author: ODOM, Judge.

text:
    Eunice E. POWELL, Appellant, v. The STATE of Texas, Appellee.
    No. 52846.
    Court of Criminal Appeals of Texas.
    April 6, 1977.
    Rehearing Denied May 3, 1977.

      Burnett & Burnett, John H. Miller, Jr., Sinton, for appellant.
    Arnulfo Guerra, Dist. Atty., Rio Grande City, Oscar R. Mclnnis, Dist. Atty., Edin-burg, C. H. Duval, Asst. Atty. Gen., McAl-len, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted for official misconduct under V.T.C.A., Penal Code Sec. 39.01(a)(5). Punishment was assessed at six years’ imprisonment and a five thousand dollar fine. Trial was in Hidalgo County after a change of venue from Duval County.

The evidence establishes that the appellant, in 1974, occupied the position of assistant superintendent of the Benavides Independent School District. His major responsibility was the supervision of the Freer Public Schools, a division of the Benavides school district. During 1974, the appellant caused four cheeks totalling twelve thousand one hundred thirty-seven dollars and sixty-nine cents to be drawn from the Freer Local Maintenance Fund of the Benavides Independent School District. This money was withdrawn from the school district’s bank depository, the First State Bank of San Diego. The checks were made payable to the Alamo Lumber Company of Alice, Texas. In return, the manager of the Alamo Lumber Company prepared fictitious invoices in order for the appellant to cover the amounts drawn on the school district’s account. The lumber company kept a true set of invoices and these were admitted into evidence at trial. The record conclusively establishes that the Alamo Lumber Company received twelve thousand one hundred thirty-seven dollars and sixty-nine cents from the Freer Local Maintenance Fund in return for repairing or remodelling appellant’s ranch house. The appellant did not expend any of his funds for the work done on his ranch residence.

Section 39.01(a)(5), supra, provides:

“(a) A public servant commits an offense if, with intent to obtain a benefit for himself or to harm another, he intentionally or knowingly: ... (5) takes or misapplies any thing of value belonging to the government that may have come into his custody or possession by virtue of his employment, or secretes it with intent to take or misapply it, or pays or delivers it to any person knowing that such person is not entitled to receive it.”

Public servant is defined as:

“ ‘Public servant’ means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if he has not yet qualified for office or assumed his duties: (A) an officer, employee, or agent of government; . . V.T.C.A., Penal Code Sec. 1.07(30).

The definition for government provided by the Penal Code states:

“ ‘Government’ means the state; a county, municipality, or political subdivision of the state; or any branch or agency of the state, a county, municipality, or political subdivision.” V.T.C.A., Penal Code Sec. 1.07(15).

The Benavides Independent School District is a branch of government. See, Stein v. Highland Park Independent School District, et al., 540 S.W.2d 551 (Tex.Civ.App.—Texarkana, 1976, writ ref. n. r. e.); Love v. Dallas, 120 Tex. 351, 40 S.W.2d 20 (1931). The appellant, as an employed or appointed officer of this district, is a public servant as defined by the Penal Code.

In four grounds of error appellant challenges the sufficiency of the evidence to prove particular elements of the offense charged. Two grounds attack the indictment. We will consider the indictment contentions first.

The indictment, omitting the date and formal parts, alleges that appellant:

“. . . did then and there unlawfully, while a public servant, namely, Freer Superintendent of the Benavides Independent School District, and with intent to obtain a benefit for himself, namely the use and benefit of current money of the United States belonging to the Government, namely, the said School District, and which money came into his custody by virtue of his employment: to wit, the said Eunice E. Powell did then and there intentionally and knowingly cause said money to be used as payment for building materials and labor supplied by Alamo Lumber Company for the personal use of the said Eunice E. Powell.

The indictment is challenged for the first time on appeal as fundamentally defective (1) for failure to allege that the money came into his custody by virtue of his employment with the school district, and (2) for failure to describe the property (money) by number and kind as required by Art. 21.09, V.A.C.C.P., which at the time of return of the indictment provided in part: “When it becomes necessary to describe property of any kind in an indictment, a general description of the same by name, kind, quality, number and ownership, if known, shall be sufficient.”

Regarding the first challenge, we note the indictment alleges the money “came into his custody by virtue of his employment,” which follows precisely the language of the statute. Absent a motion to quash on the claim of ambiguity now asserted, we find this allegation sufficient.

The established construction of Art. 21.-09, supra, in prosecutions for robbery under the former Penal Code upheld indictment allegations of “money” or “money of the United States of America” against such challenges as those raised here. Cox v. State, Tex.Cr.App., 494 S.W.2d 574; Ellingsworth v. State, Tex.Cr.App., 487 S.W.2d 108; Byrd v. State, Tex.Cr.App., 456 S.W.2d 931. We find those decisions persuasive authority and hold the allegations here challenged to be sufficient in this prosecution for official misconduct.

The grounds of error challenging the indictment are overruled.

Challenge is raised to the sufficiency of the evidence to prove: (1) that the money came into appellant’s custody by virtue of his employment; (2) that he was Freer Superintendent of the Benavides Independent School District; (3) that he took and misapplied current money of the United States, and (4) that venue was in Duval County.

The State showed that appellant, by virtue of his employment, had authority to purchase building material for the schools, had authority with the consensus of the school board to approve bills for payment, and had authority to sign school district checks. Thus, the custody and control appellant had over disposition of money in the school district’s account here in issue was shown to have been by virtue of his employment.

Appellant argues the State failed to prove the descriptive averment in the allegation that he acted “while a public servant, namely, Freer Superintendent of the Benavides Independent School District.” He concedes the proof showed he was a public servant, but contends the proof also shows there is no “Freer Superintendent of the Benavides Independent School District.” Although no office had this formal title, appellant was known in the community and through custom and usage to be Superintendent of the Freer Schools of Benavides Independent School District. His actual office was assistant superintendent of the school district, and his duties were to superintend the operation of the Freer schools. We find the allegations describing appellant’s position as a public servant to have been sufficiently proven in this case.

Appellant’s challenge to the proof that money was misapplied is likewise without merit. He argues the evidence only shows issuance of a check, and fails to show anyone received money from cashing the check. The evidence shows the checks, representing $12,137.69 of current United States money, were honored by the bank, and that the funds went from the school district’s account and to Alamo Lumber Company for work on appellant’s ranch house. Modern financial transactions often effect transfer of money without physical delivery of coin or paper currency. The evidence is sufficient to show misapplication of money.

Finally, we consider the sufficiency of the proof of venue, which must be established by a preponderance of the evidence. Art. 13.17, V.A.C.C.P.; Phillips v. State, Tex.Cr.App., 459 S.W.2d 632. The bank in which the school district’s funds were kept and from which the money was misapplied was shown to be in Duval County. Location of the lumber yard in another county does not defeat this proof. Venue was shown.

The grounds of error challenging the sufficiency of the evidence are overruled.

The judgment is affirmed.

      . McMorries v. State, 161 Tex.Cr.R. 608, 279 S.W.2d 90, cited by appellant, is distinguishable. In that conviction for theft it was argued the evidence showed lawful possession of school funds, requiring submission of the case for misapplication of funds under Arts. 95 and 97, V.A.P.C. (1925). The facts there showed possession of school funds was obtained by false pretext. The facts here are otherwise.


source: Caselaw Access Project

author: PHILLIPS, Judge.

license: Public Domain

text:
    Ex parte Alejandro LOPEZ.
    No. 54414.
    Court of Criminal Appeals of Texas.
    April 13, 1977.

      Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
    Ken Anderson, Staff Counsel for Inmates, Texas Dept, of Corrections, Huntsville, for appellant.
   OPINION

PHILLIPS, Judge.

This is an application for writ of habeas corpus filed pursuant to Art. 11.07, Vernon’s Ann.C.C.P.

Petitioner was convicted for the offense of criminal conspiracy and the punishment was assessed at eight (8) years confinement in the Department of Corrections.

Petitioner filed his application for writ of habeas corpus with the trial court alleging that the indictment upon which he was convicted is fatally defective, therefore requiring this conviction to be vacated. The trial court made findings of fact and conclusions of law recommending that the writ of habeas corpus be granted and thereafter forwarded the record to this Court, pursuant to Art. 11.07, supra.

We are in agreement with petitioner’s contention. An examination of the indictment, omitting the formal parts, alleges that petitioner, on or about March 27, 1976,

“With intent that the felony offense of delivery of a controlled substance be committed, agree with Susie Salinas to deliver to David B. Shearod a controlled substance listed in Penalty Group 1, to-wit: Heroin, and in pursuance to such agreement Alejandro ‘Charlie’ Lopez did participate in the negotiation for the delivery of a controlled substance listed in Penalty Group 1, to-wit: Heroin.”

This identical question was just recently reviewed in Baker v. State, 547 S.W.2d 627 (Tex.Cr.App., delivered March 9, 1977), wherein it was held that the criminal conspiracy provisions set forth in V.T.C.A., Penal Code, Sec. 15.02 do not apply to the Controlled Substances Act. Cf. Moore v. State, 545 S.W.2d 140 (Tex.Cr.App., delivered October 13, 1976). The indictment in the instant case does not allege an offense against the laws of this State and the conviction is void.

Petitioner may challenge fundamentally defective indictments by way of post conviction application for writ of habeas corpus. See Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App.1975); Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976).

For the reasons stated above, the writ of habeas corpus is granted and the conviction in trial court No. 3045 is set aside and the indictment is ordered dismissed.

DOUGLAS, J., dissents for reasons set out in Moore.


author: ONION, Presiding Judge.

text:
    Smiley MILLER, Appellant, v. The STATE of Texas, Appellee.
    No. 53044.
    Court of Criminal Appeals of Texas.
    April 20, 1977.

      Russell C. Busby, Amarillo, for appellant.
    Tom Curtis, Dist. Atty. and Steve Katt-ner, law student, Amarillo, Jim D. Yollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for murder where the court assessed punishment at life imprisonment after the jury had found the appellant guilty and that he had twice previously been convicted of felonies as alleged in the indictment.

Appellant’s first ground of error contends that at the trial which commenced on November 17, 1975 the State improperly impeached his testimony on cross-examination over proper objection by the introduction of three prior convictions: a 1950 conviction for murder without malice, a conviction for assault to commit murder in 1956, and a 1962 conviction for burglary by firearms from which the appellant was discharged from the penitentiary on October 11,1963. He contends the prior convictions were too remote to affect his credibility.

In Penix v. State, 488 S.W.2d 86, 88 (Tex.Cr.App.1972), and again in McClendon v. State, 509 S.W.2d 851, 856 (Tex.Cr.App.1974), this court said:

“Even though this court has never ‘undertaken to fix arbitrarily and absolutely a space of time which would characterize such testimony as too remote’, there seems to have developed a rule of thumb or guideline that such should not be admitted if the time lapse exceeds ten years . On the other hand, the tendency has been that the trial court’s discretion to admit such conviction has generally been upheld if the period of time was less than ten years.”

