text:
    Donald Lee LEWALLEN, Appellant, v. Dixie P. HARDIN, Appellee.
    No. 19407.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 21, 1978.
    Rehearing Denied March 22, 1978.
    Robert O’Donnell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Maridell Tem-pleton, John William Walkup, Asst. Dist. Attys., Dallas, for appellee.
   ROBERTSON, Justice.

Dixie P. Hardin sued her former husband, Donald Lee Lewallen, for child support under the Uniform Reciprocal & Enforcement of Support Act (URESA) Tex.Family Code Ann., § 21.01 et seq. (Vernon 1975). The parties had been divorced in North Carolina, but the divorce decree made no provision for support. The present proceeding was initiated in North Carolina, and pursuant to URESA, the papers were forwarded to Dallas County, the county of Lewallen’s residence. These papers included an affidavit by Hardin stating that Lewallen had not contributed to the support of their child and that $200 was a reasonable amount of monthly support. The Texas court entered a support order from which Lewallen now appeals. Since we conclude that there is no evidence to support the rendition of the order, we reverse and remand.

The principal question presented by this appeal is whether the statements made in the affidavits accompanying the certificate forwarded from the initiating court are competent evidence to justify rendition of a support order in the receiving state. These materials were the only evidence introduced by plaintiff at the hearing in the Texas trial court. Since section 21.36 of the Family Code provides that URESA actions are governed by the same rules of evidence that normally govern suits in district courts, we must decide this question under those rules.

The general rule is that affidavits have been held to be inadmissible hearsay upon the final trial of a case, and without probative force. Weart v. Mahone, 176 S.W.2d 197 (Tex.Civ.App.—Galveston 1943, no writ); Ward v. National Benev. Society, 155 S.W.2d 994 (Tex.Civ.App.—Galveston 1941, no writ); Owens v. Jackson, 35 S.W.2d 186 (Tex.Civ.App.—Austin 1931, writ dism’d). This is because the party against whom the affidavits are introduced has no opportunity to cross-examine the affiant. McCormick and Ray, Texas Law of Evidence § 787 (2d ed. 1956). In the present case, Lewallen had no opportunity to cross-examine his former wife regarding the statements in her affidavits. Under the authorities, the affidavits were hearsay, and hence no evidence to establish the duty of support or the amount required. Accordingly, we hold that affidavits forwarded from the initiating state in a URESA action cannot be considered a sufficient evidentia-ry basis for a support order. See Holmes v. Tibbs, 542 S.W.2d 487 (Tex.Civ.App.—Corpus Christi 1976, no writ); Schlang v. Schlang, 415 S.W.2d 28 (Tex.Civ.App.—Houston 1967, writ ref’d n.r.e.).

Although Hardin urges that we should construe the evidentiary requirements of URESA to conform to those used in summary judgment and sworn account situations, in which cases affidavits are allowed to establish necessary facts; each of those situations, however, are governed by rules which expressly allow the use of affidavits. URESA contains no such provision; indeed, it effectively prohibits the use of affidavits by providing that in proceedings under the Act, “the court shall be bound by the same rules of evidence that bind the district court,” Tex.Family Code Ann. § 21.-36 (Vernon 1975). This provision obligates the trial court to apply the usual rules of evidence, and does not authorize consideration of incompetent evidence by analogy to specialized situations such as summary judgments and sworn accounts.

Finally, Hardin urges that a minimal support order may be entered even in the absence of evidence regarding the circumstances surrounding the mother and child. She bases this contention upon the father’s duty of support, and argues that, in view of this duty, the circumstances of mother and child are irrelevant to the entry of a minimal order. We cannot agree. We recognize that a father has an obligation to support his children; however, the amount of that obligation must be established by competent evidence of the circumstances of both parents, as well as that of the child. Section 4.02 of the Family Code provides that “[e]ach spouse has the duty to support his or her minor children”. [Emphasis added] Under this section, each parent has an obligation to support the child commensurate with his or her ability to do so, Fried man v. Friedman, 521 S.W.2d 111 (Tex.Civ.App.— Houston [14th Dist.] 1975, no writ), and the trial court must consider the respective abilities of the parents to contribute. See Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App.— Houston [1st Dist.] 1974, no writ) (reaching the same result under the Texas Equal Rights Amendment). Under these authorities, no support order may be rendered without due consideration of the ability of each parent to support the child. Since no competent evidence of the mother’s support ability was introduced, the trial court’s order cannot stand. In the interest of justice, however, we are remanding this case to the trial court so that the facts may be further developed. Tex.R.Civ.P. 434; McCart v. Cain, 416 S.W.2d 463 (Tex.Civ.App.—Fort Worth 1967, writ ref’d n.r.e.). Presumably, the needed evidence can be obtained by submitting written questions pursuant to Rule 189 of the Texas Rules of Civil Procedure to the mother in the initiating state.

Reversed and remanded.


source: Caselaw Access Project

author: CIRE, Justice.

license: Public Domain

text:
    ALPINE GULF, INC., et al., Appellants, v. Salvatore VALENTINO, Appellee.
    No. 1822.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 22, 1978.
    Rehearing Denied March 15, 1978.
    Kenneth M. Morris, Morris & Campbell, Houston, Gifford, Woody, Carter & Hays, New York City, for appellants.
    R. Hayden Burns, Butler, Binion, Rice, Cook & Knapp, Houston, John F. Triggs, Glass, Greenberg, Irwin, Pellman & Slade, New York City, for appellee.
   CIRE, Justice.

Alpine Gulf, Incorporated and its parent company, Alpine Geophysical Associates, Incorporated, appeal from an order granting a temporary injunction prohibiting the transfer of assets from Alpine Gulf to either Alpine Geophysical or any of Alpine Geophysical’s subsidiaries.

Plaintiff-appellee Salvatore Valentino filed his original petition on December 14, 1977 seeking a temporary restraining order, temporary injunction, and ultimately a permanent injunction against Alpine Gulf and Alpine Geophysical. Appellee alleged that he had purchased nineteen percent of Alpine Gulf’s stock, worth $190,000, and had loaned the same company $95,000. He claimed that these investments were induced by fraud and misrepresentation on the part of Alpine Gulf and Geophysical. Valentino further alleged that in September of 1977 he had entered into a contract with appellants which gave him the right to recoup all of his money, and that in November of 1977, he had exercised his rights under the September contract. Valentino additionally accused Alpine Gulf and Geophysical and the companies’ officers, directors and management of conspiring to loot Alpine Gulf of its assets and transferring and attempting to transfer such assets to Geophysical. Valentino, in his prayer, asked that upon final hearing, the temporary injunction be made permanent; requested a judgment ordering specific performance of the alleged obligations, and a damage award.

Defendants-appellants Alpine Gulf and Alpine Geophysical filed an answer and special exceptions to Valentino’s petition, claiming, among other things, that his petition should be abated and dismissed because of a prior action previously filed by Valentino in the United States District Court, Southern District of New York, involving the same parties and same ultimate relief. This New York action had been filed five days prior to the filing of this suit.

The trial court in December 1977 granted the temporary restraining order and, after hearing the temporary injunction application, entered an order enjoining Alpine Gulf from transferring any of the assets or any of the proceeds of any loans made to Alpine Gulf, Inc., from Alpine Gulf, Inc., to Alpine Geophysical Associates, Inc., its officers and directors or any companies that they control including but not limited to Radmar Trading Corp. Thus, the order prohibits the transfer of any assets from Alpine Gulf, whether legitimate or not, to Alpine Geophysical or any of Alpine’s subsidiaries.

Appellants, in their brief, assert six points of error. Point of error five alleges that the trial court erred in granting the temporary injunction because the suit should have been stayed pending ultimate adjudication of the New York suit. We agree that the trial court abused its discretion when it refused to stay the suit. See Evans v. Evans, 186 S.W.2d 277 (Tex.Civ.App.—San Antonio 1945, no writ). The trial court, as a matter of comity, should have stayed this action. In Mills v. Howard, 228 S.W.2d 906 (Tex.Civ.App.— Amarillo 1950, no writ), the Court of Civil Appeals for the 7th District discussed the principle:

As a matter of comity . . . it is the custom for the court in which the later action is instituted to stay proceedings therein until the prior action is determined or, at least, for a reasonable time, and the custom has practically grown into a general rule which strongly urges the duty upon the court in which the subsequent action is instituted to do so. [citations omitted].
The reason for the rule is that every country or state is entirely sovereign and unrestricted in its powers, whether legislative, judicial or executive, and it therefore does not acknowledge the right of any other state or country to hinder its own sovereign acts or proceedings. For that reason the courts of a state or country in which a second suit is instituted will not dismiss a suiter merely because another suit is pending elsewhere. If the rule were otherwise and the instant case were dismissed, appellant not having answered in the New Mexico case, appellee could dismiss it and thus leave appellant without a forum in either jurisdiction. In such cases the rule of comity should be observed, however, unless it is apparent that fraud, sinister motive, inattention or unnecessary delay is shown on the part of the plaintiff or the court of the foreign jurisdiction. It is a salutary rule because, if the determination of the suit in the foreign jurisdiction is in favor of the plaintiff there, he may plead it in bar of the local action. On the other hand, if he is the loser in the foreign suit, the plaintiff in the local action necessarily is the prevailing party in the foreign suit and further litigation on his part is not necessary.

