pellee contends that appellant breached the employment contract, in that many of his duties as President were gradually being taken away from him, so that most of his activities were those of a salesman. In his brief, appellee argues that the “intention of the parties pursuant to the language of the contract was that defendant was employed as president for three years.”

Appellant contends that Article I, Sec. 1:3 of the employment contract (quoted previously) gave it the legal right to remove appellee as president, either by a formal removal or by a de facto removal. Appellant contends that the phrase “initially employed as President” only meant that it agreed to start appellee as president. Appellant argues that the word “initially” means “at the beginning.”

As our Supreme Court wrote in Fox v. Thoreson, 398 S.W.2d 88, 92 (Tex.1966): “(L)anguage used by the parties should be given its plain grammatical meaning unless it definitely appears that the intention of the parties would thereby be defeated.”

We agree with appellant that the word “initially” means “at the beginning”. Appellee was to begin his duties with appellant as president, but as the contract of employment provides, those duties were subject to direction and control by the appellant’s board of directors and his immediate supervisors.

The only question to be decided on appeal in the granting or refusal of a temporary injunction is whether the trial court abused its discretion in entering the order appealed from. City of Houston v. Southwestern Bell Tel. Co., 263 S.W.2d 169, 171 (Tex.Civ.App.—Galveston 1953, writ ref’d). However, the discretion of the trial court is not unlimited and such discretion does not extend to the erroneous application of the law to undisputed facts. Southland Life Ins. Co. v. Egan, 86 S.W.2d 722, 722-723 (Tex.Comm’n.App.—1935, opinion adopted); Hayden v. City of Houston, 305 S.W.2d 798, 801 (Tex.Civ.App.—Fort Worth 1957, writ ref’d n. r. e.).

The cases of John L. Barmlet & Company v. Hunt, 371 S.W.2d 787 (Tex.Civ.App.— Dallas 1963, writ ref’d n. r. e.) and Parker v. Smith, 254 S.W.2d 144 (Tex.Civ.App.—San Antonio 1952, no writ) are very compelling, due to their similarity with the facts of the case at bar. Another persuasive case is Weed Eater, Inc. v. Thomas W. Dowling, Jr., 562 S.W.2d 898 (Tex.Civ.App.—Houston (1st Dist.) 1978).

Covenants not to compete are enforceable, if they are reasonably limited as to time and geographic territory. John L. Bramlet & Company v. Hunt, supra, at 788. In the case at bar, both the time and territory limitations contained in the covenant not to compete are reasonable.

The record clearly indicates that appellant’s business is being adversely affected by appellee’s violation of the covenant not to compete. Having read the entire record, we must conclude that there is no dispute as to the material facts. Accordingly, the trial court fell into error in refusing to grant the temporary injunction against appellee.

The order of the trial court denying the temporary injunction is reversed and this cause is remanded to the trial court with instructions to grant a temporary injunction against appellee, restraining him from violating the terms of his employment contract and covenant not to compete with appellant until a trial of the cause can be had on the merits, or until otherwise ordered by the trial court.

Reversed and remanded, with instructions.

OPINION ON MOTION FOR TEMPORARY INJUNCTION

For full background information on this ease, see this court’s opinion in Integrated Interiors, Inc. v. Snyder, 565 S.W.2d 350 (Tex.Civ.App.—Fort Worth, opinion handed down April 13, 1978). Briefly stated, Integrated Interiors, Inc. (appellant) sued David R. Snyder (appellee) to enforce the provisions of an employment contract and a covenant not to compete with appellant for a period of three years within fifty miles of its principal place of business. This court reversed the trial court’s order and remanded the cause to the trial court with instructions to grant a temporary injunction against appellee, “restraining him from violating the terms of his employment contract and covenant not to compete with appellant until a trial of the cause can be had on the merits, or until otherwise ordered by the trial court.”

Appellee’s attorney has advised appellant that he intends to file an application for writ of error with the supreme court of Texas. Pending possible action by our supreme court, appellant has requested this court to issue a temporary injunction enjoining David R. Snyder in accordance with this court’s opinion handed down on April 13, 1978. Based upon the authority of Guerra v. McClellan, 243 S.W.2d 715 (Tex.Civ.App.—San Antonio 1951, mand. overr.) and Barron v. Phillips, 544 S.W.2d 752 (Tex.Civ.App.—Texarkana 1976), we have decided to issue a temporary injunction, conditioned upon the posting by appellant of a good and sufficient bond as required by law and the Texas Rules of Civil Procedure, in the amount of $10,000.00 with at least one corporate surety. Said bond is to be approved by the Clerk of the court of civil appeals. The temporary injunction shall be effective until the mandate in this cause shall have been returned to the 17th district court of Tarrant County.


author: McKAY, Justice.

text:
    TEXAS BANK & TRUST COMPANY of Texas, Appellant, v. LONE STAR LIFE INSURANCE COMPANY, Appellee.
    No. 1115.
    Court of Civil Appeals of Texas, Tyler.
    April 13, 1978.

