author: PEDEN, Justice.

text:
    The CITY OF HOUSTON, Appellant, v. FORT WORTH AND DENVER RAILWAY COMPANY, Appellee.
    No. 17057.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 8, 1977.
    Rehearing Denied Jan. 19, 1978.

      Otis H. King, City Atty., Fred R. Spence, Jr., Senior Asst. City Atty., Houston, for appellant.
    Andrews, Kurth, Campbell & Jones, Wm. H. Tenison, Jr., Houston, for appellee.
   PEDEN, Justice.

The City of Houston appeals from the dismissal of its application for an injunction to order the railroad to relocate its telegraph lines at the City’s expense to allow enough clearance for putting a new street across the railroad’s tracks. The City also brought, in the alternative, an action in eminent domain for a temporary easement to enter the railroad’s right-of-way to relocate the telegraph lines. The trial court sustained the railroad’s plea to the jurisdiction. Appellant asserts error because this suit may be brought in the district court under Article 3269, Vernon’s Texas Civil Statutes. We agree with the appellant.

The railroad’s plea to the jurisdiction contended that the City’s petition had not shown a property right or a right to possession, therefore, this case should be one for ordinary condemnation within the original jurisdiction of the county court under Article 3264, V.T.C.S. The City then filed a supplemental petition alleging that the City had a legal property right to enter upon the railroad right-of-way to extend the street and that the railroad’s easement is subject to the City’s rights.

Article 3269 provides:

When . . . incorporated city having the right of eminent domain . . . is a party, as plaintiff, defendant or intervenor, to any suit in a District Court, in this State, for property . the Court in which suit is pending may determine the matters in dispute between the parties, including the condemnation of the property and assessment of damages therefor, upon petition of the plaintiff, cross-bill of the defendant or plea of intervention by the interve-nor asking such remedy or relief; . and in such event the condemnor may assert his or its claim to such property and ask in the alternative to condemn the same if he or it fails to establish such claim; and provided that, if injunctive relief be sought, the Court may grant such relief under the Statutes and Rules of Equity, or may, as a prerequisite for denying such relief, require the party seeking condemnation to give such security as the Court may deem proper for the payment of any damages that may be assessed on such party’s pleading for condemnation.

In Coastal States Gas Producing Co. v. Miller, 160 Tex. 295, 329 S.W.2d 853 (1959), the possessors of an oil and gas lease sued agricultural lessees of property the plaintiff had previously condemned without joinder of the agricultural lessees. Coastal States’ petition alternatively prayed for a temporary injunction, for a declaration of property rights and for condemnation. The court stated that Article 3269 covers suits 1) for property, 2) for damages to property occupied by one having the right of eminent domain and 3) for an injunction to prevent one claiming the right of eminent domain from going upon the property. The court’s holding was that since Coastal States’ suit was one involving an interest in property, it was properly brought under Article 3269, a statute “intended to give the condemnor adequate remedy in condemnation proceedings brought in the district court”. The condemnor was granted the right to seek injunctive relief and take possession of the property pending trial.

In our case the City appears to have originally assumed that it had a right to have the telegraph poles relocated, but after the railroad filed its plea to the jurisdiction, the City filed a supplemental petition alleging:

“The City of Houston has a legal property right to enter upon the railroad right-of-way easement for the purpose of extending Watonga Boulevard. The Defendant has only an easement to its right-of-way, and said easement is subject to the legal right of the City of Houston to extend and maintain streets across the easement.”

Although a special exception would have been appropriate to clarify this cryptic allegation, none was levelled. Since the City was asserting an interest in the right-of-way a judicial determination of the correlative rights of the parties was required. See City of Houston v. West, 520 S.W.2d 752 (Tex.1975).

The pleadings are focused primarily on the relocation of the telegraph poles, but the railroad also contests the City’s right to cross its right-a-way. It has been held in Texas that under the facts in those cases the right to cross a railroad’s right-of-way with a road was a property right to be condemned and that the railroad should also be compensated for making the alterations in its property. County of Harris v. Southern Pacific Transportation Co., 457 S.W.2d 336, 340 (Tex.Civ.App.1970, no writ); Kansas, O. & G. Ry. Co. v. Grayson County, 5 S.W.2d 542, 544 (Tex.Civ.App.1928, no writ).

The City does not deny the railroad’s right to compensation for damages incurred in relocating the telegraph poles. It has not yet sought, even in the alternative, to condemn a crossing of the right-of-way. The City’s assertion of a property right in the railroad’s easement brought it within the jurisdiction of the district court under Article 3269, V.T.C.S. If the City shows it has that right, it also has the right to seek an injunction and, if then denied, to provide adequate security and take possession of such property. Coastal States Gas Producing Co. v. Miller, supra.

The judgment of the trial court is reversed and the cause is remanded.


source: Caselaw Access Project

author: MURRAY, Justice.

license: Public Domain

text:
    Peggy S. BIRKELAND, Appellant, v. ROLLINS SERVICES, Appellee.
    No. 15923.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 21, 1977.
    Rehearing Denied Feb. 8, 1978.

      Louis T. Rosenberg, Thomas J. Rocha, Jr., San Antonio, for appellant.
    Donald R. Taylor, Foster, Lewis, Langley, Gardner & Banack, San Antonio, for appel-lee.
   MURRAY, Justice.

This suit was instituted by Rollins Services, appellee, against Peggy S. Birkeland, appellant, concerning whether proceeds from an insurance policy and two pieces of real property correctly form a part of a decedent’s estate. The appellant, Peggy S. Birkeland, is the widow and was the co-independent executor of the deceased Lionel 0. Birkeland’s estate. The trial was to a jury and judgment was rendered in keeping with the findings of the jury, in favor of appellee, from which judgment appellant has prosecuted this appeal.

The motion for new trial contained the following three purported assignments of error:

I
The verdict of the jury is contrary to the great weight and preponderance of the evidence.
II
The verdict was obtained as a result of jury misconduct and said misconduct resulted in injury to Movant. Attached hereto as Exhibit A is an affidavit substantiating said jurors’ misconduct.
III
Two or more jurors disregarded the Court’s charge as to burden of proof and considered PEGGY S. BIRKELAND’S failure to testify against her and against the estate.

Appellant sets out three points in her brief, as follows:

1. The case should be reversed because the life insurance proceeds (Provident Mutual Life Insurance Company of Philadelphia belong to the widow of Lionel 0. Birkeland and not to his estate.
2. The evidence is insufficient to support the jury’s verdict that the parcels of land belong to the estate.
3. The case should be reversed because half of the proceeds of the insurance policy had vested in Lionel 0. Birke-land’s widow at the time of his death.

Appellant’s second and third assignments of error in her motion for new trial, jury misconduct, have not been briefed and are therefore waived. Texas Co. v. State, 154 Tex. 494, 281 S.W.2d 83 (1955); Tex.R.Civ.P. 418 (1978).

The remaining assignment of error in appellant’s motion for new trial is too general to be considered and does not point out the rulings of the court or the part of the proceedings objected to by appellant. Murphy v. Maroney, 456 S.W.2d 787 (Tex.Civ.App. — Waco 1970, writ ref’d n. r. e.); Gavrel v. Young, 407 S.W.2d 518 (Tex.Civ.App. — Houston 1966, writ ref’d n. r. e.); Tex.R.Civ.P. 322 (1978).

Appellant’s points set out in her brief are not based upon any assignment of error contained in appellant’s motion for new trial, and cannot be considered. Before a point can be considered on appeal it must be based upon an assignment of error contained in the motion for new trial. Avnet v. Hull, 265 S.W.2d 906 (Tex.Civ.App.— Dallas 1954, writ ref’d n. r. e.); Gavrel v. Young, supra.

Appellant’s attorney suggests in oral argument that the points may be presented as fundamental error. These points do not present any fundamental error that is now recognized by our courts. Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947). Since the adoption of the rules of civil procedure, the concept of fundamental error is much narrower and has become somewhat of a rarity. 3 Tex.Jur.2d App. & Error § 102 (1959); 20 Baylor L.Rev. 433 (1968).

The judgment of the trial court is affirmed.

      . Rule 324, Tex.R.Civ.P., to become effective January 1, 1978, changes this rule and a motion for new trial will no longer be required in a jury trial.


author: EVANS, Justice.

text:
    Ex parte Edward BRISCOE, Relator.
    No. 17019.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 29, 1977.
    Rehearing Denied Jan. 19, 1978.

      Alvis O. L. Rogers, Houston, for appellant.
    Orsburn & Browning, Charles C. Orsburn, Houston, for appellee.
   EVANS, Justice.

This is an original habeas corpus proceeding.

The relator, Edward Briscoe, was held in contempt for failure to make child support payments. The court’s order of commitment dated July 14, 1977 recites that relator had failed to comply with the terms of the prior decree of divorce dated January 8, 1973, directing that relator pay the amount of $11.00 per child each week, and that relator was in arrears of such child support payments in the total sum of $2718.00. The order of commitment directed that relator be confined for a period of one day and until he purged himself of the contempt by paying the sum of $125.00 as attorney’s fees and the sum of $1700.00 on the arrearage.

In his verified application for writ of habeas corpus the relator alleges that the order of commitment is void because the notice of the show cause hearing is unclear as to the date he was ordered to appear. He also alleges that he is unable to pay the amount specified in the order of commitment and therefore does not have the means to purge himself of the contempt. He further alleges that he was confined in the Harris County jail on or about July 14, 1977, as a result of the order of commitment, and that some 35 days later, at the time of filing his application on August 18, 1977 he was still confined. Upon the filing of relator’s application, this court ordered relator released from custody under bond.

