author: McDONALD, Chief Justice.

text:
    Eugene SCHWERTNER et al., Appellants, v. Floyd HENDERSON et al., Appellees.
    No. 5942.
    Court of Civil Appeals of Texas, Waco.
    Dec. 7, 1978.
    Rehearing Denied Jan. 18, 1979.
    Samuel D. McDaniel, McDaniel & Travis, Austin, Chester G. Ball, Ball & Landrith, Arlington, Joe E. Griffith, Crockett, for appellants.
    Glenn A. Sodd, Dawson, Dawson, Sodd & Davis, Corsicana, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal from an order of the trial court overruling defendants Schwert-ner and Scoggins’s pleas of privilege to be sued in the county of their residence.

Plaintiffs Floyd Henderson, et al sued defendants alleging plaintiffs are owners of cotton crops and trees on various tracts of land in Navarro County; that defendant Schwertner is the lessee of land and that defendant Scoggins sprayed such land with poisonous herbicides from an airplane at defendant Schwertner’s request; that such herbicides were carried by wind currents onto cotton crops and trees on plaintiffs’ lands thereby causing severe damage to such crops and trees; that defendants were guilty of a number of acts of negligence which were a proximate cause of injury to cotton crops and trees of plaintiffs and the damages suffered by plaintiffs.

Defendant Schwertner filed his plea of privilege to be sued in Travis County; defendant Scoggins filed his plea of privilege to be sued in Houston County.

Plaintiffs controverted asserting venue against both defendants in Navarro County under Subdivision 14, Article 1995 VATS; and incorporated by reference their amended petition into their controverting pleas, which states “[plaintiffs] trees were killed, showed brown leaves, had their growth stunted, and in the case of pecan trees lost their fruit * * ”.

The trial court after hearing overruled defendants’ pleas of privilege.

Defendants appeal on 11 points which summarize as 4 main contentions:

Contention 1 asserts the trial court erred by its refusal to consider defendants’ exceptions and objections to plaintiffs’ amended controverting plea which was timely presented at the commencement of the plea of privilege trial; and by treating same as an amendment to pleadings subject to the 7-day limit of Rule 63.

On the morning of trial after all parties had announced ready, defendants sought to file the following instrument:

“EXCEPTION TO PLAINTIFFS’ AMENDED CONTROVERTING PLEA AND OBJECTION TO GENERALITY OF ALLEGATIONS THEREIN” TO THE HONORABLE JUDGE OF SAID COURT:
Comes now defendants * * * and present to the Court the following exception and objection to plaintiffs’ controverting plea:
1. The plea is too general to inform the court or defendants of the nature of the claim for damages to land, and hence too general to sustain venue under Article 1995, Sec. 14. This is true for 3 reasons: a) because it is unclear whether it aims at loss of pecan crop * * as opposed to damage to land; b) because it is inadequate to allow the court to determine whether damage to land or damage to crops is the dominant purpose of the suit for venue purposes and fails to afford the court or defendants any way of measuring the relative seriousness of the different claims; c) because the allegations which might be argued as going to show damage to land are too general and unspecific to support a conviction for perjury if false.
2. Defendants would show the court that the controverting plea is inadequate to specify how it is contended venue might be maintained as to each plaintiff joined in this action and plaintiffs are required to specify the venue facts as to each plaintiff.
3. Defendants would point out * * plaintiffs’ allegation of damage to land is a device used in an attempt to hold venue in Navarro County and that same is made in bad faith and for venue purposes”.

Counsel for plaintiffs objected to the filing of such pleading because it contained entirely new defensive matter; that the plea of privilege hearing had been set for months; because the matters raised had been known to defendants since the suit was filed; and because no excuse was given for the late filing of the pleading. The trial court refused to permit filing of the instrument.

Paragraph 3 of the instrument raises new substantive defensive matter and is governed by Rule 63 TRCP. The trial had been set for months; the amended pleading was tendered after the parties announced ready on the morning of the trial; and we think the trial court did not abuse its discretion in refusing defendants’ request to file same. McHone v. McHone, Tex.Civ.App. (Waco) Er.Dismd, 449 S.W.2d 488; Sigler v. Frost Bros., Inc., Tex.Civ.App. (El Paso) NWH, 555 S.W.2d 813; Roeber v. DuBose, Tex.Civ.App. (Corpus Christi) 510 S.W.3d 126; Pacific Products, Inc. v. Great Western Plywood, Ltd., Tex.Civ.App. (Ft. Worth) NWH, 528 S.W.2d 286; First National Life Ins. Co. v. Herring, Tex.Civ.App. (Waco) NWH, 318 S.W.2d 119.

Contention 2 asserts the trial court erred in overruling defendants’ pleas of privilege because plaintiffs’ controverting plea is too conclusory, and does not demonstrate an injury to land as is required to fix venue under Subdivision 14.

Plaintiffs’ amended controverting plea incorporated plaintiffs’ amended petition which alleged damage to plaintiffs’ land. Additionally the amended controverting plea states “that defendant caused damage to plaintiffs’ realty situated in Navarro County, Texas, which suit for the damages thereto must be brought in the County in which the land, or a part thereof, may be, within the meaning of * * Article 1995, Subdivision 14, and such damage to land is the basis of plaintiffs’ cause of action against defendants, and such Subdivision constitutes an exception to exclusive venue in the county of defendants’ residence”.

The venue facts to be established under Subdivision 14 are two: 1) That the suit is for recovery of damages to land; and 2) That a part of the land lay in the County of suit. Piazza v. Phillips, 153 Tex. 115, 264 S.W.2d 428; Wynne v. Freiley, Tex.Civ.App. (Dallas) 349 S.W.2d 734.

Plaintiffs’ pleadings and controverting affidavit satisfies the foregoing requirements insofar as required by the pleadings.

Contention 3 asserts the trial court erred in allowing plaintiffs to lump their claims together for purposes of venue and in not requiring clear and certain pleading and proof to establish venue to each plaintiff’s alleged cause of action and each tract of land involved.

The pleadings and evidence conclusively show that the cause of action belonging to the various landowners with respect to their portion of the damages has been assigned to plaintiff Henderson.

Additionally no ruling was requested or received on this point at time of trial, neither did defendants move for a new trial to raise the point as required by Rule 324 TRCP.

Contention 4 asserts the trial court erred in refusing to permit proof of the extent and nature of alleged damage to plaintiffs’ land where such is challenged as a bad faith device used in an attempt to hold venue in Navarro County.

Defendants’ pleading of bad faith was not permitted to be filed. Evidence of bad faith cannot be raised without pleadings and without notice to the opposite party. Texan Development Co. v. Hodges, Tex.Civ.App. (Amarillo) 237 S.W.2d 436; Sun Oil Co. v. Hall, Tex.Civ.App. (Austin) 566 S.W.2d 696; Hagan v. Anderson, Tex., 513 S.W.2d 818.

All defendants’ points and contentions have been considered and are overruled.

AFFIRMED.

      . Rule 324. “Prerequisites of Appeal. A motion for new trial shall not be a prerequisite to the right to complain on appeal, in any jury or non-jury case. * * * notwithstanding the foregoing, it shall be necessary to file a motion for new trial in order to present a complaint which has not otherwise been ruled on. * * ”,


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    C. R. JOHNSON, Petitioner, v. Forbes HANSON et al., Respondents.
    No. 12795.
    Court of Civil Appeals of Texas, Austin.
    Dec. 13, 1978.
    Barry Broughton, Austin, for petitioner.
    J. W. Howeth, Austin, for respondents.
   O’QUINN, Justice.

Forbes Hanson, individually and as next friend of his minor son, brought suit in April of 1977 against C. R. Johnson to recover $2,500 in claimed damages growing out of an automobile collision. After Johnson failed to answer or make other appearance, the trial court “rendered and entered” a default judgment on May 4, 1977, awarding plaintiffs damages in the sum of $1,200.

Three months later, on August 4, 1977, the trial court entered a judgment nunc pro tunc, purportedly to correct the earlier judgment, which increased damages to $2,500, the sum originally prayed for in the petition.

Johnson, now appearing through his attorney and guardian ad litem appointed under Rule 173, Texas Rules of Civil Procedure, seeks appeal by writ of error to set aside the trial court’s judgment entered nunc pro tunc. We grant petitioner’s application for writ of error and will render judgment setting aside the trial court’s judgment nunc pro tunc entered August 4, 1977.

The record shows that the trial court granted the judgment nunc pro tunc on the same day motion for judgment was filed. The record does not disclose that defendant had notice of the motion, or hearing on the motion, prior to entry of judgment. Upon request of petitioner for a statement of facts to include record of the hearing, the official court reporter, the record discloses, was unable “to find a record of any such proceedings.”

In the trial court’s original judgment, rendered and entered in response to plaintiffs’ motion for default judgment, the court found “upon good and sufficient evidence that Plaintiffs are entitled to recover . the sum of $1,200.00.” The decre-tal clause adjudged that plaintiffs “. do have and recover of and from Defendant, C. R. Johnson, the sum of $1,200.00 . ” together with costs.

The judgment entered three months later recited that it appeared “to the Court from the evidence presented that its judgment of May 4, 1977, did not correctly reflect the judgment rendered . . and decreed that plaintiffs “recover of and from Defendant C. R. Johnson, the sum of $2,500.00 .” with costs.

The only essential difference between the original judgment entered in May and the judgment nunc pro tunc entered in August is that the first judgment awarded $1,200 and the second awarded $2,500. The terms of the trial court being continuous, judgment rendered and entered in May became final after expiration of thirty days following entry of the judgment. Art. 1970-324, sec. 5, Vernon’s Ann. Civ.Stat. (Supp.1978); Rule 329b(6)(c), Texas Rules of Civil Procedure; Williams v. Pitts, 151 Tex. 408, 251 S.W.2d 148, 149 (1952). Validity of the judgment nunc pro tunc must be tested upon a determination, therefore, whether its purpose was to correct a clerical error or an error which as a matter of law was judicial. Finlay v. Jones, 435 S.W.2d 136 (Tex.1968).

