author: DODSON, Justice.

text:
    The STATE of Texas, Appellant, v. Willie V. DUNN et ux., Appellees.
    No. 8909.
    Court of Civil Appeals of Texas, Amarillo.
    Nov. 20, 1978.
    Rehearing Denied Dec. 18, 1978.

      David R. Thomas, Asst. Atty. Gen., Dallas, for appellant.
    Garner, Vickers & Purdom, Lubbock, Templeton & Garner, Robert E. Garner, Amarillo, for appellees.
   DODSON, Justice.

The State of Texas brought this condemnation suit against Willie V. Dunn and his wife Ivas to acquire fee title to a .806 acre tract of land necessary to the construction of Interstate 27 in Lubbock County, Texas. The Dunns sought compensation for their .806 acre tract and consequential damages to their 160 acre farm. The jury determined the market value of the .806 acre tract to be $55,000 and awarded an additional $80,000 as damages to the remaining 160 acre tract. The trial court entered judgment on the jury verdict. The State appeals from this judgment, challenging only the award of consequential damages. We affirm.

The Dunns own both the .806 acre tract and the 160 acre tract. These tracts are separated by an approximately 330 feet expanse comprised of existing U.S. Highway 87 and a railroad right-of-way. An irrigation well equipped with casing, motor, pump and well house is located on the .806 acre tract. This well is used to irrigate the 160 acre tract by means of a pipeline crossing under the 330 feet expanse and joining the tracts. For clarity and a better understanding of the location of the properties, we have compiled from the record the following diagram, which is not drawn to scale.

The State’s seven points of error are predicated upon its contention that the Dunns are not entitled to consequential damages to their 160 acre tract as a matter of law because they have no vested interest or legal right to maintain the pipeline across the highway right-of-way. This contention is premised upon the State’s alleged fee ownership of the west 130 feet of the right-of-way by virtue of a correction warranty deed and quitclaim deed described below and the further assertion that the Dunns have no property interest in the east 100 feet of the right-of-way. In support of its position, the State relies on the case of State v. Lock, 468 S.W.2d 560 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.).

In Lock, the State condemned a tract of land for highway construction purposes. The condemnee claimed consequential damages to his 68 acre tract, which was separated from the tract taken by the State’s fee owned right-of-way. A water well was located on the tract taken. This well provided water to the 68 acre tract through a pipeline traversing the right-of-way. The court determined that evidence of consequential damages was inadmissible because the condemnee failed to show any legal authority for the continued presence of the water line on the State’s fee owned right-of-way.

We have reviewed the record and determined that Lock is distinguishable from the case at bar. In Lock there was no evidence establishing the condemnee’s right to maintain his water line across the State’s fee owned right-of-way. The condemnee was apparently a trespasser. In the case at bar, the Dunns have an existing legal right to maintain their pipeline under the State’s right-of-way. This right is evidenced by the instruments of title which are a part of the record summarized below.

In 1960 C. F. Buske and his wife Florence conveyed to Lonnie and O. L. Brownlow, d/b/a Brownlow Farms, by correction warranty deed a two acre tract out of the northeast one-fourth of Section 3, Block D, Lubbock County, Texas. This instrument constitutes the common source of title to the .806 acre tract and the west 130 feet of the highway right-of-way. In this warranty deed, the Buskes sought to “EXCEPT that part of said tract to be acquired by the Texas State Hiway Department for additional right-of-way purposes of Highway 87.” As a general rule, exceptions are strictly construed against the grantor. Stroud v. Hunt Oil Co., 147 S.W.2d 564, 567 (Tex.Civ.App.—Eastland 1941, no writ). Under this record, the exception fails to state with requisite certainty the description of the excepted area. Therefore, the Buskes retained no right, title or interest in the two acre tract. See Fuentes v. Hirsch, 472 S.W.2d 288, 293 (Tex.Civ.App.—El Paso 1971, writ ref’d n. r. e.); Lewis v. Midgett, 448 S.W.2d 548, 551 (Tex.Civ.App. — Tyler 1969, no writ). However, in 1964 the Buskes purported to convey by deed to the State the fee for the west 130 feet of the highway right-of-way, it being a 1.161 acre tract out of the two acre tract which the Buskes had no interest in.

On May 9, 1966, the Brownlows did convey by quitclaim deed the 1.161 acre tract out of the two acre tract located in the northeast one-quarter of Section 3, Block D, Lubbock County, Texas. This is the west 130 feet of the highway right-of-way. In this conveyance the Brownlows excepted “unto himself, his heirs and assigns title to and the right to operate and maintain a water line and a gas line subject to such regulations as is determined by the Texas Highway Department to be necessary in the interest of public safety and in compliance with approved engineering principles and practice.” The record shows that the water and gas lines were in place and their location on the land was known to both the State and the Brownlows when the quitclaim deed was executed to the State. We also note that on October 13, 1965, the State Highway Department gave its approval to the Brownlows to locate a two inch gas line and an eight inch water line across its highway right-of-way.

In 1968 Lonnie Brownlow and his wife Patricia conveyed to Willie and Ivas Dunn by warranty deed all of the northwest one-fourth of Section 1, Block D, Lubbock County, Texas, subject to those easements of record and those visible on the ground. Also conveyed was the .806 acre tract and all of the Brownlows’ right, title and interest in and to the remaining part of the said two acre tract located in the northeast one-fourth of Section 3, Block D, Lubbock County, Texas, except the highway right-of-way. Additionally, the warranty deed transferred the Brownlows’ interest in two instruments labeled “licenses” in the deed. These instruments contained permission by the Santa Fe Railway and the Texas Highway Department to place the pipeline under the respective right-of-ways.

The State asserts that its document approving the pipeline under the highway is a revokable license and constitutes the Dunns’ only authority for the continued existence of the pipeline. We do not agree. As detailed above, the Dunns are successors in title to the easement retained by the Brownlows in the quitclaim deed executed to the State. The Dunns further own the fee title to the east 100 feet of the State’s right-of-way. Therefore, the Dunns have a legal right to use the pipeline so long as it does not interfere with the use and enjoyment of the right-of-way. See City of Fort Worth v. Citizens Hotel Company, 380 S.W.2d 60, 64 (Tex.Civ.App.—Fort Worth 1964, writ ref’d n. r. e.). The State’s document of approval did not diminish the Dunns’ legal rights, but merely approved the installation and existence of the pipeline under conditions which did not interfere with the use and enjoyment of the right-of-way.

In summary, the instruments contained the the record before us show that the Dunns own the following interests in the properties: (1) fee title to the .806 acre tract; (2) fee title to the 160 acre tract subject to the 100 feet highway right-of-way easement and the 100 feet railroad right-of-way easement; (3) fee title to the property designated as area A in the diagram, which is subject to the channel easement; and (4) an easement to operate and maintain a water line and gas line in the area designated as B in the diagram. The State owns fee title to the 130 feet highway right-of-way subject to the Dunns’ ownership in areas A and B. Under these circumstances, we conclude that Lock does not preclude the Dunns from recovering consequential damages to the 160 acre tract.

On the other hand, the Dunns contend that they are entitled to consequential damages to their 160 acre tract under the doctrine of unity of use. In McLennon County v. Stanford, 350 S.W.2d 208, 209 (Tex.Civ.App.—Waco 1961, no writ), the late Justice Wilson, writing for the court, stated:

The law seems to be firmly settled [that] . . . [w]here separate, but contiguous tracts are integral parts of an entity under common ownership in such physical and functional relationship that they are joined by unity of use by the same proprietor into a single property, they will be treated as a whole in assessing damages to the remainder in the taking of a part.

See also State v. McMahon, 528 S.W.2d 881 (Tex.Civ.App.—El Paso 1975, no writ). The record shows that the Dunns acquired, in a single instrument dated February 26, 1978, ownership of the .806 acre tract, the 160 acre tract and the easement which connects the tracts and grants them the right to operate and maintain the pipelines under the highway right-of-way. The Dunns further own fee title to the area designated as A in the diagram, subject to the channel easement. The State stipulated that the two tracts are used by the Dunns as an agricultural unit. Under this record, the two tracts were joined by unity of use into a single property. The Dunns were entitled to have the properties “treated as a whole in assessing damages to the remainder [160 acre tract] in the taking of a part [.806 acre tract].”

The State tried this case and predicates its appeal on the sole theory that the Dunns were not entitled to consequential damages to their 160 acre tract because they had no vested property interest or legal right to maintain the pipeline across the highway right-of-way. Holding steadfast to this theory, the State maintains that the submission of special issue number one with the words “considered as severed land” and the submission of issues two and three resulted in the Dunns receiving a double recovery for the loss of their irrigation well. At trial, the State specifically objected only to the inclusion of the words “considered as severed land” in special issue number one and to the submission of special issues two and three, relying on its theory of the case as grounds for the objection. The State failed to specifically object to the submission of these issues on the ground that the issues were calculated to result in a double recovery for the Dunns. In the absence of a proper objection on such ground, we hold that the State waived this contention. See Tex.R.Civ.P. 274; Southwestern Bell Telephone Company v. Ramsey, 542 S.W.2d 466, 475 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.).

The State’s points of error one through seven are overruled. Accordingly, the judgment of the trial court is affirmed.

      . The instruments referred to are a correction warranty deed executed in 1960 from C. F. and Florence Buske to O. L. Brownlow, d/b/a Brownlow Farms, and a quitclaim deed executed in 1966 from the Brownlows to the State of Texas.

      . This case cites with approval the following language from Tacoma Safety Deposit Co. v. City of Chicago, 247 Ill. 192, 93 N.E. 153 (1910): We think that the law is well settled that the owner of real estate, subject only to a public or private easement, has the right to use his property for any purpose which he may deem proper, so long as the use to which it is put does not interfere with the proper enjoyment of the easement which is held by the public or by a private person therein.