The order of commitment recites that the contempt hearing was held on July 14,1977. The notice of the hearing, which was issued September 30, 1976 but not served on relator until June 13, 1977, recites that relator is to appear before the court on July 14, 1977 “then and there to show cause in accordance with a certified copy of the order of the court hereto attached.” However, the show cause order served upon relator with the notice, and which was dated and entered on September 28, 1976, orders relator to appear before the court at a show cause hearing on July 14, 1976. Thus, the notice served upon relator does not conform to the show cause order as to the date upon which relator was ordered to appear.

In a constructive contempt proceedings the trial court acquires jurisdiction of the person charged with contempt only through the issuance and service of a valid show cause order requiring that such person appear and show cause why he should not be held in contempt. Ex Parte Davis, 161 Tex. 561, 344 S.W.2d 153, 155 (1961). A person is not accorded due process unless the notice of the hearing is issued and served in accordance with the requirements of Rule 308-A, Tex.R.Civ.P.; Ex Parte Edgerly, 441 S.W.2d 514, 516 (Tex.1969); Ex Parte Cardwell, 416 S.W.2d 382 (Tex.1967). The issuance of the notice, is a ministerial act on the part of the clerk, and due process is dependent upon the issuance and service of a valid show cause order. Ex Parte Hodge, 389 S.W.2d 463 (Tex.1965); Ex Parte Davis, supra.

The record does not affirmatively show whether the relator was actually present at the contempt hearing on July 14, 1977, nor whether he was represented by counsel. The recitation in the order of commitment that relator was “duly cited” does not prevent this court from considering the entire record to determine the validity of the notice which was served upon the relator. Ex Parte Cardwell, supra. Since the record demonstrates the absence of a show cause order requiring relator to appear before the court for a contempt hearing on July 14, 1977, and there being no showing that relator voluntarily made an appearance at said hearing and knowingly and intelligently waived any invalidity in the manner of notice required by law, this court must hold that the trial court failed to obtain jurisdiction over relator’s person and that the order of commitment is, therefore, invalid.

This disposition renders it unnecessary that we consider relator’s allegation that he is financially unable to purge himself of the contempt.

The relator is ordered discharged.


author: DODSON, Justice.

text:
    Ruth GUMFORY, Appellant, v. HANSFORD COUNTY COMMISSIONERS COURT et al., Appellees.
    No. 8820.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 30, 1977.
    Rehearing Denied Jan. 30, 1978.
    Selden B. Hale, Amarillo, for appellant.
    Gibson, Ochsner, Adkins, Harlan & Han-kins (Iral L. Edwards, Jr.), Amarillo, for appellees.
   DODSON, Justice.

In this case Ruth Gumfory is appellant and the Hansford County Commissioners Court, County Judge Johnnie Lee and Commissioners Joe Day, Joe T. Venneman, B. W. Renner and George C. Lowe, who compose the court, are the appellees herein.

In the court below Mrs. Gumfory brought her action against the Commissioners Court alleging that the division of the commissioners precincts in Hansford County, Texas, as promulgated by the Commissioners Court on or about August 23, 1976 is unconstitutional under Article 5, Section 18, Texas State Constitution, and under the equal protection clause of the 14th Amendment of the Constitution of the United States. Mrs. Gumfory requested the trial court to declare such division of the Commissioners Court in Hansford County, Texas, unconstitutional and illegal and further requested the court to “draw four new contiguous Commissioner’s Precincts each of which contain approximately an equal number of citizens.”

The case was tried before the court without a jury. The court entered a take-nothing judgment against Mrs. Gumfory and thereby denied any requested relief. From this judgment Mrs. Gumfory appeals to this court. We reverse the judgment of the trial court and render judgment setting aside the 23 August 1976 order of the Commissioners Court.

The county of Hansford is 907 square miles. It has a geometric shape of an approximate square with dimensions of approximately 30 X 30 miles. It contains a total population of 5,979 persons. The population is divided between the city of Spear-man, the city of Gruver and the country area of the county outside these two cities. The city of Gruver has a total population of 1,190 persons; the city of Spearman has a total population of 3,227 persons; and the remaining 1,562 persons reside in the country area of the county.

Under the division of the county of Hans-ford into commissioners precincts as promulgated by the Commissioners Court of such county on or about the 23rd day of August, 1976, the county was divided basically into four equal quarters, being the southeast, the northeast, the northwest and the southwest one-fourth of the county. The city of Spearman, which is located in the southeast one-fourth of the county, was divided into three portions, consisting of the east portion, the middle portion and the west-southwesterly portion. The city of Gruver was divided into two unequal portions consisting of a small northeastern portion and a large remaining portion.

These nine areas and the respective population therein were arranged into four so-called commissioners precincts. The areas designated as precincts one and four were territorially contiguous within each precinct and had a population of 1,520 and 1,476 residents, respectively. The areas designated to comprise precincts two and three were territorially non-contiguous and had a population of 1,508 and 1,475 residents, respectively.

The resulting territorial arrangement and the population apportionment of each precinct were as follows:

Commissioner Precinct No. One: This precinct consisted of the southeast one-' fourth of the county including the west-southwest portion of the city of Spearman, excluding the middle and east portions of Spearman. Precinct one was contiguous in territorial arrangement. It had a total population of 1,520. One thousand one hundred forty-six of this number resided in the city of Spearman, and the remaining 380 persons resided in the country area in the southeast one-fourth of the county.

Commissioner Precinct No. Two: This precinct consisted of the northeast one-fourth of the county and the middle portion area of the city of Spearman. The areas comprising this precinct were non-contiguous. The northeast one-fourth of the county and the middle portion area of the city of Spearman were separated by approximately four and one-half miles. It had a total population of 1,508. One thousand two hundred forty-seven of this number resided in the city of Spearman and the remaining 261 residents resided in the country area in the northeast one-fourth of the county.

Commissioner Precinct No. Three: This precinct consisted of the northwest one-fourth of the county, the northeast portion of the city of Gruver and the east portion area of the city of Spearman. The areas designated with this precinct number were non-eontiguous. The northwest portion of the county and the east portion area of the city of Spearman were separated by approximately nine miles. It had a total population of 1,475. Eight hundred and thirty-four of this number resided in the city of Spearman, 174 resided in the city of Gruver, and the remaining 467 resided in the country area of the northwest one-fourth of the county.

Commissioner Precinct No. Four: This precinct consisted of the southwest one-fourth of the county including the large portion area of the city of Gruver and excluding the northeast portion area of the city of Gruver. The precinct was territorially contiguous. It had a total population of 1,476. One thousand sixteen of this number resided in the city of Gruver, and the remaining 460 resided in the country area comprising the southwest one-fourth of the county.

Initially, Mrs. Gumfory complains. that “[t]he trial court erred in allowing the County Commissioners Court to create commissioners precincts composed of non-contiguous parts in violation of the State Constitution.”

Article 5, Section 18 of the Texas Constitution provides in part as follows:

Each organized county in the State now or hereafter existing, shall be divided from time to time, for the convenience of the people, into precincts, not less than four and not more than eight. Divisions shall be made by the Commissioners Court provided for by this Constitution. In each such precinct there shall be elected one Justice of the Peace and one Constable, each of whom shall hold his office for four years and until his successor shall be elected and qualified; . Each county shall in like manner be divided into four commissioners precincts in each of which there shall be elected by the qualified voters thereof one County Commissioner, who shall hold his office for four years until his successor shall be elected and qualified. (Emphasis added.)

We have not been directed to nor have we found any Texas cases directly or indirectly determining the territorial configuration of “commissioners precincts”.

We conclude that the common meaning of the phrase “commissioners precincts” denotes a territorially contiguous area. This conclusion is supported in part by the definition of the word “precinct” found in Webster’s New International Dictionary 1943 (2nd ed. 1961) as follows:

pre’cinct ... to gird about, encompass ... 1. The enclosure bounded by the walls or other limits of a building or place or by an imaginary line around it; as, the precincts of a church; esp., pi., the region immediately surrounding a place; environs. 2. Specif., the inviolable spaces within the girth, mund, or peace of a house, borough, or the like, in the customary law of the Anglo-Saxons and some other Teutons. 3. A surrounding or enclosing line or surface; a boundary. 4. A district within certain boundaries, esp. one set out for governmental purposes; a minor territorial or jurisdictional division, as: a Eng. A district for which a high or petty constable is appointed, b A division of a city or town, as for police control, c U.S. A subdivision of a ward or county for election purposes, etc.

Also, the legal as well as the popular idea of a commissioner precinct in this country, by name and use, as to territorial configuration is one of unity, not plurality, of contiguity or compactness, not segregation or separation. This common idea further denotes oneness of a location and vicinity, a collective body, not several bodies. See 72 C.J.S. Precinct at page 477, 20 C.J.S. Counties § 40 (1940), 56 Am.Jur.2d Municipal Corporations, Etc. § 69 (1971).

The Commissioners Court contends, among other things, in its brief that it acted in the best interest of the county, that Mrs. Gumfory has no standing as a citizen to contest its action dividing the county into commissioners precincts, and further that such action is beyond the scope of judicial review. The Commissioners Court in its brief relies on Bexar County v. Hatley, 136 Tex. 354, 150 S.W.2d 980 (1941); Ward v. Bond, 10 S.W.2d 590 (Tex.Civ.App. — Amarillo 1928, no writ); and Garcia v. State, 290 S.W.2d 555 (Tex.Civ.App. — San Antonio 1956, writ ref’d n. r. e.) to support its position.

Bexar County v. Hatley and Garcia v. State concerned administrative decisions of the Commissioners Court, not, as is before us, the constitutionality of a legislative action of apportionment by the Commissioners Court. Ward v. Bond exemplifies the prevailing attitude of judicial laissez-faire by the courts concerning the review of legislative apportionment matters prior to the decisions in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Avery v. Midland County, 406 S.W.2d 422 (Tex.1966), reversed on other grounds, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968); and Hatter v. Worst, 390 S.W.2d 293 (Tex.Civ.App. — Amarillo 1965, writ ref’d n. r. e.). We determine that such cases are not controlling on the issues before this court.