The reason for the adoption of the remoteness limitation on impeachment evidence is that a remote conviction is a poor indication of the accused’s present character. Bustillos v. State, 464 S.W.2d 118 (Tex.Cr.App.1971). A remote conviction for a felony or a misdemeanor involving moral turpitude, measured from the time of a witness’ release from prison, must have occurred at a time sufficiently recent to have some bearing on the present credibility of the witness. Bustillos v. State, supra. Thus in McClendon v. State, supra, the admission of a prior murder conviction in which twelve years and eleven months had elapsed since the appellant’s release from prison required reversal. More recently in Davis v. State, 545 S.W.2d 147 (Tex.Cr.App.1976), where approximately twelve years had elapsed from defendant’s release from prison on a murder conviction, it was held that the admission of the prior offense for impeachment purposes was improper.

Herein, where three prior convictions over a twenty-five year period were introduced to impeach the appellant as a witness, the most recent conviction from which appellant was released from prison twelve years and one month prior to trial, the rule prohibiting impeachment of a witness by a remote conviction was violated. The judgment of the trial court is reversed and the cause is remanded.

In the event of a new trial, we strongly caution the trial court in admitting oral statements of the appellant which are not in compliance with Article 38.22, Vernon’s Ann.C.C.P., unless there is some clear-cut basis for their admission as an exception to the statute.

The judgment is reversed and the cause remanded.


author: DAVIS, Commissioner.

text:
    Charles Michael GOSS, Appellant, v. The STATE of Texas, Appellee.
    No. 53098.
    Court of Criminal Appeals of Texas.
    April 20, 1978.
    Michael Ramsey, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Don Stricklin and Clyde F. DeWitt, III, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for criminal negligence homicide. Punishment was assessed by the jury at 365 days.

The record reflects that on January 3, 1975, appellant drove his automobile into the rear of an automobile driven by Beverly Jean Jasper. Johnny Carpenter, a passenger in appellant’s automobile at the time of the collision, testified that appellant was driving approximately 120 miles per hour when the accident occurred. Jasper died within minutes after the collision from severe burns suffered in the accident. Jasper’s death is the gravamen of this prosecution.

Appellant contends that the trial court erred in overruling his objection to exhibits 14 through 20, “the photographs of a horribly charred and burned body.”

Dr. Ethel Erickson testified that she was acting medical examiner of Harris County at the time of trial. In addition, she related that she was custodian of the records at the medical examiner’s office and that she was qualified to interpret those records and reports.

The record reflects that the doctor testified as follows regarding State’s Exhibits one through twenty:

“Q. Dr. Erickson, I will show you what has been marked for identification purposes only State’s Exhibit one through twenty and ask if you can identify these?
“A. Yes, I can.
“Q. And what are these, doctor?
“A. These are — this is the autopsy report of Beverly Jean Jasper and these are photographs partially taken in the Harris County morgue and partially taken at the scene of the collision. These are labeled with the same autopsy number.
* * * * * *
“Q. Were the entries in your records made at or near the time of the recorded events?
“A. The record was dictated during the time that the autopsy was being performed.
“Q. Alright, what is the number of the autopsy report?
“A. 75-38.
“Q. And what is the number on each of the exhibits two through twenty?
“A. 75-38.
“Q. Does case number 75-38 give you a name of the deceased?
“A. The name is given on the autopsy report, Beverly Jean Jasper.
* * * * * #
“Q. Do you know who actually performed the autopsy?
“A. Yes, I do.
“Q. Who was that?
“A. Dr. Sheldon Green and Dr. Roberto Bayardo.
* * * * * *
“Q. And who actually prepared the report?
“A. Dr. Sheldon Green.
⅜ ⅝: sfc ⅜ sjc ⅜;
“Q. What does the autopsy report show was the condition of the deceased lips?
“A. The deceased upper lip was almost completely burned away and part of the lower lip was burned.
“Q. Doctor, may I see these? Doctor, I show you what has been marked for identification purposes only as State Exhibit Number fifteen and ask you if that picture truly depicts the physical outward appearance of the person as described in the autopsy? [Emphasis supplied.]
“A. Yes, it does.
“Q. Does the report give any information as to the condition of the lower extremities below the knees of Beverly Jean Jasper?
“A. Most of the skin and sub-cutaneous tissues had been completely burned away on the lower legs exposing the bones.
“Q. I show you what has been marked for identification purposes as State’s Exhibit number sixteen and ask you that picture is consistent with the autopsy report? [Emphasis supplied.]
“A. Yes, it is.
“Q. Does the autopsy report indicate that the deceased had anything around her neck?
“A. Yes, it does.
“Q. And, what was that?
“A. It was a chain, a necklace type of chain with a watch pendant. The watch had stopped at 11:05.
“Q. Doctor, I show you what has been marked for identification purposes as State's Exhibit Number nineteen and ask you if that is consistent with the autopsy report — with your autopsy report? [Emphasis supplied.]
“A. Yes, it is.
“Q. I will show you then doctor, what has been marked for identification purposes as State’s Exhibit Number twenty and ask if you can specifically identify the picture ■ and the notation that is on the picture? [Emphasis supplied.]
“A. There is an identification piece of white paper with the number 75-38 written on it placed over the breast of the deceased.
“Q. And is this picture consistent with 0 the autopsy report?
“A. Yes, it is.”

At this juncture, the exhibits were offered into evidence and appellant objected to the admissibility of the photographs because the proper predicate had not been laid, because Dr. Erickson did not have personal knowledge that the photographs actually depicted what they purported to depict, and because Dr. Erickson had not viewed the body. The overruling of this objection by the court forms the basis of this ground of error.

The admissibility of State’s Exhibit 1, the autopsy report, was not contested at trial, nor is its admission complained of on appeal. See Art. 49.25, V.A.C.C.P.; Art. 3737a, V.A.C.S. See Prejean v. State, Tex.Cr.App., 480 S.W.2d 652; Clark v. State, Tex.Cr.App., 449 S.W.2d 231.

The State urges that the photographs were admissible since conditions of the body shown in the photographs were consistent with conditions on deceased’s body described in the autopsy report. A review of Dr. Erickson’s testimony reflects that she pointed to factors in Exhibits 15, 16, 19, and 20 which were consistent with the autopsy report’s description of the body of the deceased but, other than the statement of Dr. Erickson that each of the exhibits was numbered “75-38,” no connecting factor is shown between the autopsy report and Exhibits 14, 17, and 18. The fact that certain factors depicted in the photographs were consistent with the autopsy report, standing alone, would not render the photographs admissible. The admissibility of a photograph is conditioned on its identification by a witness as an accurate portrayal of facts relevant to the issue and on verification by such witness or person of knowledge that the photograph is a correct representation of such facts. Haas v. State, Tex.Cr.App., 498 S.W.2d 206; Gonzales v. State, Tex.Cr.App., 532 S.W.2d 343; McCormick & Ray, Texas Evidence, Sec. 1465 (2d ed. 1956). The evidence in this case clearly does not meet such test. Assuming that the photographs could have been proven up by the autopsy report, a review of such report does not make any reference to photographs having been taken of the body of deceased before, after, or at any point during the autopsy, nor is any mention made of photographs.

The State further urges that the photographs were part of the medical examiner’s records and are admissible under Art. 3737e, V.A.C.S. The record is devoid of proof which would render the pictures admissible under Art. 3737e, V.A.C.S. Further, if it be urged that such photographs are admissible as part of the autopsy report under Art. 49.25, V.A.C.C.P., and Art. 3731, V.A.C.S., a review of the record fails to reveal evidence which would substantiate such conclusion.

We find that the admission of State’s Exhibits 14 through 20 depicting a burned body was error and requires reversal of this case.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

      . The exhibits in the record before us appear to be very poor reproductions of the exhibits introduced at trial and do not reflect that the numbers “75-38” appear on any photograph except Exhibit 19. In light of our disposition of the ground of error, this is not a critical factor to our decision.


author: DIES, Chief Justice.

text:
    C. S. ADAMS, Jr., et al., Appellants, v. BIG THREE INDUSTRIES, INC., Appellee.
    No. 7888.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 17, 1977.
    Rehearing Denied March 17, 1977.

      Will Sears, Michael T. Powell, Sears & Burns, Houston, for appellants.
    Charles R. Vickery, Houston, for appellee.
   DIES, Chief Justice.

Plaintiffs below, C. S. Adams, Jr., individually, and Cyril S. Adams, Inc., sued defendant, Big Three Industries, Inc., for the breach of five contracts and sought to recover actual and exemplary damages sustained thereby, attorney’s fees, and prejudgment interest. We shall refer to the parties as Adams, Jr., Adams, Inc., and Big Three.

Trial was to a jury, and the court below rendered judgment that Adams, Inc., recover actual and exemplary damages and prejudgment interest. Adams, Jr., recovered nothing by reason of his suit, and all parties have appealed.

At the outset, and for the sake of lending clarity to our disposition of the issues involved, we outline the facts which led up to this lawsuit. Briefly, the facts are that Big Three builds and operates air separation plants which separate air into oxygen, nitrogen, and argon, and then sells same in liquid or gaseous form. Adams, Jr., is, as was his father before him, a registered professional engineer, who offers his services in drafting the plans for plants such as Big Three operates. Both Adams, Jr., and his late father offered their services through the aegis of Adams, Inc., however, and in this form have performed numerous civil engineering contracts for Big Three over a period of twenty to thirty years. Subsequent to the death of Adams, Sr., Big Three apparently became dissatisfied with the work performed by Adams, Inc., and eventually the relationship was ended by, at least, some of the contract breaches made a part of this suit. Since liability under three of the contracts sued upon is conceded by Big Three, we will confine most of our discussion to the two which are disputed.

Adams, Jr., and Adams, Inc., complain of the trial court’s action in disregarding the jury’s answers to Special Issues Nos. 1 and 7 and in rendering judgment that Adams, Jr., take nothing as against Big Three. By disregarding these issues, the trial court disallowed attorney’s fees on the ground that, at the time of the making of the contracts at issue, corporations could not recover attorney’s fees under Tex.Rev.Civ. Stat.Ann. art. 2226.

Adams, Jr., being the only shareholder, employee, officer and director of Adams, Inc., argues that the corporation is only “a piece of paper” in the office of the Secretary of State and, in effect, urges that the “corporate veil” should be pierced and attorney’s fees thereby permitted. We disagree.

It is obvious that Adams, Jr., deliberately chose to operate his business as a corporation, and we are of the opinion that it would be inequitable now to allow him to recover attorney’s fees as an individual. See Eastwood Model Market v. State, 359 S.W.2d 294, 296 (Tex.Civ.App.—Austin 1962), affirmed, 365 S.W.2d 781 (Tex.1963), wherein the Austin Court of Civil Appeals stated:

“A corporation cannot be used when it benefits the stockholders and officers and be disregarded when it is to the advantage of the organizers to do so.”