      . The court submitted the case to the jury on three special issues. These issues, generally, follow the three special issues recommended in State v. Carpenter, 126 Tex. 604, 618, 89 S.W.2d 194, 201-02, rehearing, 89 S.W.2d 979 (1936). The issues submitted were:
      (1)What do you find from a preponderance of the evidence to be the market value of the .806 acre tract of land taken and improvements located thereon, considered as severed land, by the State of Texas as of January 6, 1976?
      (2) What do you find from a preponderance of the evidence was the market value of Defendants’ remaining 160 acre tract of land and improvements thereon, immediately before the .806 acre tract was taken on January 6, 1976?
      (3) Excluding increase in value, if any, and decrease in value, if any, by reason of benefits or injuries received by defendants in common with the community generally and not peculiar to them, and connected with their ownership, use, and enjoyment of the remaining 160 acre tract of land, and taking into consideration the uses to which the .806 acre tract of land being taken is to be subjected, what do you find from a preponderance of the evidence was the market value of the 160 acre tract of land and improvements located therein immediately after the taking of the .806 acre tract of land on or about the 6th day of January, 1976?


source: Caselaw Access Project

author: REYNOLDS, Justice.

license: Public Domain

text:
    Veda HUNT, Appellant, v. ANDERSON, CLAYTON & CO., a corporation, Appellee.
    No. 8955.
    Court of Civil Appeals of Texas, Amarillo.
    Nov. 20, 1978.

      Hunter & Blackwell, Barry E. Blackwell, Dalhart, for appellant.
    Robert R. Sanders, Amarillo, for appellee.
   REYNOLDS, Justice.

Veda Hunt, named as an individual defendant in a sworn account action against a corporation and an individual guarantor of the account, appeals from the order overruling her plea of privilege. No competent evidence negates Hunt’s prima facie right to a change of venue. Reversed and rendered.

Anderson, Clayton & Co., a Texas corporation, instituted the action out of which this venue proceeding arose in Potter County. Named as defendants were Earth Swine Breeders, Inc., a Texas corporation, James L. Winders and Veda Hunt. In its live trial pleading, Anderson, Clayton alleged one cause of action against Earth Swine Breeders, Inc., on a sworn account payable in Potter County, and another cause of action against Winders on his agreement guaranteeing payment of the account. Then, it was alleged that: Winders and Hunt purchased all of the shares of stock of Earth Swine Breeders, Inc., and operated the corporation as a sham and a fraud on its creditors in that the business of the corporation “was conducted as a partnership between the Defendants, VEDA HUNT and JAMES L. WINDERS, and . to make purchases for their own personal use and benefit;” to preserve the corporate entity to limit the liability of Hunt and Winders personally “would amount to fraud;” and “[tjherefore . WINDERS and HUNT ... are personally liable.” The concluding allegation was that the instruments reflected in the sworn account were executed by the authority of Hunt and Winders and by their agents, servants and employees. The prayer was for judgment against each named defendant, jointly and severally.

Veda Hunt interposed her plea of privilege for the transfer of the cause to Hartley County, the county of her residence. Subject to her plea of privilege, she filed a verified denial of the sworn account and an unsworn general denial. Anderson, Clayton controverted the plea, invoking Tex.Rev. Civ.Stat.Ann. art. 1995, subdivisions 5 (Supp.1978) and 29a (1964) to maintain venue in Potter County on the respective theories that Hunt was a debtor of the account and a necessary party to the action.

At the hearing sans jury, the trial court took notice of the pleadings. Glen Schoen, the manager of Anderson, Clayton’s Amarillo plant office, was the only witness. He identified the invoices and load order-delivery tickets attached to Anderson, Clayton’s pleadings as the basis of the sworn account. All of the load order-delivery tickets show that each product listed was sold to Earth Swine Breeders; all invoices are addressed to, and Schoen acknowledged that they reflect they are to be paid by, Earth Swine Breeders. When asked who ordered all of the materials that make up the account, Schoen replied, “Well, Mr. Winders managed the operation; I would assume ordered, turned most of the orders in.” Schoen testified that to the best of his knowledge, Winders and Hunt owned the stock of Earth Swine Breeders, Inc., and, so far as he knew, they owned the stock during the time covered by the account. He said that Winders gave his own personal guaranty of the account. He also stated that “on one occasion he [Winders] provided us with a financial statement” of Veda Hunt.

Following a hearing of these matters, the court voluntarily explained that Anderson, Clayton had not reached Hunt except through the testimony that her financial statement was furnished through Winders at a time there were accounts owing to Anderson, Clayton. “With that bit of information,” the court concluded, “I will overrule the plea of privilege.”

The fact that Hunt’s financial statement was furnished by Winders to Anderson, Clayton is not, and Anderson, Clayton does not contend on appeal that it is, any foundation for a conclusion that Hunt is personally liable on the account or is a necessary party to the action. There is nothing in Schoen’s statement to indicate when Hunt’s financial statement was furnished, the extent of its contents, that it was occasioned by any personal dealings with Hunt, or even that the statement was furnished with Hunt’s consent. Accordingly, the testimony of Schoen does not permit any inference that the sales were made to Hunt, either personally or jointly, or that by virtue of her financial statement being furnished she became personally bound to pay the account. To the contrary, Schoen’s testimony makes it plain that Anderson, Clayton’s dealings were with Winders, who ordered the merchandise, and that the charges were to be paid, as the documentary proof also shows, by Earth Swine Breeders, Inc.

Thus, if the comments of the court constitute the only factual finding upon which Hunt’s plea of privilege was overruled, the judgment must be reversed. Nevertheless, we do note that subsequent to the court’s comments, Hunt made a formal, written request for findings of fact and conclusions of law. The appellate record does not show any response was made to the request. The trial court was not required to make any findings of fact and conclusions of law in this venue proceeding. Rule 385(e), Texas Rules of Civil Procedure (1967). If we disregard the court’s voluntary comments, we reach the two grounds on which Anderson, Clayton submits the judgment should be affirmed.

First, Anderson, Clayton refers to its pleaded allegation that the instruments reflected in the sworn account were executed by the authority of Hunt and Winders and by their agents, servants and employees. Then Anderson, Clayton argues that because Hunt did not file a verified denial of the execution of these instruments by her authority, Rule 93(h), T.R.C.P. (Supp.1978), applies to establish that each “instrument shall be received into evidence as fully proved.” The rule authorized the holding in Public Service Life Insurance Company v. Copus, 494 S.W.2d 200, 202-03 (Tex.Civ. App.—Tyler 1973, no writ), upon which Anderson, Clayton relies. That holding, paraphrased to apply to the circumstances shown here, is: Absent the verified denial, the authority of Veda Hunt to act for the corporation will be deemed to have been admitted. But the application of the rule and the holding does not visit upon Hunt the ownership of the debt; gather, the application only results in establishing, without further proof, that the execution of the instruments was the act of Earth Swine Breeders, Inc., for whom Hunt acted. The executed instruments themselves identify the account sued upon as the debt of the corporation and not otherwise.

The other reason advanced by Anderson, Clayton to sustain the judgment is that its allegation that Hunt and Winders operated the corporation as a partnership was not denied under oath and, by force of Rule 93(f), T.R.C.P. (Supp.1978), Hunt must be considered a partner for venue purposes, thereby making her a necessary party. The rule does not influence the trial pleadings to that extent.

While Rule 93(f), T.R.C.P. (Supp. 1978), does provide that in a suit filed against a partnership and the partners thereof, the partnership stands admitted in the absence of a sworn denial, Keeling v. Rigsby, 407 S.W.2d 355, 356 (Tex.Civ.App.— Amarillo 1966, no writ), that is not the status of the action presented in this record. Anderson, Clayton did not sue a partnership and Hunt as a partner thereof, and did not pray for judgment against a partnership; instead, Anderson, Clayton sued a corporation and sued Winders and Hunt individually, and prayed for judgment against them jointly and severally as such. The allegation that the business of the corporation was conducted by Hunt and Winders as a partnership was merely made as a part of the allegation that they conducted the corporate business as a sham and a fraud upon the corporation’s creditors. An allegation made descriptively of concerted fraudulent acts, but not as a predicate for a claim of liability as partners, need not be denied under oath to avoid an admission of partnership. Owen v. King, 84 S.W.2d 743, 751-52 (Tex.Civ.App.—Amarillo 1935), rev’d on another ground, 130 Tex. 614, 111 S.W.2d 695 (1938). Moreover, because the assertion of partnership was a descriptive part of the allegation of the fraudulent operation of the corporate business, the general denial pleaded by Hunt put in issue all of the allegations of fraud, and she was not required to deny the same under oath. Davisson v. Eastland County, 6 S.W.2d 782, 787 (Tex.Civ.App.—Eastland 1927), aff’d 13 S.W.2d 673 (Tex.Com.App.1929). Anderson, Clayton did not adduce any evidence of fraud in support of its allegation.

A defendant’s right to be sued in his home county is a valuable right which can be defeated only by the clear establishment of a specific statutory exception to that right. B & C Construction Co. v. Grain Handling Corp., 521 S.W.2d 98, 101 (Tex.Civ.App. — Amarillo 1975, no writ). The timely filing of a plea of privilege in proper form constitutes prima facie proof of the defendant’s right; and to defeat that right, the plaintiff must clearly allege and prove the venue facts of a particular exception, and all doubts must be resolved in favor of the defendant’s right for venue may not be sustained by implication. Colorado Interstate Gas Co. v. Mapco, Inc., 570 S.W.2d 164, 167, 169 (Tex.Civ.App.—Amarillo 1978, no writ). Anderson, Clayton has not met its burden under this record.

The judgment of the trial court is reversed. Judgment is here rendered severing the cause of action against Veda Hunt and ordering it transferred to the district court of Hartley County. Rule 434, T.R. C.P. (Supp.1978).


author: HUTCHINSON, Justice.

text:
    SUSSER PETROLEUM COMPANY et al., Appellants, v. LATINA OIL CORPORATION, Appellee.
    No. 8644.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 21, 1978.

      Michael Kendrick, Jr., Head, Kendrick & Head, Corpus Christi, Robert M. Greenberg, Dallas, for appellants.
    J. Anthony Hale, John L. Mericle, Foreman, Dyess, Prewett, Rosenberg & Henderson, Houston, Patrick F. McGowen, Stras-burger & Price, Dallas, for appellee.
   HUTCHINSON, Justice.