Article 5, Section 18 provides, among other things, that the Commissioners Court shall divide the county into four commissioners precincts “for the convenience of the people.” The action is tested by constitutional standards, and Mrs. Gum-fory, as a resident of the county of Hans-ford, has standing to bring this action and likewise the action by the Commissioners Court of Hansford County in dividing the county into four commissioners precincts is subject to judicial review. See Avery v. Midland County, supra, and Hatter v. Worst, supra.

For us to depart from the legal, popular, and common concept of territorial contiguity of commissioners precincts as contended by the Commissioners Court in this case would do no more than place another gerrymandering tool in the hands of the apportioning body. This court must notice with common knowledge that many counties of this state have numerous voting precincts numbering in the tens and hundreds and that the method of division of reapportionment employed in this case encourages the “checkerboarding” and “spot zoning” of commissioners precincts, which we decline to judicially approve.

Mrs. Gumfory’s first point of error is sustained and we hold that the phrase “commissioners precincts” as used in the Constitution of this State means that such precincts must be territorially contiguous.

Secondly, Mrs. Gumfory complains that “the trial court erred in allowing the Commissioners Court to institute a redistricting scheme that dilutes and diminishes the votes of Hansford County citizens outside the city of Spearman, a denial of the equal protection clause of the United States Constitution.” The essence of this complaint is that the redistricting scheme dilutes and diminishes the votes of Hansford County residents who live outside the city of Spearman, thus denying them equal protection of the law under the United States Constitution.

It is true that in precincts one, two, and three the total number of residents in the city of Spearman far outnumber the number of country area residents. And likewise in precinct four, the residents of Gruver greatly outnumber the country area residents. Thus, in each of the precincts one, two, and three the residents of the city of Spearman enjoy a mathematical majority and in precinct four the residents of Gruver have an even greater mathematical majority-

The effect of this division of the population of Hansford County is to place the city dwellers in Spearman and Gruver in a mathematical majority in all four commissioners precincts.

The effect of Mrs. Gumfory’s contention is that the equal protection clause of the United States Constitution guarantees that the 1,190 residents of Gruver and 1,562 country area dwellers outside of Spearman are entitled to two commissioners or places on the Commissioners Court.

Mrs. Gumfory relies on the United States Supreme Court decision in Avery v. Midland County, supra, at 424, 425. However, this case simply holds:

The Equal Protection Clause does not, of course, require that the State never distinguish between citizens, but only that the distinctions that are made not be arbitrary or invidious. The conclusion of Reynolds v. Sims was that bases other than population were not acceptable grounds for distinguishing among citizens when determining the size of districts used to elect members of state legislatures. We hold today only that the Constitution permits no substantial variation from equal population in drawing districts for units of local government having general governmental powers over the entire geographic area served by the body. (Emphasis added.)

This case does not hold that every group, or particular class of citizens, are entitled to proportional representation in the governing body of the local unit of government.

This contention of Mrs. Gumfory was answered in Howard v. Adams County Board of Supervisors, 453 F.2d 455 (5th Cir. 1972) as follows:

. we find that the plan passes constitutional muster. Further, we reject the plaintiffs’ notion that they are constitutionally entitled to have old District Four divided into two predominately black electoral districts simply because they command a population concentration of sufficient size and contiguity to constitute two equally apportioned districts. This rationale was rejected by Justice White for the majority in Whitcomb, saying that such a contention
. . [is] expressive of the more general proposition that any group with distinctive interests must be represented in legislative halls if it is numerous enough to command at least one seat and represents a majority living in an area sufficiently compact to constitute a single-member district. This approach would make it difficult to reject claims of Democrats, Republicans, or members of any political organization . . . who live in what would be safe districts in a single-member district system but who . are submerged in a one-sided . vote.” (Emphasis added.)

The U.S. Court of Appeals (5th Circuit) determined that the “dilution” test developed in Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966) and Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971) is equally applicable to reapportionment plans involving only single-member districts, such as we have in this case. See 453 F.2d at 458 n. 2.

Also, the Court recognized in Howard v. Adams County Board of Supervisors, supra, at page 457 that:

The gerrymander is as great a threat to equality of representation as malap-portionment. While malapportionment generally emphasizes considerations of the weight of an individual’s vote, a gerrymandering operates to destroy the effectiveness of the franchise by diluting the vote of recognizable racial, ethnic, or political groups in order to benefit a favored interest. (Emphasis added.)

However, in the case before us, Mrs. Gum-fory has failed to show the scheme operates to destroy the effectiveness of the franchise of the Gruver and country area residents by diluting the vote of a recognizable racial, ethnic, or political group. Per se, the residents of Hansford County outside the city of Spearman are not a group subject to suspect classification for invidious discrimination under the equal protection clause of the 14th Amendment to the United States Constitution. Also, there is an emerging trend in the Federal Court decisions toward contiguous and reasonably compact legislative districts so as to avoid the suspicion of invidious discrimination against recognizable racial, ethnic, or political groups. See Connor v. Finch, 431 U.S. 407, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977); Wells v. Rockefeller, D.C., 273 F.Supp. 984 (1967). However, the record in this case is absent of any evidence of such discrimination. Mrs. Gumfory’s second point is overruled.

In view of our conclusions Mrs. Gumfo-ry’s remaining two points become moot.

The judgment of the trial court is reversed and judgment is here rendered that the order of the Commissioners Court of Hansford County, Texas dated on or about the 23rd day of August 1976, wherein such Commissioners Court decreed a division of such county into commissioners precincts, be and the same is hereby set aside.


text:
    The ED RACHAL FOUNDATION, Appellant, v. TEXAS OIL & GAS CORP., Appellee.
    No. 15928.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 4, 1978.
    Rehearing Denied Feb. 8, 1978.
    James M. Steed, Austin, for appellant.
    W. S. Barron, Jr., Dallas, Jacob G. Horn-berger, Laredo, for appellee.
   MURRAY, Justice.

This is an appeal from a judgment of the 111th District Court of Webb County, Texas sustaining appellee’s, Texas Oil & Gas Corp., plea of privilege to have this suit transferred to Dallas County, the county of appellee’s residence. Appellant, The Ed Rachal Foundation, filed suit against appel-lee alleging that appellee had failed to develop the premises of appellant for the production of oil, gas or other minerals by drilling such wells as a reasonable prudent operator would drill. The suit seeks to recover damages for appellee’s failure to develop the leased tract and also seeks to terminate the oil, gas and mineral lease covering the premises. The lease is dated October 4, 1967, and presently covers 38,856 acres of land in Webb County, and has a primary term of 10 years. Prior to the filing of the lawsuit, oil, gas or other minerals had been discovered in paying quantities on the premises. Appellee filed his plea of privilege alleging that venue was in Dallas County, the place of appellee’s residence. After the hearing, the court sustained ap-pellee’s plea of privilege and ordered the suit transferred to Dallas County. In its appeal, appellant is relying only on Sub. 5 of Art. 1995, Tex.Rev.Civ.Stat.Ann. (Supp. 1977), to support his contention that venue for this suit is in Webb County, Texas.

The relevant part of Art. 1995, Sub. 5, reads as follows:

5. Contract in writing. — (a) Subject to the provisions of Subsection (b), if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.

The execution of the lease contract is not denied, and it plainly shows that the land is located in Webb County, Texas. Appellant’s cause of action in this suit is based on an implied obligation arising from the written lease, whereby the appellee is required to drill such wells on the leased premises as a reasonable prudent operator would drill.

It is undisputed that Webb County is expressly named in the written lease contract as the place where the contract is to be performed. The remaining question to be decided by this Court is whether an implied obligation will support venue under Art. 1995, Sub. 5. We hold that the obligation to perform may be inferred, but the place where it is to be performed must be expressed in writing. McCarter v. Ransom, 473 S.W.2d 235 (Tex.Civ.App. — Corpus Christi 1971, no writ); McKenzie Construction Co. v. Pitman, 288 S.W.2d 527 (Tex.Civ.App. — San Antonio 1956, writ dism’d); Petroleum Producers Co. v. Steffens, 139 Tex. 257, 162 S.W.2d 698 (Tex.Com.App.1942).

Our Supreme Court in Petroleum Producers Co. v. Steffens, supra, held that an implied obligation to drill off-set wells would support venue under Sub. 5, where the lease expressly provided that whatever was to be done under the lease was to be done in a particular county.

Appellee submits that Petroleum Producers Co. v. Steffens, supra, has been overruled by our Supreme Court in the case of Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610 (1948). We disagree. The Supreme Court in Saigh, held that the place where the contract is to be performed cannot be supplied by implication. This in no way conflicts with what was said in the Steffens case, which holds that the obligation may be inferred, but the place where it is to be performed must be expressed in writing. The judgment of the trial court is reversed and remanded to Webb County for trial on the merits.


author: JAMES, Justice.

text:
    Ken HANSSARD, d/b/a Ken Hanssard Paint and Paper of Mexia, Appellant, v. H. J. LEDBETTER, Jr., et ux., Appellees.
    No. 5758.
    Court of Civil Appeals of Texas, Waco.
    Jan. 5, 1978.

      W. A. Keils, Jr., Teague, for appellant.
    Bill Vannatta and H. J. Ledbetter, Jr., Clark & Vannatta, Waco, for appellees.
   OPINION

JAMES, Justice.

This is a venue ease. Plaintiff-Appellees H. J. Ledbetter, Jr. and wife brought this suit against Defendant-Appellant Ken Hanssard, d/b/a Ken Hanssard Paint and Paper of Mexia under the Texas Deceptive Trade Practices — Consumer Protection Act for damages recoverable under that Act for alleged improper installation of wallpaper and overcharge for materials. The Ledbet-ters filed the suit in McLennan County, the County of their residence where the work done by Hanssard was performed.