      Stephen A. Brutsche, Geary, Stahl, Koons, Rohde & Spencer, Dallas, for appellant.
    William D. Sims, Jr., Jenkens & Gilchrist, Dallas, for appellee.
   McKAY, Justice.

This is an appeal from a summary judgment that appellant, Texas Bank & Trust Company, take nothing against appellee, Lone Star Life Insurance Company, for the latter’s failure to honor its loan commitment to James C. Hadsell d/b/a Signa Properties.

Appellant alleged that as a result of Lone Star’s failure to honor the loan commitment, it was damaged in the amount of $251,250, the sum of $225,000 being the difference between the amount of the commitment by Lone Star and the bid price at the foreclosure sale of the real property which secured its interim loan, and $26,250 representing trustee’s fees incurred by Texas Bank in relation to the foreclosure of the real property. Appellant further alleged Lone Star waived any nontransferability provision of the commitment and 60-day notice requirement by its conduct.

Lone Star answered and, at the completion of all discovery, filed a motion for summary judgment asserting that (1) Texas Bank, as opposed to Hadsell, had no cause of action against Lone Star because there was no privity of contract between Lone Star and Texas Bank, (2) conditions precedent to Lone Star’s obligation, if any, to Hadsell had not been met, and (3) Hadsell was insolvent at the time for funding the loan commitment.

The trial court granted Lone Star’s motion for summary judgment that appellant take nothing against appellee. From this judgment appellant perfects its appeal.

We affirm.

James C. Hadsell testified by deposition that he contacted Texas Bank and Trust in order to obtain interim financing for the purchase of an 11.559 acre tract of land in Euless, Texas. Before making the interim loan, Texas Bank required Hadsell to obtain a commitment for long-term financing. After discussions between all parties concerned, Lone Star Life issued a commitment letter to James Hadsell. The letter, dated September 14, 1972, committed Lone Star Life to lend Hadsell $750,000 between September 1, 1975, and December 31, 1975, and was signed by J. Bryan Sutherlin. We quote this letter as it appears in the record:

“September 14, 1972

Signa Properties

3001 LBJ Freeway

Suite 101

Dallas, Texas 75234

Attention: Mr. James C. Hadsell

Gentlemen:

Re:

Application for $750,000 First Mortgage Loan, 11.559 Acre Tract, Euless, Texas.

We are pleased to inform you that Lone Star Life Insurance Company (‘Lender’) has approved your application for $750,000 First Mortgage Loan. Loan is to be made to James C. Hadsell (‘Borrower’) and is to be secured by a First Mortgage Lien on the above referenced property and more exactly described in Exhibit A attached hereto.

Funding of the loan by Lender is subject to the following terms and conditions:

(1) The amount of the loan is to be $750,-000 for a term of five (5) years at an interest rate of 9¾% per annum. Amortization of the loan and the payment of interest thereon shall be as follows:

(a) Sixty (60) consecutive monthly payments of approximately $15,843.23 with such payments commencing one (1) month after date of closing.

(2) The loan is to be secured by First Mortgage Lien on the property described in exhibit A.

(3) Payment of the loan is to be guaranteed personally by James C. Hadsell.

(4) Borrower will provide to Lender at the date of closing a Mortgagee’s Title Policy on form and from company acceptance to Lender in the amount of the loan, showing the fee simple title vested in the named Borrower, naming Lender as insured and guaranteeing that the loan is secured by a valid first lien against the property and any restrictions, easements or reservation must be approved by Lender. As a prerequisite for funding this loan the subject property must be at the time of funding zoned commercial.

(5) All documents required at closing by Lender must be acceptable to Lender’s counsel.

(6) All costs of closing, including the cost of Title Policy, surveys, etc., will be borne by Borrower.

(7) Lender will not be obligated to fund the loan prior to September 1, 1975 nor later than December 31, 1975.

(8) Written notice will be given Lender Sixty (60) days prior to the date when Lender will be called upon by Borrower to fund the loan.

(9) This commitment by Lender is nontransferable and will not be binding until the agreed upon commitment and administrative fees are paid to Lender. The agreed upon commitment and administrative fees are $15,000.00 payable, upon acceptance of this Commitment Letter by you, at the home office of the Lender. The agreed upon commitment and administrative fees once paid are non-refundable whether or not the loan is funded by Lender.

If this Commitment Letter embodies terms and conditions agreeable to you, please so indicate by executing the copy of this Commitment Letter provided herewith and returning it to Lone Star Life Insurance Company along with the payment of the $15,000.00 commitment and administrative fee. This Commitment Letter will be null, void and of no further force and effect if not executed and returned prior to October 1, 1972.