While Adams, Jr., vigorously argues to the contrary, we are also of the opinion that Tenneco Oil Company v. Padre Drilling Company, 453 S.W.2d 814, 820 (Tex.1970), clearly holds that—at the time these contracts were made—corporations could not recover attorney’s fees under Art. 2226 for personal services rendered. In so holding, then Chief Justice Calvert explained that personal services and labor done by the employees of one corporation in performance of a contract with another corporation are not “services rendered” for the latter. The personal services rendered and labor done by those employees are rendered and done for their own employer. Tenneeo Oil Co., supra, at 820.

We now proceed to consider the contentions of the parties as to the proper basis of recovery under the contracts in question. The Bayport I contract was an express written contract whereas Bayport II was based on an oral agreement. Adams, Jr., and Adams, Inc., sought to recover in quantum meruit as to the written contract and on the contract itself as to Bayport II. We will first consider the written contract for Bayport I.

While the jury found that the reasonable value of the services performed on Bayport I was $50,000, the trial court limited the recovery for same to the agreed contract price of $36,000. Adams, Inc., relying on, among other cases, McFaull v. Collins, 208 S.W.2d 142 (Tex.Civ.App.—Austin 1948, writ ref’d), contends that the trial court erred in so doing on the ground that Big Three’s repudiation of the contract freed it from the contractual fee.

In McFaull, supra, at 144, however, the plaintiff was wrongfully discharged and so prevented by his employer from completing the performance agreed upon. We believe this—and other cases cited by Adams, Inc. —to be distinguishable from the case at bar in that as to Bayport I, Adams, Inc., was not discharged prior to completion of his part of the contract and the contract expressly set out the fee to be paid. Big Three’s repudiation of this contract lay solely in its refusal to pay the agreed fee after Adams, Inc., had performed its part of the contract. Under these circumstances, quantum meruit is not available to Adams, Inc.

In Woodard v. Southwest States, Inc., 384 S.W.2d 674, 675 (Tex.1964), Justice Culver set out the applicable rule as follows:

“Recovery on an express contract and on quantum meruit are inconsistent. Where there exists a valid express contract covering the subject matter, there can be no implied contract.”

In Dallas Electric Supply Co. v. Branum Co., 143 Tex. 366, 185 S.W.2d 427, 429 (1945), in an analogous factual situation, our Supreme Court rejected a similar argument for quantum meruit recovery, saying:

“It follows that there is no basis for the application of the doctrine of quantum meruit in this case. A recovery on that ground would be recovery of what the agent’s services were worth. The contract expressly covered that subject by providing for a very substantial commission to the agent for all its services, The amount of compensation was not left to implications, but was definitely fixed. For the court to determine what the agent’s services were worth would be for it to make a contract for the parties. That, of course, it cannot do. Tennant v. Fawcett, 94 Tex. 111, 58 S.W. 824; Fordtran v. Stowers, 52 Tex.Civ.App. 226, 113 S.W. 631; Bennett v. Giles, Tex.Civ.App., 12 S.W.2d 843.”

See also, Freeman v. Carroll, 499 S.W.2d 668, 670 (Tex.Civ.App.—Tyler 1973, writ ref’d n. r. e.); University State Bank v. Gifford-Hill Con. Corp., 431 S.W.2d 561, 574 (Tex.Civ.App.—Fort Worth 1968, writ ref’d n. r. e.).

We, therefore, find that the trial court properly limited the recovery of Adams, Inc., to the $36,000 contract price and, accordingly, overrule all points of error complaining of this action.

As to the parties’ oral contract for engineering services in re Bayport II, it is undisputed that the fee agreed upon was $30,000. Adams, Inc., here sued to recover on the contract rather than in quantum meruit.

Big Three complains, inter alia, that the trial court erred in allowing recovery of the $30,000 contract price because this oral contract was barred by the Statute of Frauds. We sustain this point.

Tex. Bus. & Comm. Code Ann. § 26.01 (1968) provides, in pertinent part:

“(a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is
(1) in writing; and
(2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.
“(b) Subsection (a) of this section applies to
⅜ * ⅜ * * ⅝;
(6) an agreement which is not to be performed within one year from the date of making the agreement;

In considering the contract before us, we bear in mind the general rule governing the applicability of Sec. 26.01 to oral agreements, i. e., where the time for performance of a contract is uncertain in that the same merely provides for performance of a particular act or acts, which can conceivably be performed within one year, the statute of frauds is inapplicable however improbable performance within one year might be. Hall v. Hall, 158 Tex. 95, 308 S.W.2d 12, 15 (1957); Miller v. Riata Cadillac Company, 517 S.W.2d 773 (Tex.1974); cf. Bratcher v. Dozier, 162 Tex. 319, 346 S.W.2d 795 (1961).

It is equally clear, however, that when no time for performance has been specified, a “reasonable time” will be implied, and what is a reasonable time must be determined from all the circumstances, the situation of the parties, and the subject matter of the contract. Krueger v. Young, 406 S.W.2d 751, 756 (Tex.Civ.App.—Eastland 1966, writ ref’d n. r. e.); Cheek v. Metzer, 116 Tex. 356, 291 S.W. 860, 863 (1927). Where an agreement, by its terms or the nature of the performance required, cannot be performed within one year, it necessarily comes within the purview of the statute. Krueger v. Young, supra, at 755. If, as here, the contract is not a written one and depends upon disputed facts, the determination of what constitutes a reasonable time is a question of fact. McRae v. Lindale Independent School District, 450 S.W.2d 118, 122-123 (Tex.Civ.App.—Tyler 1970, writ ref’d n. r. e.); Hamilton v. Shirley-Self Motor Co., 202 S.W.2d 952, 954 (Tex.Civ.App.—Fort Worth 1947, writ ref’d n. r. e.).

In the case at bar, a jury finding was secured to the effect that the oral contract could not have been performed or completed within one year, and there is ample evidence in the record to support this conclusion. As the Supreme Court said in the Hall Case (308 S.W.2d at 15):

“In the first place, and despite the strict requirement that impossibility of performance within one year must appear from the terms of the contract, we see no reason why the mere fact of duration of performance being implied keeps the contract from being within the statute. . What is implied in a contract is as much one of its terms ‘as though expressly set forth therein’. Cheek v. Metzer, supra, 291 S.W. 860, 863.
“In the second place, the fact that the law recognizes an implication of reasonable time of performance in a given contract does not mean that the latter is necessarily indefinite in this behalf so as to escape the statute.” (emphasis in original)

Viewing all the circumstances surrounding this contract and according due deference to the jury’s finding, we have concluded that the implied term of performance for this contract was in excess of one year and thus same is rendered unenforceable under the Statute of Frauds (Sec. 26.01).

In addition to its other claims, Adams, Inc., sought and did recover exemplary damages, having alleged as the basis therefor that Big Three maliciously withheld payment of sums due it for other completed projects — some $70,000 — in retaliation for its filing of the case at bar. While Big Three admitted withholding payment, it denied doing so because Adams, Inc., filed this lawsuit.

Big Three contends that the trial court erred in awarding exemplary damages based on the jury’s answer to Special Issue No. 14 because there was no evidence to support the finding and a breach of contract will not justify exemplary damages.

Special Issue No. 14 was submitted and answered as follows:

“Do you find from a preponderance of the evidence that the refusal of Big Three Industries, Inc., to pay the last five installments to Plaintiffs [Adams, Jr., and Adams, Inc.] on its Victoria contract and all of the installments on its Santa Susanna and West Palm Beach Liquefier contracts was a willful, deliberate and malicious refusal, done for the purpose of attempting to harm Plaintiffs and embarrass them financially and for the purpose of oppressing and coercing Plaintiffs, solely because of the original filing of this lawsuit?
“Answer ‘Yes’ or ‘No’
“Answer Yes”

In A. L. Carter Lumber Co. v. Saide, 140 Tex. 523, 168 S.W.2d 629, 631 (1943), Chief Justice Alexander, speaking for the Court, set out the applicable rule as follows:

“The jury found that the seller was harsh and unreasonable in its dealings with the purchaser, and that its acts in cancelling the contract were willful and oppressive, and were accompanied with malice. Based upon these findings, the trial court allowed a recovery for exemplary damages, and the Court of Civil Appeals affirmed the judgment. We are not in accord with this holding. The rule in this State is that exemplary damages cannot be recovered for a simple breach of contract, where the breach is not accompanied by a tort, even though the breach is brought about capriciously and with malice.” (emphasis added)

Justice Pope in McDonough v. Zamora, 338 S.W.2d 507, 513 (Tex.Civ.App.—San Antonio 1960, writ ref’d n. r. e.), further explained the ramifications of this rule, saying:

“Punitive damages are not recoverable in actions for breach of ordinary commercial contracts, though the breach is brought about capriciously and with malice. ... To this rule there are certain exceptions, some of which are well recognized, and others of which are uncertain. . . . First, punitive damages are available in an action for breach of promise to marry. . . . Second, such damages are allowed against public service companies when they breach a duty they assume by contract. In these instances, there is usually a duty imposed by law, or there may be a tort independent of the contract. . . . Third, as expressed by Judge Pleasants in Southwestern Telegraph & Telephone Co. v. Luckett, 60 Tex.Civ.App. 117, 127 S.W. 856, 857: ‘The allegations upon which the * * * breach was committed by the defendant amounted to a tort for which an action would lie for exemplary damages, independently of any right to recover actual damages by reason of the breach of contract alone.’ In other words, one may not be limited to a contract measure of damages if he actually pleads and proves a tort which is in addition to or coincident with a contract breach. It has been said that punitive damages are permitted when a breach is accompanied by ‘willful acts of violence, malicious or oppressive conduct.’ However, it is suggested that those descriptive words may be symptoms of an independent tort, and that there must be something more than a malicious and oppressive breach of contract, for even an intentional breach of contract is not punishable by punitive damages.” (emphasis added, citations omitted)

See also, Seegers v. Spradley, 522 S.W.2d 951, 957 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.); Boswell in Hughes, 491 S.W.2d 762, 768-764 (Tex.Civ.App.—El Paso 1973, writ ref’d n. r. e.).

That the jury found Big Three’s breach of the completed contracts to have been malicious in nature is, under the above cited authorities, insufficient to entitle Adams, Inc., to an award of exemplary damages. Intentional and malicious as this breach may have been, it was still merely a wrongful refusal to pay sums owed. There was no accompanying abusive or oppressive conduct which could constitute a tort, independent of the breach itself. Thus, under the foregoing authorities, the trial court erred in awarding exemplary damages to Adams, Inc.