Defendant Hanssard filed a plea of privilege to be sued in Limestone County, the County of his residence. Plaintiffs Ledbet-ter filed their controverting plea to the plea of privilege, invoking Exceptions 7 and 30 of Article 1995, Vernon’s Texas Civil Statutes, and Section 17.56 of the Texas Business and Commerce Code, the special venue provision of the Deceptive Trade Practices — Consumer Protection Act.

The trial court after hearing overruled the Defendant Hanssard’s plea of privilege, from which he appeals.

More specifically, Plaintiffs alleged four counts or grounds of “false, misleading, or deceptive acts or practices” as authorized under Section 17.46, Texas Business and Commerce Code, and sought relief therefor under the provisions of Section 17.50, Texas Business and Commerce Code.

Subdivision 30 of Article 1995, V.T.C.S. provides:

“Special venue. Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

Now, Section 17.56 of the Texas Business and Commerce Code, the special venue provision of the Deceptive Trade Practices— Consumer Protection Act, as it was in effect at the time of the institution of this suit, provided:

“Section 17.56. Venue. An action brought under Section 17.50 or 17.51 of this subchapter may be commenced in the county in which the person against whom the suit is brought resides, has his principal place of business, or is doing business.”

As stated, Plaintiffs controverted the Defendant’s plea of privilege under Subdivisions 7 and 30, Article 1995, V.T.C.S., and Section 17.56 of the Texas Business and Commerce Code. However, Subdivision 7 is not in issue before us, but Subdivision 30, Article 1995 and Section 17.56, Texas Business and Commerce Code, hereinabove quoted, are in issue on this appeal.

At the hearing before the trial court on the plea of privilege, the Plaintiffs introduced proof that the Defendant Hanssard was “doing business” in McLennan County; however, they (the Plaintiffs) offered no proof concerning their cause of action imder Sections 17.46 and 17.50 of the Texas Business and Commerce Code.

After overruling the Defendant’s plea of privilege, the trial court made findings of fact and conclusions of law, wherein he found that by reference to Plaintiffs’ pleadings this suit was brought under the Deceptive Trade Practices — Consumer Protection Act, and that Defendant Hanssard is doing business in McLennan County. Then, based upon these findings the trial court concluded that under Subdivision 30, Article 1995, V.T.C.S., and Section 17.56 of the Texas Business and Commerce Code, venue of this cause properly lay in McLennan County.

Defendant-Appellant Hanssard asserts the trial court erred in overruling his plea of privilege because Plaintiff-Appellees Ledbetter failed to prove their cause of action under Subdivision 30, Article 1995, V.T.C.S. and Section 17.56, Texas Business and Commerce Code. Plaintiff-Appellees on the other hand contend that under these venue provisions they are not required to prove their cause of action, but that they have met their burden by merely proving the Defendant-Appellant is “doing business” in McLennan County, and that their pleadings may be looked to in order to show that this suit is brought under the Deceptive Trade Practices — Consumer Protection Act. In other words, Plaintiff-Appellees are saying that they are not required to prove their cause of action in order to establish venue in McLennan County.

Therefore, the precise question before us is this: Since the Plaintiffs alleged a cause of action under the Deceptive Trade Practices — Consumer Protection Act, under Section 17.46 and 17.50, and then proved only that the Defendant is “doing business” in McLennan County, can the Plaintiffs establish venue in McLennan County against the non-resident Defendant? Stated differently, are Plaintiffs required to prove their cause of action in order to sustain venue?

The only two cases in which this problem has been squarely dealt with under Section 17.56as it existed at the time of institution of this suit, insofar as we have been able to ascertain, are Doyle v. Grady (Texarkana Tex.Civ.App.1976) 543 S.W.2d 893, no writ, and Hudson and Hudson Realtors v. Savage (Tyler Tex.Civ.App.1976) 545 S.W.2d 863, no writ. Both of these eases held that under the venue provision of the Deceptive Trade Practices — Consumer Protection Act, the plaintiff must follow the general rule and both plead and prove a cause of action to support venue. Also see Sundowner Manufacturing Co. v. Kinman (Texarkana Tex.Civ.App.1976) 536 S.W.2d 642, no writ.

Effective May 23, 1977, the Legislature amended said Section 17.56 so that same now reads as follows:

“An action brought which alleges a claim to relief under Section 17.50 of this sub-chapter may be commenced in the county in which the person against whom the suit is brought resides, has his principal place of business, or has done business.”

Plaintiff-Appellees contend, as we understand it, that the amended Section 17.56as hereinabove-quoted relieves them of the responsibility of having to prove a cause of action under the Deceptive Trade Practices Act. We cannot agree with this contention, because Plaintiff-Appellees filed this suit on September 13,1976, a time prior to the effective date of the amended Section 17.56, to wit, May 23, 1977. This being so, the case at bar is governed by Section 17.56as it existed prior to the amendment of May 23, 1977; in other words, it is governed by the old statute instead of the new statute.

It seems to be a well-settled rule of law that venue of an action is controlled by the law in effect at the time of the institution of the suit. Cacanay Corp. v. Shepherd (Houston Tex.Civ.App.1960) 336 S.W.2d 779, writ dismissed w. o. j.; Atkins v. Wheeler (Austin Tex.Civ.App.1957) 307 S.W.2d 294, writ dismissed w. o. j.; Holt v. Wheeler (Galveston Tex.Civ.App.1957) 301 S.W.2d 678, writ dismissed w. o. j.; Genecov v. Marcus (Dallas Tex.Civ.App.1955) 285 S.W.2d 872, no writ; 59 Tex.Jur.2d, “Venue,” Sec. 13, p. 381.

We therefore hold that Section 17.56 as amended effective May 23, 1977, does not apply to the case at bar, and therefore we express no opinion concerning the construction of said statute.

Under our view of the case that the old Section 17.56 governs the case at bar, we are of the opinion that the holdings in Doyle v. Grady, supra, and Hudson and Hudson Realtors v. Savage, supra, are applicable to the instant case and should be followed, and that Plaintiff-Appellees Led-better are required to prove their cause of action. We therefore sustain Defendant-Appellant’s contentions in this regard, reverse the trial court’s order, and remand the cause to the trial court for a further development of the record.

Defendant-Appellant strenuously insists that the cause should be reversed and rendered and transferred to Limestone County, instead of being reversed and remanded. We cannot do this, because under the rule laid down by our Supreme Court in Jackson v. Hall (Tex.1948) 147 Tex. 245, 214 S.W.2d 458, where the record is not fully developed, it is our duty to remand.

We therefore reverse and remand the cause to the trial court for further development of the record.

REVERSED AND REMANDED.


author: SHANNON, Justice.

text:
    CRB MARKETING, Appellant, v. AIRBORNE FREIGHT CORPORATION, Appellee.
    No. 12661.
    Court of Civil Appeals of Texas, Austin.
    Jan. 11, 1978.
    Rehearing Denied Feb. 8, 1978.
    Donald R. Flournoy, Austin, for appellant.
    Don L. Baker, Austin, for appellee.
   SHANNON, Justice.

Appellee, Airborne Freight Corporation, sued appellant, CRB Marketing, upon a sworn account. After trial to the court, judgment was entered by the county court at law of Travis County for appellee for $1,063.12. We will reverse that judgment.

In response to appellee’s petition, appellant filed an answer which did not comply with Tex.R.Civ.P. 185.

Appellant’s first point of error is that the judgment should be reversed because it is supported by no evidence. We will grant that point of error. After proving up attorney’s fees, appellee rested. Appellee never offered and the court never received the sworn account into evidence.

To prove up a cause of action on a sworn account, the account must be offered in evidence. Hilton v. Musebeck Shoe Company, Inc., 505 S.W.2d 341, 344, 345 (Tex.Civ.App.1974, writ ref’d n. r. e.); Johnson v. Walker, 330 S.W.2d 508 (Tex.Civ.App.1959, no writ); Chisos Mining Co. v. Chicago Pneumatic Tool Co., 142 S.W.2d 549 (Tex.Civ.App.1940, writ dism’d jdgmt. cor.).

The judgment is reversed and judgment is here rendered that appellee take nothing.


author: PHILLIPS, Chief Justice. SHANNON, Justice,

text:
    FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF NEW BRAUNFELS et al., Appellants, v. W. Sale LEWIS, Savings and Loan Commissioner of Texas, et al., Appellees.
    No. 12705.
    Court of Civil Appeals of Texas, Austin.
    Jan. 18, 1978.
    Rehearing Denied Feb. 8, 1978.

      James W. Hackney, McGinnis, Lochridge & Kilgore, Austin, for First Federal Savings and Loan Ass’n of New Braunfels.
    Larry Temple, Austin, for New Braunfels Savings and Loan Ass’n and Guada-Coma Savings and Loan Ass’n.
    John L. Hill, Atty. Gen., Catherine Brown, Asst. Atty. Gen., Austin, for W. Sale Lewis, Savings and Loan Commissioner of Texas.
    Gary Evatt, Long, Evatt & Webber, Austin, for San Antonio Savings Ass’n.
   PHILLIPS, Chief Justice.

Without reaching the substantial evidence question and related issue urged by the parties hereto, the trial court set aside the Savings and Loan Commissioner’s order granting a branch office in New Braunfels to San Antonio Savings Association. The court set aside the order on two specific grounds; namely, the exclusion from evidence of extracts from a private publication and related testimony, and the alleged failure of San Antonio Savings Association to prove that the particular location for which the branch office was approved is available to the association.

The trial court remanded the matter to the Commissioner with instructions to admit and consider the excluded evidence, to take additional evidence with regard to the precise location of the branch office, and to conduct such other proceedings as are not inconsistent with the judgment.