For the Investment Committee,

s/J. Bryan Sutherlin

J. Bryan Sutherlin

Agreed and Accepted:

s/James C. Hadsell

James C. Hadsell”

On September 20, 1972, Hadsell executed and delivered to Texas Bank a promissory note in the amount of $750,000.00 with interest at 7% per annum, secured by a first lien on the Euless Tract. This note was due on or before September 20, 1973. After further discussion between the parties, J. Bryan Sutherlin of Lone Star wrote Texas Bank and Trust Company concerning the transferability of the commitment letter. The letter is quoted as it appears in the record:

“September 20, 1972

Texas Bank and Trust Company

One Main Place

Dallas, Texas 75250

Gentlemen:

Lone Star Life Insurance Company from time to time issues mortgage loan commitment letters to various companies or individuals. Recently Lone Star Life has issued such loan commitment letter to James C. Hadsell. Our standard commitment letter states ‘this commitment by lender is non-transferable . . The intent of the non-transferability is that James C. Hadsell cannot assign the commitment letter to another individual or entity and is not intended to prevent Mr. Hadsell from banking the commitment letter. Stated differently, monies advanced to Mr. Hadsell secured by a first mortgage lien on the subject property to which he has title is in no way intended to be excluded within the intent of the non-transferability clause.

Therefore, Lone Star Life stands ready to enter into a note repurchase agreement with Texas Bank and Trust with terms and conditions of such note repurchase agreement following generally the provisions of the commitment letter or letters issued to Mr. Hadsell.

Kindest Regards,

s/J. Bryan Sutherlin

J. Bryan Sutherlin”

At some point the following language was added to the September 14, 1972 commitment letter:

“The undersigned hereby assigns the above commitment to Texas Bank & Trust Company as additional security for deed of trust note in the amount of $750,000.00 dated September 20, 1972.

/s James C. Hadsell

James C. Hadsell”

The Texas Bank note, due on or before September 20, 1973, was never renewed or extended. On September 27, 1973, Signa Land Holdings, Inc., a corporation in which Hadsell was a stockholder, executed and delivered to Texas Bank a promissory note in the principal amount of $750,000.00 and due on or before December 26; 1973. Had-sell signed the note for Signa. On the same date, Texas Bank conveyed to Signa the bank’s lien on the Euless tract, and endorsed and assigned the Texas Bank note to Signa without recourse or warranty. Sig-na, in turn, endorsed the Texas Bank note back to Texas Bank. George Stoekwell, who was with Texas Bank from August, 1972, until April, 1975, and handled this transaction for the bank, testified by deposition that the Texas Bank note was collateral for the Signa note, dated September 27, 1973.

By letter dated September 30, 1975, Had-sell and Texas Bank made demand upon Lone Star to fund the loan commitment on November 24, 1975. This notice did not comply with the 60-day notice requirement of paragraph 8 of the loan commitment.

By letter dated November 24, 1975, Lone Star advised Texas Bank that it did not intend to correspond or otherwise communicate with the bank concerning the commitment. Subsequent to this refusal by Lone Star to honor its loan commitment, appellant declared the interim loan to Hadsell in default and foreclosed upon the Euless property. This suit was then instituted to recover the difference between the principal amount of the loan to Hadsell and the bid price in addition to trustee’s fees incurred by the bank in the foreclosure sale.

Appellant’s sole point of error reads, “THE TRIAL COURT ERRED IN GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT.” By its subsequent argument, appellant contends that the summary judgment evidence established that a genuine issue of a material fact existed as to the three grounds which appellee alleged entitled it to summary judgment, (1) lack of privity of contract, (2) conditions precedent, and (3) the insolvency of the borrower, which entitles it to a remand of the case to the trial court. We disagree.

Appellant concedes that under prior holdings the commitment letter standing alone is unenforceable by it as a third party beneficiary. See Exchange Bank & Trust v. Lone Star Life Ins. Co., 546 S.W.2d 948 (Tex.Civ.App.—Dallas 1977, no writ); Briercroft Savings & Loan Association v. Foster Financial Corp., 533 S.W.2d 898 (Tex.Civ.App.—Eastland 1976, writ ref’d n. r. e.); Republic National Bank v. National Bankers Life Ins. Co., 427 S.W.2d 76 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.). However, appellant characterizes itself as an “assignee for collateral purposes,” rather than a third party beneficiary, and relies on several differences in the facts of this case and those in the Exchange Bank, Briercroft and Republic cases.

Appellant contends that this case is different from the three previously cited in that Lone Star is estopped from relying on or has waived the nontransferability clause. Texas Bank argues the September 20, 1972, letter, in conjunction with the discussions between the parties prior to the issuance of the September 20 letter, gives rise to estop-pel and/or waiver.

The bank argues that both parties actively negotiated the terms of the commitment letter with the understanding and contemplation that Hadsell would assign the commitment to the bank as additional collateral for the interim loan, and that it was contemplated at that time by the parties that the September 20 letter would serve to evidence Lone Star’s consent and acquiescence to such assignment.