The final point of error we consider concerns the action of the trial court in awarding prejudgment interest as to each of the contracts involved. Since we have previously determined the Bayport II contract to be unenforceable, we will deal only with the four contracts remaining.

The trial court’s judgment and the interest awarded included, as follows:

(1) $70,000 on the Victoria, Santa Susana and West Palm Beach contracts with six percent interest from May 10, 1970 —the date of breach — to judgment date.
(2) $36,000 on Bayport Plant No. 1 contract with six percent interest from April 10, 1969 — date of breach — to judgment date.

Big Three contends that the prejudgment interest thereby granted was improperly awarded. We disagree.

In the leading case of Watkins v. Junker, 90 Tex. 584, 40 S.W. 11 (1897), our Supreme Court pronounced the rule we follow, saying:

“[CJourts have recognized the fact that compensation for detention of that which is due on account of injury inflicted is an element of damages necessary to the complete indemnity of the injured party; and the courts have, by analogy, adopted the legal rate of interest fixed by statute as the standard by which to be governed in assessing damages for the detention of money. .
******
“[I]n all cases where the measure of recovery is fixed by the conditions existing at the time that the injury is inflicted, the person entitled to recover has also the right to have compensation for the detention of the money to which he is entitled by reason of the wrong done to him.

For more recent cases in accord with the above cited rule, see Black Lake Pipe Line Co. v. Union Const. Co., 538 S.W.2d 80, 95-96 (Tex.1976); Texas Company v. State, 154 Tex. 494, 281 S.W.2d 83, 92 (1955); Metal Structures Corp. v. Plains Textiles, Inc., 470 S.W.2d 93 (Tex.Civ.App.—Amarillo 1971, writ ref’d n. r. e.).

Big Three and Adams, Inc., have other points which we find to be without merit and they are, accordingly, overruled.

We affirm the judgment of the trial court insofar as it awards to Adams, Inc., the contract price of $36,000 for Bayport I and $70,000, collectively, on the Victoria, Santa Susana and West Palm Beach contracts. The award of prejudgment interest as to these contracts is likewise upheld. The judgment denying any recovery to Adams, Jr., is affirmed. That part of the judgment allowing recovery on Bayport II and awarding exemplary damages is reversed and judgment hereby rendered that plaintiff Adams, Inc., take nothing as to these.

Judgment affirmed in part, and in part reversed and rendered.

STEPHENSON, J., not participating.

      . In answer to Special Issue No. 1, the jury found that, as to the Bayport Plant No. 1 contract, Big Three contracted with both Adams, Jr., and Adams, Inc. In Special Issue No. 7, the jury found that Big Three agreed with both Adams, Jr., and Adams, Inc., for engineering services for Bayport Plant No. 2.

      . Art. 2226 has since been amended to include corporations.

      . The following facts, however, are undisputed: (1) Big Three’s checks were always deposited in the Adams, Inc., account; (2) Accounts Receivable from Big Three were carried as assets in the financial statements of Adams, Inc.; (3) invoices submitted to Big Three for engineering services were from Adams, Inc.; (4) all income received from Big Three was reported by the corporation.

      .In answering Special Issue No. 5, the jury found that there was no cost to Big Three to complete engineering services for Bayport I.


author: DIES, Chief Justice. STEPHENSON, Justice,

text:
    Clester R. MOORE, Appellant, v. Hugh Bevil MEANS, Appellee.
    No. 7925.
    Court of Civil Appeals of Texas.
    March 3, 1977.
    Rehearing Denied April 7, 1977.

      Benton Musslewhite, Houston, for appellant.
    Robert Q. Keith, Beaumont, for appellee.
   DIES, Chief Justice.

Clester R. Moore, plaintiff below, was administrative assistant to the county judge of Hardin County. He was also publisher of a weekly newspaper “The Kountze News”. On April 25, 1975, a meeting was called to discuss the county’s plans for the collection and disposal of garbage. The defendant below Hugh Bevil Means, a county commissioner, and Moore were present at the meeting.

On Thursday, April 24, plaintiff Moore had published a story in “The Kountze News” dealing with garbage “kickbacks” which Commissioner Means considered insulting. At the meeting Commissioner Means assaulted plaintiff Moore.

Hardin County is a subscriber to workmen’s compensation insurance, and plaintiff Moore filed a claim, as an employee of Hardin County, with the Industrial Accident Board, and received benefits. Thereafter, plaintiff Moore sued Means for personal damages. Means filed a Motion for Summary Judgment which the trial court granted and from which plaintiff below, Moore, perfects this appeal.

The parties will be referred to herein as they were below, or by name.

The mere fact that an employee is injured by another employee while at work for his employer does not in and of itself make the injury compensable. Liberty Mutual Insurance Co. v. Hopkins, 422 S.W.2d 203 (Tex.Civ.App.—Beaumont 1967, nre). To be compensable, an injury must be sustained in the course of employment and originate in the work of the employer. Tex.Rev.Civ.Stat.Ann. art. 8306 § 3b (1967); Tex.Rev.Civ.Stat.Ann. art. 8309 § 1 (1967). St. Paul Ins. Co. v. Van Hook, 533 S.W.2d 472, 474 (Tex.Civ.App.—Beaumont 1976, no writ). Where an assault is directed at an employee for reasons personal to him and does not arise out of his employment, the employee cannot recover compensation benefits. Tex.Rev.Civ.Stat.Ann. art 8309 § 1(2); Standridge v. Warrior Constructors, Inc., 425 S.W.2d 472, 474-475 (Tex.Civ.App.—Houston [14th Dist.] 1968, no writ); Highlands Underwriters Insurance Co. v. McGrath, 485 S.W.2d 593, 595 (Tex.Civ.App.—El Paso 1972, no writ). See also Commercial Ins. Co. v. Austin, 128 S.W.2d 836, 837 (Tex.Civ.App.—Beaumont 1939, writ dism’d jdgmt cor.).

So it is clear that when plaintiff Moore sought and accepted workmen’s compensation, he was required to take and took the position that his injury was in the course of his employment with the county and originated in his work with the county.

Now, in this suit against defendant Means, plaintiff asserts that “an employee is not barred from suing a fellow employee in common law damages, even though the suing employee has accepted compensation benefits, unless the employee being sued was acting in the course and scope of his employment at the time he committed the acts which give rise to the third party action.” It is plaintiff’s position in the instant suit that defendant was not acting in the course of his employment at the time of the assault, or — at least — that a fact issue exists as to whether or not he was so acting. Moore testified by deposition that he was in the course of employment at the time of injury.

The function of the Industrial Accident Board is quasi-judicial; its award is entitled to the same faith and credit as the judgment of a court; and it is not subject to collateral attack. See 63 Tex.Jur.2d Workmen’s Compensation § 324, p. 301, 302 (1965). Keller v. Texas Employers’ Ins. Ass’n, 279 S.W. 1113, 1115 (Tex.Civ.App.—Beaumont 1926, no writ); Texas Employers’ Ins. Ass’n v. Morgan, 295 S.W. 588 (Tex.Com.App. 1927, jdmt adopted; Vestal v. Texas Employers’ Ins. Ass’n, 285 S.W. 1041, 1044 (Tex.Com.App.1926, jdgmt adopted); Estes v. Hartford Accident & Indemnity Co., 46 S.W.2d 413, 416 (Tex.Civ.App.—El Paso 1932, writ ref’d); Security Union Casualty Co. v. Peer Oil Corporation, 1 S.W.2d 1109, 1111 (Tex.Civ.App.—Beaumont 1927, no writ); Ocean Accident & Guarantee Corporation v. Pruitt, 58 S.W.2d 41, 45 (Tex.Com.App.1933). Moreover, where one takes one position in a judicial proceeding, he cannot later take a plainly inconsistent position in another proceeding. See 22 Tex.Jur.2d Estoppel § 17, p. 685 (1961), and authorities therein cited.

Heibel v. Bermann, 407 S.W.2d 945 (Tex.Civ.App.—Houston 1966, no writ) is a case in point. Plaintiff and defendant were both employees of Maxim’s Restaurant, and plaintiff brought suit because of an intentional injury inflicted on her by the defendant while plaintiff was in the course and scope of her employment at Maxim’s. “Citing Tex.Rev.Civ.Stat.Ann. 8306 §3 , the court in Heibel, supra, said:

“We are of the view that appellants, by proceeding to claim and collect benefits provided under workmen’s compensation policy of insurance provided by the employer, as above established, are as a matter of law precluded from maintaining an action at common law for damages . against a fellow employee.” (407 S.W.2d at 946)

See also Jones v. Jeffreys, 244 S.W.2d 924, 926 (Tex.Civ.App.—Dallas 1951, writ ref'd).

Plaintiff Moore contends that McKelvy v. Barber, 381 S.W.2d 59 (Tex.1964) stands for the proposition that the employee is not barred from suing a fellow employee in common law for damages by accepting compensation benefits unless the employee being sued was acting in the course and scope of his employment at the time he committed the acts.

In the McKelvy case plaintiff injured his finger in the course of his employment and was taken by the personnel director to the office of the company doctor who treated the injury. After settling with his employer’s carrier, the employee developed tetanus and thereafter sued the doctor for negligent medical treatment. The trial court directed a verdict for the doctor. On appeal, our Supreme Court, while discussing art. 8306 § 3 (1967) stated:

“There is no presumption . . . of a master and servant relationship where the proof merely shows that an ordinary employer or insurance company has arranged for a doctor to treat another person.” (381 S.W.2d 63)

The facts of our case are different. Unlike the plaintiff in McKelvy, plaintiff Moore, in order to receive workmen’s compensation, was required to take the position that the assault upon him by his fellow employee Means was committed in the course of employment and in fact originated in the work of the employer (Hardin County). Unlike the plaintiff in McKelvy, however, plaintiff here now takes the completely opposite position. The authorities we cite above, we think, do not permit him to do this. Appellant’s points are overruled.

The order of the trial court in granting the summary judgment is AFFIRMED.

STEPHENSON, Justice,

dissents.

I respectfully dissent. I would reverse and remand this case for a trial on its merits.

The District Court could grant defendant’s motion for summary judgment only after finding as a matter of law that defendant was acting in the course and scope of his employment with Hardin County. The deposition testimony shows clearly, or, at least, raises a question of fact as to defendant’s course and scope of employment at the time of this attack.

Tex.Rev.Civ.Stat.Ann. art. 8306 § 3 (1967), provides that an .employee has no right of action against a fellow employee for damages for personal injuries. However, for that statutory provision to have application, the proof would have to show the person inflicting the injury was acting in the course and scope of his employment at the time. See McKelvy v. Barber, 381 S.W.2d 59 (Tex.1964); and Ward v. Wright, 490 S.W.2d 223 (Tex.Civ.App.—Fort Worth 1973, no writ).