The trial court heard the cause on May 4, 1977, and upon motion that day filed by plaintiffs, the court also on that day entered its “Order Granting Motion for Default Judgment” awarding plaintiffs recovery of $1,200. The judgment signed by the trial judge recites, “RENDERED AND ENTERED THIS 4th day of May, 1977.” Thus the trial court, after deciding to render judgment for plaintiffs, first found plaintiffs were entitled to $1,200 and then awarded damages in the sum of $1,200.

The record is devoid of any evidence to show, or tending to show, how a mistake in the amount of the award might have occurred. The record on its face plainly shows without contradiction that the judgment rendered on May 4, 1977, was the judgment signed by the judge and entered that day. Even if an improper judgment was entered, the mistake was that of the judge in its rendition and therefore was a judicial act. Love v. State Bank & Trust Co., 126 Tex. 591, 90 S.W.2d 819 (1936); Missouri Pac. Ry. Co. v. Haynes, 82 Tex. 448, 18 S.W. 605 (1891); Finlay v. Jones, supra. We hold that if the amount of the award in the original judgment was an error, the error was judicial and may not be corrected three months later by judgment nunc pro tunc.

As pointed out earlier, the record fails to disclose that any notice of plaintiffs’ motion for judgment nunc pro tunc was given defendant, and the order granting the motion does not recite notice. The Rules of Civil Procedure require notice. Rules 316 and 21a. For this additional reason, the judgment nunc pro tunc entered August 4, 1977, was void. Kile v. Arrington, 16 S.W.2d 439 (Tex.Civ.App. Eastland 1929, no writ); Stevenson v. Fisk, 65 S.W.2d 507, 509 (Tex.Civ.App. Eastland 1933, no writ); Henneman Grain & Seed Co. v. Hill, 68 S.W.2d 525, 526 (Tex.Civ.App. Amarillo 1934, no writ).

.The trial court as a matter of law was powerless to correct its original judgment after it became final because the error sought to be corrected was judicial. We render judgment that the judgment nunc pro tunc be set aside.

Reversed and Rendered.


author: MURRAY, Justice.

text:
    Cary Louis OUBRE, Appellant, v. Patricia Anne OUBRE, Appellee.
    No. 16123.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 13, 1978.
    Lloyd L. Oubre, San Antonio, for appellant.
    James V. Mondin, San Antonio, for appel-lee.
   OPINION

MURRAY, Justice.

This is an appeal from an order of dismissal entered by the trial court sustaining appellee’s special appearance under Rule 120a of the Texas Rules of Civil Procedure. Cary Louis Oubre, appellant, and Patricia Anne Oubre, appellee, were divorced on June 12, 1975, in Bexar County, Texas. The divorce court appointed appellee managing conservator and appellant possessory conservator of the only child of the marriage. On February 6, 1978, appellant filed a motion to modify, which sought to change custody and, in the alternative, sought to enlarge visitation rights. Appellee was personally served with citation in the State of Florida on February 17, 1978, pursuant to the provisions of Section 11.051 of the Texas Family Code and Rule 108 of the Texas Rules of Civil Procedure. Thereafter, ap-pellee filed a special appearance contesting the in personam jurisdiction of the Texas court.

This case is before the court on an agreed stipulation of facts, which provides in part:

1. The parties were premarital inhabitants of Bexar County, Texas.
2. During the marriage, the parties resided in Bexar County, Texas.
3. The child was born in Bexar County, Texas.
4. The parties were divorced in Bexar County, Texas, on June 12, 1975.
5. After the divorce, both parties continued to reside in Bexar County, Texas, where child support was paid and custody and visitation rights were exercised.
6. Appellee' resided in Bexar County, Texas, until January 7 or 31, 1978, when she and the child left Texas and moved to Orlando, Florida.

We agree with appellant that the trial court erred in dismissing the cause for want of jurisdiction because jurisdiction may be had under the provisions of Section 11.051 of the Texas Family Code, which provides:

In a suit affecting the parent-child relationship, the court may exercise personal jurisdiction over a person on whom service of citation is required or over the person’s personal representative, although the person is not a resident or domiciliary of this state, if:
(1) the child was conceived in this state and the person on whom service is required is a parent or an alleged or probable father of the child;
(2) the child resides in this state, as defined by Section 11.04 of this code, as a result of the acts or directives or with the approval of the person on whom service is required;
(3) the person on whom service is required has resided with the child in this state; or
(4) notwithstanding Subdivisions (1), (2), or (3) above, there is any basis consistent with the constitutions of this state or the United States for the exercise of the personal jurisdiction.

Tex.Fam.Code Ann. § 11.051 (Vernon Supp. 1978-1979).

It is undisputed that the agreed stipulation of facts comes within the situational requirements of subsections 1 and 3 of this statute. Since “all assertions of state court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny,” we must next determine whether the facts of this case are constitutionally sufficient to satisfy traditional notions of fair play and substantial justice. Shaffer v. Heitner, 433 U.S. 186, 212, 97 S.Ct. 2569, 2584, 53 L.Ed.2d 683 (1977).

Due process requires that the nonresident defendant have certain minimum contacts with the forum state out of which the cause of action arose and that the defendant must have purposefully conducted activities within the forum state. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). In discussing the due process requirements necessary to establish jurisdiction over a nonresident defendant by a state court, our Supreme Court in O’Brien v. Lanpar Company, 399 S.W.2d 340 (Tex.1966), held:

“(1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.”

399 S.W.2d at 342; Accord, U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760, 762 (Tex.1977).

In considering this jurisdictional question in a child custody case, the paramount consideration is what would be in the best interests and welfare of the child. Consequently, the most important factor to be considered is the ability of the forum state to reach a result which would promote the child’s best interests. Since this decision depends upon the evidence adduced in the ease, the most appropriate forum will be one where the witnesses and the evidence are most accessible. Corliss v. Smith, 560 S.W.2d 166, 172 (Tex.Civ.App.—Tyler 1977, no writ). In discussing this issue of the relative convenience of the parties and the witnesses, the court in Corliss stated:

In the usual situation, the witnesses would include the parents, the children, domestic relation counselors (including, perhaps, the professional court personnel who have met with the parents and children), the children’s teachers, doctors, ministers, neighbors and other persons sufficiently acquainted with the children to offer testimony as to what would be in the children’s best interests. The factual situation must be such that it would be fair and reasonable to require the defendant to come into the state and defend the action.

560 S.W.2d at 172.

The situation in Corliss v. Smith is identical to the present case except for the length of time the wife had been absent from the forum state. In Corliss v. Smith the wife left the State of Texas on November 27, 1972, and the ex-husband filed his petition on December 15, 1976. During this four-year period of time, he did not visit, see, or communicate orally or in writing with his children, except one time on April 12, 1974. The court held that under these facts it would not be fair or equitable to require the wife to come into this state and defend the action.

The stipulations in this case show that the mother and child had been absent from this state for only a few days when this suit was filed. The witnesses, who could testify as to the welfare and best interests of the child, are in this state. The Florida courts have no subpoena power to compel the attendance of the child’s teachers, doctors, ministers, neighbors, and other persons sufficiently acquainted with the child to offer testimony as to what would be in the child’s best interest. For this reason, we hold that the appellee would not be denied due process of law if required to defend appellant’s suit in Texas.

Texas courts have given full faith and credit to decrees of sister states under similar circumstances. Follak v. Brown, 530 S.W.2d 882 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.).

Furthermore, Florida adopted the “Uniform Child Custody Jurisdiction Act” on October 1, 1977. This Act clearly indicates that at this time, Texas is the appropriate forum to litigate the best interests of the child. In determining whether Florida is an inconvenient forum, Section 61.1316 of the Act provides that Florida should not assume jurisdiction of a child custody case if another state is or recently was the child’s home state; if another state has a closer connection with the child and his family or with the child and one or more of the contestants; if substantial evidence concerning the child’s present or future care, protection, training and personal relationships is more readily available in another state; or if the exercise of jurisdiction by a Florida court would contravene any purpose stated in Section 61.1304. Fla.Stat.Ann. § 61.1316 (West Supp. 1978). Section 61.1306 defines “home state” as the state in which the child lives or has lived for six consecutive months preceding the commencement of the suit. Fla.Stat.Ann. § 61.1308 (West Supp. 1978). Finally, Section 61.1304(3), in declaring one of the general purposes of the Act, says that the state with the closest connection to the child and his family is the appropriate forum for jurisdiction in child custody cases. The primary factor, in determining which state has the closest connection to the child and his family, is the place where significant evidence concerning the child’s care, protection, training and personal relationships is most readily available. Under this standard, if the courts of another state have a closer connection, the statute purposes that the Florida courts decline jurisdiction of the case. Fla.Stat.Ann. § 61.1302 (West Supp. 1978).

Under these Florida statutes, the home state of the child is Texas. This suit was filed less than one month after appellee left Texas. In view of her prior residence in Texas, appellee would suffer less inconvenience and expense in defending the suit in Texas. Relevant evidence is more readily available in Texas than in Florida, and when all the circumstances are considered, we hold that the case falls within the constitutional limits of personal jurisdiction.

The judgment of the trial court is reversed and remanded.

      . For International Shoe and its progeny see: International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Travelers Health Assoc. v. Virginia, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154 (1950).


author: HALL, Justice.

text:
    Adrian F. MEYER et ux., Appellants, v. Sam P. WORDEN et ux., Appellees.
    No. 5850.
    Court of Civil Appeals of Texas, Waco.
    Dec. 14, 1978.
    Rehearing Denied Jan. 11, 1979.

      Fred A. Lange, Austin & Arnett, Houston, for appellants.
    W. H. Betts, Hempstead, for appellees.
   HALL, Justice.