In a summary judgment case, the question is not whether the proof raises fact issues, but whether the proof establishes as a matter of law that there is no genuine issue of fact. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). We find that the summary judgment proof establishes as a matter of law that J. Bryan Sutherlin, acting on behalf of Lone Star Life, in no way consented to or waived prohibitions against transfer of the commitment letter.

Appellant fails to cite us any authority (and we find none) for its contention that it is “assignee for collateral purposes.” The undisputed facts show appellant to be a third party beneficiary, and we do not believe this case may be distinguished from Exchange Bank, Briercroft and Republic.

The parties to a contract are presumed to contract for themselves, and when a third party asserts rights under it, the intent that it should inure for his benefit must be “clearly apparent,” and any doubt should be resolved against such intent. Exchange Bank & Trust v. Lone Star Life Ins. Co., supra at 952; Republic National Bank v. National Bankers Life Ins. Co., supra at 79-80. Nowhere in the commitment letter is Texas Bank mentioned. The commitment letter, standing alone, is an agreement between Lone Star and Hadsell, which no third party has standing to enforce for its benefit.

However, contracts otherwise unas-signable because of the personal nature of the subject matter may be assigned if the other party gives his consent, which may be ascertained from circumstances surrounding the parties and the language in the contract itself. Rapid Transit Lines, Inc. v. Transit Ads, Inc., 401 S.W.2d 276, 284 (Tex.Civ.App.—Eastland 1966, no writ), citing 6 Tex.Jur.2d, sec. 18, pages 413 and 414. Appellant argues that the September 20 letter evidences appellee’s consent to the assignment. We disagree.

Even though appellant’s witness testified it was his opinion that the letter evidenced Lone Star’s consent, nowhere in the letter does there appear any language giving consent to the assignment.

Appellant does not claim that the September 20 letter is a separate enforceable contract. See Exchange Bank & Trust v. Lone Star Life Ins. Co., supra at 953-954. Rather, Texas Bank argues that the letter estops Lone Star from refusing to fund the original commitment. It is true that where one party has by his words or conduct made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then once the other party has taken him at his word and acted on it, the party who gave the promise cannot afterward be allowed to revert to the previous relationship as if no such promise had been made. Wheeler v. White, 398 S.W.2d 93, 96 (Tex.1965). Appellant contends the September 20 letter evidences Sutherlin’s promise which then induced its interim loan to Had-sell. To the contrary, the September 20 letter contains no such promise, and, hence, Texas Bank’s loan could not have been induced by a nonexistent promise.

Finally, we do not agree that the phrase “banking the commitment” appearing in the September 20 letter is ambiguous. In “banking the commitment,” Hadsell did just as he did in the Exchange Bank case. In that case, Hadsell rested in the same position as he finds himself here. In fact, the Exchange Bank case involved the identical permanent lender, the same borrower and the same loan commitment letter. It is clear that by “banking the commitment,” Lone Star meant Hadsell could present the letter to an interim lender to show that, assuming all conditions were met, Lone Star would loan $750,000 to Hadsell on the date and terms as contained in the commitment letter. Certainly, Texas Bank would need to weigh the benefits of making the interim loan against the possibility that Hadsell would not fulfill the necessary conditions. However, this is no concern of the long-term lender.

Our holding that Texas Bank has no standing to enforce the commitment on the grounds contended renders its contentions with respect to the borrower’s insolvency and the 60-day notice requirement immaterial. Accordingly, appellant’s point of error is overruled.

Judgment of the trial court is affirmed.

      . “Well, originally, and then it’s my opinion that this letter consented.” Stockwell deposition, p. 66, lines 1-2.


author: MOORE, Justice.

text:
    Richard T. MONTGOMERY et al., Appellants, v. B. J. HARRIS, Appellee.
    No. 1123.
    Court of Civil Appeals of Texas, Tyler.
    April 13, 1978.

      J. L. Culpepper, Jim L. Culpepper & Associates, Houston, for appellants.
    Kenneth J. Walker, Lynn S. Patton, Fisher, Patton & McLemore, Longview, for ap-pellee.
    Dwight Brannon, Gilmer, for intervenor.
   MOORE, Justice.

This is an appeal from an order overruling a plea of privilege. Plaintiff, B. J. Harris, brought suit in Upshur County against defendants, Rio Road Builders, Inc., and Richard T. Montgomery, for breach of a written contract entered into between plaintiff and defendant Rio Road Builders. Richard Montgomery, a resident of Brazos County, and Rio Road Builders, domiciled in Brazos County, each filed a plea of privilege seeking to have the action transferred to Brazos County. Plaintiff answered with separate controverting pleas as to both defendants, alleging that venue was properly laid in Upshur County under Subdivision 23 of Art. 1995, Tex.Rev.Civ.Stat.Ann., which provides that venue in suits against domestic corporations may be maintained in the county in which the cause of action or part thereof arose. After a hearing before the court sitting without a jury, the court overruled the pleas of privilege of both defendants. From this ruling defendants perfected this appeal.