228 S.W.2d at 908. In this case, counsel for appellee filed suit in New York, then five days later filed suit in Texas seeking the same ultimate relief. Therefore, as a matter of comity, the Texas action should be stayed.

Appellants, in point of error number six, claim that the trial court erred in granting the temporary injunction because no evidence was presented to warrant a finding of probable irreparable injury. We agree. Leaving aside the lack of any proof to justify the appellee’s allegation that Geophysical is looting Alpine Gulf, if the obligations are ultimately proved on trial and Alpine Gulf is unable to repay these obligations, then Alpine Geophysical, as guarantor, will be required to do so. Due to this joint obligation there is no showing of probable injury; no showing that without an injunction Alpine Geophysical might not be able to pay the obligation. Such failure to prove probable injury renders the issuance of the temporary injunction improper. See Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953).

Because of our ruling it is unnecessary to consider appellants’ additional points of error and we express no opinion thereon. The judgment of the trial court is reversed; the injunction is dissolved and the trial court is instructed to stay this suit pending ultimate adjudication or disposition of the New York suit.

Reversed and remanded and injunction dissolved, with instructions to stay suit pending ultimate adjudication or disposition of the New York suit.


author: MURRAY, Justice. CADENA, Justice,

text:
    Manuel R. HURTADO, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 15945.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 22, 1978.
    Rehearing Denied March 29, 1978.

      Harold D. Putman, San Antonio, for appellant.
    Ray A. Weed, Groce, Locke & Hebdon, San Antonio, for appellee.
   MURRAY, Justice.

This is a workmen’s compensation case. Judgment was entered on the jury verdict that appellant’s injury of October 28, 1973 was not a producing cause of incapacity.

Appellant asserts by this appeal that the evidence is factually insufficient to support the jury findings to Question No. 3, that the injury of October 28, 1973 was not a producing cause of incapacity. His argument is based solely on the contention that the trial court committed error in admitting certain interrogatories and medical records into evidence. The appellant, in his brief, does not argue that the answer of the jury to Question No. 3 was factually insufficient if the interrogatories and medical records were properly admitted into evidence by the trial court.

Appellant, Manuel R. Hurtado, was injured on October 28, 1973, in the scope of his employment for the R. L. White Company. On the day of the accident the appellant was fixing a machine referred to as a “cherry picker,” when he fell about four or five feet to the ground. On November 9, 1973, appellant was hospitalized for over a week in the Memorial Hospital in Uvalde by Dr. Robert Scott for aggravated diabetes and rheumatoid arthritis, conditions for which he had been treating appellant for several years. Dr. Scott filled out a hospitalization claim form indicating that the November 9th hospitalization was not due to an injury at work. Dr. Scott referred appellant to a San Antonio rheumatologist, Dr. Hempel. Dr. Hempel brought in a surgeon, Dr. Livesay, who performed surgery on appellant to relieve a spinal obstruction and at the time of the operation Dr. Live-say observed no disk rupture. Dr. Livesay attributed appellant’s problems to an obstruction in the spinal column, the effects of diabetes on the kidneys, the effect of diabetes on the nervous systems, and rheumatoid arthritis, and that neither the spinal obstruction nor the surgery to relieve it was caused by any incident, accident, or injury.

At the trial appellant offered into evidence the answers to written interrogatories of Dr. Carl H. Hempel, answers to written interrogatories of Dr. Robert Scott, medical records of Memorial Hospital, Uvalde, Texas, and medical records of the Santa Rosa Hospital, San Antonio, Texas. It was stipulated by the parties that there would be no necessity of formal proof of such records under the Business Records Act. Appellant vigorously objected to the four medical records because they contained inadmissible letters, notes, opinions, guesses, conjecture, and speculation and that it was incumbent on appellee to sift through the exhibits and segregate the inadmissible part from the admissible part. After a lengthy discussion outside the presence of the jury, the trial court overruled appellant’s general objection and admitted the four documents into evidence. Thereafter appellant made no specific objections to any particular part of the four documents. The question is, “who has the burden of separating the admissible portions of a proffered exhibit from the inadmissible portions?”

We hold that the trial court has some discretion in deciding which party should specifically point out to the court that part of the record that is objectionable and that part which is not objectionable. We believe this rule has been established by our Supreme Court in the case of Brown & Root v. Haddad, 142 Tex. 624, 180 S.W.2d 339 (1944); 1 C. McCormick & R. Ray, Texas Evidence § 25 at 24 (2d ed. 1937). In Brown & Root our Supreme Court stated on page 341, “[a] general objection to evidence as a whole, whether it be oral or documentary, which does not point out specifically the portion objected to, is properly overruled if any part of it is admissible. * * Merely to object to an instrument on the ground that it contains hearsay statements when a portion of the instrument is clearly admissible in evidence, without pointing out the statements claimed to be hearsay, and leveling an objection specifically thereto, does not invoke a ruling by the court on the question of the admissibility of the hearsay statements.” It is equally well settled that where evidence is offered as a whole, only a part of which is admissible, the court does not commit error in sustaining an objection to such testimony and in such case the party offering the testimony would have to separate the admissible from the inadmissible part. Eubanks v. Winn, 469 S.W.2d 292 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ ref’d n. r. e.); Jack Cane Corp. v. Gonzales, 410 S.W.2d 953 (Tex.Civ.App.—San Antonio 1967, no writ).

We hold, after an examination of the entire record, that the jury’s failure to find that appellant’s injury of October 28, 1973 was a producing cause of incapacity is not so against the great weight and preponderance of the evidence as to be manifestly unjust.

The judgment of the trial court is affirmed.

CADENA, Justice,

dissenting.

The record clearly demonstrates that the trial court admitted testimony after attention had been specifically called to its inadmissible nature.

I agree that where a party offers several documents as a unit and the objection is made to the offer as a whole, the judge is not guilty of error if he overrules the objection where parts of the offer are admissible. The purpose of this rule clearly is to relieve the judge of the burden of being forced to examine the various documents for the purpose of culling out the inadmissible portion of the offer. Guadalupe Valley Electric Cooperative, Inc. v. Towns, 397 S.W.2d 496, 498 (Tex.Civ.App.—Corpus Christi 1965, no writ).

However, in this case, the objection to the admission of one of the exhibits was followed by a lengthy exchange among the court and counsel for both parties, and during such discussion counsel for appellant specifically called the court’s attention to portions of the exhibit which were inadmissible. The court’s decision to admit the whole exhibit was, therefore, a ruling to admit portions of the exhibit after the inadmissible nature of such portions had been specifically called to the attention of the court. Stated differently, by admitting the exhibit as a whole, the court knowingly allowed the introduction of inadmissible testimony after those particular inadmissible portions of the exhibit had been called specifically to the attention of the court. As to those particular portions, the trial court was required to do no “culling.”

In this case, appellant discharged his duty of pointing out portions of the offered testimony which was subject to the objections which he had urged.

In Brown & Root v. Haddad, 142 Tex. 624, 180 S.W.2d 339, 342 (1944), it was said that objection to a document on the ground that it contained hearsay statements, without pointing out the statements claimed to be hearsay “and leveling an objection specifically thereto, does not invoke a ruling by the court on the question of the admissibility of the hearsay statements.” However, it is clear that in that case the objecting party did not point out the portion of the document which was subject to the exception. 180 S.W.2d at 342.

Appellate courts, understandably, are sometimes charitable to rulings of trial courts and exhibit this charity by insisting that the trial court’s attention be specifically called to that which is subsequently claimed as error in the appellate court. But there is no justification for the adoption of a rule to the effect that when a bundle of documents is offered as a unit and the objection to such unit is made on the ground, for example, that the unit contains inadmissible hearsay, and the specific portions of the unit subject to such exception are called to the attention of the trial court, the trial court may admit the entire unit, including the inadmissible portions which have been called to its attention, unless the objector, at the time of identifying the inadmissible portions prefaces the identification of each such portion by using the magic words, “I object to this portion.” Unless we are prepared to assume that the trial judge was so deficient in intelligence that he was unable to understand why specific portions of the unit were called to his attention, following an objection that the offeror was not entitled to introduce the entire unit, to hold that the judge may nevertheless still permit admission of the entire unit transcends charity and borders on overprotective indulgence.