This is a trespass to try title action filed May 14, 1976, by plaintiffs-appellants Adrian F. Meyer and wife, Vivian M. Meyer, (Meyers) against Sam P. Worden and wife, Helen Worden, (Wordens) over 1.3 acres of land situated in the Thomas Cartwright Labor No. 1, Abstract 21 of Austin County, Texas. The description of the tract in question set forth in Meyers’ petition states that the tract is bordered on its northeast side by the Brazos River, and that the southwest boundary of the tract is also the northeast line of 288.0371 acres owned by Wordens. In support of their action Meyers pleaded the three-years, five-years, and ten-years statutes of limitation. They also alleged that the 1.3 acres “accreted to Plaintiffs as a part of other lands owned and claimed by them and acquired, decreed and adjudged to the predecessors in title of Plaintiffs in Cause No. 7107, Jake Feik et al. v. Frank B. Meyer et al., in the District Court of Austin County, Texas, and as apportioned under the laws of the State of Texas are a part of the lands owned by and claimed by Plaintiffs.”

Wordens’ answer, filed September 29, 1976, contained a general denial and special pleas of res judicata and estoppel by judgment under which they asserted that the 1.3 acres claimed by Meyers was a part of the southeast corner of the Wordens’ 288.0371 acres of land which was the subject matter of a trespass to try action between these same parties in Cause No. 9015 in the District Court of Austin County, Texas, and awarded to Wordens by judgment dated September 20, 1974.

Upon Wordens’ motion, summary judgment was rendered on April 26, 1977, that Meyers take nothing. Meyers appeal.

Summary judgment is proper if the proof establishes that there is no genuine issue as to a material fact and that the moving party is entitled to judgment as a matter of law. Rule 166-A(c), Vernon’s Tex.Rules Civ.Proc. It is settled that in determining the propriety of a summary judgment, both in the trial court and on appeal, all conflicts in the evidence are disregarded, the proof which tends to support the position of the party opposing the motion is accepted as true, and all doubts as to the existence of a genuine issue of material fact are resolved against the movant. Farley v. Prudential Insurance Company, 480 S.W.2d 176, 178. (Tex.Sup.1972).

Meyers assert that under the rules for testing summary judgments, there are material fact questions in our case relating to (1) their pleas of limitation, (2) whether the 1.3 acres of accreted land was properly apportioned between the parties by the court in Cause No. 9015, and (3) whether the 1.3 acres accreted after the judgment in Cause No. 9015. We overrule those contentions and affirm the judgment.

Cause No. 9015 was a trespass to try title action between Wordens and Meyers in which Wordens were plaintiffs and Meyers were defendants. In that case both Wor-dens and Meyers pleaded the three-years, five-years, ten-years, and twenty-five-years statutes of limitation. The judgment in that case was dated September 20, 1974, and awarded title and possession of 288.-0371 acres of land to Wordens. The northeasterly end of the 288.0371 acres by precisely following the course and distance calls in the judgment is shown on the following plat by the black line between points C — D, D- — D + 1, D t 1 — E, and El — E + 2:

[See following illustration.]

The line between points D — D + 1 and D + 1 — E on the plat is particularly pertinent to our discussion. In the judgment in Cause No. 9015 the call for boundary line C — D was “North 59° 00' East along the Northwest line of the herein described ' tract” and ended (at point D on our plat) at “a point on the West bank of the Brazos River for the Northeast corner of the herein described 288.0371 Acre Tract of land.” Then, the description in the judgment continues “South 50° 33' East along a meander line of the West bank of the Brazos River 661.96 feet to an angle point on same” (point D + 1 on our plat), and “Thence South 45° 02' 48 sec. East along a meander line of the West bank of the Brazos River 336.07 feet to a point on said line for the most Northerly Northeasterly corner of the herein described 288.0371 Acre Tract of land” (point E on our plat). Then the description continues “South 56° 13' West” along a line “between the South side of Sam P. Worden tract and the North side of Adrian F. Meyer tract” (being the line marked E — E + 1 and E + 1 — E + 2 on our plat).

The judgment in Cause No. 9015, appealed by Meyers, was affirmed in Meyer v. Worden, 530 S.W.2d 904, (Tex.Civ.App.—Houston [1st Dist.] 1975, writ ref’d n. r. e.)

In Meyers’ petition in the case before us, the 1.3 acres was described as follows:

“BEGINNING at a point which is the most northerly northeasterly corner of the Sam P. Worden 288.0371 acre tract adjoining on the northwest other lands of Adrian Meyer, which point is South 45° 2' 8" East 339.05 feet from an angle point in the northeast line of said Sam P. Wor-den’s 288.0371 acre tract;
THENCE, North 56° 11' East 184 feet to cut-bank in the west bank of the Brazos River;
THENCE, up the meander line of said west bank of the Brazos River to a point reached by a line running [North] 45° 25' 30" East 171 feet from the north northeast line of the Sam P. Worden 288.0371 acre tract in the cut-bank of said Brazos River;
THENCE South 45° 25' 30" west to an angle point in the said northeast line of the Sam P. Worden 288.0371 acre tract;
THENCE South 45° 2' 8" East 339.05 feet to the PLACE OF BEGINNING, and containing 1.3 acres, more or less of land.”

Following that description, the 1.3 acres is located on our plat within points E — B, B — A, A — D + 1, and D + 1 — E. A plat attached to Meyers’ brief also locates it there.

Although the description of the 1.3 acres by Meyers, and other proof by them in the record, establishes that the tract is outside the expressed metes and bounds description in the judgment in Cause No. 9015 of Wor-dens’ 288.0371 acres, the description and proof also show without dispute that the tract adjoins the 288.0371 acres as shown on our plat and that it is bordered on its northeasterly side (line A — B on our plat) by the West bank of the Brazos River.

In Texas, it is the settled rule of construction of instruments of conveyance that a course and distance call which is stated to be “along the meander line” of a river conveys to the river and along the general course of the river for the boundary of the land conveyed, rather than along the direction and distance expressed in the call, unless there are other words in the instrument supporting another intention. Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226, 228 (1961); Strayhorn v. Jones, 157 Tex. 136, 300 S.W.2d 623, 631 (1957); Stover v. Gilbert, 112 Tex. 429, 247 S.W. 841, 843 (1923). It is also the settled rule that the call for acreage in an instrument of conveyance is the “least reliable of all calls” and “cannot control the rest of the description unless there is an express covenant in the deed that the acreage mentioned is the only land to be conveyed.” Texas Pacific Coal & Oil Company v. Masterson, 160 Tex. 548, 334 S.W.2d 436, 439 (1960).

There was no language in the judgment in Cause No. 9015 qualifying the call “along a meander line of the West bank of the Brazos River” for the northeasterly boundary of the 288.0371 acres awarded to Wordens. Under the rules set forth above the award included the 1.3-acre tract now claimed by Meyers if the tract was then in existence and was then bordered on its northeasterly side by the West bank of the Brazos River; and it entitled the Wordens to the summary judgment in question on their pleas of res judicata and estoppel by judgment.

Meyers’ contention that the 1.3 acres accreted after the judgment in Cause No. 9015 is not supported by the record. The evidence does contain a survey offered by Meyers which shows that on March 15,1977, the vegetation line of the West bank of the Brazos River was approximately 139 feet northeast of line D + 1 — E on our plat, that the second bank of the river was an additional 69 feet northeast, that the first bank was an additional 53 feet northeast, and that the water line of the river was an additional 47 feet northeast, and that the 1.3 acres in question lie in that area. However, there is no evidence that those were not the facts on September 20, 1974, when the judgment in Cause No. 9015 was rendered, and it is not reasonably inferable from the record that those lines did not exist when the judgment was rendered. If they did not, proof of that fact would have been a simple matter for Meyers. Instead, they stated by affidavit that they have had the 1.3 acres under fence grazing their cattle on it since 1965.

As we have said, Meyers filed this suit on May 14, 1976, less than two years after the judgment in Cause No. 9015. Accordingly, their claims of title to the 1.3 acres under the pleaded statutes of limitation are without merit.

Dotted line D + 1- — Z on our plat was established as the boundary line between Wordens’ and Meyers’ predecessors in title, Jake Feik and Frank B. Meyer, in a lawsuit in 1937. The land lying northeast of dotted line E + 1 — X and an extension of that line westerly to line C — D accreted with the change of course of the Brazos River after 1937, and was a part of the land in controversy between our parties in Cause No. 9015. For reversal of the summary judgment before us, Meyers now assert that apportionment of the accreted land lying between dotted line E + 1 — X and the West bank of the river was not an issue in Cause No. 9015 and was not done by the court in that case; that under the rule set forth in Sharp v. Womack, 127 Tex. 357, 93 S.W.2d 712 (1936), the apportionment would be based in part on the former boundary line D + 1 — Z; that the court in our case should have made such apportionment; and that if this were done they would own the 1.3 acres in question. However, the opinion of the appellate court affirming the judgment in Cause No. 9015 shows that the identical issue of want of apportionment under the rule in Sharp v. Womack was raised by Meyers on that appeal, and that it was decided against them there.