We affirm in part and reverse in part.

Plaintiff alleged in his petition that on June 27, 1975, he and defendant Rio Road Builders, Inc. entered into a written agreement whereby plaintiff agreed, in consideration of $5,000, to supply and deliver into defendant’s trucks approximately 11,500 cubic yards of iron ore gravel, which were to be transported by defendant to Gregg County for use in construction of a parking lot. Attached to plaintiff’s petition was a copy of the written contract. Such written agreement, however, names no specific county of performance. Plaintiff further alleged that, after the contract was partially completed, defendant wrongfully repudiated the contract and refused to take delivery of the remainder of the gravel. He further alleged that lie was at all times ready, willing and able to perform and meet the contractual terms.

Defendants in their joint brief contend that there is no evidence or, alternatively, that the evidence is insufficient to show that the cause of action sued upon, or a part thereof, arose in Upshur County.

Subdivision 23 of Article 1995 provides in part that venue of an action against a domestic corporation may be maintained in any county where the cause of action or a part thereof arose.

The only evidence adduced at the venue hearing was that of the plaintiff, B. J. Harris. He testified that Richard Montgomery, who told him he worked for Rio Road Builders, Inc., came to a farm owned by a Mr. Brannon located in Upshur County and entered into negotiations with plaintiff concerning the stockpiling of sand and gravel located on the Brannon farm. He testified that after the discussion they came to an agreement whereby plaintiff would stockpile gravel on the Brannon farm and defendant Rio Road Builders would load it and haul it away in its trucks, which agreement was reduced to writing. He further testified that he stockpiled approximately one hundred truck loads of gravel which were taken away by defendant’s trucks, but that subsequently defendant’s trucks stopped coming to pick up the gravel. He testified that he contacted Mr. Montgomery who told him that he could not take any more gravel because he “couldn’t set it up, wasn’t no good.” Plaintiff further testified that he had not been paid anything for the gravel he stockpiled for defendant. Defendants offered no evidence at the venue hearing.

It is well settled that in order for a plaintiff to claim the benefits of Subdivision 23 and maintain venue outside the domicile of a domestic corporation, the plaintiff must show by a preponderance of the evidence that either some part of the transaction creating the primary right, or some part of the transaction relating to the breach of that right, occurred in the county where the suit is brought. Stone Fort Nat. Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674 (1936). This has been interpreted to mean that plaintiff must show either that (1) the contract was made or performable in the county of suit, or (2) the contract was breached there. Delhi Gas Pipeline Corp. v. Allgood, 492 S.W.2d 651 (Tex.Civ.App.—Tyler 1973, no writ history); Transit Grain & Commission Co. v. Snapp, 148 S.W.2d 233 (Tex.Civ.App.—Amarillo 1941, no writ history). See G. P. Enterprises, Inc. v. Adkins, 543 S.W.2d 913 (Tex.Civ. App.-—Texarkana 1976, no writ history); Kunz Construction Co. v. Arnold, 459 S.W.2d 658 (Tex.Civ. App.—Corpus Christi 1970, no writ history). It has also been held that venue may be maintained in a suit against a corporate defendant under Subdivision 23 in the county in which plaintiff performs services for defendant, regardless of where the contract was entered into or where the refusal to pay occurred, provided that the parties contemplated that the services would be rendered in such county. Robert S. Watson Co. v. Southwestern Sound Control, Inc., 423 S.W.2d 674 (Tex.Civ.App.—Fort Worth 1968, writ dism’d); 1 McDonald, Texas Civil Practice, Venue sec. 4.30.2 (1965 ed.). .

In our view the evidence conclusively shows that the parties contemplated that the performance of the contract, i. e., plaintiff’s stockpiling and defendant Rio Road Builders’ loading, was to take place on the Brannon farm in Upshur County. Further, the evidence conclusively demonstrates that, until Rio Road Builders stopped its trucks from coming, plaintiff had performed his duty of stockpiling at the Bran-non farm in Upshur County and Rio Road Builders had accepted his work. Indulging every reasonable inference in favor of the trial court’s judgment, as we are required to do, we may assume that the trial court impliedly found that the parties contemplated and agreed that the contract was to be performed in Upshur County and that the contract was actually performed in Upshur County until defendant corporation repudiated the agreement.

In view of the undisputed proof showing that the contract was performed in Upshur County and that performance was contemplated in that county, we hold that venue was properly laid in Upshur County in the cause against the corporate defendant, Rio Road Builders, Inc.