In the compensation case the claimant had the burden of proving that he, the plaintiff (not the defendant in the case before us), was injured while acting in the course and scope of his employment. Under Tex.Rev.Civ.Stat.Ann. art. 8306 § 1(2) (1967), he had to prove the third person (defendant) was motivated to injure plaintiff because of something connected with plaintiff’s employment. However, proving defendant’s motive in the compensation case and defendant’s course of employment in the damage suit are two separate and distinct issues.

The certified copy of the Industrial Accident Board file is a part of our record and does not show defendant’s reason for assaulting plaintiff. Such record also does not show defendant was acting in the course of his employment at the time of this assault.

Plaintiff should be given his day in court to establish, if he can that defendant was not acting in the course of his employment with Hardin County, at the time of this assault.

       “The employees of a subscriber . . . shall have no right of action against their employer or against any agent, servant, or employee of said employer for damages for personal injuries, . . . but such employees . . shall look for compensation solely to the association.”


author: McDONALD, Chief Justice.

text:
    HOUSTON NATIONAL BANK et al., Appellants, v. Jeff FARRIS, et al., Appellees.
    No. 5702.
    Court of Civil Appeals of Texas, Waco.
    March 10, 1977.
    Rehearing Denied April 20, 1977.

      Thomas H. Lee, Foreman, Dyess, Prew-ett, Rosenberg & Henderson, Houston, Fred M. Lange, Fulbright & Jaworski, Houston, for appellants.
    W. R. Malone, Huntsville, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendants Houston National Bank, and Bank of The Southwest National Association, from judgment overruling their pleas of privilege to be sued in Harris County.

Plaintiffs Jeff Farris and wife sued defendants alleging among other matters that defendants by a chain of mesne conveyances held certain oil and gas leasehold interests on plaintiffs’ land in Madison County; that defendants drained plaintiffs’ land of hydrocarbons from nearby wells from which plaintiffs received no royalties; and thereby breached an implied covenant to protect against drainage.

Defendants filed pleas of privilege to be sued in Harris County, the county of their residence.

Plaintiffs controverted asserting venue maintainable in Madison County under Subdivision 14, Article 1995 VATS.

Defendants appeal on one point: “The district court erred in overruling defendants’ pleas of privilege”.

Defendants assert this is not a Subdivision 14 (Article 1995) case; and further that the National Banks Act (12 U.S.C. Section 94) provides for exclusive venue of suits against National Banks in the county in which such bank is located.

Subdivision 14, Article 1995 — provides: “Suits for the recovery of lands or damages thereto, * * ⅜ ⅜, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie”.

The nature of the suit is determined from the pleadings Piazza v. Phillips, 153 Tex. 115, 264 S.W.2d 428.

Plaintiffs’ petition alleged among other matters that “their land has been substantially drained of oil and gas by the operations of Defendants themselves on premises adjacent and nearby to the Plaintiffs’ lands”, and “Defendants took no action whatsoever to protect the Plaintiffs’ lands from such drainage, but instead actively undertook to drain the same, through wells from which the Plaintiffs were receiving no royalties, and were not entitled to receive royalties, adequate to compensate them for such drainage”.

A lessee is under a duty to protect his lessor against depletion of the lessor’s minerals by the affirmative act of the lessee upon adjacent land. Shell Oil Company v. Stansbury, Tex., 410 S.W.2d 187; Budde v. Navarro Oil Co., Tex.Civ.App., NWH, 125 S.W.2d 1055; Elder v. Miller, Tex.Civ.App., NWH, 116 S.W.2d 1171.

Plaintiffs’ petition is a suit for damages to lands, and to prevent or stay, waste on lands. The parties stipulated the land lay in Madison County.

Subdivision 14, Article 1995 requires venue in Madison County.

Section 94 12 U.S.C. has been construed, with two exceptions, to set the exclusive venue of cases against national banks in the county in which the bank is located. Mercantile National Bank v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523.

The exceptions are: 1) when a bank consents to be sued in a county other than the county of its location or otherwise waives its right to be sued there; 2) cases involving local, in rem actions, as opposed to transitory actions. Casey v. Adams, 102 U.S. 66, 26 L.Ed. 52.

The case at bar is a suit (among other matters) for damage to land, and to prevent waste to land, such lands being in Madison County. Such suit is an in rem action, local in nature, so that the provisions of Section 94 12 U.S.C. do not apply; and is an exception recognized by Casey v. Adams, supra. Fort Worth National Bank v. Ballanfonte, Tex.Civ.App., NWH, 469 S.W.2d 9; Lone Star Producing Company v. Bird, Tex.Civ.App., Er.Dism’d. 406 S.W.2d 344.

Defendants’ point is overruled.

AFFIRMED


author: HUGHES, Associate Justice.

text:
    Lebaron Thomas TAYLOR, Appellant, v. The TEXAS DEPARTMENT OF PUBLIC WELFARE, Appellee.
    No. 17799.
    Court of Civil Appeals of Texas, Fort Worth.
    March 25, 1977.
    Rehearing Denied April 22, 1977.

      Law Offices of Troy Douthitt, Jr., and James Q. Smith and Wm. H. Harris, Wichita Falls, for appellant.
    Bill J. Ballard, Wichita Falls, for appel-lee.
   OPINION

HUGHES, Associate Justice.

The Texas Department of Public Welfare brought this paternity and child support action against LeBaron Thomas Taylor. The action was filed before the amendment of Tex.Family Code Ann. § 13.01 (Supp. 1976-77), effective September 1, 1975, which provides for actions to determine paternity. Welfare sought an order of child support and recovery for legal services rendered and monies already expended for the child’s support (under the Aid to Families with Dependent Children program with an assignment of rights by the mother pursuant to Tex.Rev.Civ.Stat.Ann. art. 695c § 18-B (Supp.1976-77) and 42 U.S.C. § 602 (Supp.1976)). The trial court rendered a default decree for Welfare, and Taylor has petitioned for writ of error. Welfare contends that the trial court had personal jurisdiction over Taylor, who is a nonresident, under the provisions of Tex.Rev.Civ.Stat. Ann. art. 2031b (1964) which permits the exercise of personal jurisdiction over nonresident persons committing tort within this state.

We reverse and render.

This action was initiated in 1974. Welfare filed its Second Amended Original Petition to Establish Paternity and Obtain Child Support on December 9, 1975, giving as Taylor’s last known address that of his employer in Kansas City, Missouri. The case was tried without a jury. Taylor did not attend the trial and did not file an answer.

At the hearing on the merits the child’s mother testified that around December of 1970 she had “relationships” with Taylor for a period of three months on a regular basis and that she was not having relationships with anybody else at that time. She further testified that she had sexual relations with Taylor “at a time when in the course of normal events a child was conceived and subsequently born.” The child was born on December 18, 1972.

A letter from Taylor was admitted into evidence which, in effect, told the mother not to “rock the boat” and he would help her all he could. He wrote that $50.00 was enclosed (she denied getting it) and that he would send money when he could. He intimated that if she “made waves” he might deny responsibility and it would then be just her word against his.

Taylor went from Wichita Falls to Houston sometime before the letter was written. Personal service was attempted upon him in Houston, but he was reported to have moved to Kansas City, Missouri. At the hearing, Welfare introduced into evidence a certificate of the Secretary of State, State of Texas, which showed that copies of the citation and petition in this cause had been sent to Taylor on January 15, 1976, at the Kansas City address pursuant to the “long-arm statute,” Tex.Rev.Civ.Stat.Ann. art. 2031b.

On March 5, 1976, the court rendered a decree which declared Taylor the father of the child and ordered him to pay $86.00 per month to Welfare. The decree also awarded Welfare $2,420.77 plus interest for payments it had already made to the mother and $275.00 for legal services rendered.

On March 15, 1976, Taylor filed a Special Appearance on Plea to Jurisdiction alleging that the “record” did not show that the Secretary of State had mailed a copy of the service to him as required by statute. The transcript reflects that a certificate from the Secretary of State’s office was filed in the action in the office of the district clerk later that day. The certificate stated that copies of the citation and petition were forwarded to Taylor at the Kansas City address on January 15, 1976 (in accordance with Tex.Rev.Civ.Stat.Ann. art. 2031b). On March 16,1976, eleven days after the decree was rendered, Taylor filed a Motion for New Trial. The trial court overruled his Motion for New Trial and Motion to the Jurisdiction on May 21, 1976.

Taylor contends that the face of the record reflects that the trial court had no jurisdiction in this case. Taylor claims that he was not amenable to service of process under Tex.Rev.Civ.Stat.Ann. art. 2031b and that the trial court had no jurisdiction over his person.

Whitney v. L & L Realty Corporation, 500 S.W.2d 94, 95-6 (Tex.1973) set forth the following test for the “record showing of jurisdiction necessary to support a default judgment upon substituted service . : (1) The pleadings must allege facts which, if true, would make the defendant . . . ‘amenable to process’ by the use of the long-arm statute; and (2) there must be proof in the record that the defendant was, in fact, served in the manner required by statute.” For the reasons discussed below, we hold that the pleadings before us do not meet part (1) of this test.

Welfare argues that the trial court obtained jurisdiction over Taylor under the provisions of Tex.Rev.Civ.Stat.Ann. art. 2031b. The petition alleged that Taylor had fathered a child born out of wedlock in Texas in December 1972, and that he had failed to support the child. Welfare also contends, without citation of authority, that fornication, which was a misdemeanor under former Tex.Penal Code art. 503 at the time of the child’s conception, provides a basis for its tort theory. Taylor argues Welfare has not alleged that he committed acts constituting a tort.

There is a split of authority as to whether an action to determine paternity and obtain child support is a tort action. See State ex rel. Nelson v. Nelson, 298 Minn. 438, 216 N.W.2d 140 (1974) and Poindexter v. Willis, 87 Ill.App.2d 213, 231 N.E.2d 1 (1967) (upholding tort theory); Barnhart v. Madvig, 526 S.W.2d 106 (Tenn.1975); State ex rel. Carrington v. Schutts, 217 Kan. 175, 535 P.2d 982 (1975); A.R.B. v. G.L.P., 180 Colo. 439, 507 P.2d 468 (1973); and Anonymous v. Anonymous, 49 Misc.2d 675, 268 N.Y.S.2d 710 (Family Ct. N.Y. 1966) (rejecting tort theory). For a discussion of the cases from other jurisdictions, see also Levy, Asserting Jurisdiction Over Nonresident Putative Fathers in Paternity Actions, 45 U.Cin.L.Rev. 207 (1976).