We reverse the judgment of the trial court and herewith render judgment validating the Commissioner’s order.

This suit was brought in the court below by First Federal Savings and Loan Association of New Braunfels, New Braunfels Savings and Loan Association, and Guada-Coma Savings and Loan Association, against W. Sale Lewis, Savings and Loan Commissioner of Texas, seeking judicial review of an order entered by the Savings and Loan Commissioner which granted San Antonio Savings Association permission to establish a loan branch office at the southeast corner of the intersection of Landa Street and Highway 46 in New Braunfels, Comal County, Texas.

San Antonio Savings Association intervened in the suit as a party defendant and aligned itself with the Savings and Loan Commissioner. The New Braunfels group, the plaintiffs below, contended that the order of the Commissioner was not reasonably supported by substantial evidence and that the order and the findings therein failed to comply with the requirements of Section 2.08 and 11.11(4) of the Texas Savings and Loan Act, the requirements of 2.3 and 2.4 of the Rules and Regulations for Savings and Loan Associations and Section 16 of the Administrative Procedure and Texas Register Act.

In the alternative, it was alleged that the hearing officer erred in refusing to permit into evidence certain valid, dependable, reliable and otherwise admissible evidence and testimony pertaining to the profitability of the banks in the area and that the Commissioner erred in approving the branch application for the precise site on the southeast corner of the intersection of Landa Street and Highway 46 in New Braunfels, because the evidence discloses that San Antonio Savings Association did not own the site but owned another and different site.

The case was tried before the court in February, 1977, and the following June the court entered a judgment remanding the case to the Savings and Loan Commissioner for the taking of additional evidence concerning the admission of hereinafter described evidence pertinent to the area banks and also to determine the question of availability of the site in question. The court did not pass upon the substantial evidence question nor the issues concerning the statutory propriety of the order itself.

All of the parties hereto now bring this appeal from that judgment.

I.

Appellant San Antonio Savings Association’s first point of error is that of the trial court in holding that San Antonio Savings Association failed to prove at the administrative hearing that the site within New Braunfels for which the Commissioner approved the branch office, the southeast corner of Landa Street and State Highway 46, was available to the association and that the administrative hearing should be reopened to take additional evidence with respect to the location.

We sustain this point.

W. W. McAllister, III, the president and chief operating officer of branch office applicant San Antonio Savings Association, testified that the proposed location of the branch office is the southeast corner of the intersection of Landa Street and State Highway 46 in New Braunfels. Mr. McAl-lister further testified that he personally assisted in selection of the site, and that the association had owned it for several years.

However, an economist appearing on behalf of the protesting associations testified that, in his opinion, the site owned by San Antonio Savings Association is at the south or southwest corner of the above-described intersection.

The Commissioner accepted Mr. McAllis-ter’s description of the location as being the correct one; however, he noted in his order that it would have made no difference in his decision if the site was the southwest corner of the intersection.

There is no question but that San Antonio Savings owns one or the other corner of the intersection, and that it is available for the location of the branch office. It is also without dispute that the precise location of the branch is not pertinent to the decision of this case. Rule 2.3 of the Rules and Regulations for Savings and Loan Associations requires that an application for a branch office “shall state the proposed location thereof.” We hold that under the facts of this case, there is substantial evidence to uphold the Commissioner’s finding with respect to the proposed location.

Appellant San Antonio Savings’ second point is the error of the trial court in holding that the Commissioner’s hearing officer erroneously excluded from evidence extracts from a publication termed Sheshu-noff Banks of Texas, relating to the alleged profitability of certain banks, and the related testimony of the witness concerning the contents of the extracts; and further, the error of the trial court in holding that this exclusion of evidence prejudiced substantial rights of the complaining parties.

We also sustain this point.

After lengthy direct and voir dire examination, the hearing officer sustained the branch office applicant’s objection to two pages of paper marked “Opponent’s Exhibit 4” and the related testimony of the consultant, Dr. George Berry, who appeared on behalf of the protesting associations.

Dr. Berry identified this exhibit as a two-page extract from a private publication entitled Sheshunoff Banks of Texas. These two pages purportedly reflect the profitability of two of the four banks in Comal County. The essence of Dr. Berry’s excluded testimony is that the Sheshunoff extract proves that these two banks did not operate profitably in 1975.

We hold that the exclusion of this evidence and testimony relative thereto was proper.

The new Administrative Procedure and Texas Register Act, Section 14(a) directs that the rules of evidence as applied in nonjury civil cases in the district courts of this state shall be followed in agency hearings. This exhibit and any testimony of Dr. Berry’s relating to the contents of the exhibit are hearsay; that is, information compiled by others outside the hearing offered for the truth of the matters stated without the compilers and computerizers testifying under oath, subject to cross-examination. 1 McCormick and Ray, Texas Evidence, sec. 781 (1956, 1975 Supp.). Nor does this evidence contain any of the redeeming features necessary to admit scholarly treatises as exceptions to the hearsay rule.

Sheshunoff is a private firm which claims to be specializing in “banking information and studies.” There is a question as to whether Sheshunoff is a disinterested witness in the data the firm publishes as the publication itself states that their communication is not an offer to sell or the solicitation of an offer to buy the securities mentioned as the company, its officers, directors and employees “may have an interest in one or more of the securities mentioned.”

Nevertheless, Dr. Berry made no inquiry of the publisher and simply was not sure of the source of information used by Sheshu-noff in the publication. The publication itself says only that the data are “extracted from individual reports of condition” without specifying where the reports are obtained and whether they are official reports of the condition of the banks. The data consist of computer print-outs the accuracy for which Sheshunoff itself disclaims responsibility. In addition, the computer work is apparently not done by Sheshunoff but by a third party for whose work the publication refuses to vouch. In short, we are not quite sure where the Sheshunoff reports came from. So due to the obscurity of the origin of the source material, admission of the data would have denied adverse parties a realistic opportunity to rebut it and, needless to say, any cross-examination of those familiar with the sources of the material would have been impossible.

Thus, we hold that the examiner did not abuse his discretion in excluding the evidence which, in his judgment, did not qualify as “substantial.” In this regard, see Lewis v. Metropolitan Savings and Loan Ass’n, 550 S.W.2d 11 (Tex.1977). The qualitative difference between the evidence excluded here and that excluded in Metropolitan is patent. Indeed, this evidence would, in all probability, have been excluded under the aegis of Lewis v. Southmore Savings Ass’n, 480 S.W.2d 180 (Tex.1972), which even though handed down before the adoption of the Administrative Procedure and Texas Register Act, restated the law as being:

“In Texas the hearsay rule applies in administrative hearings just as it does in court. And it is a rule that forbids the reception of evidence rather than one that merely goes to the weight of the evidence.”

Should we be in error with respect to our holding on the hearsay question, in our judgment the error is harmless under this record. Section 19(e) of Article 6252-13a of the Act inter alia requires the court to reverse and remand the case to the administrative agency “if substantial rights of the appellant have been prejudiced” because of the administrative findings. The Sheshu-noff reports were offered for the limited purpose of showing that the Canyon Lake Bank at Sattler and the New Braunfels National Bank both lost money in the year 1975. The former was opened for business in 1973, the latter in 1975. The findings of fact and conclusions of law found by the Commissioner based on his statement of the underlying facts encompass a much broader time frame of reference with respect to the economic growth and the economic vitality of the trade area concerned. Consequently, as our precis of the record, hereinafter set out, will disclose evidence of the loss of revenue by these two institutions during this limited period of time involved could not have prejudiced their “substantial rights” and to so hold would be both unrealistic and unreasonable.

II.

The remaining questions before us concern whether the order viewing the record as a whole is supported by substantial evidence and whether the Savings and Loan Commissioner set forth in the order a concise and explicit statement of underlying facts supporting his ultimate findings and separately stated findings of fact and conclusions of law in conformity with the requirements of Section 11.11(4) of the Texas Savings and Loan Act and Section 16 of the Administrative Procedure and Texas Register Act.

As we stated above, the trial court did not reach those questions; however, since we have a valid order before us and since they are questions of law, we will dispose of them here.

Section 2.08 of the Texas Savings and Loan Act requires the Commissioner to affirmatively find, inter alia, a public need, a sufficient volume of business in the community in which the association will conduct its business to indicate a profitable operation, and that no undue harm will be visited upon any existing association. These requirements for a new charter have been held to be applicable to a branch application also. Rules 2.3 and 2.4 of the Rules and Regulations for Savings and Loan Associations set forth the same requirements as those stated above, for branch office applications. Both Section 11.11 of the Savings and Loan Act and Section 16 of the Administrative Procedure and Texas Register Act require that the order contain findings of fact and conclusions of law separately stated and that the findings of fact set forth in statutory language be accompanied by a concise and explicit statement of underlying facts supporting the findings.

The decision and order of the Commissioner is valid if supported by substantial evidence. In determining the substantial evidence issues, the basic inquiry of the reviewing court is whether reasonable minds could have, upon the basis of the evidence before the Commissioner, reached the same conclusions or have made the same findings as those found by the Commissioner.

The evidentiary review of the court is based upon evidence adduced at the administrative hearing and contained in the hearing record certified to the reviewing court by the Commissioner.

Substantial evidence has been described by the courts in all the hues of Jacob’s coat; however, most recently the Supreme Court stated: “In practical result, it has not taken much evidence under our decisions to qualify as substantial. In fact, the evidence may be substantial and yet greatly preponderate the other way.”

In Strain v. Lewis, supra, a case involving a branch office application, this Court held that the proof of public need for a branch office need not be as comprehensive as proof of public need for a new association; that Section 2.4(h) of the Rules explicitly and deliberately prescribes for branch offices a standard of profitable operation less exacting than the corresponding standard prescribed by the statute for new associations; and, that the criterion for profitable operation prescribed by Section 2.4(h) of the Rules represents a valid and permissible exercise of the rule-making authority of the Savings and Loan Section of the Finance Commission.