At the time the trial court ruled, the situation was simply this: Defendant had proffered for admission into evidence several documents as a unit. Plaintiff had objected to the introduction of all of the documents as a unit on the ground that some portions of the unit were inadmissible and had called the court’s attention to specific portions which were subject to his objection. At this point, plaintiff’s objection to the introduction of all of the documents as a unit had been shown to be a valid objection. Stated differently, plaintiff had clearly called the court’s attention to the fact that not all of the proffered documents were admissible and had identified those documents which were inadmissible. There is no justification for holding that the trial court did not err in ruling that all of the documents were admissible.


author: MASSEY, Chief Justice.

text:
    Randolph COLE, Appellant, v. TEXAS EMPLOYMENT COMMISSION and York Enterprises of Texas, Inc., Appellees.
    No. 17954.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 23, 1978.
    Rehearing Denied March 23, 1978.

      Kay Fulgham, Tarrant County Legal Aid Foundation, Fort Worth, for appellant.
    John L. Hill, Atty. Gen. of Texas, and Gayle Johnson Cipriano, Asst. Atty. Gen., Austin, for appellee Texas Employment Commission.
    Ken Carpenter, Arlington, for appellee York Enterprises.
   OPINION

MASSEY, Chief Justice.

Randolph Cole, claimant for unemployment compensation under provisions of the Texas Unemployment Compensation Act, V.A.T.S. Title 83, “Labor”, Chapter 14, “Unemployment Compensation”, Art. 5221b-l, et seq. appealed from denial of benefits by the Texas Employment Commission to the County Court at Law, Tar-rant County, Texas. Therein was further denial of his claim by a judgment. Therefrom he perfected his appeal.

We affirm the judgment.

At the outset we are confronted by a challenge of both our own and the jurisdiction of the County Court at Law (where the challenge was rejected) because Cole’s appeal by the filing of his suit in the County Court at Law was one day early. Because of such premature filing, says the Commission (and by inference also Cole’s former employer, York Enterprises of Texas, Inc.) the County Court at Law did not acquire jurisdiction to entertain any appeal from the final ruling and order of the Commission and should not have entertained Cole’s suit. The ground is obviously technical; presenting the proposition that Cole has wholly lost his case because he did not file his suit “within ten (10) days after the decision of the Commission has become final, and not before, . . .” (emphasis supplied) as is provided by Art. 5221b — 4(i), “(Claims for benefits) — Court Review”.

We decline to dismiss the case for reasons to be stated. Before amendment in 1955 (see General and Special Laws of Texas, 54th Legislature, Regular Session, 1955, Chapter 116, p. 399, et seq. and especially p. 402) the material part of the Act provided that a claimant was entitled to review of his claim in court if “Within ten (10) days after the decision of the Commission has become final, and not before, any party aggrieved thereby may secure judicial review thereof by commencing an action in any court of competent jurisdiction . etc.” The important words “and not before” were added by the 1955 amendment.

Before the 1955 amendment the Supreme Court had held that because of ambiguity in pertinent parts of the Act a suit prematurely filed as an appeal from the decision of the Commission did not have the effect of defeating the jurisdiction of the court in which it was filed merely because it was premature; that the suit was nevertheless effective and invoked the jurisdiction of the court to hear and decide the case presented. Texas Employment Commission v. Steward Oil Co., 153 Tex. 247, 267 S.W.2d 137 (1954).

In the present instance the same question is presented with the same provision of the Act advanced because at the first Legislative session after the aforementioned opinion of the Supreme Court, it was deemed appropriate to amend the part of the Act with which we are concerned by inserting the words “and not before”.

As presently constituted, and in effect at all times material to this case was V.A.T.S. Art. 5221b-4, “Claims for benefits”, which for our purposes made material provisions as follows:

“(a) Filing: Claims for benefits shall be made in accordance with such regulations as the Commission may prescribe.
“(b) If such individual . . . has filed ... an examiner shall make a determination . . . and shall mail a copy of the determination to the claimant . . Unless the claimant . files an appeal . . . within twelve (12) calendar days after such determination shall be final for all purposes . . . provided . . . unless an appeal therefrom is filed . within twelve (12) calendar days after a copy of such redetermination was mailed to his last known address
“(c) Appeals: Unless such appeal is withdrawn, an appeal tribunal, after affording the parties reasonable opportunity for fair hearing, shall affirm or modify the determination of the examiner. The parties to the appeal shall be duly notified of such tribunal’s decision, together with its reasons therefor, which shall be deemed to be the final decision of the Commission, unless within ten (10) days after the date of mailing of such decision, further appeal is initiated pursuant to subsection (e) of this Section.
“(d) Appeal Tribunals: To hear and decide disputed claims, the Commission, if it is necessary to insure prompt disposal of cases on appeal, shall establish one or more impartial appeal tribunals consisting in each case of a salaried examiner.
“(e) Commission Review: The Commission may on its own motion affirm, modify, or set aside any decision of an appeal tribunal on the basis of the evidence previously submitted in such case, or direct the taking of additional evidence, or may permit any of the parties to such decision to initiate further appeals before it. The Commission may remove to itself or transfer to another appeal tribunal the proceedings on any claim pending before an appeal tribunal. Any proceeding so removed to the Commission shall be heard by a quorum thereof. The Commission shall promptly mail to the parties before it a copy of its findings and decision.
“(f) Procedure: The manner in which disputed claims shall be presented, the reports thereon required from the claimant and from employers, or other individuals or organizations, and the conduct of hearings and appeals shall be in accordance with rules or regulations prescribed by the Commission for determining the rights of the parties. A full and complete record shall be kept of all proceedings in connection with a disputed claim. All testimony at any hearing upon a disputed claim shall be recorded, but need not be transcribed unless the disputed claim is further appealed.
“(h) Appeal to Courts: Any decision of the Commission shall become final ten (10) days after the date of mailing thereof, unless, within such ten (10) days, the appeal is reopened by Commission order or a party to the appeal files a written motion for rehearing, and judicial review of any final decision of the Commission shall be permitted only after any party claiming to be aggrieved thereby has exhausted his remedies (not including a motion for rehearing) before the Commission as provided by this Act. The commission shall be deemed to be a party to any judicial action involving any such decision and may be represented in any such judicial action by any qualified attorney who is a regular salaried employee of the Commission and has been designated and appointed for that purpose by the Attorney General of Texas.
“(i) Court Review: Within ten (10) days after the decision of the Commission has become final, and not before, any party aggrieved thereby may secure judicial review thereof by commencing an action in any court of competent jurisdiction in the county of claimant’s residence against the Commission for the review of its decision, in which action any other party to the proceeding before the Commission shall be made a defendant, . . .” (Emphasis supplied.)

It is obvious that, if the Commission’s jurisdiction may be said to have ceased by perfection of an appeal therefrom into court, premature filing of the case in court by a single day would cause the Commission to be unable to reopen the case on its own motion on the tenth day after its decision, or to entertain a motion for rehearing by the Commission because of suit having been filed. Yet there is provision that judicial review of any final decision of the Commission shall be permitted after any party claiming to be aggrieved thereby has exhausted his remedies before the Commission.

In the case before us the Commission did not desire to reopen the case before it on its own motion at any time, and Mr. Cole’s adversary, his former employer, York Enterprises of Texas, Inc., never desired any rehearing for it was completely victorious by the ruling and decision of the Commission. Cole, as a party aggrieved, could have filed a motion for rehearing before the Commission on the tenth day but chose not to do so. Instead, he filed his suit in court on the tenth day; a suit as applied to which there would have been no question had he filed his suit on the eleventh day. Of course the “judicial review” took place after such tenth day.

Hence the question: Assuming for the purpose that to receive a judgment for unemployment compensation is or would be the right of claimant, Cole, has he lost his right because he was one day early in filing his case in court? Our holding is that Cole has not lost his right; that the potential jurisdiction of the trial court in which he prematurely filed his suit became vested, as distinguished from potential, on the eleventh day following the ruling and decision of the Commission, because nothing occurred through action of the Commission or Cole’s former employer operative to effect a delayed vestment of the court’s jurisdiction or of Cole’s qualification to proceed; that Cole became “qualified” as a party plaintiff in the court on the same eleventh day; that the subsequent acquisition of jurisdiction of the parties defendant having been acquired made of the case before the court in which suit had been filed one ripe for its final adjudication. The foregoing is by our statutory construction of the pertinent parts of the Act.