The opinion of the Court of Civil Appeals on the appeal by Meyers from the judgment in Cause No. 9015 reflects that Meyers took a limited appeal and carried forward only a partial statement of facts. We quote the pertinent parts of the opinion from 530 S.W.2d, pages 905 and 906:

“The principal issue in the case relates to certain lands bordering the Brazos River which have been formed by accretion. The Meyers contend that the boundary line between their land and that of the Wordens as drawn by the court in its judgment does not properly apportion this accreted land between the parties.
“In essence the Meyer appellants contend that the trial court erred in failing to follow the procedures for the division of accreted land set out by the Supreme Court of Texas in Sharp v. Womack, 127 Tex. 357, 93 S.W.2d 712 (1936). This case held that accretions to riparian land should be apportioned to the owners of adjoining lands in proportion to river frontage of those lands as shown by the original field notes and by present frontage surveys on rivers enclosing accreted lands.
“The Meyers state their contention in these words in their brief:
‘The title and ownership of the accreted land lying between the Northeast Worden fence and the Brazos River became an issue because there was no proof as to what land is to be apportioned to the Worden tract and the Meyer tract as an accretion and thus part of the title to which the accretion attaches. The location of the boundary line must be extended from the 1937 adjudication (Feik vs. Meyer) in conformity with the rule for apportioning accreted lands between adjoining owners along rivers, announced in Sharp, and hereinabove referred to.’
“In the absence of a complete statement of facts we cannot say that there was ‘no proof’ as to what land is to be apportioned to the Worden and Meyer tracts as an accretion. There is no testimony in the record before us from which the true location of the boundary line determined as required by Sharp v. Womack can be ascertained. In the absence of such information we cannot determine whether the Wordens received more or less land than that to which they were entitled. At the trial it was their burden to produce this information. On appeal it is the burden of the Meyers to show that the Wordens have failed to carry this burden. Without a complete statement of facts we cannot sustain what is essentially a no evidence point of error. The necessary evidence may be in that portion of the statement of facts which was not brought to this court. While the pleadings and evidence demonstrate that there was a material issue as to the location of the boundary line between the parties’ property on the accreted land, the record does not raise an issue of fact as to whether or not the trial court properly determined that issue on the evidence introduced at the trial.”

Meyers’ points and contentions are overruled. The judgment is affirmed.

      . Articles 5507, 5509, and 5510, Vernon’s Tex. Civ.St.


author: MOORE, Justice.

text:
    A. B. ROBERTS et al., Appellants, v. BROWNSBORO INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 1227.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 14, 1978.
    Rehearing Denied Jan. 11, 1979.
    Willis D. Moore, Moore, Bateman & George, Melvin G. Bateman, Athens, for appellants.
    Jack Jackson, Hathaway & Jackson, Tyler, for appellees.
   MOORE, Justice.

Appellants, A. B. Roberts and other taxpaying citizens brought suit in the form of a declaratory judgment action against ap-pellees, Brownsboro Independent School District and its trustees, seeking a judgment declaring that an order passed by the district calling a school bond election was void. Appellants allege that the order calling the election was void because the notices posted by the district notifying the public of the meeting at which the bond election was ordered did not notify the public that the calling of a bond election would be considered at the meeting and therefore the order was void because the same was passed in violation of the provisions of the Texas Open Meetings Law, Article 6252-17, Tex.Rev.Civ.Stat.Ann., sec. SAia). The School District answered with a Plea in Abatement alleging that appellants’ suit amounted to an attack on the validity of the bond election and as such amounted to an election contest under the provisions of Article 9.01, et seq., of the Texas Election Code, Tex.Rev.Civ.Stat.Ann. The District further alleged that appellants failed to give notice of their intention to contest the election within the 30-day period prescribed by Article 9.03 of the Texas Election Code, and therefore the court had no jurisdiction to determine the election contest. After a hearing, the trial court sustained the District’s Plea in Abatement and dismissed appellants’ suit. From such ruling and judgment, appellants perfected this appeal.

We affirm.

The record shows that the notices posted by the District notifying the public of the subject matter on the agenda for the meeting at which the bond election was called were as follows:

“Discussion with Larry Claycomb, architect, and Noel Johnson, Bond Consultant.”

At the meeting which was subsequently held on February 2, 1978, the School Board passed the following resolution:

“That a school bond election in the amount of Two Million Dollars be held on March 4, 1978. (Order attached.)”

The election was held on March 4, 1978, and on March 6, 1978, the School Board certified the results of the election and ordered that the bonds be issued and sold. Thereafter, appellants filed the present suit on April 21, 1978, some six weeks after the results of the election had been declared.

The cause was submitted to the trial court upon the following stipulation of facts:

“MR. JACKSON: Your Honor, if we may, I would like to make an attempt to state a stipulation, with the understanding that Mr. Moore may want to add to it or disagree with certain portions of it. Come now the parties and by and through their attorneys of record and for the purpose on the hearing of the defendants’ Plea to the Jurisdiction or Plea in Abatement, for the purpose he waives hearing evidence. On January 23, the Board of Trustees of the Brownsboro Independent School District caused to be posted, both at the school administration building and through the County Clerk’s office, notice of a meeting of that Board of Trustees to be held on February 2, 1978. The meeting of February 2 was held in accordance with the posted notices, and in that meeting of February 2, 1978 the following resolution was adopted:
‘That a school bond election, in the amount of two million dollars be held on March 4, 1978. (Order attached.)’ The approved minutes reciting: ‘Motion by Tom Crow, seconded by Billy Dingier, that a school bond election in the amount of $2,000,000 be held on March 4, 1978. (Order attached). Motion carried by all.’
“The bond election was duly called on March 4, 1978 and the Board of Trustees of the Brownsboro Independent School District, in open meeting on March 6, canvassed the results of that election. The officials certified the results of the election as the bond having been approved.
“Plaintiffs’ Original Petition in this cause was filed on April 21,1978, alleging with respect to the matters before the Court, in this hearing, the facts of the notice of January 23, 1978 and the action of the Board at its meeting on February 2, 1978, and asking that the Court determine that all actions taken by the Board with respect to, specifically for this hearing, with respect to the bond election, be declared null and void and of no force and effect whatsoever, for the reason that the notice, posted on or about January 23, 1978 of the meeting of February 2, 1978⅜ was wholly insufficient, within the meaning of Article 6252-17, the Texas Open Meeting Law.
“It is further stipulated that Plaintiffs’ Original Petition filed on April 21, 1978, was the first and is the only written notice given or delivered by plaintiffs or any one of them or any one for them, in their intention to contest the bond election of March 4, 1978, and was the first and only written statement of the grounds for such contest.
“It is further stipulated that there are no irregularities alleged by plaintiffs with respect to the bond election of March 4, other than the non-compliance with the Open Meeting Law, Article 6252-17, by the failure of the defendants to include in the posted notice, the action of calling a bond election.
“It is further stipulated that plaintiffs and all of them did in fact know of the bond election and of the date of the canvass of the return of the results of that election; that there was no written notice, within thirty days of the Board’s return of the result of that election, of their intent to contest the election or the grounds of any such contest. I believe that is the stipulation as I would see it.
“BY THE COURT: Mr. Moore, can you stipulate those facts or do you care to add to them or delete them?
“MR. MOORE: Your Honor, I only have one small disagreement with the Statement of Facts and that was a statement that the election was duly held. If that includes the election order was signed or passed at a meeting, which was a legal meeting, I object to that. That’s the principal of the lawsuit, that the election order is void, for the reason that it was passed at a meeting at which no adequate notice was given.
“MR. JACKSON: Your Honor, as I understand what Mr. Moore is saying, I think I have no disagreement with it. The sole issue before this Court, as I understand it, raised by plaintiffs with respect to this bond election, is that the election was called at meeting for which there had not been sufficient notice given, in accordance with Article 6252-17 of the action taken by the Board in calling that bond election.
“MR. MOORE: That’s correct, Your Honor.”

By a single point of error appellants contend that the trial court erred in ruling that it was without jurisdiction to determine whether the order calling the bond election was void and to declare such election null and void, because the suit filed by appellants does not constitute an election contest. In this connection, appellants take the position that an election contest is strictly limited to the grounds contained in Chapter 9 of the Texas Election Code, such as fraud and other irregularities taking place on the day of election. Therefore they argue that since their suit does not challenge the validity of the election on those grounds, their suit does not amount to an election contest. Consequently it was not necessary to give the 30-day statutory notice of the contest in order to confer jurisdiction on the court. In reply, the School District maintains that the suit amounts to an election contest because it attacks the validity of the order calling the election and requests the court to declare the order void which would have the effect of voiding the entire election. Thus the outcome of this appeal is made to turn on whether appellants’ suit constitutes an election contest.

Article 9.30 of the Texas Election Code provides as follows:

“If the contest be for the validity of an election held for any other purpose than the election of an officer or officers in any county or part of a county or precinct of a county, or in any incorporated city, town, or village, any resident of such county, precinct, city, town, or village, or any number of such residents, may contest such election in the district court of such county in the same manner and under the same rules, as far as applicable, as are prescribed in this chapter [arts. 9.01-9.38] for contesting the validity of an election for a county office. Acts 1951, 52nd Leg., p. 1097, ch. 492, art. 158.” .

As we interpret the provisions of the foregoing statute, an election “contest” is meant to embrace any type of suit in which the validity of an election or any part of the elective process is made the subject matter of the litigation. Clary v. Hurst, 104 Tex. 423, 138 S.W. 566, 571 (1911); Garza v. City of Robstown, 483 S.W.2d 32 (Tex.Civ.App.—Corpus Christi 1972, no writ history).

In Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1012, 1018 (1924), the Supreme Court of this state delineated the various facets of an election process which are subject to attack in a suit challenging the validity of the election. In that case, the court said:

“An election contest necessarily involves questions of both fact and law. It may be predicated upon a status or upon facts which existed before an election, upon what took place at the election, and perhaps in some instances upon a status or what took place after an election. .
“ . . .In determining what a ‘contested election’ is, we must bear in mind that an election in this state is not a single event, but a process, and that the entire process is subject to contest.”

A review of the authorities reveals that the courts of this state have consistently followed the foregoing rule and have held that where an attack is made on the validity of the election process such suit must be classified as an election contest. Turner v. Lewie, 201 S.W.2d 86, 88 (Tex.Civ.App.—Fort Worth 1947, writ dism’d); Rawson v. Brownsboro Independent School District, 263 S.W.2d 578, 580 (Tex.Civ.App.—Dallas 1953, writ ref’d n. r. e.); Kennedy v. Burnet Independent School District, 474 S.W.2d 742, 746, (Tex.Civ.App.—Austin 1971, no writ history); Garza v. City of Robstown, 483 S.W.2d 32 (Tex.Civ.App.—Corpus Christi 1972, no writ history). Appellants’ suit, although in the form of declaratory judgment action, clearly attacks the order for the election and hence constitutes an attack upon the election process.