We disagree with Welfare’s position and adopt the reasoning of A.R.B. v. G.L.P., supra. There the Colorado Supreme Court declared that sexual intercourse between consenting adults was not a tort and that therefore the “tortious act” provision of the Colorado long-arm statute did not permit the exercise of personal jurisdiction over the nonresident in that case. In so holding the court affirmed the lower court’s decision in People in the Interest of D.R.B., 30 Colo.App. 603, 498 P.2d 1166 (1972) which held that, in and of itself, the fathering of an illegitimate child was not a tortious act. See also 55 Tex.Jur.2d Torts § 8 (1964). We hold that the pleadings did not allege facts which, if true, would constitute a tort and make Taylor amenable to process under art. 2031b. The record is insufficient to support the default judgment upon substituted service under Whitney, supra.

Taylor also argues that the judgment is void as a substantive matter. If governed by the law in existence before the September 1, 1975 effective date of Tex.Family Code Ann. § 13.01, he claims that the judgment is void because the common law did not provide for an involuntary determination of paternity. If governed by the new § 13.01, Taylor claims that the decree of March 5,1976 is void because it is barred by its requirement that a “suit to establish the parent-child relationship between a child who is not the legitimate child of a man and the child’s natural father by proof of paternity must be brought before the child is one year old, or the suit is barred.”

In view of our holding under Taylor’s first point of error, that the trial court lacked personal jurisdiction over Taylor, we find it unnecessary to decide this question.

We overrule Taylor’s second point of error by which he asserts that Bill Ballard, the attorney for Welfare, lacks authority under Tex.Const. art. V, § 21 to initiate this claim on behalf of Welfare. (Section 21 provides that “The County Attorneys shall represent the State in all cases in the District and inferior courts in their respective counties . . . .”) Taylor did not properly invoke Tex.R.Civ.P. 12 which requires that he must have presented a sworn written motion contesting Ballard’s authority to represent Welfare in the trial court, and it is too late to now urge it. Victory v. State, 138 Tex. 285, 158 S.W.2d 760 (1942); City of Grand Prairie v. Finch, 294 S.W.2d 851 (Tex.Civ.App.—Dallas 1956, no writ).

Judgment of the trial court is reversed with judgment here rendered vacating the paternity and child support decree.


text:
    Joseph L. POSTELL, Appellant, v. The TEXAS DEPARTMENT OF PUBLIC WELFARE, Appellee.
    No. 17798.
    Court of Civil Appeals of Texas, Fort Worth.
    March 25, 1977.
    Rehearing Denied April 22, 1977.

      Law Offices of Troy Douthitt, Jr., and James Q. Smith and Wm. H. Harris, Wichita Falls, for appellant.
    Bill J. Ballard, Wichita Falls, for appel-lee.
   OPINION

HUGHES, Associate Justice.

Joseph L. Postell petitions for writ of error from the trial court’s order overruling his motion to vacate a void decree in a paternity and child support action in favor of the Texas Department of Public Welfare. The default decree which Postell attacks was based upon substituted service of process upon the Secretary of State of Texas pursuant to Texas’ “long-arm statute,” Tex. Rev.Civ.Stat.Ann. art. 2031b (1964). This statute permits the exercise of personal jurisdiction over nonresidents committing any tort in this state. Postell argues that the trial court lacked jurisdiction to render the decree and that the attorney for Welfare lacked authority to bring the action.

We reverse and render.

Welfare brought this action against Pos-tell in the “Aid to Families with Dependent Children” program with an assignment of rights by the child’s mother pursuant to Tex.Rev.Civ.Stat.Ann. art. 695c § 18-B (Supp.1976-77) and 42 U.S.C. § 602 (Supp. 1976). The default decree was rendered before the effective date of the new long-arm statute for suits affecting the parent-child relationship and the new provision for actions to determine paternity. Tex. Family Code Ann. §§ 11.051, 13.01 (Supp.1976-77).

The trial court signed the default decree on January 17, 1975, therein declaring Pos-tell the father of child born out of wedlock in November 1969. The decree ordered Postell to pay to Welfare $60.00 per month for support of the child, $5,588.00 already expended by Welfare plus interest, and $150.00 for legal services rendered.

The return on the citation indicates that copies of the citation and petition were delivered to the Secretary of State of Texas as Postell’s agent for service of process. The transcript contains a certificate of the Secretary of State which shows that copies of the citation and petition were forwarded to Postell on December 10,1974, at Chanute Air Force Base, Illinois, pursuant to Tex. Rev.Civ.Stat.Ann. art. 2031b. The certificate was not filed until January 22, 1975, after the decree had already been rendered.

On April 1,1976, Postell filed, in the same numbered action, a “Motion to Vacate Void Judgment and Set Aside Orders.” In this motion, Postell alleged that he was a resident of Elemdorf Air Force Base, Alaska, and that substituted service upon the Secretary of State was void. He argued that art. 2031b applies to torts committed in Texas and not to paternity and child support actions. Postell alleged the following meritorious defenses were available to him when the judgment was entered: (1) There was no statute in Texas to permit paternity suits at date of judgment and such an action was unknown at common law; (2) Pos-tell could have used pretrial proceedings and discovery to obtain blood-type evidence; (3) Postell could have determined access to the mother and adduced medical evidence of date of conception; and (4) If the suit were then pending, it would be barred by Tex. Family Code Ann. § 13.01 because the child was more than one year old.

The court overruled the motion to vacate. Postell filed his Petition for Writ of Error.

Welfare contends that, under Tex.R. Civ.P. 329b(5), a bill of review is the only method of attack open to Postell, since over a year had passed since the judgment was rendered. Welfare argues that Postell’s motion may not be deemed a bill of review because it was not filed as a separate action.

We disagree. Despite its designation, Postell’s “Motion to Vacate Void Judgment and Set Aside Orders” is in the nature of a bill of review, directly attacking the default decree. Although a bill of review “. . . is a separate suit and should be given a new docket number ... it will not be dismissed, assuming its allega tions are otherwise sufficient, if it is given the number of the action in which the judgment was rendered and is mistakenly . given [an] improper label.” 4 R. McDonald, Texas Civil Practice § 18.24 (1971 rev.). In such a situation the trial court should transfer it to an independent position on the docket. Langford v. Douglas, 359 S.W.2d 951 (Tex.Civ.App.—Beaumont 1962, no writ).

Welfare argues that Postell’s pleadings failed to meet the requirements for a bill of review, contending that Postell did not plead and prove by prima facie evidence facts which in law would constitute a meritorious defense. To support this position Welfare cites Ivy v. Carrel], 407 S.W.2d 212 (Tex.1966); Griffin v. Duty, 286 S.W.2d 229 (Tex.Civ.App.—Galveston 1956, no writ); and Montgomery v. Carlton, 56 Tex. 431 (1882).

In Deen v. Deen, 530 S.W.2d 913 (Tex.Civ.App.—Fort Worth 1975, no writ) this court held that Tex.R.Civ.P. 329b could not constitutionally be construed to require a direct attack on a judgment void for want of personal jurisdiction to meet the requirements of an equitable bill of review and that it was only necessary to show the judgment void for lack of jurisdiction over the person. The rules of equity, which would require a showing of a meritorious defense under Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950), are inapplicable to an attack on a void judgment. We find it unnecessary to examine and consider that portion of Postell’s pleadings in which he alleges certain “meritorious defenses.”

Postell contends, in his first point of error, that the judgment is void because the record does not reflect that he was amenable to process under Tex.Rev.Civ.Stat.Ann. art. 2031b as required by Whitney v. L & L Realty Corporation, 500 S.W.2d 94, 95-6 (Tex.1973). We agree. Welfare has alleged that, while in Texas, Postell fathered a child born out of wedlock; that he failed to support the child; that fornication was a misdemeanor at the time of the child’s conception under former Tex. Penal Code § 503. Welfare argues that it has thus alleged that Postell committed a tort in Texas, rendering him amenable to service of process under Texas’ long-arm statute, Tex.Rev.Civ.Stat.Ann. art. 2031b.

As more fully discussed in a companion case also decided this date, there is a split of authority as to whether an action to determine paternity and obtain child support is a tort action. See Taylor v. Texas Department of Public Welfare, 549 S.W.2d 422 (Tex.Civ.App.-Fort Worth 1977). We prefer the reasoning of A.R.B. v. G.L.P., 180 Colo. 439, 507 P.2d 468 (1973) which held that sexual intercourse between consenting adults is not a tort and did not constitute a basis for the exercise of personal jurisdiction in a paternity and child support action under the “tortious act” language of Colorado’s long-arm statute. We conclude that Welfare’s pleadings did not allege facts which, if true, would constitute a tort and render Postell amenable to service of process under art. 2031b. The record does not contain the showing necessary, under Whitney, supra, to support the default judgment upon substituted service. We sustain Pos-tell’s first point of error.

We find it unnecessary to reach the additional question posed by the argument under Postell’s first point that the judgment is also void as a substantive matter. (The theory advanced by Postell is that the common law did not provide for an involuntary determination of paternity.)

In his second point, Postell attacks the authority of Welfare’s attorney to initiate and prosecute this claim on Welfare’s behalf. Postell asserts that this case presents a violation of Tex.Const. art. V § 21 which provides that “. . . The County Attorneys shall represent the State in all cases in the District and inferior courts in their respective counties . . .”

We overrule Postell’s second point. He failed to present a sworn written motion challenging the attorney’s authority as required by Tex.R.Civ.P. 12. Victory v. State, 138 Tex. 285, 158 S.W.2d 760 (1942); City of Grand Prairie v. Finch, 294 S.W.2d 851 (Tex.Civ.App.—Dallas 1956, no writ).

Judgment of the trial court is reversed with judgment here rendered vacating the void paternity and child support decree.


author: PHILLIPS, Chief Justice.

text:
    BANK OF AUSTIN, Appellant, v. Larry T. BARNETT et al., Appellees.
    No. 12548.
    Court of Civil Appeals of Texas, Austin.
    March 30, 1977.
    Rehearing Denied April 20, 1977.
    Elvis G. Schulze, Law Office of Gilbert Prud’Homme, Austin, for appellant.
    Milton L. Bankston, Ruth B. Pennebaker, Stubbeman, McRae, Sealy, Laughlin & Browder, William T. Hall, Stayton, Malo-ney, Hearne & Babb, Austin, for appellees.
   PHILLIPS, Chief Justice.

This case turns on the question of whether appellant bank retained its purchase money lien on certain oil paintings it financed for appellee Larry Barnett, and whether it also retained its security interest in several other paintings held as collateral. Upon jury findings, inimical to the bank’s position, judgment was rendered for appel-lees.

We reverse the judgment of the trial court and remand the case for a new trial.

In addition to finding that appellant bank had lost its lien on the oil paintings due to several renegotiations and consolidations of the debt owed by Barnett described later in this opinion, the jury found that appellees, then husband and wife, made a gift of the paintings to their children. Inasmuch as the court’s judgment was favorable to ap-pellees, and as the Barnetts were divorced at time of trial, attorney’s fees were awarded to the children’s guardian ad litem who had been appointed to represent the children’s interest during the trial of the cause.