We recognize that a rather remarkable change was made in the rules relating to statutory construction by Acts of the 60th Texas Legislature, p. 1036, ch. 455, effective September 1, 1967. Under V.A. T.S. Title 87, “Legislature”, Art. 5429b-l, “Statutory revision program, Sub-Chapter C., Construction of Statutes”, (Art. 5429b-2) § 3.01, et seq. To be observed is that it is to be presumed that in enacting legislation the Legislature intended a just and reasonable result and a result feasible of execution is intended. Whether or not a statute be deemed ambiguous on its face we are obliged, in its construction, to consider among other things the object sought to be obtained and the consequences of any particular construction.

The objective of the Unemployment Compensation Act would be possible to be defeated in instances where, perhaps through mistake, a suit such as that in this case is prematurely filed should our statutory construction be that because of that mere fact there would be denial of a right to obtain one’s “day in court”.

The Legislative intent has always been a matter proper to be considered in statutory construction. Also it has long been considered proper to look to the policy and spirit of the law when injustice will result from the construction of a statute according to its literal import; to seek to construe it so as to avoid such a result where that is possible. Additionally, we have always been enabled to liberally construe statutes pertaining to matters of procedure with the view of preserving a litigant’s right of appeal, while strictly construing a statute which prescribes conditions precedent to the maintenance of an action. See generally 53 Tex.Jur.2d “Statutes”, and the sections thereof pertaining to statutory construction. By the laws upon statutory construction, effective September 1, 1967, these principles have been emphasized.

We deny the motion to dismiss at the appeal stage. We likewise hold that the trial court properly refused to dismiss Mr. Cole’s suit; and that it properly proceeded to consider his case on its merits, and by the Substantial Evidence Rule.

However, though the appeal is not to be dismissed, Cole may derive little comfort for, as already indicated, we affirm the judgment of the trial court in denial of his claim for unemployment compensation.

To be noted from the law quoted, as Sec. (f) “Procedure” under Art. 5221b-4, is that “All testimony at any hearing upon a disputed claim shall be recorded, but need not be transcribed unless the disputed claim is further appealed.” In the case before us there was not made a part of the record in the trial court any transcribed testimony before the Commission. The record does show that by or before the Commission occurred the following: (a) The decision of the Appeal Tribunal of the Commission, following the hearing date on May 18, 1976 at Ft. Worth, Texas, of Cole’s appeal filed April 22, 1976 from the original denial of his claim for benefits, “mailed” on May 21, 1976, and embodying above the signature of R. P. Bonner, Appeals Referee, certain CASE HISTORY, FINDINGS OF FACT, CONCLUSIONS, AND DECISION. Therewith was the statement that “The determination dated April 19, 1976, disqualifying the claimant six weeks of benefits under Section 5(a) of the Act, is affirmed.”; (b) the decision of the Commission itself, upon review of Cole’s claim, “mailed” on June 30, 1976, and affirming the decision of the Appeal Tribunal because of the Commission’s opinion that the case was properly decided by such tribunal, with its findings of fact and conclusions of law adopted; and (c) the ruling of the Commission itself, upon the motion for rehearing of its earlier ruling and decision (on June 30,1976), which by its order mailed July 28,1976, was one denying Cole the rehearing for which he prayed.

As already stated there was not transcription of any testimony at any hearing upon Cole’s disputed claim while the Commission’s jurisdiction obtained; or, at least none was proved or introduced at the trial before the County Court at Law. Matter nearest approaching the character of testimony was the CASE HISTORY, etc., mentioned in the paragraph of this opinion immediately preceding. Therein, under CASE HISTORY was recitation that by an earlier determination (April 19, 1976) Cole voluntarily left his employment without good cause connected with the work of his employer; under FINDINGS OF FACT was recitation that Cole’s services were no longer needed at Arlington, place of employment prior to severance, and that he declined transfer to Dallas or Irving because of the commuting distance; under CONCLUSIONS was statement that Cole quit work of his own volition for the reason that he was unwilling to transfer to another location, and that this was not good cause of his voluntary termination as the commuting distance was not substantially less favorable as compared with his prior employment at Arlington; and by statement under DECISION, was that “The determination dated April 19, 1976 disqualifying the claimant six weeks of benefits under Section 5(a) of the Act, is affirmed.”

We consider it our duty to seek and identify the ruling and decision which the trial court has by its own judgment found to have had support by substantial evidence (which actually was, or could have been, produced against Cole’s claim before the Commission.) With that ruling and decision identified it is our duty to affirm the trial court unless it be found that Cole established (at the trial court hearing) that there was no substantial evidence to support the ruling and decision of the Commission. Actually it is a simple matter to affirm the trial court because of the failure on the part of Cole to prove the state of the evidence at the hearing or hearings held before the Commission.

However, by certain evidence before the court it was indisputably proved that Cole was not offered any employment at any other location at time of his termination. What was not shown was that the contrary had not been proved at some prior hearing before the Commission. Cole’s own evidence before the Commission might have been to the contrary. Perhaps, upon a change of theory, it might have been at the court hearing that he first chose to adopt the testimony of the employer (and that of another which supported the employer) which indisputably proved that at the time his employment was terminated his employer not only did not make the offer, but furthermore had not the power to offer to transfer Cole. It was proved by the employer himself that he had no store at the locations mentioned in the FINDINGS OF FACT by the Appeals Referee. Of this Cole sought to claim advantage and as support for his contention that this court should reverse the judgment of the trial court. However, Cole neglected to refute the employer’s testimony that it was the act of Cole, himself, that his employment was terminated and that it was of his own volition he ceased as an employee.

Analyzed, the main contention of Cole is that all components of the Commission’s decision in the FINDINGS OF FACT and CONCLUSIONS must be supported by substantial evidence—as from his opponent at the hearing(s) of the Commission and its agencies for the purpose—and that the mere showing of the contrary by the undisputed evidence at the hearing in court, (without necessity of showing what the evidence was while the jurisdiction of the Commission continued to obtain), sufficed to establish his right to have the judgment reversed.

In such an interpretation of the substantial evidence rule Cole has materially erred. The validity of the Commission’s order is not to be measured by the reason it gives for making it. The conditions as actually existent at time of its hearing is the controlling inquiry, and in the review of the Commission’s order it is the legal effect these had upon the rights of the parties (as their situation actually existed at time of the hearing) which controls. Railroad Commission v. Magnolia Petroleum Co., 130 Tex. 484, 109 S.W.2d 967, 970 (1937).

Furthermore, and in any event, Cole chooses to disregard that at the trial in court he failed to give any reason for leaving his job and by the state of the record we cannot know the reason, if any, he gave at the Commission hearing stage. It was a part of Cole’s burden to prove that the Commission’s decision (by evidence at any hearing before it plus any other which might have come in before the trial court) was arbitrary, capricious and wholly without regard to the facts. There is no doubt that it was the finding that Cole had quit voluntarily without good cause connected with his work which was the material reason for the ruling and decision from which there was appeal.

Already mentioned is that at the court trial level the only evidence produced was to the effect that Cole quit his job voluntarily; evidence which Cole never at any time contradicted. This evidence sufficed in and of itself to sustain the antecedent order of the Commission. The evidence is proper to be considered under the Substantial Evidence Rule as what was proved at the Commission hearing stage because it could have been there proved—whether or not introduction of the proof was actually deferred until the time of the trial of the case in court. Potter v. Sun Oil Co., 144 Tex. 151, 189 S.W.2d 482 (1945); Gerst v. Nixon, 411 S.W.2d 350 (Tex.Sup.1966). In this the use of the Rule in Texas is somewhat unique and usually different from use of similar rules in other jurisdictions. Larson, “The Substantial Evidence Rule: Texas Version”, 5 Sw.L.J. 152 (1951); Harris, “A Reappraisal of the Substantial Evidence Rule in Texas Administrative Law”, 3 Sw. L.J. 416 (1949); Harris, “The Administrative Law of Texas”, 29 Tex.L.Rev. 213 (1950); and Roberts, “The Trial of Administrative Appeals”, 26 Tex.B.J. 731 (1963).

In support of the Cole main contention, (see above) he has cited cases from Indiana, Iowa, and Pennsylvania, Federal cases, and Texas cases, all involving appeals from administrative decisions to the Court for judicial review. They constituted cases to be distinguished because in such other states judicial review is limited to the record already made before the administrative body. In Texas, under the Substantial Evidence Rule, we are obliged to consider the evidence in court as well as that actually introduced before the administrative body by the theory that if it be shown that the evidence could have been introduced it is to be deemed to have been introduced whether that was the fact or not, if to consider it would be to support the ruling and decision of the administrative body.

The distinguishable out-of-state eases cited by Cole were: Hamilton v. Unemployment Compensation Board of Review, 181 Pa.Super. 113, 124 A.2d 681 (1956, no writ history); Jackson v. Review Board of Indiana Employment Security Division, 124 Ind. App. 648, 120 N.E.2d 413 (1954, no writ history); McComber v. Iowa Employment Security Commission, 254 Iowa 957, 119 N.W.2d 792 (1963).