On the basis of the foregoing authorities, we are convinced that appellants’ suit amounted to an election contest. This being the case, in order to invoke jurisdiction of the court, appellants had the burden of alleging and proving that they gave notice to the District of their intention to contest the election and the grounds therefore within thirty days after the return day of the election. The giving of such notice is mandatory and is a prerequisite to an election contest. Article 9.03, supra; Mitchell v. Carroll Independent School District, 435 S.W.2d 280 (Tex.Civ.App.—Fort Worth 1968, writ dism’d).

Appellants having stipulated that the mandatory 30-day notice requirement was not given, the trial court lacked jurisdiction to hear the matter and properly sustained the District’s Plea in Abatement. This conclusion is supported by Article 9.36 of the Texas Election Code which reads in part as follows:

“. . . If no contest of said election is filed and prosecuted in the manner and within the time herein provided for, it shall be conclusively presumed that said election as held and the result thereof as declared are in all respects valid and binding upon all courts, provided, that pending such contest the enforcement of all laws in relation to the subject matter of such contest shall not be suspended, but shall remain in full force and effect.”

Since the trial court lacked jurisdiction to determine the subject matter of appellants’ suit, the question of whether the order calling the bond election was void under the provisions of the Texas Open Meeting Law is not before us. Consequently any discussion of that question would be purely academic and unnecessary.

For the reasons stated, the judgment of the trial court is affirmed.

      . “Written notice of the date, hour, place, and subject of each meeting held by a governmental body shall be given before the meeting as prescribed by this section, and any action taken by a governmental body at a meeting on a subject which was not stated on the agenda in the notice posted for such meeting is voidable.”

      . “Any person intending to contest the election of any one holding a certificate of election for any office mentioned in this law, shall, within thirty (30) days after the return day of election, give him a notice thereof in writing and deliver to him, his agent or attorney, a written statement of the ground on which such contestant relies to sustain such contest. By the ‘return day’ is meant the day on which the votes cast in said election are counted and the official result thereof declared.”


author: McKAY, Justice.

text:
    CITIZENS STATE BANK OF DICKINSON, Texas, Ind. Exec. of Estate of Fagan Dickson, Appellant, v. Sander W. SHAPIRO et al., Appellees.
    No. 1171.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 14, 1978.
    Rehearing Denied Jan. 11, 1979.

      James R. (Ron) Weddington, Austin, for appellant.
    Scott R. Kidd, Jack Maroney, Brown, Ma-roney, Rose, Baker & Barber, Austin, for appellees.
   McKAY, Justice.

This is an appeal from a summary judgment granted by the trial court against appellant.

This case arises out of the alleged legal representation by appellees, a firm of attorneys, and two individual members thereof, of J. Fagan Dickson and his then wife, Roberta P. Dickson (now Roberta Cren-shaw). Fagan Dickson, the original plaintiff below, died during the course of proceedings in the trial court, and the present appellant, Citizens State Bank of Dickinson, Texas, as Independent Executor of his estate, was substituted as plaintiff.

Fagan Dickson, acting pro se, petitioned the district court on July 9, 1976, for authority to take his own deposition to perpetuate testimony pursuant to Rule 187, T.R. C.P. The court ordered that the deposition be taken before the court on a question- and-answer basis to permit rulings on objections, and the same was taken by video tape on December 20-21, 1976, a transcription of which is a part of the record before us. Fagan Dickson thereafter filed his original petition herein on March 3, 1977.

In final form the petition named as defendants the law firm of Clark, Thomas, Winters and Shapiro, and the individuals, Sander W. Shapiro and Frank N. Ikard, Jr., both of whom were members of said firm. It was alleged that Fagan and Roberta Dickson enjoyed harmonious and profitable marriage and business relationships from 1947 until 1972. In 1971 they retained the defendant law firm to perform various legal services. It was further alleged that defendants Shapiro and Ikard made false and secret communications to Mrs. Dickson to the effect that Dickson had disinherited her two daughters, had kept dishonest books, and had attempted to defraud her. In the spring of 1972, defendant Shapiro, according to the petition, devised a plan concerning the family corporation which called for the transfer of various properties into the name of the corporation, Dickson Properties, Inc., with the effect of placing the bulk of Dickson’s separate property and the community property into the corporation which Mrs. Dickson controlled. In April of 1972 this plan was carried out.

Appellant alleged that as a direct and proximate result of the communications made by Shapiro and Ikard to Mrs. Dickson, both the marital and business relationships of the Dicksons significantly deteriorated. Mrs. Dickson filed for divorce on April 8, 1974 and was represented therein by the defendant law firm. The divorce was granted and the property divided. The opinion on appeal of the divorce judgment is reported in Dickson v. Dickson, 544 S.W.2d 200 (Tex.Civ.App.—Austin 1976, writ ref’d n. r. e.). Under her powers as a majority shareholder in the family corporation, Mrs. Dickson called a stockholders’ meeting and removed Dickson from his position as an officer of the corporation. It was further alleged that at the divorce trial defendants Shapiro and Ikard testified against Fagan Dickson and there told the alleged falsehoods that had theretofore been kept secret. The petition states that from the time the defendant law firm began its representation of the Dicksons until the testimony of Shapiro and Ikard at the divorce trial, the defendants fraudulently concealed their actions and in furtherance of this concealment, wrote Dickson a letter in March of 1972, the purpose of which was to mislead him into thinking there was no conspiracy against him. It was further alleged that the defendants attempted to place all of Dickson’s property in a trust to be administered by a bank whom the defendant law firm also represented. Fagan Dickson refused to sign over his property as suggested by the defendants, but it was alleged that this showed that the defendants were working against the interests of Dickson and Mrs. Dickson to the advantage of another client.

There are then alleged in the petition six separate causes of action: (1) the defendants violated the Code of Professional Conduct of the State Bar Act by failing to represent Dickson in an ethical manner, specifically indicating alleged violations of disciplinary rules 4-101, 5-101, 5-102, 5-105, and 7-102; (2) the defendants failed to discharge their duty to exercise the degree of skill and learning ordinarily exercised and possessed under the same circumstances by other attorneys in Austin, Texas, or similar communities; (3) the defendants set out on a course of conduct which they knew or should have known would destroy the marriage between Fagan Dickson and his wife by alienating and destroying her affections for him and causing her to seek a divorce from him; (4) the defendants breached implied warranties that they would provide Fagan Dickson with accurate information and that they would comply with their obligations under their contract with him and honor the attorney-client privilege; the defendants failed to perform their obligations under the contract, misrepresented facts and law to Fagan Dickson, and divulged privileged information to third parties; (5) the defendants actively interfered with Fagan Dickson’s interest in the family business; and (6) the defendants made defamatory statements about Fagan Dickson with intent to disgrace him and to injure his reputation. The petition then alleges damages in the total amount of $19,700,000.00.

In their answer the defendants pleaded a general denial, and specifically that Fagan Dickson sought only to relitigate the issues already determined adversely to him in the divorce suit and that plaintiff was therefore barred by res judicata, collateral estoppel, and estoppel by judgment. The defendants further pleaded that most of the accusatory allegations made by plaintiff involved acts allegedly occurring at such a time that any purported causes of action arising therefrom would be barred by the two-year statute of limitations.

The defendants further state in their answer that the only allegations made by plaintiff not barred by the statute of limitations involved the testimony of Shapiro and Ikard during the divorce action and that such matters are absolutely privileged in law and cannot give rise to a cause of action. Defendants deny that their actions caused plaintiff any financial damage except with regard to the division of property on divorce which was a matter for the discretion of the trial court. Defendants further deny the allegations of violations of the Code of Professional Conduct and specifically deny even representing the plaintiff. Moreover, defendants deny receiving or using any secrets or confidences of the plaintiff, and state that Fagan Dickson, as well as the defendants, was an attorney for Mrs. Dickson and owed the duty of full disclosure to the defendants. Therefore, there were no secrets to be kept.

Appellees, defendants below, submitted their motion for summary judgment under the provisions of Rule 166-A, T.R.C.P., on the ground that there was no genuine issue as to any material fact and they were entitled to judgment as a matter of law.

Appellees’ summary judgment proof, attached as exhibits to their motion for summary judgment, consisted of nine items: (1) a certified copy of the divorce judgment; (2) the opinion of the Court of Civil Appeals on the appeal of the divorce case, attached to an affidavit by appellees’ attorney attesting to its genuineness; (3) certified copies of pleadings in the divorce action, to-wit: (a) Roberta Dickson’s second amended original petition, (b) her second amended original answer to cross-petitioner’s [Fagan Dickson’s] second amended cross-action, and (c) Fagan Dickson’s second amended original answer and second amended cross-action (to be discussed in detail, infra); (4) a certified copy of Fagan Dickson’s motion in the divorce action to disqualify Mrs. Dickson’s attorneys and strike their testimony; (5) an affidavit by Roberta Crenshaw (formerly Roberta Dickson); (6) an affidavit by Steve Pena; (7) an affidavit by John Anderson; (8) an affidavit by Donald S. Thomas; and (9) an affidavit by Arthur Mitchell.

Appellant’s response to appellees’ motion for summary judgment indicated that because the original plaintiff, Fagan Dickson, had died during the course of the proceedings, it would be difficult to produce controverting affidavits. Appellant, however, urged the court to consider the deposition of Fagan Dickson and its exhibits which were on file in the trial court.

Inasmuch as this is a summary judgment case, the general rules relating to such judgments must be applied. Rule 166-A(b), T.R.C.P., states, “A party against whom a claim ... is asserted . . . may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.” Subdivision (c) of that rule states, in part, “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, on file at thé time of the hearing, or filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues as expressly set out in the motion or in an answer or any other response.”