This is a venue case involving Subdivision 4 of Tex.Rev.Civ.Stat.Ann. Article 1995 (defendants residents of different counties). Latina Oil Corporation (Latina) brought suit against Susser Petroleum Company (Susser) for breach of contract and against Champlin Petroleum Company (Champlin) for negligent misrepresentations concerning the availability of 220,000 barrels of A-l jet fuel to be sold to Latina. Suit was brought in Dallas County, the residence for venue purposes of Champlin. Susser Petroleum Company (a partnership), Sam J. Susser and Jerry Susser asserted a plea of privilege to be sued in Nueces County. Latina controverted this plea, alleging that defendant Champlin was a resident of Dallas County and that defendant Sam J. Susser, by virtue of a second residence, was a resident of Dallas County, and therefore venue was maintainable under Article 1995, subd. 4, Tex.Rev.Civ.Stat.Ann. This appeal is from the order overruling the plea of privilege.

In order to maintain venue under subd. 4 of Article 1995, Tex.Rev.Civ.Stat. Ann., it is necessary to plead and prove by a preponderance of the evidence that (1) one of the defendants resides in the county of suit; (2) the non-resident defendants are at least proper parties to the suit; and (3) the plaintiff has a bona fide cause of action against the resident defendant. 1 McDonald’s, Texas Civil Practice, Sec. 4.10.2, p. 434 (1965). Here it has been conceded that Latina established the first two requirements. The question here is whether Latina pleaded and proved a bona fide cause of action against the resident defendant, Champlin. No findings of fact or conclusions of law were filed by the trial court. Therefore it is incumbent upon this Court to review the record to determine if there is evidence of sufficient probative force to support the order of the trial court. Strain Bros., Inc. v. Bennett, 456 S.W.2d 466 (Tex.Civ.App. El Paso 1970, no writ). In making this determination, it is proper to consider only the evidence most favorable to the judgment and disregard that which is opposed to it. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1951); Brown v. Latch, 416 S.W.2d 859 (Tex.Civ.App. Texarkana 1967, writ dism’d).

Latina’s asserted cause of action against Champlin is grounded on negligent misrepresentation under Sec. 552, Restatement (Second) of Torts (1977), which reads, in part, as follows:

“One who, in the course of his business, profession or employment, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.”

This section imposes liability upon a party that supplies false information in the course of business for the guidance of others in their business transactions and it is immaterial whether or not such misrepresentation was made innocently or deliberately or with a fraudulent or dishonest intent. Shatterproof Glass Corporation v. James, 466 S.W.2d 873 (Tex.Civ.App. Port Worth 1971, writ ref’d n. r. e.). To be actionable, the representation need only be false either by accident or intent. The supplier of information owes a duty to exercise reasonable care and competence in obtaining or communicating correct information. Shatterproof Glass Corporation v. James, supra; Rosenthal v. Blum, 529 S.W.2d 102 (Tex.Civ.App. Waco 1975, writ ref’d n. r. e.); Caldwell v. Overton, 554 S.W.2d 832 (Tex.Civ.App. Texarkana 1977, no writ).

Appellant (Susser) contends that ap-pellee (Latina) failed to discharge its burden of proof saying the evidence, at best, shows only a mistake as opposed to negligence. Appellant offered no testimony at the plea of privilege hearing and we, as the court in Brown v. Latch, supra, after reviewing the entire record find that appellee (Latina) proved a prima facie case for the overruling of the plea of privilege. Champ-lin was a supplier of petroleum products and through Susser told Latina on Wednesday, July 27, that it could supply 220,000 barrels óf jet fuel at Corpus Christi by the weekend. This was by Champlin later changed to Beaumont. Latina in relying on this assurance chartered a tanker and made other preparations for the purchase and disposition of the fuel. Later Latina was informed that only 100,000 barrels of fuel were on hand but that the additional barrels would be located. Champlin, as late as Friday, July 29, assured Latina that the additional fuel would be supplied and knew that Latina was continuing its preparation for the receipt and shipment of the fuel. Friday afternoon, July 29, Latina was informed that the fuel would not be available. Champlin was or should have been aware of the reliance Latina was placing on its representations as to availability of the fuel and the trier of fact could find that it was negligent in giving the false reports as to its inventory and its assurance of being able to supply the shortage. Comment e at 130, Sec. 552, Restatement (Second) of Torts (1977):

“. . . When the information concerns a fact not known to the recipient, he is entitled to expect that the supplier will exercise that care and competence in its ascertainment which the supplier’s business or profession requires and which, therefore, the supplier professes to have by engaging in it. Thus the recipient is entitled to expect that such investigations as are necessary will be carefully made and that his informant will have normal business or professional competence to form an intelligent judgment upon the data obtained. . . . ”

Here Latina was a known and intended recipient of Champlin’s assurances of the available supply of jet fuel and Latina relied and acted on such assurances to its damage.

Appellant also complains of the implied finding of the trial court that Sam J. Susser maintained a second residence in Dallas County for venue purposes. It is quite apparent from the record that Mr. Susser’s “domicile” was in Corpus Christi; however, the reference in Article 1995 to “domicile” means “residence” rather than legal domicile. Snyder v. Pitts, 150 Tex. 407, 241 S.W.2d 136 (1951). The Texas Supreme Court in Snyder, supra, also held that a person may have more than one “residence” within the state for venue purposes and in order to establish a “second residence” it must be shown that the person has a fixed second place of abode within his possession, occupied or intended to occupy the same consistently over a substantial period of time, and that it is permanent rather than temporary. As before stated, the trial court did not, nor was it requested to, make findings of fact and conclusions of law. Therefore, the trial court’s order overruling the plea of privilege implies fact findings in support thereof. Renfro Drug Co. v. Lewis, supra. This decision will not be disturbed on appeal if it is supported by evidence sufficient to establish the venue fact prima facie. 1 McDonald’s, Texas Civil Practice, Sec. 4.55, p. 614 (1965); Brown v. Latch, supra. The trial court’s judgment finds ample support in the record.

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


author: McKAY, Justice.

text:
    R. M. TAYLOR et al. v. Roy RIGBY d/b/a Rigby Plumbing Co.
    No. 1160.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 22, 1978.
    Rehearing Denied Dec. 21, 1978.

      James R. Cornelius, Jr., Zeleskey, Cornelius, Rogers, Berry & Hallmark, Lufkin, Charles E. Fitch, DeLange, Hudspeth, Pit-man & Katz, Houston, for appellants.
    Bill McWhorter, McWhorter & Earley, Nacogdoches, for appellee.
   McKAY, Justice.

Appellee, Roy Rigby d/b/a Rigby Plumbing Company, brought suit against R. M. Taylor and wife, and the First Bank and Trust Company of Lufkin, as Trustee for the First State General Employee Benefit Trust, seeking to foreclose a contractual, a statutory and a constitutional lien on a tract of land in the hands of subsequent purchasers; alternatively, Rigby prayed for $35,480 for labor, materials and renting of equipment in quantum meruit. Taylor and wife answered by general denial, and specifically denied that Rigby had any lien in that he failed to comply with either the constitutional provisions, the statutory provisions or the recording statutes which would create any lien. The bank answered by general denial, and pled waiver and es-toppel; that the statutory lien statutes constitute an unconstitutional taking of property rights without due process of law; and that if it should be determined that Rigby had or has a valid constitutional or statutory lien then the bank is entitled to the first proceeds by virtue of its lien on the property. The bank also filed a cross-action for the first proceeds.

Trial was to a jury; the trial court rendered judgment for Rigby, foreclosing a contractual lien, a constitutional lien and a statutory lien. Both the Taylors and First Bank and Trust appeal.

On April 15, 1971, W. C. Murphrey and wife entered into a written contract with Rigby for plumbing work on 30.5 acres of their land which they planned to use as a mobile home park. The contract provided for a lien in favor of Rigby. Rigby completed a portion of the work but stopped work when weekly progress payments were not made as called for by the contract. Rigby demanded payment, then filed his lien contract for record in Nacogdoches County on May 24, 1971.

On May 5, 1971, the Murphreys executed a note and deed of trust to Stone Fort National Bank covering the same 30.5 acre tract. The Murphreys defaulted on this note and Stone Fort Bank, acting through its trustee, foreclosed its deed of trust lien and sold the property to Taylor and wife. The deed to the Taylors was filed for record April 4, 1972.

On March 29, 1972, Rigby sued the Mur-phreys for the money due on his contract, and default judgment was taken on August 10, 1972, in the amount of $30,000.

On December 5, 1972, the Taylors executed a deed of trust to First Bank and Trust covering the same tract, and such deed was filed for record December 13, 1972.

The time element in the sequence of events follows:

May 5,1971 Murphreys borrowed $10,000 from Stone Fort National Bank to finance construction of a KOA building on an adjoining 24.5 acre tract, and gave the bank a second lien deed of trust (on both tracts).

The jury found that Rigby performed his obligations to the Murphreys under the April 15, 1971, contract; that the Stone Fort Bank had notice of the work and the lien of Rigby at the time of the execution of the deed of trust by the Murphreys on May 5,1971; that Rigby’s failure to warn Taylor of his lien did not mislead Taylor to his injury so as to estop Rigby from asserting his lien; that Rigby did not waive his claim to a lien; that Taylor did have actual knowledge of Rigby’s lien and any fact or facts that would cause a prudent person to make inquiry as to such claim on or before April 4, 1972; and that $33,000 is the value of the improvements made by Rigby on the tract in question.

The judgment of the trial court provided that Rigby “recover his debt, damages and costs and have foreclosure of his contractual lien, constitutional lien and statutory lien” on the property, and that an Order of Sale issue and the property be sold at sheriff’s sale, with the costs and expenses of sale to be first paid; then the $30,000 judgment in favor of Rigby against the Mur-phreys be satisfied; then the deed of trust from the Taylors to First Bank & Trust be paid, and then any balance to the Taylors.