Finally, the Commissioner is the sole judge of the credibility of the witnesses and of the weight to be afforded their testimony; and, he is not bound to accept the conclusions and opinions of any witness.

In turning to the Commissioner’s order, we find that it contains all required underlying findings in accordance with the statutory provisions discussed above. The most important being those related to the standards of public need, profitable operation and absence of undue harm to other associations. We also hold that the Commissioner made the required findings of fact and conclusions of law based upon the underlying facts and that all of these requirements are contained in the order now before us.

The findings in the Commissioner’s order were adduced from evidence in the record that the San Antonio Standard Metropolitan Statistical Area, which consists of Co-mal (New Braunfels), Bexar and Guadalupe Counties, has shown significant economic and population growth in the current decade and that personal income has increased substantially. The evidence in the record further disclosed that this statistical area was so designated by the United States Department of Commerce because of the economic interaction and relationship between and among these counties. The evidence then discloses significant population increase in the city of New Braunfels and the same for Comal County. There is evidence that the growth of the economy of New Braunfels and Comal County in recent years is reflected in various specific economic data such as passenger vehicle registrations, residential postal deliveries, total retail sales, sales tax receipts, bank debits for the banks in New Braunfels, growth in the labor force, building permits, and personal income reflected through reports of the United States Department of Commerce.

The evidence further discloses that there are four commercial banks located in Comal County, three in New Braunfels, and one in Sattler. These banks have enjoyed substantial growth; that between the years 1970-1975 total deposits of the banks in New Braunfels increased from approximately $28,500,000 to approximately $51,-800,000. Total deposits of the bank in Satt-ler approximated $2,200,000 in 1974, $3,800,-000 in 1975 and $4,100,000 in 1976. Total time and savings deposits of individuals, partnerships, and corporations in the bank located in New Braunfels grew from approximately $10,300,000 in 1972 to approximately $18,100,000 in 1975.

There are two savings and loan associations domiciled in Comal County: First Federal and New Braunfels Savings and Loan Association. The home offices of both associations are located in New Braunfels and one maintains a branch office in Satt-ler. There is a savings and loan association, Guada-Coma, recently opened for business in Seguin, Guadalupe County, which is in the San Antonio Standard Metropolitan Statistical area; however, the Commissioner found that the proposed branch office will have little or no effect on the operation of this Seguin-based association.

The evidence further reflects that First Federal, established in 1934, doubled its savings between 1970 and 1975, increasing from $32,800,000 to approximately $72,200,-000 in total assets and from $28,600,000 to approximately $62,500,000 in savings. Aggregate net income for 1973-1975 exceeded $1,800,000. Mortgage loans and other liens on real estate increased from approximately $52,000,000 in 1973 to approximately $61,500,000 in 1975.

New Braunfels Savings and Loan Association opened for business in August of 1975. By the end of 1975, the association had accumulated total assets of approximately $2,266,000, total savings of approximately $1,574,000, and total first mortgage loans of approximately $1,616,000. By June 1976, total savings of the association had increased to a total of more than $4,000,000. As of May 1976, New Braunfels Savings had total assets of approximately $4,174,-000, mortgage loans of approximately $3,595,000, and total capital, surplus and reserves of approximately $618,000. This association experienced a small net loss from operations in 1975, but operated at a small profit for the first five months of 1976. The record reflects that this association has performed well since opening for business.

The record further reflects that branch applicant San Antonio Savings Association has a number of existing patrons and a considerable volume of business outstanding in Comal County. The proposed branch office will permit applicant to render better service to its existing customers and to attract new customers. As of May 1976, San Antonio Savings Association had, from customers with mailing addresses in the ZIP code for New Braunfels post office, savings accounts with aggregate balances of more than $2,600,000 and mortgage loans with outstanding balances in excess of $1,600,-000.

In the budget for the first three years of operation of the proposed branch office, San Antonio Savings projects a net savings inflow for the office of $1,000,000 the first year, $1,500,000 the second year, and $2,000,000 the third year. The budget projects lending 93 percent of the savings flow each year and making other investments with 7 percent of such funds. Based upon income and expenses which will be generated by the volume of business, its financial vice president testified that the proposed branch office will become profitable to applicant during the second year of operation and will be profitable overall for the first three years of operation.

Dr. James E. Stafford, a qualified economic consultant, appearing as an expert witness on behalf of applicant, testified that in his opinion, it is probable that the proposed branch office will be able to achieve the volume of savings and loan business projected in the budget during its first three years of operation and that three years is a reasonable time for a branch office to become profitable to an association.

The Commissioner found, and so stated in his order, that the approximate volume of business projected in the budget is likely to be obtained by the proposed branch office, and that the income and expense projections for this volume of business, contained in the branch office budget, are reasonable and that the proposed branch office will become a profitable operation to the applying association within a reasonable period of time.

The Commissioner further found that to the extent, if any, sufficient loans to absorb the volume of savings obtained through the branch office are not available in the community, applicant branch office will be able to lend such funds in other areas and thus render the proposed branch office a profitable operation.

The Commissioner further found that the proposed branch office of San Antonio Savings will afford the public in Comal County an additional needed competitive alternative, which will operate profitably without unduly harming any existing association. The Commissioner adopted the findings of Dr. Stafford, based on testimony in the record, that there is a public need for the proposed branch office; that the volume of business in the community in which the proposed branch office will conduct its business is such as to indicate a profitable operation to applicant within a reasonable period of time; and that the proposed operation of the branch office will not unduly harm any other association operating in the vicinity of the proposed location. These findings in the order are adequate statements of the required underlying facts.

The Commissioner then found, based on the stated underlying facts, and as the statutes require, set out ultimate findings or conclusions that the proposed branch office will be in the public interest, that there is a substantial and obvious community need for the proposed branch office, that the proposed branch office will be able to obtain the business necessary to render the branch office a profitable operation to the applicant within a reasonable period of time, that existing associations in the community will be able because of the volume of business available to continue their growth, profitable operation and service to the public, and that the proposed branch office will not unduly harm any existing association.

In addition, ultimate findings based on the stated underlying facts were made with respect to location of the branch office, loss reserves, supervision of the branch and as to the character, responsibility and general fitness of the management and directorate of the applying association.

The protestants before the Commissioner complain that the Commissioner did not consider the entire record but only selected portions of the evidence without taking into account the retractions and admissions of the witnesses who appeared. Protestants point to a conflict in the testimony of applicant’s witness as to the geographical center of the trade territory thus rendering the trade territory to be served by the proposed branch as being too broad and all inclusive. They object to the manner and the data with which Dr. Stafford projected the expected population of Comal County by the end of 1977. They object to the evidence of passenger vehicle registrations, residential mail deliveries, sales tax receipts, as being irrelevant or, in some cases, misleading. They point to falling retail sales in Comal County in 1974, a diminution in bank debits in 1974 showing a weakness of business activity, the small growth of total labor and proprietor’s income for 1974, and the fact that cash receipts from farm marketings were down more than two million dollars from 1973. These protestants further contend that there is evidence showing that in 1972, there were $5.5 million in new building permits issued, that by 1975, when the number of savings and loan associations had doubled, the value of the permits had fallen to $2.9 million. They complain that these facts, along with testimony to the effect that the three local banks showed a loss in IPC demand deposits during thé first quarter of 1976 and only a modest gain in time and savings deposits, demonstrate a falling business climate in the area and a general lack of loan demand. Protestants also complain that the Commissioner did not include this evidence in his order.

Nevertheless, we hold that the order of the Commissioner was based on substantial evidence under cases cited above and, further, that the order complied with the pertinent statutes cited above and with the Commissioner’s own rules and regulations.

In our opinion, reasonable minds could well have differed on the quality or “sub-stantiality” of the evidence presented before the Commissioner and, in fact, even if protestants’ evidence was such as it would have upheld a denial of the branch charter, it is the Commissioner’s prerogative to make this choice, he did so, and we affirm his conclusion.

The judgment of the trial court is reversed and judgment is here rendered validating the order of the Savings and Loan Commissioner.

SHANNON, Justice,

dissenting.

The district court entered judgment remanding the cause to the Commissioner with instructions: (1) that evidence be taken as to the particular location of the proposed branch office, and (2) that evidence excluded by the hearing officer, concerning profitability of area banks, be admitted. The judgment expressly states that the issues concerning substantial evidence were neither reached nor decided.

This Court held recently that the district court, upon determination of error in an administrative appeal, may remand a cause to the Savings and Loan Commissioner for further consideration even though the Court did not pass on the substantial evidence questions. First Savings & Loan Ass’n of Del Rio, Tex. v. Lewis, 512 S.W.2d 62 (Tex.Civ.App.1974, writ ref'd n. r. e.); cf. Lewis v. Metropolitan Savings & Loan Ass’n, 550 S.W.2d 11, 16 (Tex.1977). Accordingly, the district court, in the case at bar, was empowered to order remand.

The only question for resolution by this Court, then, is whether or not the district court was correct in determining error in the Commissioner’s order in that (1) the particular location of the branch office was not proved, and (2) the hearing officer erred in excluding a publication, Sheshunoff, Banks of Texas, which demonstrated the profitability, or not, of area banks. The majority of this Court has concluded that the district court erred in both determinations.

In my view, the district court was correct in remanding the cause to the Commissioner for the admission of the publication into the record.