In summary judgment cases, the question presented for decision on appeal, as it is in the trial court, is not whether the summary judgment proof raises fact issues regarding essential elements of the plaintiff’s cause of action, but rather whether such proof establishes as a matter of law that there is no genuine issue of fact as to one or more of said essential elements. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). The rules to be followed by an appellate court in reviewing a summary judgment record were expressed in Wilcox v. St. Mary’s University of San Antonio, Inc., 531 S.W.2d 589, 592-3 (Tex.1975):

“1. The movant for summary judgment . has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. [Citations omitted.]
“2. In deciding whether or not there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant . . . will be taken as true. [Citation omitted.]
“3. Every reasonable inference must be indulged in favor of the non-movants and any doubts resolved in their favor. [Citations omitted.]”

In reviewing a summary judgment case, we must also be ever mindful of the oft-repeated admonition that summary judgment is a procedure to be cautiously applied. Archer v. Skelly Oil Co., 314 S.W.2d 655, 663 (Tex.Civ.App.—Amarillo 1958, writ ref’d n. r. e., 159 Tex. 154, 317 S.W.2d 47 [1958]).

In its first point of error, appellant asserts that the trial court erred in granting summary judgment if such judgment were based upon a determination that several of appellant’s causes of action were barred by limitations. In an action for fraud and deceit, the applicable period of limitations is two years as established by Article 5526, Vernon’s Tex.Civ.Stat.Ann. In such case, the cause of action accrues at the time the fraudulent act is perpetrated, unless it is concealed from or unknown to the deceived party, but in any case the period of limitations begins to run upon the discovery of the fraud or when it could have been discovered by the exercise of reasonable diligence. Quinn v. Press, 135 Tex. 60, 140 S.W.2d 438, 440, 128 A.L.R. 757 (1940); Gaddis v. Smith, 417 S.W.2d 577, 579-80 (Tex.1967). Further, where a motion for summary judgment is predicated on the running of a limitations period, the movant has the burden of negating the discovery rule, if raised by the pleadings of the non-movant, by proving as a matter of law that there was no genuine issue of fact concerning the time when the injured party discovered or should have discovered the nature of the injury. Weaver v. Witt, 561 S.W.2d 792, 794 (Tex.1977).

It is appellant’s primary contention here that Fagan Dickson did not discover the alleged fraud and deceit by appellees until he heard the testimony of appellee Frank Ikard at the divorce trial on April 1, 1975, and that therefore Dickson’s filing suit on March 3, 1977, was within the two-year statute of limitations. Were this the only proof available, appellant might prevail on this point. In the summary judgment proof attached to the motion, however, there is a certified copy of an instrument, which was filed in the previous divorce action, denominated as “Respondent’s [i. e., Fagan Dickson’s] Second Amended Original Answer and Second Amended Cross-Action,” in which Dickson pleads,

“Cross-Petitioner would state that the Cross-Respondent in combination with her attorneys and others unknown to Cross-Petitioner, entered into a conspiracy and a combination to destroy the Cross-Petitioner’s rights in and to the community property accumulated by the Cross-Petitioner and the Cross-Respondent as well as in and to the separate property owned by the Cross-Petitioner in the latter part of 1971 and/or in the first part of 1972. The combination and/or agreement found its manifestations in and to the destruction of Cross-Petitioner’s rights in and to the Dickson Properties, Inc. stock by causing internal amendments to be made so as to destroy his cumulative voting rights, so as to destroy his rights to be represented on the Board of Directors of said company, so as to place the Cross-Respondent in absolute and complete control of the company so that Cross-Petitioner’s stock in the amount of $3,000,000.00 is now worthless. The fruits of said conspiracy leaves [sic] Cross-Petitioner at the mercy of the dominant control of said company in Cross-Respondent.
“Further carrying out said conspiracy, Cross-Respondent in conjunction with her co-conspirators proceeded to destroy the rights of Cross-Petitioner in and to community realty so as to place the same ostensibly in separate property of Cross-Respondent, to the end that Cross-Petitioner was damaged in an additional amount as to the real property accumulated during the marriage of Cross-Petitioner and Cross-Respondent in the sum of $1,100,000.00.
“Cross-Petitioner further states that not only did the conspiracy have as its purpose the destruction of his interest in and to the stock owned by Cross-Petitioner and in and to the real property owned by Cross-Petitioner but also in and to the homestead rights claimed by Cross-Petitioner in and to the property which he has occupied with Cross-Respondent for many years. The fruits of this conspiracy were that Cross-Petitioner was brutally and physically dispossessed of the homestead, which wrongful dispossession was a part of the total and complete destruction of Cross-Petitioner’s property rights, his emotional well being, as well as the physical possession of his homestead.
“Finally, Cross-Petitioner states that the ultimate in the conspiracy is the filing of the divorce case and the final complete act of the conspiracy, a dissolution of the marriage between himself and Cross-Respondent.”

Dickson, in said instrument, further alleged damages proximately caused by such conspiracy and prayed judgment therefor. Significantly, this instrument bears a district court file-mark with the date February 27,1975. Appellees maintain that the filing of this instrument, containing as it does allegations of conspiracy by Mrs. Dickson and her attorneys (including appellees herein) against Fagan Dickson, indicates conclusively that Dickson knew more than two years before he filed suit herein of his alleged cause of action for fraud and deceit. We agree.

Appellant correctly states that this instrument was the only summary judgment proof on the issue of limitations. If it proves to be sufficient, however, there need be none other. Assuming that appellant’s allegations in the trial court raise a fact issue with regard to fraud and deceit and concealment thereof, and assuming further that the discovery rule applies in these circumstances, appellant is still barred by a plea of limitations if Fagan Dickson delayed an unreasonable time after discovery of facts upon which a cause of action might have been predicated to file suit thereon. The question to be resolved is whether the instrument offered as summary judgment proof by appellees was such that reasonable minds could not differ as to the effect thereof on the issue of limitations. Edsall v. Edsall, 238 S.W.2d 285, 288 (Tex.Civ.App.—Eastland 1951, writ ref’d n. r. e.).

Appellant relies heavily upon the case of Wilson v. Armer Oil Co., 496 S.W.2d 702 (Tex.Civ.App.—Fort Worth 1973, no writ). There the plaintiff, an oil company gauger, was employed by Gulf Oil Company to, inter alia, buy oil from other producers; he alleged that he purchased oil from the defendants but that they deceived him as to which wells the oil came from and as a result his employer accused him of wrongdoing and discharged him. The defendants moved for summary judgment on the ground that the plaintiff’s cause of action was barred by limitations as a matter of law, as shown by the summary judgment proof. Attached to the motion of one defendant and adopted by the other as part of his motion was a certified copy of a complaint filed in federal court by the plaintiff against his former employer. It was contended in the motions that allegations made by the plaintiff in the federal complaint showed that he acquired knowledge of facts upon which to base his fraud and deceit action more than two years prior to his bringing such action. Neither defendant offered any other documentary evidence in support of his motion. Plaintiff replied that he did not become aware of the fraud practiced upon him until late in October, 1969, a point in time within two years prior to his filing suit against the defendants. The trial court granted summary judgment for both defendants.

On appeal, the Court of Civil Appeals reversed, holding that a pleading filed by a party in another case which contains statements inconsistent with the position he takes in a subsequent case is admissible against him in the later suit as an admission; in the case before it, however, the court held that the federal complaint was not proved up by the defendants so that it constituted legitimate summary judgment evidence. The defendants did not prove it up by deposition, affidavit or admission, and this was held to be fatal to their motions.

The court further held that the defendants were required to lay a proper predicate for introducing the federal complaint by showing the plaintiff to be the same person who filed the complaint and that it was filed by him or his authorized attorney or agent.

As a third reason for reversing the summary judgment, the court stated that admissions by a party contained in a pleading from another case are not conclusive against him, i. e., that he may offer other evidence tending to explain or contradict such admissions, thereby raising a fact issue to be decided by the trier of fact. Thus, even if the federal complaint were considered to be legitimate summary judgment proof, a fact question was presented as to whether the plaintiff was telling the truth when he made the allegations in the federal complaint or when he made the statements to the contrary in his reply to the defendants’ motions for summary judgment.

Appellant contends that this case and the holdings therein control the instant case. We do not agree.

Here, as in Wilson, the portion of the summary judgment proof relied upon by the movant to show that the cause of action against it is barred by limitations, is a pleading which was filed in another case. The pleading here is certified by the district clerk below to be a true and correct copy of said pleading as it appears on file and of record in his office. There is, however, no sworn affidavit to which the pleading is attached.

The court in Wilson quoted the portion of Rule 166-A(e), T.R.C.P., which states, “Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” Since the federal complaint was neither attached to nor served with a supporting affidavit, it was held to constitute extrinsic documentary evidence which could not be considered by the trial court in passing on the motions for summary judgment. This court has held, however, that summary judgment proof accompanying the motion therefor need not necessarily be in the form of affidavits nor incorporated within affidavits. Bagwell v. Lotspeich, 561 S.W.2d 920, 923 (Tex.Civ.App.—Tyler 1978, no writ). Rather, it may be contained within the motion or may be attached to the motion or to an affidavit which is attached to the motion. Robinson v. Bullock, 553 S.W.2d 196, 199 (Tex.Civ.App.—Austin 1977, writ ref’d n. r. e.); Texas National Corp. v. United Systems International, Inc., 493 S.W.2d 738, 741 (Tex.1973). “A situation can arise in which a motion might find full support in the depositions or other discovery proceedings, certified copies of documents, and similar instruments which the court could consider without the necessity of a supporting affidavit by a witness.” 4 McDonald’s Texas Civil Practice sec. 17.26.5 at p. 143 (1971). See also Whelan v. New Mexico Western Oil & Gas Co., 226 F.2d 156 (10th Cir. 1955).