Appellant bank has assigned error to the judgment awarding the paintings to the children and also the attorney’s fees awarded them; however, due to our disposition of the case, we do not reach these points.

Larry Barnett began purchasing oil paintings in 1969. His first four paintings were financed by a purchase money note held by appellant with the four paintings serving as security. On August 31, 1971, Barnett purchased a Robert Wood painting also financed by appellant. This painting also served as security for the note. On January 10,1972, Barnett executed another note with appellant, again signing a security agreement which listed the remainder of the paintings as collateral. The collateral was described by an attached list of the paintings and other equipment.

The 1969 note, another note executed in 1970, and the January 1972 note were later “renewed and combined” into one note on August 30, 1972. The security agreement entered into on this day lists only the four paintings bought in 1969 as collateral. However, on the security agreement of January 10, 1972, there is a notation that “the equipment on this security agreement secures note for $9,826.80 dated Aug. 30,1972 which is a renewal of note 29435 Jan. 10, 1972.” Barnett’s signature appears under this notation. Supposedly the attached list describing the collateral on the January 10th security agreement was taken therefrom and attached to the August 30th security agreement. On June 21, 1974, the outstanding balance of the August 30,1972, note was combined into a new note executed that day. The original January 10, 1972, description of collateral that was allegedly attached to the August 30th security agreement was allegedly taken therefrom and then attached to the June 21st note to serve as a description of the collateral.

Back in February of 1973 the August 1971 note was renewed and its security, the Robert Wood painting, as well as a Robert Wesley Amich painting, was listed as security on this renewal note.

The special issues numbers 10-17 which were submitted to the jury inquired whether the jury found that the 1969,1971, January 1972 and August 1972 notes were returned by appellant to Barnett. These issues further inquired of the jury that if such notes were returned to Barnett, did the bank intend to cancel the notes. The court did not submit issues with respect to whether the bank intended to release its security interest in the paintings. The jury answered the issues submitted in the affirmative.

We regard as “omitted issues” those issues not submitted which concerned whether the bank intended to release its security interest in the paintings. Tex.R. Civ.P. 279. Omitted issues, constituting only a part of a complete and independent ground of recovery and being merely supplemental or incidental to other issues submitted and answered, and if supported by evidence, are deemed found in support of the judgment. Hodges, Special Issue Submission in Texas, Sections 74, 76 (1959, with 1969 Sup.).

The court’s judgment apparently is based on the assumption that in combining and renewing the notes and in delivering the canceled notes to Barnett, appellant bank intended to relinquish its security in the paintings. There is also some confusion in the testimony as to what security followed what notes in the maze of transactions outlined above. However, in our opinion, the evidence of any intent to release the original indebtedness as well as the collateral securing such indebtedness on the part of the bank is insufficient to support the judgment.

Schwab v. Schlumberger Well Surveying Corp., 145 Tex. 379, 198 S.W.2d 79 (1946), states that the giving of a new note for a debt evidenced by a former note does not extinguish the original indebtedness unless such is the intention of the parties. Such intention is never presumed and the burden of proving the discharge or novation is therefore upon the one who asserts it. In general, the renewal merely operates as an extension of time in which to pay the original indebtedness. The debt is not thereby increased. It remains the same; it is in substance and in fact the same indebtedness evidenced by a new promise. Also see Smith v. First Pasadena State Bank, 401 S.W.2d 123 (Tex.Civ.App.1966, no writ).

Section 3.605 of the Texas Business and Commerce Code does not appear to alter the rule. Although we have found no Texas cases since the adoption of the Uniform Commercial Code on this point, Slaughter v. Philadelphia National Bank, 290 F.Supp. 234 (E.D.Pa.1968), and Mid-Eastern Electronics, Inc. v. First National Bank of Southern Maryland, 7 U.C.C. 1089 (4th Cir. 1970), also state that it is the intention of the parties that determines whether the original indebtedness, and as such the collateral securing such indebtedness is released by the giving of a renewal note.

In applying this rule to the facts of this case, it becomes apparent that there is insufficient evidence of any intent on the part of the bank to release its security for the various loans. Although the original notes, on renewal, were returned to Barnett, they were marked “Paid by Renewal” and the evidence further indicates that appellant bank was intending to retain the same security for the renewal notes as it had on the original indebtedness by again attaching the list of paintings originally used to describe the collateral on the renewal notes.

In addition, there is testimony by the president of the bank, the vice president, as well as by Barnett himself. It appears from this testimony that it was not the intent of the parties to cancel the original indebtedness. Evidence presented by ap-pellee was simply insufficient to sustain the judgment.

Judgment of the trial court is reversed and the cause is remanded for a new trial.

      . See In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), for the standard assigned to the courts of civil appeals in evaluating the evidence.


author: ROBINSON, Justice.

text:
    CAPROCK INDUSTRIES, INC., Appellant, v. N. E. WOOD et al., Appellees.
    No. 8685.
    Court of Civil Appeals of Texas, Amarillo.
    March 30, 1977.

      Sanders, Saunders, Brian, Finney & Thomas, Joseph M. Pritchard, Amarillo, for appellant.
    Aldridge, Harding & Aycock, Johnny Actkinson, Farwell, for appellees.
   ROBINSON, Justice.

Plaintiff N. E. Wood and Plaintiff farmers filed suit in Parmer County against Caprock Industries, Inc., Woodrow Brillhart and Sam Randles alleging breach of a contract for pasture and care of cattle and conversion of a lien on the cattle. Caprock appeals from an order of the trial court overruling its plea of privilege. Reversed and rendered.

The evidence shows that the cause of action before us grew out of a series of contracts as follows:

1. George Enlow, as general manager of Caprock Industries, Inc., a foreign corporation authorized to do business in Texas, contracted in writing with Sam Randles for Randles to pasture Caprock’s cattle on a gain basis. Caprock was to make advances to Randles when the cattle were delivered and each month thereafter.

2. Randles contracted with Woodrow Brillhart for Brillhart to pasture the cattle.

3. Brillhart contracted with N. E. Wood for Wood to pasture the cattle at $1.50 per hundred weight per month for pasture and $1.25 per head per month for care.

4. Wood leased wheat pasture in Parmer County from the various plaintiff farmers. The cattle were delivered to Wood, who cared for the cattle which were pastured on the land leased by Wood from the farmers.

Randles directed Caprock to make the advances on his contract direct to Brillhart and Wood. Upon receipt of the checks, Brillhart took them to Wood who endorsed the cheeks. Wood’s accrued charges were deposited to his account. Brillhart deposited the balance to his own account. Wood then paid the farmers for pasture rent with his own personal checks.

Wood permitted and assisted in the loading of the cattle when they were removed from the pasture land by Caprock. At that time Brillhart had not paid Wood in full and Wood had not paid the farmers in full. After the cattle were loaded and sent out Brillhart told Wood that he would go to Gruver (the location of Caprock’s office) and get a check and return. He did not do so. There is evidence that he told Caprock that the “gain” was not sufficient to pay his pasturing costs and asked for a loan. Ca-prock refused.

Plaintiffs, Wood and the farmers, then brought this suit against Caprock, Randles, and Brillhart. Caprock filed its plea of privilege which was overruled by the trial court. Plaintiffs seek to maintain venue of their suit against Caprock in Parmer County under Subdivisions 5(b), 7, 9 and 27 of Article 1995, Tex.Rev.Civ.Stat. Ann. The plaintiffs have the burden to plead and to prove that the cause is within one of the exceptions to the general venue rule. A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619 (1939).

The case was tried without a jury. In the absence of findings of facts and conclusions of law, it must be presumed that the trial court made such findings as were necessary to support the judgment. Morris v. Texas Elks Crippled Children’s Hospital, Inc., 525 S.W.2d 374 (Tex.Civ.App.—El Paso 1975, writ ref’d n. r. e.). However, a finding cannot be presumed unless there is evidence to support such finding. Warren Petroleum Corp. v. Martin, 153 Tex. 465, 271 S.W.2d 410 (1954). In determining whether there is any evidence to support the judgment and implied findings of facts incident to it, the appellate court must consider only that evidence which is favorable to the issue and must disregard all that which is opposed to it. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950).

Relevant to plaintiffs’ argument with regard to each of the pleaded exceptions to the general venue rule is their contention that Brillhart had actual or apparent authority to act for Caprock. After considering the record in the light most favorable to plaintiffs we find no evidence to support that contention. There is some conflict in Wood’s testimony concerning whether Brillhart said that he represented Caprock. However, even if Brillhart did tell Wood that he represented Caprock, Brillhart’s statement would not support a finding that Brillhart was Caprock’s agent. It is well settled that an agent’s own representation cannot establish his agency or the nature and scope of his authority. Noel v. Denman, 76 Tex. 306, 13 S.W. 318 (1890); Knight v. Hicks, 505 S.W.2d 638 (Tex.Civ.App.—Amarillo 1974, writ ref’d n. r. e.)

We next consider each of the pleaded venue exceptions.

Subdivision 9, Art. 1995, provides that a suit based on a trespass may be brought in the county where the trespass was committed by the defendant or his agent. Plaintiffs allege that they had an agister’s lien on the cattle which was converted by their removal. The unauthorized removal of cattle covered by an agister’s lien is a conversion and, thus, is a trespass within the meaning of Subdivision 9. Mathews v. Ryan, 320 S.W.2d 44 (Tex.Civ.App.-Amarillo 1958, no writ).

Statutory provision for an agister’s lien is made by art. 5502, Tex.Rev.Civ.Stat. Ann. which gives a lien to owners and lessees of pastures on all animals placed with them for pasturage. Our courts have held that this statute does not give a lien to landowners who have leased their pasture to others and have parted with possession. Hindes v. Lock, 259 S.W. 156 (Tex.Com.App. 1924, jdgmt adopted). There is no evidence that the cattle were “placed with” plaintiff farmers. Thus the plaintiff farmers, each of whom testified that they had leased their pasture to Wood, had no lien on the cattle.

The evidence shows that Wood had the care of the cattle. However, even if we assume that Wood had an agister’s lien, we find no evidence of a conversion. Wood testified that he permitted and assisted in the removal of the cattle from his possession. As a matter of law any agis-ter’s lien which he had was waived because possession is essential to an agister’s lien. Rainey v. Williams, 273 S.W.2d 890 (Tex. Civ.App.—Austin 1954, no writ). In this connection plaintiffs contend that a fact issue on the question of waiver is raised by Wood’s testimony that Brillhart told him that he would go to the Gruver Feedyard, get a check, and bring it back. However, Wood himself testified that this statement was made after the cattle were loaded and sent out. Thus, it could not have induced him to relinquish possession.