The Taylors and the First Bank and Trust (hereinafter called appellants) have filed a joint brief and by their point 1 contend that Rigby’s only monetary recovery being in quantum meruit, there is no lien to secure it. Argument is made that the written contract only gave a lien to secure payment of the amount due under the completed contract and it does not provide for a lien if the contract was only partially completed. Appellants further maintain that there was no substantial performance by Rigby; that the jury’s answer to special issue 1 was based on the trial court’s instruction that Rigby was relieved of his obligation to perform by the owner’s breach in not making progress payments; and that the only issue submitted to the jury regarding damages was based on quantum meruit in issue 6, and that no lien exists to secure quantum meruit recovery.

Appellee argues that no money judgment was rendered, but rather his prayer for foreclosure of his contractual, constitutional and statutory liens was granted, and that the judgment was for satisfaction of the prior judgment against the Murphreys; that the contract was divisible and he had completely performed items 1, 2, 3, and 7 thereof (relating to laying sewer lines); that all the cases relied on by appellant are contractual lien cases only; and that according to the contract, quantum meruit relief would be secured by foreclosure of the contractual lien.

Appellants reply that appellee had no constitutional or statutory lien — no constitutional lien because he was not making or repairing any “buildings or articles” as required by the constitutional provision, and no statutory lien because he did not follow the proper procedures to fix such a lien.

It becomes necessary to determine whether Rigby had a lien, and if so, what kind of lien. Did Rigby have a constitutional lien? Section 37, Article 16 of the Constitution of Texas provides:

“Mechanics, artisans and materialmen, of every class, shall have a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon, or material furnished therefor; . ” [Emphasis added.]

In Campbell v. City of Dallas, 120 S.W.2d 1095, 1097 (Tex.Civ.App.—Waco 1938, writ ref’d), the court, speaking through Judge Alexander, held that one who installed sewer and water mains “was not engaged in erecting a building or making or repairing an article within the contemplation of art. 16, sec. 37 of our State Constitution, . . . and therefore did not have a constitutional lien thereon.” The Campbell case has not been overruled or modified, and we believe it controls the question here. Therefore, we hold that Rigby did not have a constitutional lien on the tract of land involved here.

As to the statutory lien claimed by Rigby and foreclosed by the trial court judgment, Article 5453 provides that:

“The lien provided for in Article 5452 may be fixed and secured in the following manner:
“1. Every original contractor, not later than one hundred twenty (120) days, . after the indebtedness accrues as defined hereinafter in Article 5467, shall file his affidavit claiming a lien, to be recorded in a book kept by the county clerk for that purpose . . . .” [Emphasis added.]

Rigby filed his lien contract for record on May 24, 1971. An examination of that instrument, however, reveals that it did not comply with the statute in that it is not sworn to. It contains the acknowledgment of the parties to the contract, but there is no jurat, and such instrument was not an affidavit within the statute requiring a sworn statement of a claimed lien. Conn, Sherrod & Co., Inc. v. Tri-Electric Supply Co., 535 S.W.2d 31, 34 (Tex.Civ.App.—Tyler 1976, writ ref’d n.r.e.). Art. 5455 provides, “An affidavit claiming a lien filed for record . . . shall be signed by the claimant or by some person on his behalf and shall contain in substance the following: a. A sworn statement of his claim, including the amount thereof. . . . ” [Emphasis added.] An acknowledgment is not a jurat, and therefore not a sworn statement. Perkins v. Crittenden, 462 S.W.2d 565 (Tex.1970); Crockett v. Sampson, 439 S.W.2d 355 (Tex.Civ.App.—Austin 1969, no writ); Dee’s Cabinet Shop, Inc. v. Weber, 562 S.W.2d 945, 948 (Tex.Civ.App.—Fort Worth 1978, no writ). In our view there was no statutory lien on the tract in question.

There is another reason why Rigby would not have a statutory mechanic’s lien. There was no allegation nor proof that he substantially performed the contract with the Murphreys, and the authority in Texas is that a contractor may not have the benefit of a mechanic’s lien unless he has substantially performed the lien contract. Continental National Bank of Fort Worth v. Conner, 147 Tex. 218, 214 S.W.2d 928, 934 (1948).

The final argument of appellants on this point is that the written contract only gave a lien to secure payment of the amount due under the completed contract, and did not provide for a lien in case the contract was only partially completed. The basic argument is that Rigby’s recovery is based on quantum meruit, not on the contract, and, therefore, there is no lien to secure such a recovery. The claimed lien here, it is contended, is a creature of the contract, and where the recovery is outside the contract there is no lien. The contract here does not provide for a lien to secure payment of a partial recovery for partial performance, but the lien is “to secure the total payment in the amount of $54,497.50 . for all labor, materials and services performed thereon as itemized herein-before.”

The finding by the jury in issue 6 for $33,000 was evidently disregarded by the trial court, and the judgment rendered provided for recovery based upon the $30,000 judgment previously rendered for Rigby in his suit against the Murphreys. The suit against the Murphreys alleged the contract between Rigby and the Murphreys but the judgment was obviously rendered upon quantum meruit. There was no pleading there, as there is none in the instant ease, that the contract was substantially performed. There was no jury finding on substantial performance, nor was there any finding on what the cost would be to complete the contract. In our view the recovery by Rigby in his suit against the Mur-phreys was based upon quantum meruit; the jury’s answer to issue 6 in the instant suit was also based upon quantum meruit. Therefore, the right of Rigby to recovery on a quantum meruit basis where there has been only partial performance was not based on the contract, but is laid on an implied agreement by the owner to pay for the benefit received.

The Supreme Court in Davidson v. dearman, 391 S.W.2d 48, 50-51 (Tex.1965), wrote:

“The right to recover on quantum meruit does not grow out of the contract, but is independent of it. It is based upon the promises implied by law to pay for beneficial services rendered and knowingly accepted. .
“. . . Quantum meruit being a recovery outside of, and independent of the contract, there was no lien agreed upon between the parties to secure the payment of a quantum meruit recovery. For this reason, there is no lien to be foreclosed, and the courts below erred in ordering a foreclosure of the mechanic’s and mate-rialman’s lien contract.”

Davidson v. dearman, supra, has been cited and followed by Black Lake Pipeline Co. v. Union Construction Co., 538 S.W.2d 80, 86 (Tex.1976); Warren v. Denison, 563 S.W.2d 299, 309 (Tex.Civ.App.—Amarillo 1978, no writ); City of Ingleside v. Stewart, 554 S.W.2d 939, 943 (Tex.Civ.App.—Corpus Christi 1977. writ ref’d n.r.e.); McDaniel v. Tucker, 520 S.W.2d 543, 548-9 (Tex.Civ.App.—Corpus Christi 1975, no writ); Anderson v. Casebolt, 484 S.W.2d 462, 463 (Tex.Civ.App.—Fort Worth 1972, reversed on other grounds, Tex., 493 S.W.2d 509); Ryan v. Thurmond, 481 S.W.2d 199, 204 (Tex.Civ.App. — Corpus Christi 1972, writ ref’d n.r.e.); Kyburz, Ferrell & Heesch v. Magnolia Independent School District, 476 S.W.2d 763, 767 (Tex.Civ.App.—Beaumont 1972, writ ref’d n.r.e.); Dill v. Helms, 468 S.W.2d 608, 611 (Tex.Civ.App.—Waco 1971, writ ref’d n.r.e.); 10 Tex.Jur.2d Building Contracts, sec. 44, p. 46.

Since any recovery Rigby had in his suit against the Murphreys was in quantum me-ruit he had abandoned recovery on the contract, and having done so he did not have a contractual lien. Additionally, appellee’s pleadings do not specifically ask for the foreclosure of a contractual lien against appellants. We hold that there was no contractual lien to be foreclosed.

Rigby argues that the contract was divisible, that the evidence revealed that certain items called for in the contract were completed, and that the jury in answering issue 1 found that Rigby had completely performed items 1, 2, 3 and 7 of the contract. The jury did find in issue 1 that Rigby performed his obligations to the Murphreys under the contract, but under the instructions given by the trial court Rigby was relieved of further performance after the Murphreys failed to perform in not making weekly progress payments. Under the trial court’s instruction the answer of the jury could not be interpreted as a finding that Rigby substantially performed under the contract. Rigby, in his suit against the Murphreys, as well as in the instant case, elected to recover for the value of the materials and labor furnished, or the money value of the improvements to the property.

Rigby contends that there was complete performance of a divisible contract, and, therefore, his liens were properly foreclosed by the trial court. We disagree. The language of the contract refutes the contention. The contract provided in paragraph VII, “Owners hereby give contractor a lien upon the described premises . together with the improvements to be placed thereon, ... to secure the total payment in the amount of $54,497.50, and any additional payments due contractor for services . . . and for all labor, materials and services performed thereon as itemized hereinabove.” [Emphasis added.] There was no provision (such as set out in Davidson v. Clearman, supra) that failure to complete the contract shall not defeat the indebtedness and the lien, but such indebtedness and lien on the premises and improvements shall exist in favor of the contractor for such contract price less the amount reasonably necessary to complete the contract.

It was said in Davidson v. Clearman, supra, at p. 51: “There are no jury findings as to the amount of money which would be required to complete the contract; therefore, this provision cannot be applied in this case. In addition and more important is the fact that the recovery was had under quantum meruit and not under the contract.” [Emphasis added.]

Having determined that appellee Rigby had neither a constitutional lien, a statutory lien nor a contractual lien we sustain appellants’ first point of error. The trial court’s judgment was based upon the foreclosure of the liens — there being a provision that “no party to this suit shall be personally liable for the sum set out in (b) above [$30,000 recovered in the suit by Rigby against Mur-phreys].” This provision is not attacked by either party here.

Appellee contends that his suit against the Murphreys for debt and money judgment without asserting or attempting to foreclose a lien against the property does not waive nor evidence an intention to waive any lien rights he may have had. The authorities cited by appellee are distinguishable from the case at bar. The cases Rigby cites stand for the proposition that where there is a debt secured by a note, in turn secured by a lien, the note and lien constitute separate obligations so that suit may be had on the note to obtain a personal judgment, and later suit may be had on the lien if the personal judgment were not satisfied. Where there is no note, but merely a debt secured by a lien, the lien is an incident of and inseparable from the debt. University Savings and Loan Ass’n v. Security Lumber Co., 423 S.W.2d 287, 292 (Tex.1967). When one sues on the debt, the lien is thereby necessarily implicated, and both must be put in issue. If the lien is not put in issue, it is abandoned. In the instant case, there is no note to constitute an obligation separate from the lien, and Rigby’s suit against the Murphreys was only for a debt based upon quantum meruit and not to foreclose a lien.