Two Federal cases cited by Cole likewise constitute authorities to be distinguished as applied to cases in Texas to which the Substantial Evidence Rule have application. These cases do involve administrative determinations, but one of the appeals (National Geographic Society case) was brought pursuant to the Federal Administrative Procedures Act, (5 U.S.C.A. Sec. 554 through 557 and the Federal Statutes for judicial review of administrative action, 5 U.S.C.A. Sec. 701, et seq.), and the others pursuant to the Public Utility Holding Act of 1935, specifically 15 U.S.C.A. Sec. 79x, “Court review of orders.” Under these Federal Acts appeal procedure involves review of the administrative determinations of fact based upon the record made before the administrative body and not on a new record in court. The cases cited were: National Geographic Society v. District Unemployment Compensation Board, 141 U.S.App.D.C. 313, 438 F.2d 154 (1970, no writ history); Securities and Exchange Commission v. Chenery Corporation, 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943); and Securities and Exchange Commission v. Chenery Corporation, 332 U.S. 194, 67 S.Ct. 1575, 1760, 91 L.Ed. 1995 (1947). These, like the out-of-state cases are not authorities from which Cole may derive benefit as applied to his Texas case.

Texas cases cited by Cole likewise fail to support his contention in that they do not involve application of the Substantial Evidence Rule as applied to facts underlying the ultimate ruling and decision made. We forego citing them.

Even were the cases upon which Cole relies applicable, we would be obliged to sustain the judgment of the trial court. Cole failed to prove the state of the evidence before the Commission, (aside from the evidence before the trial court and appropriate for that court’s consideration insofar as it tended to support (not destroy) the administrative ruling and decision.) Cole must be held to have failed to bear and discharge the burden of proof incumbent upon him to entitle him to prevail by his appeal to this court, i. e., to prove that the ruling and decision of the Commission was not supported by substantial evidence.

The evidence before the Commission not having been placed before the trial court for examination and test — along with that which was introduced in court — the court did not have before it sufficient evidence in behalf of plaintiff to overcome the presumption against plaintiff of the validity of the Commission’s order. In that state of the record it would have been reversible error for the trial court to have rendered judgment for Cole, though it was not like error to deny him the relief he sought by upholding and sustaining the Commission’s order. Cook Drilling Co. v. Gulf Oil Corporation, 139 Tex. 80, 161 S.W.2d 1035 (1942).

Judgment is affirmed.


author: McKAY, Justice.

text:
    Dr. B. A. EL AFIFI, Appellant, v. LILLY SALES, INC., Appellee.
    No. 1121.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 23, 1978.

      James N. Phenix, Phenix, Freeman & Cole, Henderson, for appellant.
    Robert D. Bruce, Mineóla, for appellee.
   McKAY, Justice.

This is a summary judgment case which also involves a plea of privilege. Lilly Sales, Inc., appellee, brought suit in Wood County against Hawkins Nursing Home, Inc. and appellant, Dr. B. A. El Afifi, on a sworn account. Appellant El Afifi filed a plea of privilege alleging that he was a resident of Gregg County. Appellee then filed its controverting affidavit alleging that venue was proper in Wood County by virtue of subsections 4, 5 and 29a of Art. 1995, V.A.C.S. Appellant then filed an answer, subject to his plea of privilege denying under oath the account in whole or in part. Appellee then filed its first amended petition and attached to it its ledger sheet, invoices and sales slips which itemized the merchandise sold to Hawkins Nursing Home during the period involved in this suit. Hawkins Nursing Home, Inc. answered by general denial but it is not before us on appeal.

Appellee then filed a motion for summary judgment based upon its sworn pleadings and the attached affidavit of Opal B. King stating that she was the secretary-treasurer and bookkeeper of appellee, was familiar with the exhibits attached to appellee’s first amended petition, and that she had personal knowledge that these records are true and correct, and after all just payments, offsets and credits have been allowed the amount owing the appellee was $530.32. Larry P. King made an affidavit that $176.87 was a reasonable attorneys’ fee for appellee’s counsel.

Also found in the record is an affidavit by Marie Hartsfield, president of Hawkins Nursing Home, Inc., in which she states that the nursing home owed appellee only $80.57 on May 19, 1976, and on that date tendered its check for that amount in full payment and then owed appellee nothing.

The trial court set both the plea of privilege and the summary judgment motion for hearing on the same day at the same hour. The plea of privilege was heard first, but the statement of facts reveals that the only proceeding had on the venue hearing was the arguments of the attorneys. There was no evidence, either oral or documentary, introduced before the court. The court then overruled appellant’s plea of privilege, and proceeded to hear the motion for summary judgment. After examining the record and hearing argument by counsel the trial court granted the motion and rendered judgment for appellee for $450.05 plus attorney’s fee of $140.01, against appellant, and for $80.57 plus attorney’s fees of $26.86 against Hawkins Nursing Home, Inc. Only Dr. B. A. El Afifi, appellant, brings this appeal.

The trial court’s order overruling appellant’s plea of privilege and his money judgment against appellant and the nursing home are contained in one instrument denominated “judgment.”

By his first point appellant contends that appellee failed to plead and prove under subdivision 4 that (1) Hawkins Nursing Home, Inc. was a resident of Wood County; that (2) appellee, Lilly Sales, Inc. had a bona fide claim against Hawkins Nursing Home, Inc.; and that (3) appellant is a proper party to such suit against the resident defendant. We agree with appellant’s contention.

Under subdivision 4 of Art. 1995, where two or more defendants reside in different counties, in order to maintain venue in the county where one of the defendants reside the plaintiff (1) must allege and prove that resident defendant in fact resides in the county where suit is brought; (2) must introduce evidence at the venue hearing sufficient to establish a cause of action alleged against the resident defendant; and (3) must allege a joint cause of action against resident and nonresident defendant, or a cause of action against resident defendant so intimately connected with cause of action against nonresident defendant that the two may be joined to avoid multiplicity of suits. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (Tex.Comm.App. 1936, opinion adopted); Allen v. Alison Mortgage Investment Trust, 548 S.W.2d 783, 788 (Tex.Civ.App.— San Antonio 1977, no writ); Key v. Davis, 554 S.W.2d 60, 64 (Tex.Civ.App.—Amarillo 1977, no writ); Helland v. Western Construction Co., 516 S.W.2d 437, 438 (Tex.Civ.App.—San Antonio 1974, no writ); Houston Sash & Door Co., Inc. v. Davidson, 509 S.W.2d 690 (Tex. Civ.App.—Beaumont 1974, writ ref’d n. r. e.); McDonald Texas Civil Practice, Sec. 4.10.2, p. 434 et seq.

Thus it is evident that for a plaintiff to maintain venue under subdivision 4 he must prove at the venue hearing: (1) at least one defendant resides in the county of suit; (2) plaintiff has a bona fide cause of action against the resident defendant; and (3) the party asserting the privilege is at least a proper party to the suit against the resident defendant. The record here is without any evidence that the alleged resident defendant was in fact a resident defendant, or that appellee had a bona fide cause of action against such resident defendant. Appellee offered no evidence at the venue hearing, and therefore appellee cannot sustain venue under subdivision 4.

Appellee cites Crown Sash & Door, Inc. v. Steves Sash & Door Co., Inc., 511 S.W.2d 603, 605 (Tex.Civ.App.— San Antonio 1974, no writ), as authority that where there is no sworn denial filed to a suit on a sworn account it is not necessary for the plaintiff to prove his sworn account. That case is not in point here because appellant filed a sworn denial which put in issue the allegations of appellee’s sworn account even though the alleged resident defendant filed only a general denial. Appellant’s point one is sustained.

Appellant next maintains that ap-pellee failed to plead and prove venue facts to sustain venue in Wood County under subdivision 5, Art. 1995, V.A.C.S., in that there is no proof appellant entered into a written contract providing for performance in Wood County. We agree with appellant’s contention. As previously noted ap-pellee introduced no evidence of any kind at the venue hearing; therefore, there was no proof that appellant contracted in writing to perform an obligation in Wood County or a definite place therein by such writing. Appellee had the burden of proof, under subdivision 5, and was required to put the written contract into evidence and to make proof that appellant was obligated to perform same in Wood County. This he did not do. Writing relied upon for venue purposes must be proved. Thompson v. Republic Acceptance Corp., 388 S.W.2d 404, 405 (Tex.1965); Dairyland County Mutual Insurance Company of Texas v. Morales, 534 S.W.2d 383, 385 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ).