This brings us to the question whether venue was properly laid in Upshur County as to defendant Richard Montgomery. As noted, Montgomery was sued in his individual capacity. There is no evidence showing that he was connected in any way with the transaction or the corporation other than to negotiate the contract in behalf of Rio Road Builders. By its own terms Subdivision 23 applies solely to suits against private corporations and therefore would not apply to defendant Montgomery. Plaintiff therefore cannot maintain venue in Upshur County as to Richard Montgomery under Subdivision 23. Nowhere in his brief has plaintiff directed us to any other venue provision which would permit him to maintain venue in Upshur County as to defendant Montgomery, and we have not been able to discern how venue could be maintained against him under any exception to the venue statute. We consequently reverse that portion of the judgment overruling the plea of privilege of Richard T. Montgomery.

Accordingly, the order overruling the plea of privilege of Rio Road Builders is affirmed and the order overruling the plea of privilege of Richard T. Montgomery is reversed, and as to him the cause is severed and ordered transferred to the District Court of Brazos County under Rule 89, Tex. R.Civ.P.

Affirmed in part and reversed in part.


author: SHANNON, Justice.

text:
    Foster C. WILSON, Appellant, v. GRIEVANCE COMMITTEE FOR STATE BAR DISTRICT NO. 3-A et al., Appellees.
    No. 12722.
    Court of Civil Appeals of Texas, Austin.
    April 19, 1978.
    Rehearing Denied May 10, 1978.

      Arthur Mitchell, Mitchell, George & Belt, Austin, for appellant.
    Davis Grant, Gen. Counsel, Wayne H. Paris, Asst. Gen. Counsel, State Bar of Texas, Austin, for appellees.
   SHANNON, Justice.

This is an appeal from a declaratory judgment entered by the district court of Travis County. That judgment declared disciplinary proceedings against an attorney instituted by a Grievance Committee are not subject to provisions of Tex.Rev.Civ. Stat.Ann. art. 6252-13a (Supp.1978), the Administrative Procedure and Texas Register Act.

Foster C. Wilson is an attorney licensed by the State Bar of Texas. In August of 1975, the Grievance Committee for State Bar District 3-A commenced proceedings concerning Wilson’s conduct. Those proceedings continued into January, 1976. The Grievance Committee later filed formal complaint in the district court of Jefferson County seeking Wilson’s disbarment. Wilson claimed in that suit that the Grievance Committee was without authority to prosecute suit because the State Bar of Texas had not complied with the Administrative Procedure and Texas Register Act.

Wilson filed suit for declaratory judgment in Travis County before judgment was entered in Jefferson County. Wilson sought declaration that the Act applies to the State Bar of Texas; that disbarment proceedings are within the definition of “contested case” as defined in the Act, § 3(2); that the State Bar of Texas must follow procedures of the Act; that State Bar Rules have not been filed in accordance with the Act, §§ 5, 7, 8, and 10, and are not enforceable; that § 22 of the Act repeals provisions of State Bar Rules that conflict with the Act; and that he had been denied protection afforded him “by law.”

Wilson relies upon § 12 of the Act as basis for suit. Section 12 provides that validity or applicability of any rule adopted by an agency may be determined by declaratory judgment suit in district court in Travis County and not elsewhere.

Neither Grievance Committee nor State Bar of Texas questioned the power of the Travis County district court to afford declaratory relief, but instead both defendants joined issue by denying that the proceedings initiated against Wilson were subject to the Act. The district court entered declaratory judgment adverse to Wilson.

Because we regard that judgment as an advisory opinion, we will vacate judgment. Wilson filed suit for declaratory judgment before the Jefferson County suit had proceeded to judgment. In the Jefferson County suit Wilson asserted that Grievance Committee was without authority to proceed since the State Bar of Texas had not complied with the Act. Rather than pursuing that contention as a defense in the Jefferson County suit, Wilson sought the advice of the district court of Travis County. The obvious purpose of Wilson’s declaratory judgment suit was to obtain a declaration upon applicability of the Act to Grievance Committee proceedings so that he might assert that judgment as some character of bar in the disbarment suit.

Prerequisite to the declaratory judgment process is the existence of genuine controversy between parties that will be determined by the declaration sought. Otherwise, the judgment obtained is an advisory opinion. Board of Water Engineers v. City of San Antonio, 155 Tex. Ill, 283 S.W.2d 722 (1955). If the district court of Travis County is to entertain suit for declaratory relief, the court must have power to settle the entire controversy by final judgment. Wilson is not entitled to try his lawsuit piecemeal. United Services Life In surance Co. v. Delaney, 396 S.W.2d 855 (Tex.1965); Joseph v. City of Ranger, 188 S.W.2d 1013 (Tex.Civ.App.1945, writ ref’d w. o. m.). Although the same suit or parts thereof were pending in both district courts of Jefferson and Travis Counties, only the district court of Jefferson County could enter judgment disposing of all issues.