In view of our disposition of this cause we do not reach appellants’ other points.

The judgment of the trial court is reversed, and judgment is here rendered that appellee Rigby take nothing.

      . “SPECIAL ISSUE NO. 1
      “Do you find from a preponderance of the evidence that Roy Rigby performed his obligations to the Murphreys under the contract of April 15, 1971.
      “In connection with the above issue, you are instructed that one party is relieved of his obligation to continue his performance under a contract after the other party has failed to perform his obligations under the contract.
      “Answer ‘We do’ or ‘We do not’.
      “Answer: ‘We do.’
      “SPECIAL ISSUE NO. 2
      “Do you find from a preponderance of the evidence that the Stone Fort National Bank through its loan officer and employee, Elbert Sowell, had notice of the work and lien of plaintiff Roy Rigby at the time of the execution of the Deed of Trust by W. C. (Patrick) Mur-phree (sic] and wife, Zuma Murphree [sic] on May 5, 1971?
      “ANSWER: ‘We do’ or ‘We do not’
      “ANSWER: ‘We do’
      (“By the word ‘Notice’ as used in this charge is meant knowledge of the existence of the fact inquired about, or knowledge of facts which would naturally lead a prudent person to make an inquiry which would lead to discovery of the fact inquired about.”]
      “SPECIAL ISSUE NO. 3
      “Do you find from a preponderance of the evidence that the failure of Roy Rigby to warn R. M. Taylor of his lien, misled R. M. Taylor to his injury so as to estop Roy Rigby from now asserting his lien?
      “ANSWER: ‘We do’ or ‘We do not’ "ANSWER: ‘We do not’
      “SPECIAL ISSUE NO. 4 “Do you find from a preponderance of the evidence that Roy Rigby waived his claim to a lien on the land involved in this suit?
      “Answer ‘We do’ or ‘We do not’.
      “Answer: ‘We do not’
      (“You are instructed, that in connection with this charge, the term ‘Waiver’ is meant, an intentional relinquishment of a known legal right available to a party.”]
      “SPECIAL ISSUE NO. 5 “Do you find from a preponderance of the evidence that R. M. Taylor did not have actual knowledge of Roy Rigby’s lien on the land involved in this suit, and did not have actual knowledge of any fact or facts that would cause a party of ordinary prudence to make inquiry as to such claim on or before April 4, 1972?
      “ANSWER: ‘He did have’ or ‘He did not have’
      “ANSWER: ‘He did have’

        “In connection with the above issue, you are instructed that by the term ‘actual knowledge’ is meant knowledge which will be imputed and may be implied from circumstances where the circumstances known to one concerning a matter in which he is interested are sufficient to require him, as an honest and prudent person, to investigate concerning the rights of others in the same matter and diligent investigation will lead to discovery of any right conflicting with his own.
      “SPECIAL ISSUE NO. 6 “What sum of money do you find from a preponderance of the evidence to be the value of the improvements made by Roy Rigby to the 30.5 acre tract in question?
      “ANSWER IN DOLLARS AND CENTS: “ANSWER: ‘$33.000.00.’ ”

      . Statutes cited are Texas Revised Civil Statutes unless otherwise indicated.


author: WARD, Justice.

text:
    SOUTHWESTERN BELL TELEPHONE CO., Appellant, v. MEADER CONSTRUCTION CO., Appellee.
    No. 6724.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 22, 1978.
    Rehearing Denied Dec. 20, 1978.

      James E. Barden, Marlin L. Gilbert, San Antonio, for appellant.
    Roy L. White, Nancy J. Anderson, Bayne, Snell & Krause, Barry Snell, San Antonio, for appellee.
   OPINION

WARD, Justice.

A road builder known as Meader Construction Company sued Southwestern Bell Telephone Company for damages caused from its having made false and fraudulent representations to the Plaintiff as to dates it would remove its telephone poles and other facilities from right-of-ways contracted to be constructed by the Plaintiff. Trial was to a jury which returned a verdict sustaining the Plaintiff’s contentions. Judgment was then entered for Meader against Southwestern Bell for $56,934.00 actual damages and $230,000.00 exemplary damages. The Defendant appeals asserting error in the Court’s Charge, as well as numerous insufficiency of evidence points. We reverse and remand as to that part of the judgment which we have described.

Meader Construction Company was the successful bidder on two road improvements undertaken by the City of San Antonio known as the Babcock Road Project and the Walters-Moore Street Project. The first was the Babcock Road Project and it was advertised for bidding in November, 1973. As was its custom, the City invited contractors interested in bidding the Project to a pre-bid conference on November 20, 1973. The conference was attended by the Plaintiff’s President, Ike Meader, and other interested contractors, as well as representatives of the various utilities whose facilities would be affected by the construction. Pri- or to such a conference, the interested contractors would have previously received a set of bid documents, and would have probably made an on site investigation and preliminary cost analysis of the Project. At the conference, various problems were discussed and explained, and dates that the various utilities would relocate their obstructing facilities were settled. Ike Mead-er testified that at that meeting the Defendant’s engineer told him that the telephone poles in the Project area would be removed by January 1, 1974. He testified that this statement was relied upon by him in making his work plans, his cost analysis of the Project, and his bid to the City, which was finally accepted. Construction then started on the Babcock Road Project on January 14, 1974. According to Mead-er’s version, when he started excavation, the telephone poles were in his way and the poles thereafter seriously interfered with the performance of his contract with the City. When he complained to the Telephone Company, he stated that all he got was a runaround and a switch from one person to another. As a result, he had to work the entire area with the poles right in the middle of it, and the net result was that his costs were increased by $30,434.00.

As to the Walters-Moore Street Project, the pre-bid conference was held on December 3,1974. Mr. Meader again attended the meeting, though no Southwestern Bell representative was present. The Plaintiff’s bid was then accepted, and on January 24, 1975, a preconstruction meeting was held which Mr. Meader and the representatives of the various utilities, including the Defendant, attended. Due to the nature of the Project, Mr. Meader explained that he proposed to work the job in phases, taking the phases in numerical sequence as required by the City. At that conference, the Southwestern Bell representative told those in attendance that Bell’s conflicts would be cleared prior to construction, and a letter was read explaining that Bell’s conflicts for the entire length of the Walters-Moore Street Project would be cleared by approximately March 31, 1975. It developed that Bell Telephone did not remove its conflicts in time and there were some sixty-eight telephone poles in the way on the Walters-Moore Street Project. In some areas it resulted in Meader not being able to work around the poles as he had done on the Babcock Road Project because they were too numerous and were located in the middle of the proposed street. Instead of working the job in phases as planned, he was forced to skip phase and as a result lost time in moving back and forth from one phase to another. Since the orderly sequence was disrupted, Mr. Meader estimated that his actual costs on the Walters-Moore Street Project were increased by approximately $26,500.00.

The Plaintiff’s theory that the Telephone Company had made false and fraudulent representations to it which resulted in increased construction costs for the Company was submitted to the jury separately as to each Project. On the Babcock Road Project, the jury determined by its answers to the issues submitted that (1) the Defendant, its agents, servants, and employees knowingly represented and made statements to the Plaintiff prior to the Plaintiff’s bid that all telephone installations and obstructions in conflict would be removed prior to the beginning of the construction; (2) that the representations and statements were material in nature and were made to the Plaintiff with the intention that the Plaintiff should act upon them; (3) that the Plaintiff believed and relied upon the representations and statements, and that but for them it would not have made the bid that it did to the City of San Antonio; (4) that the representations and statements of the Defendant, its agents, servants, and employees were false; and (5) that as a result of the representations and statements, the Plaintiff was damaged. The five special issues, numbered 7 through 11 inclusive, were in regard to the Walters-Moore Street Project and were worded in a similar form to the first five issues, and were all answered in favor of the Plaintiff’s position.

The trial Court’s Special Issue No. 4 was as follows:

“Do you find from a preponderance of the evidence that the representations and statements, if any, of the defendant, Southwestern Bell Telephone Company, its agents, servants and employees, were false?”
Special Issue No. 10 was identical in form, but because of its sequence related to the Walters-Moore Street Project. The Defendant objected to Special Issue No. 4 for the reason that:
“* * * same fails to inquire as to whether or not the representations and statements made by defendant Southwestern Bell were known to be false at the time that they were made; therefore constitutes an evidentiary issue and not an ultimate issue in the case.”

Defendant objected to Special Issue No. 10 for the reason that:

“* * * same fails to inquire as to whether or not the representations and statements were known to be false at the time that they were made and whether or not they were made with intent to deceive Meader Construction Company, and therefore is an evidentiary issue only and not an ultimate issue.”

The trial Court overruled these two objections, and the overruling of the two objections is the subject of the first two points of error presented by the Defendant.

Before proceeding further, we again note that the Plaintiff’s cause of action is based on alleged false and fraudulent representations as to future events. Normally, a failure to discharge a promise regarding the doing of an act in the future is not fraud, otherwise every breach of a contract would amount to fraud. However, since the state of mind of a person making a representation is a fact, it is susceptible of being misrepresented and thus can become the basis of a suit for fraudulent representation. Where a promise regarding future action is made with the intent that it will not be performed and is made to deceive a person, then it is actionable as a fraudulent representation. Stanfield v. O’Boyle, 462 S.W.2d 270 at 272 (Tex.1971); Finch v. McVea, 543 S.W.2d 449 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.); King v. Tubb, 551 S.W.2d 436 (Tex.Civ.App. — Corpus Christi 1977, no writ); Stone v. Williams, 358 S.W.2d 151 (Tex.Civ.App.—Houston 1962, writ ref’d n. r. e.); 25 Tex.Jur.2d Fraud and Deceit, Secs. 44 and 45 (1961); Prosser Torts 4th Ed., 728-730.