It is further claimed by appellant that appellee failed to prove facts under subdivision 23. The venue facts necessary under subdivision 23 are (1) that appellant is a corporation; (2) that appellee had a cause of action against appellant and has proved it; and (3) that the cause of action or a part thereof arose in Wood County, Texas. Mobile County Mutual Insurance Company, v. Romack, 481 S.W.2d 916, 918 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ). Appellee did not plead or prove appellant was a corporation, nor was there proof of a cause of action against appellant or, if so, that it arose in Wood County. Venue could not be sustained under subdivision 23.

Appellant also contends that venue may not be maintained in Wood County against him under subdivision 29a because appellee failed to prove venue facts under that subsection. 29a authorizes a plaintiff who sues two or more defendants on a cause of action in a county where venue is proper as to one defendant under some exception to Art. 1995 to maintain venue therein against all necessary parties to such suit. Before subdivision 29a can apply “four conditions must exist: the action must be against two or more defendants; all of them must reside outside the county of suit; venue must be proper as against at least one of the defendants under some exception to the general venue rule; and the defendant urging his privilege must be a necessary party to the claim against the defendant as to whom venue is proper.” McDonald, Texas Civil Practice, Sec. 4.36, p. 544.

Although appellee alleges the residence of Hawkins Nursing Home, Inc. to be in Wood County, there is no proof in the record of such residence. Neither is there proof that appellee is a necessary party. Under the record here suit may not be maintained against appellant in Wood County under subdivision 29a.

Appellant brings two additional points asserting that the trial court erred (1) “in considering Plaintiff’s First Amended Original Petition because no effort was made to file Amended Controverting Affidavit adopting such amended petition,” and (2) “in granting a summary judgment because the controverting affidavit of” appellant “raised a material issue of fact as to his liability for the debt and attorney’s fees.” While we are of the opinion that these points are meritorious we see no necessity to discuss them. Had we reached these points, we would have sustained them.

Appellee apparently proceeded under the mistaken belief that so long as his sworn pleadings and controverting affidavit were on file with the clerk, and upon venue hearing or summary judgment hearing, such pleadings and affidavit were presented to the court they would then constitute proof against all parties defendant both on the venue question and on the summary judgment motion without having to offer evidence into the record.

In our opinion the trial court erred in failing to grant appellant’s plea of privilege to be sued in Gregg County because appellee failed to establish venue in Wood County under any subdivision of Art. 1995. Since appellant was entitled to have his case transferred to Gregg County the trial court did not have authority to render summary judgment against him in the Wood County suit.

Accordingly, the summary judgment rendered against appellant is reversed, and the order overruling appellant’s plea of privilege is reversed, and the cause against appellant is ordered transferred to the County Court of Gregg County, Texas.

      . Subdivision 4, Art. 1995: “Defendants in different counties. — If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. The transfer or assignment of a note or chose in action shall not entitle any subsequent holder to sue thereon in any other county than that in which such suit could have been prosecuted if no assignment or transfer had been made.”

      . Subdivision 5, Art. 1995: “Contract in writing. — 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.

      . Subdivision 23, Art. 1995: “Corporations and associations. — Suits against a private corporation, association, or joint stock company may be brought in the county in which its principal office is situated; or in the county in which the cause of action or part thereof arose . . .”

      . Subdivision 29a, Art. 1995: “Two or more defendants. — Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.”


author: ROBERTSON, Justice.

text:
    Avlin P. LEWIS, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 19450.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 23, 1978.
    Rehearing Denied March 22, 1978.
    Alfred W. Ellis, Woodruff & Ellis, Dallas, for appellant.
    Douglas A. Harrison, Gardere, Porter & DeHay, Dallas, for appellee.
   ROBERTSON, Justice.

This is an appeal from a summary judgment for the insurance carrier in a worker’s compensation proceeding. Avlin P. Lewis sued to set aside an award of the Industrial Accident Board and to recover worker’s compensation benefits for the total loss of use of her left arm. The insurance company moved for summary judgment contending that Mrs. Lewis failed to give timely notice of her injury, and that she failed to timely file her claim for compensation with the Board. The trial court granted the insurance company’s motion for summary judgment, and Mrs. Lewis now appeals. We affirm.

Section 4a of Article 8307 of the Texas Revised Civil Statutes provides:

Unless the Association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the Association or subscriber within thirty (30) days after the happening of an injury or the first distinct manifestation of an occupational disease . . . [emphasis added]

Mrs. Lewis contends that her employer had knowledge of her injury and that the affidavits and deposition filed in support of the motion for summary judgment do not conclusively negate the existence of that knowledge. In support of her arguments, she cites Belknap v. Texas Employers’ Ins. Ass’n, 556 S.W.2d 587 (Tex.Civ.App.—Dallas 1977, no writ), in which we held that in order to support a summary judgment, the insurance company must conclusively demonstrate that neither the employer nor any of his supervisory personnel had knowledge of the injury. While we recognize, of course, that we must apply the rule set forth in Belknap to this case, we nevertheless conclude that the insurance company has met the standard of proof required to sustain its summary judgment.

In Belknap, the company’s motion for summary judgment was supported by the affidavits of Belknap’s employer, his supervisor, and claims manager. The affidavits stated that Belknap did not notify them of any injury. According to our holding, those statements did not exclude the possibility that the employer had other supervisory personnel with knowledge of Belknap’s injury. However, the evidence in the present case is substantially stronger than that considered in Belknap. Mrs. Lewis alleges her injury is the result of repeated lifting of a heavy briefcase, but asserts no overt accident that anyone else could have observed. In her deposition, she admitted that she did not report her injury to her employer until almost two years after the accident occurred; before that time, she had discussed her condition with fellow employees, but had told no one that it was the result of an injury. She further stated that there was but one supervisor, an office manager, and admitted that she had not notified him of the injury. Her statements are confirmed by the affidavit of Mr. Cutts, the office manager, who stated that he did not learn of Mrs. Lewis’ injury until she reported it in May, 1976, almost two years after the injury was sustained.

Under these circumstances, we hold that the insurance company has met its burden to conclusively establish lack of knowledge on the part of Mrs. Lewis’ employer or her supervisor. Therefore, the summary judgment was properly rendered.

Affirmed.


author: AKIN, Justice.

text:
    Harold C. SIMMONS et al., Appellants, v. DANCO, INC., Appellee.
    No. 19565.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 27, 1978.
    Rehearing Denied Feb. 24, 1978.

      Fred H. Bartlit, Jr., Kirkland & Ellis, Chicago, Ill., Lawrence G. Newman, Newman, Shook & Newman, Dallas, B. J. Walter, Jr., T. William Porter, Foreman, Dyess, Prewett, Rosenberg & Henderson, Houston, for appellants.
    James S. Ramsey, Jr., Crutcher, Hull, Ramsey & Jordan, Dallas, William H. Tins-ley, Johnson & Cravens, Dallas, for appel-lee.
   AKIN, Justice.

This is an appeal from a temporary injunction granted by the district court enjoining Harold C. Simmons, Flight Proficiency Service, Inc., and Contran Corporation, “from engaging in a tender offer for the shares of stock of Contran, purchasing, offering to purchase, soliciting offers to sell or otherwise consummating any purchase of shares of stock of Contran without complying with the administrative guidelines . promulgated by the Texas State Securities Board.” We dissolve the trial court’s injunction on the ground that the appellee, Danco, Inc., has no right, as a matter of law, to apply to a court for an injunction because this is a matter that should be first presented and decided by the Securities Commissioner and/or the Securities Board. Accordingly, we hold that the trial court abused its discretion in granting the injunction.

The relevant facts are undisputed. On January 17, 1978, Danco announced that it would mail tender offers to Contran’s shareholders in an effort to gain control of Contran, which is presently controlled by appellant Simmons and his family trusts through Flight Proficiency, which owns 41% of the outstanding stock of Contran, the target company. So as to foil the attempted take-over of Contran by Danco, Simmons on January 31, 1978, filed and sent to all shareholders a statement required by the Federal Securities and Exchange Commission’s Regulation 240.13(e) — 1 as a condition for purchase of stock by the management group. This statement, commonly known as a “Rule 13(e)-l” letter, stated that Flight Proficiency, Inc. was considering purchase of Contran stock in private transactions so that it could retain control of Contran. Danco filed suit in the federal district court seeking an injunction under federal security laws to prevent Simmons and his companies and trusts from purchasing additional Contran stock. The temporary injunction was denied. Appellee Dan-co then filed this suit in state district court seeking to enjoin appellants from purchasing stock of Contran without first complying with certain guidelines for tender offers promulgated by the Texas Securities Commission.