The Wilson court relied upon the case of State v. Easley, 404 S.W.2d 296 (Tex.1966), for its holding that documentary evidence must be attached to a supporting affidavit. An inspection of that opinion, however, demonstrates that this reliance is misplaced. In Easley, the Supreme Court states,

“In addition to the ‘pleadings, depositions and admissions on file, together with affidavits, if any’ as specified by Rule 166-A, . the parties introduced extrinsic evidence consisting of [inter alia,] a certified copy of a part of the proceedings in Cause No. 1342 in the County Court . . . None of items enumerated in the above sentence were attached ‘thereto or served therewith’ of either of the affidavits supporting either party’s motion for summary judgment. A reading of Rule 166-A demonstrates that none of these instruments was entitled to consideration in a summary judgment hearing. The trial court’s judgment recites that extrinsic evidence was heard and the trial court filed findings of fact and conclusions of law.”

Thus, in Easley, the documentary evidence referred to, including papers filed in another proceeding, was introduced before the trial court independent of and apart from other matters on file and the motion and affidavits attached thereto. It is well established that the trial court may not receive evidence, either oral or documentary, at the hearing on a motion for summary judgment, Baebel v. River Oaks Bank & Trust Co., 498 S.W.2d 461, 463 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ); L. C. Russell Co., Inc. v. Pipeguard Corp., 504 S.W.2d 596, 598 (Tex.Civ.App.—Beaumont 1973, writ ref’d n. r. e.); and that is the extent of the holding in State v. Easley in the portion of that opinion quoted above. The sentence quoted by the Wilson court from Rule 166-A(e), states that when other documents are mentioned in an affidavit, they must be attached to or served with it. It does not say, and we do not construe it to mean (as the Wilson court apparently did) that all documentary evidence must be attached to or served with an affidavit in order to constitute legitimate summary judgment proof.

There was no objection to the summary judgment proof in the trial court. A party may not raise the issue of an alleged defectiveness of the opposing party’s summary judgment proof in support of the opposing party’s motion for summary judgment, for the first time on appeal. Sparkman v. Peoples National Bank of Tyler, 501 S.W.2d 739, 745 (Tex.Civ.App.—Tyler 1973, writ ref’d n. r. e.). The Supreme Court, in Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 234 (Tex.1962), states,

“If [the party against whom summary judgment was rendered] was in any doubt as to these matters or if it was prejudiced in any way by the fact that sworn or certified copies of the operating agreements were not attached to or served with the Johnson affidavit, it. should have excepted to the affidavits at or prior to the hearing. The deficiencies which it now urges appear to be purely formal, and it may be assumed that they would have been corrected upon proper exception in the trial court. We hold that objections of this kind may not be raised for the first time on appeal when it fairly appears from the record that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

So it is in the instant case on the issue of limitations. See McNeill v. Lovelace, 529 S.W.2d 633, 638 (Tex.Civ.App.—Fort Worth 1975, no writ). Appellant does not dispute the existence of the pleading in the divorce suit or that Fagan Dickson filed it, but only disputes, as will be seen later, the proposition that Dickson had a factual basis for making the allegations therein at the time they were made.

The second basis on which the Wilson court relied in reversing the summary judgment was that a proper predicate must be laid before a pleading in another case can be considered as evidence, specifically showing that the plaintiff was the same party who was referred to in the pleading, and a showing that it was filed by him, or by his authorized attorney or agent. In the instant case, from a close examination of the entire record before us, it is clear that all parties and all counsel have acknowledged throughout both the proceedings in the trial court and those before this court, that the Fagan Dickson who was the original party plaintiff herein, was the same person who was the respondent in the prior divorce action and in whose behalf the pleading at issue was filed therein. Although this has never been disputed, appellant makes reference in its brief here to the second holding in Wilson and states “such is the situation in the present case.” While it is unquestionably the better practice to foreclose all such issues by specific affidavit proof, it is amply demonstrated by the record before us that no one was misled as to the identity of the party who made the pleading in the divorce suit, and that all concerned knew and understood that the Fagan Dickson there was the same person as the Fagan Dickson here. We perceive, therefore, no error in the trial court’s granting summary judgment at least partially on the basis of a fact known and recognized by all parties. See Youngstown Sheet & Tube Co. v. Penn, supra. Again, this defect is a matter of form which was waived by appellant here by its failure to raise objection thereto in the trial court. Indeed, appellant, in its response to appel-lees’ motion for summary judgment, made no mention of the pleading in the divorce suit which had been submitted to the court with the motion.

The third ground for the reversal in W;7son was that a party’s admissions in a pleading filed in another case, while evidence of the issue involved are not conclusive against him. The basis for that holding, however, was that there was an affidavit submitted by the party resisting the motion for summary judgment which specifically contradicted the allegations made in the federal complaint, thus raising a fact issue as to the credibility of that party, as found by Wilson court. In the instant case, however, there is no such affidavit or any other proof submitted by appellant in response to appellees’ motion for summary judgment which specifically contradicts the import of the aforementioned pleading filed by Fagan Dickson in the divorce suit, that import being that Dickson was aware, at the time of the filing of that document, of alleged facts on which to base a cause of action for conspiracy or fraud and deceit.

“When a motion [for summary judgment] is supported by affidavits or other extrinsic evidence sufficient on its face to establish facts which, if proven at the trial, would entitle the movant to an instructed verdict, the opponent must show opposing evidentiary data which will raise an issue as to a material fact, or must justify his inability to do so and seek appropriate protection in accord with the procedures [provided by subdivision (f) of Rule 166-A, T.R.C.P.].” [Italics and footnotes omitted.] 4 McDonald’s Texas Civil Practice sec. 17.26.8 at p. 156 (1971), and cases there cited; Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, 500 (1958). Here, appellant indicated to the trial court in its response to appellees’ motion for summary judgment that, due to the death of the original plaintiff, Fagan Dickson, “it would be rather difficult for Plaintiffs [sic] to produce controverting affidavits,” but it requested no relief under subdivision (f). Appellant did urge the trial court to consider the deposition of Fagan Dickson and the exhibits thereto, which were then on file among the papers of the case. In this court, appellant has pointed out in its brief several instances in said deposition in which Dickson claimed to have been unaware of alleged falsehoods communicated to his wife by appellees until revealed in the testimony of appellee Frank Ikard on April 1, 1975, in the divorce trial. Dickson, however, never denies knowledge of alleged facts on which he based the cause of action alleged in the second amended original answer he filed in the divorce action. At most, the passages in the deposition emphasized by appellant indicate that Dickson received no direct communications from appellees concerning the matters to which appellees Frank Ikard and Sander Shapiro testified at the divorce trial. Nowhere else in the deposition, its exhibits, or the other proof offered by appellant in response to the motion for summary judgment do we find any direct contradiction of the significance of the pleading at issue. Thus, no fact issue was raised here as it was in Wilson.

Moreover, in the instant case, the question in issue is not the admission of specific factual matters pleaded in another action, but the import to be given the fact that the pleading was made and filed. That fact, that Fagan Dickson pleaded in the divorce suit the same cause of action that he asserts here, shows that he had notice of assumed facts by virtue of which he had a right of action. We hold that the evidence is such that reasonable minds could not differ as to this effect of said pleading.

With respect to the effect to be given the amended pleading filed by Dickson in the divorce suit, appellant argues that the most to be gleaned from it is that “Fagan Dickson had begun to suspect that the [appellees] might have committed some actions which related to the divorce.” We do not agree with this contention. Appellant further asserts that only conclusions, and not facts, were pleaded therein. Inasmuch as the conclusive nature of allegations in a pleading is objectionable only where fair notice to the opponent is not given by the allegations as a whole (Rule 45, T.R.C. P.), the party making them can hardly be allowed to rely later on their conclusiveness as a means of denying their obvious import.

In our view the allegations made by Dickson in the pleading in the divorce suit indicate that he believed and alleged that he had a cause of action at that time for conspiracy or fraud and deceit, and the record demonstrates that the instant suit was not filed by Dickson or by his estate, within two years from the discovery of his cause of action. In 54 C.J.S. Limitations of Actions § 206e, p. 224, is found this language:

“It is not necessary that a party should know the details of the evidence by which to establish his cause of action; it is enough that he knows that a cause of action exists in his favor, and when he has this knowledge it is his own fault if he does not avail himself of those means which the law provides for prosecuting or preserving his claim.” ,

See Moore v. Braniff Airways, Inc., 54 F.Supp. 422, 424 (N.D.Tex.1944), affirmed 146 F.2d 336 (5th Cir. 1944), cert. denied, 325 U.S. 871, 65 S.Ct. 1411, 89 L.Ed. 1990 (1945); Phillips Petroleum Co. v. Johnson, 155 F.2d 185, 191 (5th Cir. 1946), cert. denied, 329 U.S. 730, 67 S.Ct. 87, 91 L.Ed. 632 (1946).

Appellant argues also that appel-lees were not named in the pleading. The pleading identifies the alleged conspirators only as Mrs. Dickson, “her attorneys and others unknown to [Dickson].” Appellees herein were undisputedly the attorneys for Mrs. Dickson in the divorce action. This contention also is without merit.

On the issue of limitations, appellant further argues that the filing by Fagan Dickson of his “Petition to Perpetuate Testimony” on July 9, 1976, acted to toll the statute of limitations, although it admits there is no authority for such a proposition. This contention was rejected by the court in Womack Machine Supply Co. of Houston v. Fannin Bank, 499 S.W.2d 917, 920 (Tex.Civ.App.—Houston [14th Dist.] 1973), reversed on other grounds, 504 S.W.2d 827 (Tex.1974). As that court held, so we also hold that “We are unaware of any authority for the position that such an ancillary matter may toll limitations and hold, therefore, that the two-year period of limitation was not tolled until the filing of the plaintiff’s original petition . . . .”

The summary judgment proof establishes here as a matter of law that there is no genuine issue of fact as to the question of limitations. The amended pleading filed in the divorce suit shows conclusively that Fa-gan Dickson was aware of his alleged right of action asserted here more than two years prior to the initiation of this action. It is therefore barred by limitations. Article 5526, supra; Weaver v. Witt, supra.