The Plaintiff argues that neither of the Defendant’s objections were well founded since the inquiry as to falsity was obviously a proper inquiry on each Project. Texas Industrial Trust, Inc. v. Lusk, 312 S.W.2d 324 (Tex.Civ.App. — San Antonio 1958, writ ref’d). The Plaintiff’s point is that the Defendant’s real complaint should have been made to the lack of the additional issue as to whether the misrepresentation was known to be false, and no such objection was made. Maryland Casualty Company v. Golden Jersey Creamery, 389 S.W.2d 701 at 705 (Tex.Civ.App. — Corpus Christi 1965, writ ref’d n.r.e.).

The Plaintiff contends that since Rule 274, Tex.R.Civ.P., requires one to “point out distinctly the matter to which he objects and the grounds of his objection,” and that since the Defendant has failed to comply with the Rule, there has been a waiver of the objection; that Rule 279, Tex.R.Civ.P., provides that if one or more of the issues necessary to sustain a ground of recovery are submitted to the jury, and one or more such issues are omitted without objection, the trial Court can make findings as to the omitted issues so long as there is evidence to support a finding thereon, and the omitted issue is deemed as found by the Court in such manner as to support the judgment. Hawes v. Central Texas Production Credit Association, 503 S.W.2d 234 (Tex.1973); Roberts v. Holmes, 412 S.W.2d 947 (Tex.Civ.App. — Eastland 1966, no writ).

We hold that the Defendant’s objections to the Charge were sufficient to direct the attention of the trial Court to the omission of the inquiry of whether or not the representation was known to be false in connection with the submission of Special Issues Nos. 4 and 10. In the first place, the gist of the fraud action is the deception as to an existing fact, namely the state of the promisor’s mind. Putnam v. Heissner, 220 S.W.2d 701 (Tex.Civ.App.—Austin 1949, no writ); Maulding v. Niemeyer, 241 S.W.2d 733 (Tex.Civ.App.—El Paso 1951, mand. ov-err.). If the objection had been sustained and the two proper issues submitted asking if the statements were known to be false at the time they were made, then that would have been the same as an inquiry as to whether or not the representations were made with an intention not to perform. That was stated by Justice Pope in Texas Industrial Trust, Inc. v. Lusk, supra at 327, where writ was refused:

“* * * The utterance of a known false statement, made with intent to induce action, in our opinion, is equivalent to an intent to deceive. * * *”

In the second place, under Rule 277, Tex.R. Civ.P., it is no longer objectionable that an issue is general or includes a combination of elements or issues. Under the Rule as now written, the Court was at liberty to add the vital missing element to Special Issues Nos. 4 and 10, and the Court’s attention was properly called to the omission. The first two points are sustained.

Since we have sustained points which call for a remand, we will of necessity have to discuss the Defendant’s eviden-tiary points which call for a rendition if sustained. Points of Error Nos. 3 and 4, and 13 and 14 are the evidentiary attacks on the jury’s findings to Special Issues Nos. 4 and 10 previously set out. Regardless of the form of the submission of Special Issues Nos. 4 and 10, both parties meet on common ground that the success of the “no evidence” attack on these two issues will depend upon whether or not there was evidence in the record to show that the speaker of the statement relating to the matters that were to occur in the future knew at the time that the statement was made that it was false. It has often been stated that the existence of fraudulent intent at the time of the promise is a difficult thing to prove. The mere breach of the promise is never enough in itself to establish the fraudulent intent. However, it is also recognized that the denial by a defendant that he ever made the promise to perform in the future, together with his failure to perform, furnishes the needed evidence of lack of intent to perform. Stanfield v. O’Boyle, supra; K.W.S. Manufacturing Company v. McMahon, 565 S.W.2d 368 (Tex.Civ.App.— Waco 1978, writ ref’d n. r. e.); Finch v. McVea, supra.

Considering the two “no evidence” points, we will consider only the evidence and the inferences arising therefrom which support the jury verdict. On the Babcock Road Project, the Plaintiff testified that the representative of the Defendant promised that their facilities would be out of the way by January 1,1974. The Southwestern Bell representative who attended the conference specifically denied making the promise. On the Walters-Moore Street Project, the Plaintiff testified that the Defendant’s representative told him they would keep out of the way of the planned phases of construction, and again that representative denied making the statement. When the Plaintiff started excavating on the first Project, the telephone poles were in his way, and the Plaintiff testified that all he got out of the Company as to his complaints were evasive answers, and it was one month after construction began before Southwestern Bell removed the old poles. On the Walters-Moore Street Project, the Plaintiff’s evidence was that the Defendant promised that the Project would be cleared of poles and obstructions, but some sixty-eight telephone poles were in the way at the time construction began. On both Projects, the Defendant’s representative admitted that he knew of no reason why obstructions could not have been moved before construction started. This testimony of the Defendant’s attempts to deny making the original representations, together with their failure to perform by the deadline, compels us to overrule the “no evidence” points Nos. 3 and 13.

The Defendant’s evidence showed that it knew of the construction and the need to clear its facilities from the Plaintiff’s operations. Under its version, it encountered unexpected delays in obtaining material, that misunderstandings occurred as to dates construction would begin in certain areas, that bad weather caused certain other delays, and that some of Meader’s own operations conflicted with and slowed the Telephone Company in complying with certain of the requests made. Thus, the Defendant’s version was to the effect that, while there were considerable problems on the job, they were eventually solved and the specter of actionable deceit was wholly absent. Obviously, the jury rejected the latter version. However, this is a portion of the evidence that would be of material consideration to the insufficient evidence points Nos. 4 and 14, and they are not reached.

A series of “no evidence” points attack the jury findings which determined that the Plaintiff sustained actual damages and which then assessed the amounts of damages on the two Projects. Considering only the evidence and inferences arising therefrom which support the findings, we find that Ike Meader, because of the very nature of the damages which he sustained as a result of the delays, had to estimate the increased costs brought about by the delays. As an example, on the Babcock Road Project, he considered his original bid estimate of moving material at $1.16 per cubic yard and compared that with the actual cost incurred of moving the material at $2.62 per cubic yard. The mathematical formula, figures and information that he used in arriving at the two figures were described in detail to the jury. He performed a control test where his crews worked without poles, and from that test he was able to verify that his costs would have been the same as his original bid cost of $1.16 per cubic yard, and the details of this test were described to the jury. Since he was locked in on his bid with the City and could receive no additional sums because of the delays caused by the poles and obstacles, the increased cost was the amount of loss suffered by him. We hold that the findings of the jury are supported by legally sufficient evidence. We further hold that the evidence was legally sufficient to show the factual data upon which the award for damages could be calculated with reasonable certainty on both Projects. International Harvester Company v. Kesey, 507 S.W.2d 195 at 197 (Tex.1974); Munke v. Hubbard, 281 S.W.2d 165 (Tex.Civ.App.— Austin 1955, no writ); Southwest Battery Corporation v. Owen, 131 Tex. 423, 115 S.W.2d 1097 (1938); Hall v. Brown, 398 S.W.2d 404 (Tex.Civ.App. — Waco 1966, no writ).

While a certain amount of damages attributed to the Walters-Moore Street Project are apparently overstated, the error should not arise again on a retrial. We therefore overrule the Defendant’s Points of Error Nos. 5, 7, 15 and 17. We do not reach the insufficiency of evidence points made on the damage issues.

We will discuss one more point. From its answer to Special Issue No. 7, the jury determined that the Defendant, its servants, agents, and employees knowingly represented and made statements to the Plaintiff prior to the Plaintiff beginning construction on the Walters-Moore Street Project that all telephone installations and obstructions in conflict with the construction would be removed prior to the beginning of the construction. This issue was submitted in somewhat different form from Special Issue No. 1 concerning the Babcock Road Project, since the Plaintiff’s complaint concerning the latter representations were allegedly made after the Plaintiff had secured the contract to perform the Walters-Moore Street Project. Point of Error No. 11 complains that there was no evidence to support the jury’s favorable answer to Special Issue No. 7. Again, we will consider only the evidence and the inferences arising therefrom which are favorable to the answer, and in this regard we find that the Plaintiff testified that the Defendant's representative told him that all conflicts would be cleared on that Project prior to construction, and that he was told that Bell would stay out of the contractor’s way. Point of Error No. 11 is overruled.

A jury finding on malice in connection with the Walters-Moore Street Project is next attacked by the final "no evidence” point. The main thrust of this contention is a repetition of previous arguments that there was no evidence of any fraudulent representation ever made regarding that Project, and, because we have overruled the original argument, we will also overrule the present one for reasons previously stated.

As pointed out, we have overruled the Defendant’s “no evidence” points presented on this appeal. We have not discussed all of the insufficient evidence points as they were not reached in view of the remand.

In the final judgment, Southwestern Bell Telephone, by way of a cross-action, recovered a judgment against Meader Construction Company for $2,810.80 and interest; no appeal was taken therefrom, and there is no complaint before us regarding that portion of the judgment. Therefore, that part of the judgment of the trial Court awarding Southwestern Bell Telephone its judgment against Meader Construction Company on its cross-action is severed from the balance of the final judgment and is affirmed. All of the balance of the final judgment, except that which has been specifically severed and affirmed, is reversed and remanded to the trial Court for trial in accordance with this opinion.


author: RAY, Justice.

text:
    George WILLIAMSON et al., Appellants, v. Glenn KEMPF et al., Appellees.
    No. 8635.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 28, 1978.
    Rehearing Denied Dec. 28, 1978.

      Doren R. Eskew, Eskew, Brady Womack & Muir, Austin, Larry Watts, Houston, for appellants.
    Charles E. Thompson, Lovelace & Thompson, Inc., Atlanta, for appellees.
   RAY, Justice.