Article V, § 8 of the Constitution of Texas does not empower courts to render advisory opinions. United Services Life Insurance Co. v. Delaney, supra; Firemen’s Insurance Co. of Newark, New Jersey v. Burch, 442 S.W.2d 331 (Tex.1968); State Bar of Texas v. Glen Elmer Van Slyke, III, 557 S.W.2d 363 (Tex.Civ.App.1977, no writ). In view of the constitutional prohibition § 12 of the Administrative Procedure and Texas Register Act cannot empower the Travis County court to render an advisory opinion.

The judgment is vacated.

Appeal dismissed and Judgment vacated.

      . The Administrative Procedure and Texas Register Act is usually referred to in this opinion as the “Act.”


author: CIRE, Justice.

text:
    BANK OF TEXAS, Appellant, v. Julio S. LAGUARTA, Appellee.
    No. 1789.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 19, 1978.

      Debora D. Ratliff, Wood, Campbell, Moody & Gibbs, Houston, for appellant.
    James P. Kelley, Sheinfeld, Maley & Kay, Houston, for appellee.
   CIRE, Justice.

Bank of Texas appeals from a temporary injunction granted in favor of Julio S. Laguarta, appellee.

Appellant, in January 1977, obtained a judgment against appellee for the sum of $186,993.36. The judgment was abstracted and then filed and indexed in the real property records of Harris County. Upon filing and indexing, the judgment lien attached to all nonexempt real properties in Harris County which were owned by appellee. Appellant conducted discovery procedures but was unable to locate assets to satisfy its judgment other than appellee’s homestead property. In October 1977 Constable Rankin, through his employees, levied execution on appellee’s homestead. A constable’s sale was scheduled for November 1, 1977.

On October 24, 1977 appellee filed a suit for declaratory judgment and an application for injunctive relief seeking to prohibit the sale of his homestead until and unless, at a trial on the merits, the bank could allege and prove the existence of a “non-exempt portion of the property.” The trial court, after a hearing, issued the temporary injunction pending final determination on the merits. The . trial court additionally filed findings of fact and conclusions of law wherein, among other things, it determined that appellant’s property at the time he designated it as his homestead in 1969 had a fair market value in excess of both the $5,000 exemption and the outstanding balance on any purchase money mortgage against the property. Further findings and conclusions determined the fair market value, exclusive of improvements, to be in excess of $159,000 on the eve of the proposed constable’s sale.

Appellant Bank of Texas asserts a single point of error, claiming that the trial court abused its discretion in that it granted the temporary injunction and refused to order the sale of the property because it erroneously applied the law to undisputed facts. Appellant’s first claim is that no probable right has been shown to prohibit the constable’s sale. Probable right is a necessary requisite for issuance of a temporary injunction. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (Tex.Sup.1953). Appellee Laguarta, however, proved probable right when he proved that this property was his homestead and that the appellant had not properly complied with the law requiring appellant to plead and prove value in the homestead in excess of the exempt amount. See O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112 (Tex.Sup.1976); Hargadine v. Whitfield, 71 Tex. 482, 9 S.W. 475 (1888); Chalk v. Daggett, 257 S.W. 228 (Tex.Com.App.1924, jdgmt. adopted).

Appellant, however, claims that it did plead and prove excess at the temporary injunction hearing. In support of its argument appellant refers this court to the trial court’s findings of fact and conclusions of law. We recognize that the trial court in its findings of fact and conclusions of law determined that this property was in excess of the homestead exemption. However, we are not satisfied that this is a question that can or should be determined at a temporary injunction hearing. We agree with the reasoning of the Dallas Court of Civil Appeals in the case of Irving Bank & Trust Co. v. Second Land Corp., 544 S.W.2d 684 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.) wherein it was concluded that:

A hearing on an application for temporary injunction does not serve the same purpose as the hearing on the merits, nor should an appeal from a preliminary order be used to obtain an advance ruling on the merits. The most expeditious way of obviating the hardship of an unfavorable preliminary order is to try the case on the merits and thus secure a hearing in which both facts and law may be fully developed, and then both trial and appellate courts can render judgment finally disposing of the controversy. Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 422 (1959).

544 S.W.2d at 689.

Probable injury, another requisite for issuance of a temporary injunction, was shown by the mere fact that appellee would be deprived of his homestead by the constable’s sale on November 1, 1977.

The temporary injunction is upheld pending a trial on the merits.

Affirmed.


author: MURRAY, Justice.

text:
    Donna Marie NIXON (Barr), Appellant, v. Nora Lee HUMPHREY et vir., Appellees.
    No. 15974.
    Court of Civil Appeals of Texas, San Antonio.
    April 19, 1978.
    Rehearing Denied May 17, 1978.

      Loyd L. Oubre, San Antonio, for appellant.
    Sam C. Bashara, San Antonio, for appel-lees.
   MURRAY, Justice.