In the agency hearing, both the branch applicant and the opponents introduced evidence reflecting the condition of the local economy in an effort to show public need, especially the condition of the financial community. The applicant naturally emphasized that the banking community was financially strong. By way of rebuttal and through their economic expert, George William Berry, the opponents attempted to place into the record evidence regarding the lack of profitability of two new banks in Comal County. The tendered evidence consisted of two pages from a publication entitled, Sheshunoff, Banks of Texas. The hearing officer sustained counsel’s objection to the tender of the publication.

From the direct and voir dire examination of Dr. Berry and his testimony on bill of exceptions, it was shown that Sheshu-noff, Banks of Texas is a published reference source usually and customarily relied upon by banking experts. Dr. Berry testified that the publication was dependable and reliable. Dr. Berry had used the publication in the past and, in fact, the publication had been admitted into the record in a previous charter, or branch proceeding, before the Commissioner. The publication was consulted by Dr. Berry in the preparation of the economic study which he prepared for the instant case. The publication was brought to the hearing room and made available to the applicant’s counsel and representatives.

The preceding paragraph demonstrates that the opponents met the requirements of Lewis v. Southmore Savings Association, 480 S.W.2d 180 (Tex.1972), and that the evidence, under the authority of that case, was admissible.

The importance of the excluded evidence was shown by Dr. Berry’s testimony on bill of exception. Dr. Berry testified that the publication showed that the two new banks in Comal County were operating at a net loss. The fact that two new financial institutions were operating at a loss in Comal County bears, of course, on the issue of public need for the proposed branch. The excluded evidence was material and relevant to the issue of public need, and without that evidence the Commissioner was unable to discharge his responsibility to consider all the surrounding facts and circumstances. Metropolitan Savings & Loan Ass’n v. Lewis, 550 S.W.2d 11 (Tex.1977). The district court was, therefore, correct in remanding the matter to the Commissioner for him to reopen the hearing and to reconsider his decision in light of the previously excluded evidence. Metropolitan Savings & Loan Ass’n v. Lewis, supra.

The majority opinion is also wrong for a different reason. In its opinion, the majority determines that the Commissioner’s findings of public need, sufficient volume of business, and no undue harm, are supported by substantial evidence. The district court’s judgment, which we review, does not pass on those questions. In deciding the substantial evidence questions, regardless of the contents of the judgment under review, the majority of this Court turns a blind eye to precedent and misconceives the function of an appellate court.

Texas Rev.Civ.Stat.Ann. art. 852a § 11.12 (1964) vests in the district court of Travis County the authority to review the orders of the Commissioner. After hearing, the district court, of course, may affirm the order or, as in the case at bar, remand the matter to the Commissioner for further proceedings. Tex.Rev.Civ.Stat.Ann. art. 852a § 11.12(6). A party dissatisfied with the judgment of the district court may take an appeal in the manner provided for in civil actions generally. Tex.Rev.Civ.Stat. Ann. art. 852a § 11.12(7).

It is not the order of the Commissioner, but instead it is the judgment of the district court which this Court reviews for error. An appellate court may reverse the judgment of the lower court only for error in the judgment. Chevalier v. Lane’s, Inc., 147 Tex. 106, 213 S.W.2d 530 (1948). It follows that “ . . .no matter can be passed upon in review that was not previously passed upon below, for there can be no error without an adjudication.” Sunder-land, The Problem of Appellate Review, 5 Texas L.Rev. 126, 140 (1927). The rule is hardly novel, for in 1816 Chancellor Kent observed, “The very theory and constitution of a court of appellate jurisdiction is the correction of errors which a court below may have committed; and a court below cannot be said to have committed an error when their judgment was never called into exercise, and the point of law was never taken into consideration.” Gelston v. Hoyt, 13 Johns. 561 (N.Y.1816); accord, Smith v. Texas Co., 53 S.W.2d 774, 779 (Tex.Com.App.1932); Wade v. Galveston, H. & S. A. Ry. Co., 110 S.W. 84 (Tex.Civ.App.1908, writ ref’d); Van Hoose v. Moore, 441 S.W.2d 597, 619 (Tex.Civ.App.1969, writ ref'd n. r. e.). The majority opinion has not stated any reason or referred to any authority in point that alters the rule in an appeal involving an administrative order.

In the case at bar, the judgment of the district court did not reach, nor determine, the substantial evidence questions and, as a result, there was not, and could not be, error in the judgment with respect to those issues.

The majority opinion is faulty for yet another reason. Appellate courts are empowered to reverse judgments only to correct errors. Chevalier v. Lane's, Inc., supra. Because there could be no error in the lower court’s judgment with respect to the substantial evidence questions, the part of the majority opinion dealing with those questions is advisory only. Article V of the Constitution of Texas does not authorize this Court, or any other court, to render advisory opinions. Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933); United Services Life Insurance Company v. Delaney, 396 S.W.2d 855 (Tex.1965); Firemen’s Insurance Company of Newark, New Jersey v. Burch, 442 S.W.2d 331 (Tex.1968); State Bar v. Van Slyke, 557 S.W.2d 363 (Tex.Civ.App.1977, no writ).

I would affirm the judgment of the district court.

      . The parties hereto appear before us both as appellants and as appellees.

      . Lewis v. Gonzales Savings and Loan Ass’n, 474 S.W.2d 453, 459 (Tex.1971); Bay City Federal Savings and Loan Ass’n v. Lewis, 474 S.W.2d 459, 462-63 (Tex.1971).

      . Gerst v. Nixon, 411 S.W.2d 350 (Tex.1967); Board of Adjustment v. Underwood, 332 S.W.2d 583 (Tex.Civ.App.1960, writ ref’d n. r. e.); Fuller v. Mitchell, 269 S.W.2d 517 (Tex.Civ.App.1954, writ ref'd n. r. e.).

      . Strain v. Lewis, 461 S.W.2d 498 (Tex.Civ.App.1970, writ ref'd n. r. e.).

      . Gerst v. Goldsbury, 434 S.W.2d 665 (Tex.1968); Gerst v. Guardian Savings and Loan Ass’n, 434 S.W.2d 113 (Tex.1968); Gerst v. Nixon, 411 S.W.2d 350 (Tex.1966).

      . Gerst v. Nixon, supra.

      . Lewis v. Metropolitan Savings and Loan Ass’n, supra.

      . Gerst v. Guardian Savings and Loan Ass’n, supra.

      . Citizens of Texas Savings and Loan Ass’n v. Lewis, 483 S.W.2d 359 (Tex.Civ.App.1972, writ ref’d n. r. e.).

      . Demand deposits of individuals, partnerships, and corporations.


author: J. CURTISS BROWN, Chief Justice.

text:
    GENERAL ELECTRIC COMPANY, Appellant, v. DUCANE HEATING CORPORATION et al., Appellees.
    No. 1722.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Jan. 18, 1978.
    Rehearing Denied Feb. 8, 1978.

      Louis Seymour Zimmerman, Osborne J. Dykes, III, Fulbright & Jaworski, Houston, for appellant.
    William R. Powell, Jr., Houston, for ap-pellees.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from a take-nothing judgment on a cross-action for breach of a contractual duty to defend.

General Electric Company (G. E. or appellant) executed a sales contract with Du-cane Heating Corporation (Ducane) in 1966. Pursuant to that contract, Ducane agreed to sell, and G. E. agreed to buy, horizontal gas furnaces manufactured by Ducane. The furnaces contained controls manufactured by Honeywell, Inc. (Honeywell).

Oyce M. Thomas and Effie Thomas (the Thomases) purchased a new home in Houston, Texas in October 1968. The home contained a horizontal furnace that had been manufactured by Ducane, bore Honeywell controls, and was sold by G. E. The home was extensively damaged by fire in November 1968, approximately three days after the Thomases had taken possession of it. In October 1970, the Thomases sued Honeywell, Ducane, G. E., the builder of the home, and the company that installed the horizontal furnace, alleging that the fire was caused by the defective design, manufacture, assembly and installation of the furnace.

Ducane and its liability insurer, Argonaut Insurance Company (Argonaut), both appel-lees herein, undertook in 1971 to defend G. E. against the lawsuit brought by the Thomases. The appellees defended G. E. pursuant to an indemnity provision contained in the 1966 contract between Ducane and G. E. The appellees’ defense of G. E. continued until September 15, 1975, five months after the Thomases filed their third amended petition. G. E. subsequently filed a cross-action against the appellees for indemnity and for legal costs incurred in defending the action brought by the Thomas-es. All claims in the proceedings were settled prior to the time of trial, except for G. E.’s cross-action against the appellees for legal defense costs. The court rendered judgment for the appellees at the conclusion of a nonjury trial.

In its first two points of error, G. E. contends that the trial court erred in failing to conclude that Ducane had a contractual duty to defend G. E. and that G. E. is entitled to recover damages resulting from Ducane’s breach of that duty after September 15, 1975. The indemnity provision of the 1966 contract that forms the basis for G. E.’s claim provides:

“Section 18, Indemnity and Insurance —Up to a maximum of one million dollars ($1,000,000), SELLER agrees to indemnify and hold harmless PURCHASER and its distributors, dealers, subsidiaries and affiliates against any and all claims, expenses, demands, damages, causes of action, losses or liabilities and choses in action for bodily injury (including death arising therefrom), or accidental injury to or destruction of property (including the loss of use thereof), which arise in any way, for any reason, and at any time, during the term of this agreement or thereafter, out of the handling, distribution or sale by PURCHASER, its distributors, dealers, subsidiaries or affiliates, of the furnaces sold hereunder, and are due to either (1) any failure by SELLER to comply with any of the terms of this agreement or (2) any failure of the furnaces sold hereunder or pursuant hereto to comply with applicable specifications (agreed upon in writing by the parties) or (3) the negligence of SELLER.
* * * ⅜ * *
“SELLER agrees also to defend at its sole expense any litigation instituted against PURCHASER which in any way arises at any time whether during the term of this agreement or thereafter, out of one or more of the claims relating to any of the matters mentioned in the first paragraph of this SECTION 18. . . ” (emphasis added).