Danco contends that appellants’ letter of January 31st, filed as required by Regulation 240.13(e)-l, was a tender offer under the guidelines established by the Texas Securities Commission. On the other hand, appellants argue that the state administrative guidelines are not applicable to them because these guidelines apply only to “tender offers” and that the S.E.C. Rule 13(e)-l statement is not a “tender offer” so as to make the administrative guidelines applicable to them. Appellants also contend that the primary jurisdiction to determine what activities constitute a “tender offer” under the administrative guidelines lies with the Texas Securities Commission rather than with the courts. A motion to dismiss on this ground was filed in the trial court. In this respect, appellants assert that no private right of action is afforded by injunctive relief to remedy a breach of the administrative guidelines,' but rather such a remedy is available only to the Securities Commissioner or the attorney general.

We agree with appellants that the trial court’s injunction is an interference with the commissioner’s primary jurisdiction. Primary jurisdiction is the principle which determines whether the court or the agency should make the initial decision. Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 26, 344 S.W.2d 411, 414 (1961); Kavanaugh v. Underwriters Life Ins. Co., 231 S.W.2d 753, 755-56 (Tex.Civ.App.—Waco, 1950, writ ref’d); D & S Investments v. Mouer, 521 S.W.2d 118, 120 (Tex.Civ.App.—Austin 1975, writ ref’d n. r. e.). Article 581-28-1 of the Texas Securities Act (Vernon Supp. 1978) authorizes the Texas Securities Board to make such rules and regulations as the board may deem necessary in order to implement the provisions of the Texas Securities Act. Subsection (B) of this statute specifically provides: “. . . [T]he board may, in its discretion, waive any requirement of any rule or regulation in situations where, in its opinion, such requirement is not necessary in the public interest or for the protection of investors.” [Emphasis added] Subsection (D) permits the board to delegate to the commissioner or deputy commissioner the right to waive any of the rules and regulations adopted under art. 581-28-1. Under this statute, the only jurisdiction of a court is to determine whether any guideline promulgated is invalid, not whether a guideline should be enforced. Acting on this statute, guidelines for minimum standards in tender offers were promulgated. (1978) 3 Blue Sky Law Rep. (CCH) ¶ 46,615, § .065.15.00.100 et seq. Section .100(a) of the guidelines states explicitly that tender offers are subject to the jurisdiction of the board, and Section .100(b) specifically provides that certain guidelines may be waived or modified by the commissioner. Thus, we conclude that by enacting art. 581-28-1 the legislature intended to vest primary jurisdiction of administering these guidelines with the board and/or the commissioner rather than the courts. Moreover, art. 581-3 provides that the administration of the Securities Act shall be vested in the securities commissioner, and art. 581-32 specifically gives the commissioner the right to seek an injunction to enforce the act. No such right is given a private party. Consequently, even assuming that the Regulation 240.13(e)-l statement filed by appellants under the federal Securities Act was a tender offer, which we cannot decide, this determination lies with the commissioner and, if he so determines it to be a tender offer, he may, in his discretion, waive compliance with the guidelines. This opportunity has not been afforded the commissioner here. Indeed, Danco could have, by sworn affidavit, invoked the jurisdiction of the commissioner under Section .600 of the guidelines, (1978) 3 Blue Sky Law Rep. (CCH) Paragraph 46,615, entitled “Petition to Commissioner” if Danco wanted action under the guidelines. This it apparently chose not to do.

Danco seeks to justify its right to injunctive relief by pointing to art. 581-33(M) (Vernon Supp.1978), which provides in part that “the rights and remedies provided by this Act are in addition to any other rights ... or remedies that may exist at law or in equity.” No such right exists, however, with respect to a matter committed to the primary jurisdiction of the administrative agency.

We conclude, therefore, that the temporary injunction must be reversed and dissolved on the ground that this is a matter that should first be presented and decided by the Securities Commission or the Securities Board. They have full authority to consider and decide the very questions presented to the trial court in the affidavit for temporary injunction and thus to seek in the district court the very same relief which Danco seeks in the present suit. As noted above, the commissioner and the board have the primary responsibility to enforce and interpret the Securities Act and the guidelines promulgated pursuant to it, and also have authority granted by art. 581-28-1 (Vernon Supp.1978) to waive the requirements of the guidelines when compliance is not necessary in the public interest. The courts are not in a position to make this kind of a determination. If administrative relief is denied, that denial must be reviewed in the manner prescribed by the Securities Act.

Accordingly, we hold that the temporary injunction granted by the trial court is an interference with the primary jurisdiction of the commissioner or the Securities Board, or both. It is, therefore, an abuse of discretion and is dissolved.

      . All citations are to Texas Securities Act, Tex.Rev.Civ.Stat.Ann., art. 581-1 et seq. (Vernon 1964) unless otherwise noted.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellant, v. Geneva E. HAHN, Appellee.
    No. 15763.
    Court of Civil Appeals of Texas, Austin.
    March 1, 1978.
    Rehearing Denied March 29, 1978.

      Jeremiah Handy, Asst. U. S. Atty., San Antonio, for appellant.
    Maxwell B. Stout, Austin, for appellee.
   PER CURIAM.

Appellant, the United States of America, has tendered a transcript to the Clerk of this Court. Appellee, Geneva E. Hahn, has filed a motion in opposition to the filing of the transcript for the reason that this Court is without jurisdiction, since appellant filed no appeal bond.

An appeal bond must be filed by the United States of America when it takes an appeal from a judgment of one of the courts of this State. United States v. Branson, 147 S.W.2d 286 (Tex.Civ.App.1941, writ ref’d); Southland Life Ins. Co. v. Barrett, 172 S.W.2d 997 (Tex.Civ.App.1943, writ ref’d w. o. m.); United States Dept. of Air Force v. Wilhelm, 555 S.W.2d 498 (Tex.Civ.App.1977, no writ); United States v. Duron, (Tex.Civ.App. El Paso, December 21, 1977) (not yet reported).

By failing to file an appeal bond, appellant did not perfect an appeal. As a result, this Court is without jurisdiction and the Clerk will be ordered not to file the transcript.

Dismissed for Want of Jurisdiction.


author: MURRAY, Justice.

text:
    TEXAS ALCOHOLIC BEVERAGE COMMISSION, Appellant, v. Michelle LANCASTER d/b/a Embassy Lounge, Appellee.
    No. 15948.
    Court of Civil Appeals of Texas, San Antonio.
    March 1, 1978.
    Rehearing Denied March 29, 1978.

      John L. Hill, Atty. Gen., David M. Kendall, First Asst. Atty. Gen., Joe B. Dibrell, Richel Rivers, Asst. Attys. Gen., Austin, for appellant.
    Tuck R. Chapin, San Antonio, for appel-lee.
   MURRAY, Justice.

This suit was instituted in the District Court of Bexar County, Texas by Michelle Lancaster, appellee, against the Texas Alcoholic Beverage Commission, appellant, seeking to have the Court grant a permanent injunction prohibiting the Texas Alcoholic Beverage Commission, its administrators, agents, employees, or servants from enforcing or attempting to enforce an order that was made on June 30,1977 by the assistant administrator of the Texas Alcoholic Beverage Commission suspending for ten days the mixed beverage permit issued to appel-lee doing business as the Embassy Lounge in San Antonio, Texas. Appellee filed suit against appellant on July 14, 1977 and a citation was served on the appellant on July 15, 1977, commanding it to appear by filing a written answer on the first Monday after 20 days of service. On July 19, 1977, the appellee obtained a trial setting on the merits for July 22, 1977 at 9:00 a. m. This notice was not received by appellant until after the trial at 9:00 a. m. in the District Court on July 22, 1977, at which time the court granted the injunction.

Appellant contends that the trial court was without jurisdiction to issue the permanent injunction because the appellee failed to exhaust administrative remedy by failing to file a motion for rehearing as required by § 16(e) of the Administrative Procedure and Texas Register Act, Art. 6252-13a, Tex. Rev.Civ.Stat.Ann. (Supp.1978). We agree.

§ 16(e) provides . . . , a motion for rehearing is a prerequisite to an appeal. A motion for rehearing must be filed within 15 days after the date of rendition of a final decision or order . . . .” The record in this case shows that the appellee has failed to plead or prove that a motion for rehearing was filed. There are many cases holding that there is no constitutional requirement that the State allow a judicial review of an order of an administrative board such as appellant herein. Texas Liquor Control Board v. Gonzalez, 400 S.W.2d 619 (Tex.Civ.App.—San Antonio 1966, writ ref’d); Texas Liquor Control Board v. Scrivano, 256 S.W.2d 598 (Tex.Civ.App. —San Antonio 1953, no writ). The only appeal from an order of the Texas Alcoholic Beverage Commission is provided in the Administrative Procedure Act and must be in strict compliance therewith. Texas State Board of Pharmacy v. Kittman, 550 S.W.2d 104 (Tex.Civ.App.— Tyler 1977, no writ). In Texas State Board of Pharmacy v. Kittman the court stated at page 106 that, “[A]s we interpret the language of the Administrative Procedure Act, the legislative intent is clear and unambiguous. It clearly appears that the legislature intended for the motion for rehearing to be an integral part of the administrative procedure and the failure to file the motion amounts to a failure to exhaust the administrative remedy. Section 16(c) provides that a decision becomes final and not appealable in the absence of a timely motion for rehearing. Section 16(e) makes a motion for rehearing ‘a prerequisite to an appeal.’ Section 19(a) allows judicial review only after administrative remedies are exhausted.”