This appeal relates to a controversy between a mother, Donna Marie Nixon, and grandparents, Mrs. Nora Lee Humphrey and husband, Richard L. Humphrey, the parents of the father, William Allen Nixon, over the custody of the minor child, Nora Aleñe Nixon. On June 3, 1975, plaintiff filed this suit in the nature of an equitable bill of review to set aside a judgment dated November 20, 1972, declaring the child dependent and neglected and to set aside the adoption of the child dated June 15, 1973. Plaintiff and defendants filed motions for summary judgment, and on September 9, 1977, the trial court granted the defendants’ motion for summary judgment and plaintiff has perfected an appeal to this Court.

The original action sought to be set aside was instituted under Tex.Rev.Civ.Stat.Ann. art. 2330 (1971), to declare Nora Aleñe Nixon, daughter of plaintiff, dependent and neglected. Citation was by publication and, although plaintiff was named in the petition, the citation was faulty in that it failed to name plaintiff as a party. In the adoption proceedings, the plaintiff was personally served with citation and filed an answer pro se requesting, among other things, that the hearing on the adoption set for April 1973 be postponed. The adoption was postponed to June 15, 1973, and plaintiff was notified of such setting on April 23, 1973. On June 15,1973, the plaintiff failed to appear at the hearing for the adoption and judgment was entered granting the adoption and no appeal was perfected and said judgment became final.

It is the plaintiff’s contention, and we agree, that where parents are without notice of the proceedings wherein the child is adjudged to be dependent and neglected and custody awarded to others, the parents must be allowed a full hearing in a subsequent proceeding on the issue of whether sufficient facts existed as to authorize entry of judgment of dependency. DeWitt v. Brooks, 143 Tex. 122,182 S.W.2d 687 (1944). In the case of Hull v. Hull, 332 S.W.2d 758, at page 761 (Tex.Civ.App.—San Antonio 1960, no writ), the court states:

However, it is well settled that where the parents are without notice of the proceeding they must be allowed a full hearing in a subsequent proceeding on the issue of whether sufficient facts existed to authorize the entry of the judgment of dependency.

See also Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965).

The plaintiff argues that the 1972 dependency judgment was void because she was not properly served with citation. We disagree. Tex.Rev.Civ.Stat.Ann. art. 2332 (1971) specifically provides that in a dependency proceeding, citation need not be served on a parent that is at the time outside of the county where the proceeding is being heard. Where, as here, the plaintiff was outside the county and is not served with notice, the judgment is not void, but is valid, subject only to the parents’ right to a subsequent full hearing on issue of dependency. DeWitt v. Brooks, supra; Harrell v. Harrell, 428 S.W.2d 370 (Tex.Civ.App.— Houston [14th Dist.] 1968, writ refd n. r. e.).

We are of the opinion that the controlling question in this case is the construction of the June 15, 1973, decree of adoption. The validity of the dependency judgment was an issue in the adoption proceeding. Plaintiff was personally served in the adoption proceedings and filed an answer therein and had known for many months that the defendants were relying on the validity of the dependency judgment. By her own admission, she knew of the adoption decree and failed to perfect an appeal therefrom. The issue of dependency was adjudicated by the court in the adoption proceedings and is res judicata as to the status of dependency as of that time.

Harrell v. Harrell, supra, is a case similar to this one. In Harrell, a bill of review was filed by a mother contesting the legitimacy of a prior dependency hearing and the subsequent adoption of her child. The mother was not served with citation in the dependency hearing. However, between the judgment in the dependency case and the commencement of the adoption proceedings, the mother had filed an instrument entitled “Petition for Habeas Corpus.” That suit was resolved adversely to the mother with a recitation by the court in its judgment that the minor was not being illegally detained. No appeal was taken from that judgment and it became final. The court held that the Habeas Corpus proceeding was an adequate forum from which the mother could have asserted her rights and defenses without the shifting of the burden of proof and that the final judgment rendered therein was thus res judicata on the issue of validity of the dependency proceedings.

As previously stated, this is an equitable bill of review. The law is well established that before recourse can be had to the bill of review, the plaintiff must show that she was prevented from procuring the relief in the former suit through fraud, accident or the wrongful acts of the adverse party and this must not be tainted with any negligence of the plaintiff. Smith v. Ferrell, 44 S.W.2d 962 (Tex.Comm’n App. 1932, opinion adopted). The summary judgment proof in this case consisting of, among other things, the deposition of the plaintiff, establishes as a matter of law that the defendants were not guilty of fraud or any wrongful act in the previous litigation. Plaintiff’s main contention in her pleadings and in her deposition appear to be that she was too poor to employ an attorney to represent her. In the present case, the plaintiff had notice by personal service, and an opportunity afforded to defend the suit. We know of no decision holding that a judgment could be set aside after the losing party had lost her right of appeal simply because she was too poor to employ counsel. If the judgment of courts are to be set aside, and new trials granted on such grounds as these, there would, indeed, never be an end to litigation.

The judgment of the trial court is affirmed.