The appellees admit that Ducane was obligated, under the first and third conditions of the indemnity provision, to defend G. E. against the allegations contained in the Thomases’ original petition, first amended petition, and second amended petition. The appellees argue, however, that the Thomas-es’ third amended petition, unlike their previous petitions, did not allege facts sufficient to support findings that the property damage was “due to either (1) any failure by [Ducane] to comply with any of the terms of [the 1966] agreement or . (3) the negligence of [Ducane].”

One of the terms of the 1966 agreement between Ducane and G. E. was Du-cane’s warranty that the furnaces would “be suitable for their intended purposes.” The appellees contend that their obligation to defend G. E. was terminated by the Thomases’ allegation in the third amended petition that defective Honeywell controls caused the fire. The appellees rely upon language in the 1966 agreement, whereby Ducane excluded nearly all warranties relating to furnace controls. At trial, Ducane tendered evidence that tended to show that the controls on the Thomases’ furnace were defective, and counsel for Ducane and G. E. stipulated that two witnesses testified in depositions that the controls could have been defective. The appellees assert that “[b]y the time of [the Thomases’] Third Amended Petition ... it was obvious to everyone the [Thomases were] relying on an alleged defective HONEYWELL control valve,” and that a defect in the Honeywell controls was indeed the factual cause of the fire. The appellees contend, therefore, that the warranty disclaimer regarding controls relieved Ducane of its duty to defend G. E., even though the property damage was caused by Ducane’s breach of its warranty that the furnace was suitable for its intended purpose.

We reject that contention. Implicit in the Thomases’ general allegation that Ducane sold the furnace in a defective condition was their allegation that the furnace was unreasonably dangerous to the Thom-ases and unsuitable for its intended purpose. The Thomases’ allegation, in their third amended petition, that the property damage was caused by defective Honeywell controls was made “[i]n the alternative and without waiving the above-alleged general defect . . .The alternative pleading regarding the controls did not constitute an admission by the Thomases that there was no other defect in the furnace or that another defect in the furnace could not have been the sole proximate cause of the property damage. See Texas General Indemnity Company v. Sheffield, 439 S.W.2d 431 (Tex.Civ.App.-Houston [14th Dist.] 1969, writ ref’d n.r.e.); Tex.R.Civ.P. 48. Even after they filed their third amended petition, therefore, the Thomases were alleging that the destruction of their home arose out of the handling, distribution, or sale of the furnace by G. E., which furnace was unsuitable for its intended purpose despite Du-cane’s express warranty to G. E. to the contrary. As a result, the appellees’ obligation under the first condition of the indemnity provision contained in the 1966 agreement continued even after the Thomases filed their third amended petition. The ap-pellees breached their duty when they withdrew their defense of G. E. in September 1975.

The judgment of the trial court is hereby reversed, and the case is remanded for a determination of the damages sustained by G. E. as a result of the appellees’ breach of their obligation to defend G. E.

Reversed and remanded.


author: HUGHES, Justice.

text:
    Olen W. YANDELL, Appellants, v. TARRANT STATE BANK, Appellee.
    No. 17928.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 20, 1978.

      Garrett, Settle & Callaway and J. R. Green, Jr., Fort Worth, for appellant.
    Hudson, Keltner, Smith, Cunningham & Payne and Don C. Plattsmier, Fort Worth, for appellee.
   OPINION

HUGHES, Justice.

The issue in this case is whether, after affirmance of summary judgment on the merits and remand for new trial as to the issue of attorney’s fees awarded in accordance with the terms of a guaranty agreement the plaintiff may amend his pleadings in order to recover additional attorney’s fees incurred in defending the prior appeals.

We affirm the trial court’s award of attorney’s fees.

This is the second appeal to come before us in this action on a guaranty agreement. In the first appeal, reported at 538 S.W.2d 684 (Tex.Civ.App.-Fort Worth 1976, writ ref’d n. r. e.) this court affirmed, as to the merits, a summary judgment rendered against Olen W. Yandell for $12,000.00 principal plus interest due on a promissory note under the terms of the guaranty agreement. In the summary judgment proceeding Tarrant State Bank had alleged that under the terms of the guaranty agreement it was entitled to “reasonable attorney’s fees incurred . . . in no event less than ten percent (10%) of the amount ow[ing]” to Bank, and sought $1,200.00 in attorney’s fees. The guaranty agreement provided:

Whenever an attorney is used to collect or enforce any rights of Bank against Guarantor under this guaranty, whether by suit or other means, Guarantor agrees to pay to Bank a reasonable attorney’s fee, which shall in no event be less than ten per cent of the amount owing to Bank hereunder, together with all other costs and expenses of collection.

The trial court’s summary judgment awarded the Bank the $1,200.00 in attorney’s fees sought.

In the first appeal, this court sustained Yandell’s contention that the trial court erred in awarding the attorney’s fees in the summary judgment; reversed that part of the summary judgment awarding the attorney’s fees; and remanded that portion of the case to the trial court for a “new trial of the attorney’s fee issue.” 538 S.W.2d at 690. Costs of the appeal were taxed against the appellee, Tarrant State Bank.

On remand, Bank amended its petition to seek a “reasonable” attorney’s fee for services which included the appeals taken from the judgment previously rendered in the trial court. The trial court awarded it $2,750.00. The court’s judgment recites that it had determined that the Bank was entitled to reasonable attorney’s fees incurred, including those in the appeals from the prior judgment in the case, in the amount of $2,750.00. There are no formal findings of fact and conclusions of law in the record before us.

We overrule Yandell’s only point of error that the trial court erred in awarding Bank an attorney’s fee for services rendered on appeal.

Yandell argues that the trial court’s action permits Bank to profit from its own failure to support the original $1,200.00 award with evidence. As we understand them, Yandell’s basic arguments are: (1) that the Bank has waived any right to seek attorney’s fees for services rendered in the prior appeals and (2) that attorney’s fees are in the nature of costs and should not be permitted as a penalty against a party who prosecutes a successful appeal.

The cases cited by Yandell do no support his contentions in this case. Loomis Construction Company v. Matijevich, 425 S.W.2d 39 (Tex.Civ.App.-Houston [14th Dist.] 1968, no writ) and San Antonio v. Intern. Ass’n of Fire Fighters, 539 S.W.2d 931 (Tex.Civ.App.-El Paso 1976, no writ) are not appeals from summary judgments improperly granted because of the existence of a fact issue as to reasonable attorney's fees. Both the Loomis and the San Antonio case were appeals from trials in which factual determinations of attorney’s fees incurred during trial were made and the prevailing party in the trial court had waived his recovery of future attorney’s fees by failing to procure a finding and judgment on that issue in the first trial. In the case at bar the Bank cannot be said to have waived its recovery of reasonable attorney’s fees on appeal because it could not properly have obtained the resolution of that fact issue in the summary judgment proceeding.

Nor does Centra] Adjustment Bureau, Inc. v. Gonzales, 528 S.W.2d 314 (Tex.Civ.App.-San Antonio 1975, no writ) support Yandell’s waiver argument. There the ap-pellees, by cross-point, asked the appellate court to award attorney’s fees for their attorneys’ services on appeal. The court noted that the appellees therein had not objected to the failure to include fees on appeal in the issues submitted to the jury. Because their request was made for the first time on appeal, the court held it was too late. Yandell also cites Volkswagen of America, Inc. v. Licht, 544 S.W.2d 442 (Tex.Civ.App.-El Paso 1976, no writ). That case also involved a jury trial rather than a summary judgment, and we do not think it applicable to the situation before us. Yan-dell argues that the cases cited deny attorney’s fees to a successful appellee who does not prove them correctly in the trial court and that they should not be allowed to an unsuccessful appellee whose appeal is “necessitated by his own omission.” We distinguish his authorities on the ground that, in the cases cited, a trial had already been held to resolve the fact issues. Here a summary judgment had been rendered and appeal had been taken by Yandell to this court, and to the Texas supreme court only on the merits. The Bank prevailed on the merits in both instances. Both parties acknowledged in oral argument, and our records in the prior appeal reflect, that the Bank did not challenge in the supreme court the remand by this court of the issue of attorney’s fees.

Yandell also argues that under Tex.R.Civ.P. 448 the appellant is entitled to recover costs and that attorney’s fees “partake of the nature of the costs,” citing Huff v. Fidelity Union Life Insurance Company, 158 Tex. 433, 312 S.W.2d 493 (1958). He argues that this policy supports his general position. Yandell further cites King Optical v. Auto. Data Processing, Etc., 542 S.W.2d 213, 218 (Tex.Civ.App.-Waco 1976, writ ref’d n. r. e.) for the proposition that “a trial court may not penalize a party for taking a successful appeal by taxing him with attorney’s fees if he takes it.” This argument overlooks the fact that this award was made in accordance with the terms of the guaranty agreement and also that Yandell was not successful on appeal as to the merits.

Yandell attempts to distinguish Lampman v. First National Bank in Dallas, 463 S.W.2d 28 (Tex.Civ.App.-Waco 1970, writ ref’d n. r. e.) on the grounds that the party in that case had had no opportunity to prove up attorney’s fees and had been successful on appeal and therefore, on remand, was properly permitted to amend his petition to obtain additional attorney’s fees. We see no reason to distinguish the case on this basis from the one at bar. The judgment of this court in the earlier appeal, which remanded the case in part for new trial on the issue of reasonable attorney’s fees, became final. The Bank had the right to amend its pleadings on remand. Tower Contracting Company v. Flores, 157 Tex. 297, 302 S.W.2d 396 (1957); Roberts v. Mullen, 446 S.W.2d 86 (Tex.Civ.App.-Dallas 1969, writ ref’d n. r. e.).

Judgment is affirmed.