Of the six causes of action pleaded in the trial court in this case by appellant, the third and fifth causes of action, those for intentional interference with Dickson’s and his wife’s marital and business relationships and for alienation of his wife’s affection, are directly controlled by the preceding discussion. We will now discuss the effect of limitations on the other causes of action pleaded.

Appellant purports to state as its first cause of action the alleged breach by appel-lees of their duty to represent Fagan Dickson in an ethical manner. The petition alleges violations of the following Disciplinary Rules of the Code of Professional Responsibility, enacted as Section 8 of Article XII of the Rules Governing the State Bar of Texas (appendix to Title 14 of the Revised Civil Statutes): DR 4-101, Preservation of Confidences and Secrets of a Client; DR 5-101, Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment; DR 5-105, Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer; and DR 7-102, Representing a Client Within the Bounds of the Law. These rules, appellant argues, were violated by appellees’ alleged actions in using Fagan Dickson’s confidences and secrets to his disadvantage, in accepting employment in litigation when they knew or should have known that they would be witnesses therein, in continuing to represent Fagan Dickson after the conflict developed between the Dicksons, and in making false statements of fact about Dickson.

Although appellees have questioned the existence of a cause of action based upon alleged violations of disciplinary rules, urging that such violations give rise only to disciplinary action under the rules of and by the State Bar of Texas and not to civil liability, appellant disputes this and claims appellees are guilty of negligence per se in violating such rules. We may assume, without deciding, that the allegations of appellant’s petition state a cause of action for legal malpractice, whether it be stated in terms of intentional violations of disciplinary rules, negligence, or negligence per se. Whichever label is placed on it, it is in the nature of a tort action and thus the two-year statute of limitations applies. Art. 5526, V.T.C.S.; Gaddis v. Smith, supra; Bell v. Bell, 434 S.W.2d 699, 701 (Tex.Civ.App.—Beaumont 1968, writ ref’d n. r. e.).

The second cause of action pleaded was that appellees failed to discharge their duty to exercise the degree of skill and learning ordinarily exercised and possessed by other attorneys in Austin, Texas, under the same circumstances. Though somewhat inartfully worded, this allegation may be assumed to state a cause of action for negligent malpractice. An action for negligence accrues at the time of the act or omission which constitutes negligence, Robertson v. Texas & New Orleans Railroad Co., 122 S.W.2d 1098, 1099-1100 (Tex.Civ.App.—San Antonio 1938, writ refused), and the two-year statute of limitations applies.

Appellant’s petition purports to state a fourth cause of action for appellees’ breach of implied warranties pursuant to the contract allegedly made between them and Fagan Dickson. The petition states that appellees impliedly warranted that the services and information they would provide Dickson would be “accurate, knowledgeable, and would reflect the true, correct, state of the law;” that they would comply with the terms of their contract with Dickson and “honor his attorney-client privilege;” and that they would “respect and abide by all those terms and conditions inherent in a fiduciary relationship such as that existing between [Dickson] and [appel-lees].” The petition then alleges breaches of the alleged contract by appellees in that they failed to perform their obligations thereunder; they failed to deliver accurate advice and services; they deliberately misrepresented law and fact, “thereby violating their fiduciary obligations to [Dickson];” and they divulged Dickson’s confidences. Although couched in terms of a contract cause of action, these allegations basically do no more than reiterate the previously mentioned causes of action for negligence, misrepresentation, and fraud and deceit, with the addition of a cause of action for breach of fiduciary duty. This fourth cause of action, as do all of the first five, sounds in tort, not contract, and thus the two-year limitations period is applicable. Bell v. Bell, supra. Appellant itself states in its brief, “It should be remembered that this is essentially a cause of action [i. e., suit] against the [appellees’] interfering with the marital and business relationship between [Fagan Dickson] and his ex-wife in a manner forbidden by the Code of Professional Conduct.” Even if this is considered a cause of action in contract, however, it is not alleged that the contract was written. It is well settled that a cause of action for breach of implied warranty based upon an oral contract is governed by the two-year statute of limitations. Certain-Teed Products Corp. v. Bell, 422 S.W.2d 719, 720 (Tex.1968); Art. 5526, V.T.C.S. In any event, therefore, the applicable limitations period is two years.

The question as to the applicability of the two-year bar of limitations to these first, second and fourth causes of action turns on the time when appellees’ representation, if any, of Fagan Dickson terminated. It will be assumed for our purposes that they did represent Dickson as well as his wife, a matter disputed by appellees.

Appellant argues that Mr. and Mrs. Dickson retained the appellee law firm (then Clark, Thomas, Harris, Denius & Winters) in August 1971. Appellees’ summary judgment proof contains an affidavit by Roberta Crenshaw, formerly Mrs. Dickson, which states that appellees represented her in estate planning and other property matters until April 1972, then represented her in connection with a land transaction which ended in January 1973. She states, “After that time, the Clark, Thomas law firm never represented Mr. Dickson, directly or indirectly. Sander W. Shapiro of the Clark, Thomas, Winters & Shapiro firm began representing me again when I decided to seek a divorce from Mr. Dickson in early 1974.” There is also an affidavit by Steve Pena, an accountant, who states that he performed accounting services for the Dicksons and that “I was present with Fagan Dickson in the law offices of Clark, Thomas, Winters & Shapiro early in 1972 when, following a heated discussion with Frank Ikard of that firm, Fagan Dickson unequivocally fired the law firm insofar as it may have represented him.” The affidavit of John Anderson, an accountant, states, “The records [of Dickson Properties, Inc.] do not contain any memorandum or record to the effect that the Clark, Thomas, Winters & Shapiro law firm represented Mr. Dickson or any entity in which he had an interest after January, 1973.” These statements are never directly contradicted by any documents before the court at the time summary judgment was rendered. See 4 McDonald’s Texas Civil Practice sec. 17.26.8, supra.

Again, since appellant chose not to include any controverting affidavits in its response to the motion for summary judgment, only Fagan Dickson’s deposition is available to contradict appellees’ affidavits. Appellant, in said response and in its brief here, points out several portions of the deposition, but the only one which directly bears on the question at issue is the response to the question, “Did any communication from Mr. Ikard or Mr. Shapiro or any other member of the Clark-Thomas firm reach you in which they told you that they were no longer representing you?” Fagan Dickson replied, “He [Frank N. Ikard, Jr.] did not make any communication to me and never has that he was not representing me. And Mr. Shapiro has never made a representation to me that he was not — wasn’t representing me.”

All other references in the deposition and its exhibits to the times at which appellees performed legal services for deponent Fa-gan Dickson predate March 3, 1975, the date two years prior to the filing of the petition in this case. Significantly, at one point in the deposition, during the cross-examination, Dickson states, “She [Roberta Dickson] sued me for divorce But they [the Clark-Thomas firm] brought the suit . . . . And they had been my attorneys.” [Emphasis added.] It is clear from all the summary judgment proof and other matters properly before the trial court that appellees, by the time they began representing Mrs. Dickson in the divorce suit in early 1974 (the petition for divorce was filed April 8, 1974), no longer represented Dickson.

The first, second and fourth causes of action, assuming they are viable ones in all other respects, which we do not decide, are barred by the two-year statute of limitations. Art. 5526, supra.

Appellant’s sixth cause of action is for alleged defamation by appellees Shapiro and Ikard acting in behalf of appellee law firm in making the allegedly false, wilful and malicious communications about Fagan Dickson to his wife. The applicable statutory limitations period for actions “for injuries done to the character or reputation of another by libel or slander” is one year. Art. 5524, V.T.C.S. This period begins to run from the date when the injured party learns of, or in the exercise of reasonable diligence should have learned of, the wrong giving rise to the cause of action. Kelley v. Rinkle, 532 S.W.2d 947, 949 (Tex.1976); Armstrong v. Morgan, 545 S.W.2d 45, 47 (Tex.Civ.App.—Texarkana 1976, no writ). Fagan Dickson admits learning of the allegedly defamatory communications by April 1, 1975, the date on which Frank Ikard began testifying in the divorce suit. Unquestionably, then, this sixth cause of action (assuming it is valid in all other respects) on which suit was not brought until the petition herein was filed on March 3, 1977, is barred by the statute applicable thereto. Art. 5524, supra.

Appellant’s point of error one is overruled.

Appellant’s second, third, fifth and sixth points of error complain that the trial court erred in granting summary judgment if such were based upon collateral estoppel or res judicata, waiver, testimonial privilege, and failure to state a cause of action. In view of our disposition of appellant’s first point of error, it is unnecessary to examine its second, third, fifth and sixth points of error for further bases upon which the trial court could have predicated its summary judgment.

In its fourth point of error, appellant asserts that the trial court erred in failing to grant a new trial or to set aside the summary judgment upon presentation of a new affidavit by appellant which contradicted part of appellees’ summary judgment proof. The new one related to two affidavits attached to appellees’ motion for summary judgment by Donald Thomas, a member of the appellee law firm, and Arthur Mitchell, an attorney who represented Fagan Dickson at the divorce trial. Those two affidavits concerned conversations between the two affiants during the course of the divorce suit relative to whether the appellee law firm should withdraw from representation of Mrs. Dickson therein. The new affidavit, by Mitchell, contradicted his original one in which he had concluded that there was no need for a withdrawal by appellees. The new affidavit, therefore, did not relate to the issue of limitations, upon which we have disposed of the first point of error. Thus, even if the trial court erred as contended in this fourth point of error, such error was harmless. Rule 434, T.R.C.P. Appellant’s fourth point is overruled.

The pleadings, deposition, affidavits, and other summary judgment proof, on file at the time of the hearing on the motion for summary judgment, show that the moving party was entitled to judgment as a matter of law on the basis that all of the nonmov-ing party’s pleaded causes of action are barred by limitations. Accordingly, the judgment of the trial court is affirmed.