This is a suit for mandamus. Appellees (petitioners), Glen Kempf, Melvin Wall and Paul Fortune, three candidates for election to the Karnack Independent School District Board of Trustees, brought suit to require the election judge, Willie Faye Jones, and the Karnack Independent School District Board of Trustees, appellants (respondents), to complete the election process. The trial court denied appellants a jury trial and proceeded to find that the required acts of the election judge and Board of Trustees were ministerial duties required by the laws of the State of Texas and not a matter of discretion. The trial court entered its judgment directing that a writ of mandamus issue commanding the election judge, Appellant Jones, to forthwith proceed to make out the returns and certify them to the president of the Board of Trustees for the use of the Board in canvassing the returns. The Board of Trustees was directed to proceed to canvass the returns, declare the results of the election and issue certificates of election to the winners.

Appellants have perfected their appeal and submit three points of error for our consideration.

Appellants complain that the trial court erred in depriving them of a jury trial; that the court erred in exercising judicial control over incomplete election proceedings; and, that the trial court erred in compelling the completion of the political process after the election judge stated she had discovered fraud in the voting and that it would therefore be impossible for her to correctly certify the election returns.

Appellants’ three points of error will be overruled and the judgment of the trial court will be affirmed.

The undisputed facts are that the Board of Trustees called a regular election to elect three members to their Board. The election was held on April 1, 1978, with Willie Faye Jones serving as the election judge. The voting was completed, the votes counted and tallied, but the election judge refused to certify the results of the election or to prepare the returns and forward them to the Board of Trustees for canvassing. The Board of Trustees held a special meeting on April 5, 1978, and voted to call a new election for April 29, 1978. The Board did not have before it the election returns for canvassing nor was April 5th the date scheduled for canvassing the returns. The regular meeting was to have been on April 6, 1978, at which time the canvassing of the returns was to be performed. There is no indication in the record that a meeting was ever held on April 6th. We think it is clear and undisputed that the election judge would not certify the results of the election, a ministerial act, and that the trial court was correct in ordering a writ of mandamus to issue compelling her to make out the returns and certify them to the school board for canvassing. The trial court did not commit any error in denying Appellant Jones a jury trial because there were no fact issues to be resolved by a jury. Appellant Jones had failed to perform a ministerial duty required by law. It is also clear that the Board of Trustees had no intention of canvassing the votes since it had already called a new election at the meeting held one day prior to the date scheduled for canvassing the returns. The evidence establishes that appellants had not performed the ministerial duties required of them. See Crouch v. Stanley, 390 S.W.2d 795, 798 (Tex.Civ.App. Eastland 1965, writ ref’d n. r. e.), cert. denied, 383 U.S. 945, 86 S.Ct. 1201, 16 L.Ed.2d 208 (1966). Appellants’ first point of error is overruled.

Appellants’ second point of error concerning the alleged exercise of control over the election proceedings or the election process by the trial court is overruled. Certain ministerial acts are required of the election judge under Articles 8.29, 8.29a, and 8.29b of the Texas Election Code and certain ministerial acts are required of the Board of Trustees under the provisions of the Texas Educ.Code Ann. Sec. 23.10. It is undisputed that the appellants did not comply with the statutory requirements relative to their ministerial duties. The trial court has the authority and power to require by writ of mandamus that the ministerial duties be performed by the election judge and the canvassing board to force the completion of the election process in accordance with the procedural statutes regulating the manner in which elections shall be conducted. An election is essentially the exercise of political power and during its progress it is not subject to judicial control other than to require the election and canvassing officials to perform their ministerial duties that have been prescribed by statute. In Leslie v. Griffin, 25 S.W.2d 820, 821 (Tex.Com.App.1930, opinion adopted), the court stated:

“ . . . There cannot be found, either in the Constitution or in the statutes, any provision which gives any court, prior to the completion of the election, the authority to inquire as to the correctness or regularity of returns which have been made by the proper functionaries. It is understood by everyone, of course, that courts are clothed with the authority to enforce private rights; but no citizen, even though he be a candidate in the election, is given a private right to contest the returns made by the proper officials until after the election is completed. The instant case is essentially a proceeding having for its object a contest of the returns of an uncompleted election.”

The trial court was correct in ordering the various functionaries to perform their ministerial duties in order that the election could be completed. If any of the losing candidates feel that voting irregularities or fraud has been committed during the election process, then following the completion of the election process, such dissatisfied party can file suit to contest the election, but not before the statutory requirements for the completion of the election have been met. Leslie v. Griffin, supra; Sams v. Sowell, 519 S.W.2d 526 (Tex.Civ.App. Houston-14th Dist. 1975, no writ); Shelor v. Commissioners Court of Harris County, 304 S.W.2d 153 (Tex.Civ.App. Fort Worth 1957, no writ); Grant v. Ammerman, 437 S.W.2d 574 (Tex.1969). Appellants’ second point of error is overruled.

Appellants’ point of error No. 3 is as follows:

“The trial court erred by ordering mandamus which would promote conduct viola-tive of conscience and good faith by compelling the completion of a political process which, before completing all the discretionary functions, the judge had discovered fraud in the election to be so inextricable that it was impossible to correctly certify the election returns.”

Appellants rely upon Todd v. Helton, 495 S.W.2d 213 (Tex.1973) as authority for this Court to revoke the writ of mandamus or instruct the trial court to revoke the writ of mandamus. We do not construe the Todd case, supra, to be applicable to the present case. Todd held that if a county judge was in fact induced by fraud to call an incorporation election by presenting to him false affidavits as to the number of inhabitants to be found in the area to be incorporated, then the county judge could revoke his order calling the election and no mandamus would issue to make him canvass the votes after an election was held subsequent to his order revoking the calling of the election. The Todd case is a very narrow exception to the general rule that once the election process starts, it must be completed before it can be contested. However, in Todd, the law imposed upon the county judge the duty of determining whether the incorporated area contained the necessary number of inhabitants to be incorporated and his decision on that matter is conclusive. The holding was limited to an incorporation election where the county judge has the duty to determine that the area contains the requisite number of inhabitants before calling the election and that if he is induced to call the election by fraud and false affidavits, then he may rescind his order and will not be compelled to canvass the votes following an election held after he rescinded his order calling such election. We think it important to note that no voting had taken place before the court discovered the fraud and revoked the election order.

In the present case the election had not only been called, but had been held and all votes had been cast and counted. No discretion is lodged in the election judge to decide, after the voters had voted, that the returns will not be certified to the canvassing board. A court of law, at that stage, is the only authorized authority or tribunal which may decide whether voting fraud occurred or not, and only then in an election contest prescribed by statute. Grant v. Ammerman, supra; Shelor v. Commissioners Court of Harris County, supra; Sams v. Sowell, supra; and McLemore v. Stanford, 176 S.W.2d 770 (Tex.Civ.App. Dallas 1943, no writ).

Appellants’ third point of error is overruled.

The judgment of the trial court is affirmed.


text:
    FRIEDMAN STEEL SALES, INC., Appellant, v. TEXAS UTILITIES COMPANY, Appellee.
    No. 8662.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 28, 1978.
    Rehearing Denied Dec. 19, 1978.
    Donald B. Friedman, Harkness, Friedman, Kusin & Hooper, Texarkana, for appellant.
    Travis E. Vanderpool, Worsham, For-sythe & Sampels, Dallas, for appellee.
   HUTCHINSON, Justice.

Appellant, Friedman Steel Sales, Inc., seeks enforcement of its materialman’s lien filed against property of appellee for materials sold to a subcontractor erecting improvements at appellee’s power plant. On June 30, 1975, the time of the filing by appellant of its affidavit for lien, the subcontractor was indebted to it in the sum of $20,902.95. At the request of the subcontractor and the appellant, appellee issued two checks payable jointly to the subcontractor and appellant, one being dated July 31, 1975, in the sum of $13,822.34 and the other being dated September 9,1975, in the amount of $14,733.90. Each of these checks was endorsed by the subcontractor, and appellant in return for them gave its checks payable to the subcontractor in sums totaling $20,356.24. Appellant then deposited the two checks of appellee in its account. Subsequently, the subcontractor defaulted on its contract with appellee and its portion of the construction was completed by appel-lee. The subcontractor was an original party defendant in this suit but upon taking bankruptcy was dismissed on appellant’s motion.

Trial was had before the court and a take nothing judgment was entered. At appellant’s request the trial court made its findings of fact and conclusions of law, concluding that the issuance and acceptance of the checks payable jointly to appellant and the subcontractor constituted payment by ap-pellee to appellant.

Appellant and appellee apparently are in agreement that the facts here and the facts in F. & C. Engineering Co. v. Moore, 300 S.W.2d 323 (Tex.Civ.App. San Antonio 1957, writ ref’d n. r. e.), are virtually identical. At the time of the opinion in F. & C. Engineering, supra, by now Supreme Court Justice Barrow, there was no guiding Texas precedent and no other exists at this time. It remains and is the law of this State governing the facts before this Court. There the court reasoned:

“ . . the materialman had within his control $8,000 which he could and should have applied thereon. He did not do so, but on the contrary, turned $2,000 of the money over to the subcontractor, on the representation of the subcontractor ‘that he wanted to use it to pay labor and miscellaneous obligations.’ It was not the province of the materialman to advance money to the subcontractor to pay ‘labor and miscellaneous obligations,’ nor to determine how much the subcontractor needed, if any, for that purpose. The materialman in this case having done so and having advanced to the subcontractor $2,000 by its own check, the mate-rialman became a simple money creditor of the subcontractor and thereby released both the general contractor and its surety as to said amount.”

The judgment of the trial court is affirmed.


author: OSBORN, Justice.

text:
    Gladys O’Neal JONES, Appellant, v. The CITY OF ODESSA, Appellee.
    No. 6704.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 29, 1978.
    Rehearing Denied Dec. 20, 1978.

      Gloria T. Svanas, Odessa, for appellant.
    Joel V. Roberts, City Atty., Odessa, for appellee.
   OPINION

OSBORN, Justice.

The Appellant filed suit in District Court to recover damages resulting from the destruction of buildings under an Unsafe Buildings Ordinance. Based upon jury findings that the residence was a “nuisance,” which “could not have been corrected without making repairs that would have amounted to substantial reconstruction” and “none” as to damages for mental pain and mental anguish, the trial Court entered a take nothing judgment. We affirm.