Subdivision 7, Art. 1995, provides that in cases of fraud, suit may be brought in the county where the fraud occurred. Plaintiffs, in their controverting affidavit, allege that “a fraud was committed upon plaintiffs when such cattle were fraudulently removed without payment of the pasture bill.” The elements of a cause of action for fraud were set out by this court in Rumfield v. Rumfield, 324 S.W.2d 304 (Tex.Civ.App.—Amarillo 1959, writ ref’d n. r. e.) and will not be repeated here. Plaintiffs have neither pleaded nor proved a cause of action for fraud. Plaintiffs rely on the same evidence to prove fraud that they contend proves a conversion. Such evidence is legally insufficient to support a finding of fraud for the same reasons heretofore given in our analysis of the evidence with regard to subdivision 9.

Subdivision 5, Article 1995, deals with the venue of certain written contracts. Subsection (b) of Subdivision 5 provides that an action founded upon a contractual obligation of the defendant to pay money arising out of a consumer transaction for goods or services intended primarily for agricultural use may be brought against the defendant in the county where the defendant in fact signed the contract. Subdivision 5(b) plainly, by its terms, deals with written contracts. Plaintiffs have wholly failed to plead or prove a cause of action under it.

Plaintiffs seek to maintain venue of Caprock in Parmer County under the portion of Subdivision 27, Art. 1995, which provides that a suit against a foreign corporation may be brought in the county where the cause of action or a part thereof accrued. It is undisputed that Caprock is a foreign corporation. Nevertheless, for the reasons already stated, there is no evidence that any cause of action by plaintiffs against Caprock or any part of such a cause of action accrued in Parmer County.

We have examined the record and find no other venue subdivision under which plaintiffs may maintain venue of their suit against Caprock in Parmer County. . The evidence on the venue question was fully developed. The judgment of the trial court overruling Caprock’s plea of privilege is reversed and judgment here rendered transferring the cause of action against Caprock Industries, Inc., to the District Court of Hansford County, Texas.


author: O’QUINN, Justice.

text:
    Curtis REINTSMA, Appellant, v. GREATER AUSTIN APARTMENT MAINTENANCE et al., Appellees. GREATER AUSTIN APARTMENT MAINTENANCE et al., Appellants, v. Curtis REINTSMA, Appellee.
    Nos. 12514, 12526.
    Court of Civil Appeals of Texas, Austin.
    March 30, 1977.
    Rehearing Denied in 12514 April 20, 1977.

      Jerry Frank Jones, Basham, Owen & Jones, Elgin, for Curtis Reintsma, appellant and cross-appellee.
    Mary Ellen Felps, Austin, for Greater Austin Apartment Maintenance, C. H. Chee and E. K. Chee, appellees and cross-appellants.
   O’QUINN, Justice.

This lawsuit, resulting in appeals by both parties which are now consolidated for disposition, involves an action brought to recover a security deposit of $80 on an apartment rental, together with statutory penalties and attorney’s fees.

The tenant appeals from a judgment entered May 5,1976, solely on the ground that the attorney’s fees awarded were inadequate, and the landlord appeals from a judgment dated June 17, 1976, attacking the judgment on two grounds.

By inference only are we able to assume now, after oral argument and filing of post-submission briefs by both parties, that the parties intend appeals to be from a judgment nunc pro tunc entered by the trial court November 4, 1976, purporting to set aside “all prior judgments in this cause.”

Curtis Reintsma brought this suit in April of 1975 against Greater Austin Apartment Maintenance, a partnership composed of C. H. Chee and E. K. Chee. Although Reints-ma did not plead the statute under which penalties and attorney’s fees were sought, the record discloses that Article 5236e, V.A. C.S. (Acts 1973, 63rd Leg., p. 1182, ch. 433, eff. Sept. 1, 1973) provided the grounds for suit.

Section 4(a) of Article 5236e provides: “A landlord who in bad faith retains a security deposit in violation of this Act is liable for $100 plus treble the amount of that portion of the deposit which was wrongfully withheld from the tenant, and shall be liable for reasonable attorneys fees in a lawsuit to recover the security deposit.”

The cause was tried before the court without aid of a jury on December 12,1975. The record reveals a series of five judgments thereafter, the first being unsigned and undated, and the last being the judgment nunc pro tunc in November of 1976, purporting to set aside the prior judgments.

The trial court’s docket reflects an entry dated December 12, 1975, which reads: “Judgment for Plf in amount of $340.00 plus $340.00 atty fees JFD jr.” The first signed judgment shows a date of April 30, 1976; the second judgment was dated May 5, 1976; and a third judgment, termed “Final Judgment,” was dated June 17, 1976. It is not necessary to repeat details of each judgment in disposing of this appeal, but it is sufficient to note that each entry was defective, and later set aside by the order nunc pro tunc.

After an undated judgment, followed by a menstrual sequence of judgments in April, May, and June, no further attempt at a judgment was made until the judgment nunc pro tunc was entered November 4, 1976.

Meanwhile, however, Reintsma’s attorney had given notice of appeal from the judgment of May 7,1976, and had posted cash in lieu of bond on June 1, 1976. Attorney for the Chee partners gave notice of appeal from the judgment of June 17, 1976, and filed supersedeas and cost bond dated July 27, 1976.

In giving written notice of appeal in May of 1976, Reintsma, through counsel, made it clear that appeal was from the “Court’s ruling on attorney’s fees” only, and that on appeal appellant would ask that his attorney “be awarded attorney’s fees of $680.00 for work done to date of trial, for $500.00 for work done in making appeal and $150.00 for work done enforcing judgment, if such work is necessary.”

Premature posting of bond and making cash deposit in lieu of bond, are not ineffective because filed prior to entry of the judgment nunc pro tunc in November, 1976, after records and briefs had been filed with the Clerk of this Court. Panhandle Construction Co. v. Lindsey, 123 Tex. 613, 72 S.W.2d 1068, 1072 (1934); Reavley and Orr, Trial Court's Power to Amend Its Judgments, 25 Baylor L.Rev. 191 (1973). We find the errors sought to be corrected by the judgment nunc pro tunc were clerical in nature and a judgment “now for then” was the proper procedure to cause the record to speak the truth. Hays v. Hughes, 106 S.W.2d 724 (Tex.Civ.App. Austin 1937, writ ref’d); City of San Antonio v. Terrill, 501 S.W.2d 394, 397 (Tex.Civ.App. San Antonio 1973, writ ref’d n. r. e.).

We dispose first of the appeal by Reints-ma complaining of an inadequate award of attorney’s fees. Appellant contends the trial court abused its discretion in not allowing a fee of $680, instead of $340, plus $500 for making an appeal and allowance of $150 to enforce judgment if such work becomes necessary. We overrule these contentions.

Although this Court has power to suggest remittitur of an excessive allowance as condition to affirmance, we are not authorized to increase the trial court’s allowance of attorney’s fees. Grimes v. Robitaille, 288 S.W.2d 211, 213 (Tex.Civ.App. Galveston 1956, writ ref’d n. r. e.). Allowance of attorney’s fees rests in the sound discretion of the trial court, and its judgment will not be reversed without showing that the court abused its discretion. Magids v. Dorman, 430 S.W.2d 910, 912 (Tex.Civ.App. Houston (14th Dist.) 1968, writ ref’d n. r. e.).

We must assume that in exercise of its discretion the trial court considered the established elements, discussed by this Court in McFadden v. Bresler Malls, Inc., 526 S.W.2d 258, 263-4 (Tex.Civ.App. Austin 1975, no writ), in determining reasonable attorney’s fees. The trial court no doubt further took into consideration the recognized rule that award of attorney’s fees when imposed by statute is in the nature of a penalty, the fixing of which should rest largely within the court’s discretion.

We note that the judgment nunc pro tunc provides that “Plaintiff’s attorney is hereby awarded the sum of $420.00 representing an $80.00 award of attorney’s fees pursuant to work performed as a result of Plaintiff’s Motion to Strike and Compel — Second and $340.00 as an amount equal to the damages awarded to the Plaintiff above.” In his brief, filed prior to the November judgment, counsel for Reintsma complains that the trial court “awarded only $340.00 as attorney’s fees,” whereas, counsel argues, proof had been made to support an award of $680. It appears undisputed, however, that the trial court relied, not only on the docket sheet, but also upon his “own recollection” of pronouncements upon conclusion of trial in December of 1975, in entering the judgment nunc pro tunc on November 4, 1976. Thus this last judgment corrected clerical errors. 4 McDonald, Texas Civil Practice, sec. 17.08.1 (1971).

This Court has authority, in looking at the entire record to determine whether an award of attorney’s fees is excessive, to draw on the common knowledge of the justices of the Court and their experience as lawyers and judges, and to view the matter in the light of the testimony, the record, and the amount in controversy. Southland Life Ins. Co. v. Norton, 5 S.W.2d 767, 769 (Tex.Comm’n App.1928, holding approved). We regard as excessive any award exceeding $340 for attorney’s fees.

We now consider the appeal brought by defendants below, by which they offer two points of error. The basis of the appeal is that punitive damages, as provided by statute, were not justified because no evidence or insufficient evidence supported a claim of bad faith on the part of the landlords in withholding the deposit. Both points of error are leveled at the judgment of June 17, 1976, which was set aside by the judgment nunc pro tunc of November 4, 1976.

These contentions of the landlord appellants are not supported by the record. The trial court found that there was bad faith on the part of the landlords in withholding the deposit, and we find evidence in the record of prolonged refusal, without excuse, to return the deposit. No proof was made of damages to the premises, or other basis for withholding all or any part of the deposit. We conclude that the trial court properly applied the statute against landlords who in bad faith retained the security deposit in violation of the statute. The damages awarded followed the statute. The points of error are overruled.

We return now to the matter of attorney’s fees. As already stated, we regard as excessive any amount in excess of $340 as award for attorney’s fees. In this conclusion we have proceeded as required by the rule of Southland Life. Pursuant to our duty under Rule 440, we suggest remittitur of an award of attorney’s fees in excess of $340. If Reintsma through counsel files in this Court, within fifteen days from date of this opinion and judgment, a remittitur of $80, the judgment of the trial court will be reformed and affirmed for the sum of $340 as award for attorney’s fees, and will be in all other things affirmed. If remittitur is not filed, the judgment will be reversed on the matter of attorney’s fees only, and we will remand the cause for proceedings on that issue alone.

Judgment affirmed on condition remitti-tur be filed.

ON REHEARING

Curtis Reintsma failed to file a re-mittitur of $80 within fifteen days from date of our original opinion filed March 30, 19.77. Reintsma did file, without remittitur, motion for rehearing on April 14, 1977. The motion for rehearing is overruled, and judgment of the trial court is reversed on the award of attorney’s fees, which this Court has found to be excessive, and on that issue alone. The cause is remanded for trial, solely on the issue of attorney’s fees for Reintsma’s counsel, in conformity with the opinion of this Court.

Judgment of the trial court is affirmed in part and reversed in part. The cause is remanded for trial on the issue of attorney’s fees.