Mrs. Jones had at one time resided in Odessa, but she has lived in Fort Worth since 1969. She has been disabled and unemployed since that time. Jones v. Milburn, 553 S.W.2d 779 (Tex.Civ.App.—El Paso 1977, no writ). She owned the main dwelling at 312 Fitch Street, Odessa, Texas, as well as a smaller house and wellhouse at the same address and on the back of the lot. She is still involved in litigation over earlier repairs to the building in 1965. Jones v. North American Acceptance Corporation, 442 S.W.2d 492 (Tex.Civ.App.

The City called several witnesses to testify as to the condition of the buildings. Ron Ester, the City building inspector, said the main residence had no glass in the windows, the doors were open, there were holes in the floor, and the ceiling was falling down. He said the house had been vandalized and all waterlines removed. The other buildings were said to be in similar condition. Clarence Lawson, City fire inspector, gave a similar description of the main residence and said it was a fire hazard. Johnny Wilson, the City health inspector, said the main building was falling in from the ceiling and the rear storage building was substantially unsafe. James M. Allen, with the Police Department, testified the main residence had been vandalized and gutted, and that it would cost more to repair than the building was worth. Willie Hammond, a member of the City Council in 1973, said the main building was an eyesore, a nuisance, and a health hazard. He said it was not in a condition to be repaired. Everyone testified the buildings were vacant, and Mr. Ester said the personal property remaining in the residence was just junk with no market value. Mrs. Jones acknowledged that the siding on the building had come loose in several places, and said the roof leaked and she had placed a No. 3 tub under a hole she had cut in the ceiling to catch water. She acknowledged that the leaks had damaged the interior of the structure.

Based upon reports by the City employees, the Board of Survey, established by the Unsafe Buildings Ordinance, recommended to the City Council the destruction of the buildings. The City Council then enacted an ordinance for their destruction.

The Unsafe Buildings Ordinance, under which these buildings were destroyed, provides:

All buildings or structures that are or hereafter shall become unsafe, unsanitary, or deficient in adequate exit facilities, or which constitute a fire hazard, or are otherwise dangerous to human life or public welfare by reason of illegal or improper use, occupancy or maintenance, shall be deemed unsafe buildings. All unsafe buildings shall be taken down and removed or else made safe and secure as directed by the building official. A vacant building which is unguarded or open at door or window shall be deemed an unsafe building within the meaning hereof.”

This Ordinance requires notice that a building has been classified as unsafe be sent to the owner at the owner’s last known address. The Ordinance also provides that if such notice be returned unclaimed, notice shall be published in a newspaper of general circulation in the City of Odessa, and in addition notice posted on the front door of the unsafe building.

Mrs. Jones presents six different points of error claiming lack of notice and denial of procedural due process in these proceedings. She testified she never received any notice prior to the destruction of these buildings. The City sent three notices, one on each building. One was returned, and apparently the other two were never delivered or returned. Notice was posted on the buildings in accordance with the requirements of the Ordinance. In addition, Mr. Hammond testified that when the City Council acted on the recommendation of the Board of Survey and enacted the Ordinance for destruction of these buildings, there had been a newspaper publication. Although this testimony was not the best evidence of the publication, no objection was made on that ground, and it is some evidence of compliance with the Ordinance requirement on notice.

Procedural due process requires notice reasonably calculated to apprise the party of the action and an opportunity to be heard. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). Where a party’s address is actually known by the city, notice by publication does not constitute adequate notice. City of Houston v. Fore, 412 S.W.2d 35 (Tex.1967). In this case, the notice was mailed to the last known address in Fort Worth and returned. Under those circumstances, we conclude that constructive notice by both posting and publication met the minimum due process requirements. Mullane v. Central Hanover Bank and Trust Company, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Yoakum County Water Control and Improvement District v. First State Bank, 449 S.W.2d 775 (Tex.1969). In this case, the Appellant did not request a special issue as to whether the City had complied with the Ordinance requirements as to publication and posting, where the evidence established that the notice sent to the last known address had been returned unclaimed. The trial Court having entered judgment for the City, there is an implied finding of compliance and there is sufficient evidence to support that finding. Points of Error Nos. 7, 10, 14, 16, 20' and 24, all with regard to the notice and procedural due process requirements, are overruled.

The Appellant next attacks the constitutionality of the Unsafe Buildings Ordinance under which the City proceeded in this case. The basic complaint is that the Ordinance permits a destruction of property without a prior judicial determination that the property is a nuisance. A similar contention was presented and overruled in Traylor v. City of Amarillo, Texas, 492 F.2d 1156 (5th Cir.1974). There the Court said: “we do not believe that the United States Constitution requires that a judicial determination precede demolition of property found to be a nuisance.” We agree and so hold insofar as federal rights are concerned.

As to rights under the State Constitution, Appellant relies primarily upon the language in Hart v. City of Dallas, 565 S.W.2d 373 (Tex.Civ.App.—Tyler 1978, no writ), and the earlier cases of Crossman v. City of Galveston, 112 Tex. 303, 247 S.W. 810 (1923), and City of Houston v. Lurie, 148 Tex. 391, 224 S.W.2d 871 (1949), which are cited in the Hart case. Certainly, there is language in those cases which suggests that a Court must first adjudge property to be a nuisance before it may be lawfully destroyed. But we do not read those cases to mean that destruction of property without a prior judicial determination makes the City absolutely liable without any defense when the question of value or damages is finally litigated. We believe those cases hold that if destruction occurs before a judicial determination is made on the issue of nuisance, the City proceeds at its own peril, but may defend, when sued for damages, on the grounds that the property destroyed was in fact a nuisance. That was the holding in City of Texarkana v. Reagan, 112 Tex. 317, 247 S.W. 816 (1923), which was decided the same day as the Crossman case. In that opinion, the Court said:

“If the building was in fact a nuisance, the city may defend on that ground, but its own definition of a nuisance, set forth in its ordinance, is not conclusive and binding on the courts. The question as to whether or not the building is a nuisance remains a justiciable question. Authorities supra. The action of the city council with reference to this building was no warrant for its destruction, and the proceedings of the city council leading up to the destruction of the building are not admissible in evidence in favor of the city in a suit for actual damages only. Whether or not the building here in controversy was in fact a nuisance is to be established by legal and competent evidence, in the same manner as any other fact, and the burden is upon the city to do this. Crossman v. City of Galveston, supra, and authorities there cited.”

We hold that the State Constitution does not require that a judicial determination precede demolition of property subsequently found to be a nuisance so as to make the city absolutely liable without regard to a subsequent judicial determination that the property was in fact a nuisance. We overrule Points of Error Nos. 2, 3, 4 and 5.

Points of Error Nos. 1, 6 and 15 urge that the City Charter did not grant the City the authority to enact the Unsafe Buildings Ordinance. The Charter gives the Council power “to establish all necessary rules and regulations protecting the health” of the residents of the City, and also “to define all nuisances and prohibit the same within the City.” This is a broad grant of authority, clearly adequate to permit the enactment of an ordinance for destruction of buildings that are a “fire hazard,” or are “dangerous to human life.” These points of error are overruled.

Points of Error Nos. 8 and 9 attack the constitutionality of the procedure by which Mrs. Jones’ property was destroyed and the Ordinance which declared it to be a nuisance. She asserts the Ordinance as applied is confiscatory, unreasonable, arbitrary and discriminatory. In this case, the burden of proof was on the City to prove, after destruction of the property, that the residence was in fact a nuisance, and that defects could not have been corrected without repairs which amounted to substantial reconstruction. Thus, there was a judicial determination of the ultimate issues as required by the holdings in City of Texarkana v. Reagan, supra, and City of Houston v. Lurie, supra, and only upon that basis were damages denied to the Appellant. Thus, she may not now complain of a confiscatory and arbitrary taking of her property. She fully litigated the ultimate issues and lost. Points of Error Nos. 8 and 9 are overruled.

We next consider Appellant’s four points of error attacking the legal sufficiency of the evidence to support the jury findings that her home was a nuisance and that it could not have been repaired without substantially reconstructing the building. In considering these “no evidence” points, we consider only the evidence and inferences tending to support the jury findings and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

As previously stated, the evidence established that the doors on the residence were open, the windows were out, the ceiling was falling down, and the floor had holes in it. The building had been gutted and vandalized. The only evidence on repairs was that it would cost more to repair than it was worth. In addition to the testimony describing the condition of the residence, the jury saw pictures of the actual condition. We hold that there was evidence to support the jury’s answers to Special Issues Nos. 1 and 2, and we overrule Points of Error Nos. 18, 19, 21 and 22.

Point of Error No. 23 is the only factual sufficiency point of the Appellant, and it is directed to the amount of damages necessary to compensate the Appellant for her mental pain and mental anguish caused by the removal of the buildings. The jury answered the issue “none.” In passing upon this point, we consider the entire record. Although Mrs. Jones did testify as to her physical condition and that she was under a doctor’s care, there was no medical testimony to establish any causation between her condition and the removal of the buildings. In addition, since she was a party and the only person to testify concerning these damages, the jury had a right to pass upon her credibility and they were not required to accept her testimony. Cheatham v. Riddle, 12 Tex. 112 (1854); Texas Employers’ Insurance Association v. Curry, 290 S.W.2d 767 (Tex.Civ.App. — El Paso 1956, writ ref’d n. r. e.). We are unwilling to say that the jury’s answer is against the great weight and preponderance of the evidence, and Point of Error No. 23 is overruled.

We next consider the contention that the Court erred in defining “nuisance.” This contention cannot be sustained for several reasons. First, the record contains no objections to the Court’s Charge, and thus any error in the definition has not been preserved for appeal. Tex.R.Civ.P. 274. But, in any event, we conclude that the definition was substantially correct and in accordance with the holdings in Brewster v. City of Forney, 223 S.W. 175 (Tex.Comm.App.1920), and Parker v. City of Fort Worth, 281 S.W.2d 721 (Tex.Civ.App.—Fort Worth 1955, no writ). Point of Error No. 17 is overruled.

Points of Error Nos. 11, 12 and 13 all complain about rulings of the trial Court concerning the admissibility of evidence. We find no reversible error on any of these rulings, and the points are overruled.

The judgment of the trial Court is affirmed.