We hold that the record in this case failed to show that the trial court had jurisdiction of this suit. Richardson v. First National Life Ins. Co., 419 S.W.2d 836 (Tex.1967).

The judgment of the trial court is reversed and injunction set aside and dissolved and the petition therefor dismissed.


author: O’QUINN, Justice.

text:
    Loyce A. SHEPLER, Appellant, v. John A. KUBENA, Appellee.
    No. 12646.
    Court of Civil Appeals of Texas, Austin.
    March 8, 1978.
    Rehearing Denied March 29, 1978.

      David B. Dickinson, Dickinson, Crumley & Hull, Houston, for appellant.
    R. L. Miller, Miller, Miller & Robinson, Gonzales, and E. A. Arnim, Flatonia, for appellee.
   O’QUINN, Justice.

From a judgment in district court awarding John A. Kubena recovery of $49,570.87 and foreclosure of his lien securing the debt against 80 acres of land in Fayette County, Loyce A. Shepler, cross-defendant below, brings this appeal under six points of error.

Under the first three points appellant attacks the judgment with claims of a homestead interest in the land, and under the last three points of error appellant contends that Kubena’s claim is barred by limitations. We will affirm the trial court’s judgment in part and in part will modify and affirm as modified.

The tangled skein of facts out of which this controversy derives are intricate but are not so complex as to defy disentanglement. Appellant’s husband, Dan H. She-pler, acquired the eighty acres involved in this suit in 1961 from Myrtle Combs during Shepler’s prior marriage to Rosalie Shepler. Later in 1961 Shepler and his wife Rosalie conveyed the land to Square Peg Farms, Inc., subject to the lien retained by Myrtle Combs securing a note in the principal sum of $6,000. The Sheplers operated Square Peg Farms as an enterprise raising thoroughbred horses, but at no time occupied the land as their homestead.

Dan H. and Rosalie Shepler were divorced in June of 1963, and in the property settlement the husband took the corporation farm properties. Later that year, on October 22, Myrtle Combs sold her note and lien on the eighty acres to South Central Savings and Loan of Brenham. Shortly thereafter, on October 29, Square Peg Farms, Inc., executed a deed of trust to the eighty acres in favor of South Central Savings to secure a note for $25,000.

The following year, in January of 1964, Appellant Loyce A. Shepler and Dan H. Shepler were married. Soon after their marriage the Sheplers moved onto the eighty acres to live in a new house built on the tract in anticipation of their marriage.

Two years later, on March 8,1966, Square Peg Farms executed a second deed of trust to South Central Savings to secure payment of a note for $38,000, which carried forward the prior $25,000 note and lien. That deed of trust constitutes the instrument with which this lawsuit is concerned.

The following year, in 1967, Square Peg Farms conveyed the eighty acres to Dan H. Shepler in consideration of his assumption of the note secured by the lien. Thereafter, in 1970, Shepler conveyed the property to his wife, Loyce A. Shepler. Shepler left the farm in 1971, and appellant testified at the trial that she had not seen Shepler since that year. The trial court’s judgment referred to Dan H. Shepler, who was a party to the suit but made no appearance, as one “whose residence is unknown and who is notoriously insolvent.”

Early in 1972, after several installment payments on the note were in default, the trustee for South Central Savings posted notice on February 11 that the deed of trust lien would be foreclosed and the property sold on March 7, 1972. It was at this stage of the unfolding events that John A. Kube-na, now the appellee, was brought into the sequence by appellant, Loyce A. Shepler.

Mrs. Shepler approached Kubena, who was her friend as well as county clerk of Fayette County, about buying the note held by South Central Savings. Kubena agreed to assist Mrs. Shepler and went to Brenham with her to negotiate an assignment of the note. Initially the trustee for South Central Savings was unwilling to assign the note and preferred to proceed with the foreclosure sale in accordance with the notice already posted. Kubena succeeded in persuading the trustee to assign the note to him, and the assignment eventually was accomplished on March 7, the day previously set for foreclosure and sale.

Thereafter, Kubena paid insurance premiums and taxes on the property in further aid of Loyce Shepler. After passage of several months, Loyce Shepler, upon the urging of Kubena, brought suit to remove cloud to title in October of 1972, and Kube-na answered and filed his counterclaim, seeking a declaration that his lien was paramount to all interests of Loyce Shepler and of the other lienholders. In keeping with a preconceived plan to effect a private sale, instead of a sheriff’s sale, Kubena did not pray for judicial sale. Testimony at the trial indicates that this procedure, by suit to remove cloud, was intended to bring about settlement with other creditors and permit a subsequent private sale in lieu of a forced sheriffs sale in order to obtain a better price for the property.

In May of 1973, before setting or trial in the lawsuit, Loyce Shepler executed a note to Kubena in the principal sum of about $2,353, which represented part of the past due interest and principal on the obligation originally acquired by Kubena from South Central Savings. Kubena retained the original of the note showing an interest rate of “6¾%” per annum and including the following language typewritten at the bottom of the note:

“This is a renewal and extension of past due interest and principal, a note dated March 8, 1966, in the amount of $38,000.00, signed by the Square Peg Farms, Inc., a Corporation, given to the South Central Savings and Loan Association, Brenham, Texas . . . and later Assigned to John A. Kubena . .”

In August of 1973 trial of the lawsuit before the court without a jury failed to develop, and a pretrial conference was held in an attempt to effect settlement of claims by all claimants except Kubena. Loyce Shepler was present, represented by two attorneys, and participated in the conference. When Rosalie Shepler, the first wife of Dan H. Shepler, and the Wellestat Corporation declined to settle their claims at a figure considered reasonable by Loyce She-pler, the latter Mrs. Shepler withdrew and thereby terminated the conference.

The trial out of which this appeal is brought was not held until January of 1977. Prior to trial, Kubena amended his counterclaim in July of 1976 in which for the first time he sought judicial foreclosure under the deed of trust. Loyce Shepler answered and pleaded homestead rights in the property and bar of suit under limitations provided in Article 5520, V.A.C.S. Thereafter, in October of 1976, Loyce Shepler moved for nonsuit with respect to her action to remove cloud, and the motion was granted.

The suit by Kubena on his counterclaim proceeded to trial, and at the close of evidence, on motion of counsel for Kubena, the trial court withdrew the cause from the jury and granted motion for instructed verdict. .

Appellant claims, under her six points of error, only two basic grounds: first, that the suit by Kubena is barred because not brought within four years after the action accrued; and, second, appellant’s homestead interest in the eighty acres exempts, the land from forced sale in satisfaction of a judgment.

Article 5520 provides that all actions for foreclosure of any deed of trust lien on real estate, securing a promissory note, shall be instituted within four years after the cause of action shall have accrued, and not thereafter. If the note provides that upon default of an installment the holder may accelerate maturity of the note and declare the entire principal due, limitations will begin to run from exercise of the option. Curtis v. Speck, 130 S.W.2d 348, 351 (Tex.Civ.App. Galveston 1939, writ ref’d). Appellant insists that South Central Savings exercised its option to accelerate the note in February of 1972 by posting notice of foreclosure and sale, and that because Kubena did not obtain service on appellant on his counterclaim until July of 1976, the suit was barred by the statute.

The rule is firmly established that the exercise of an option to accelerate maturity must be made in a manner so clear and unequivocal as to leave no doubt as to the holder’s intention to apprise the maker effectively that the option has been exercised. Curtis v. Speck, supra; City National Bank of Corpus Christi v. Pope, 260 S.W. 903 (Tex.Civ.App. San Antonio 1924, no writ); National Debenture Corporation v. Smith, 132 S.W.2d 429, 431 (Tex.Civ.App. Galveston 1939, writ dism’d jdgmt cor.). Intention to mature the note may be evidence by declarations, which alone do not amount to an election, unless followed by affirmative action toward enforcing the declared intention. See National Debenture, supra, and cases cited. Also see 5 A.L.R.2d 968.

Loyce Shepler was present with Kubena in Brenham when the trustee, acting for South Central Savings, declined to pursue the course declared in the notice of foreclosure and upon abandonment of the first intention, assigned the note and lien to Kubena.

For additional reasons, the claim by Kubena was not barred. Even if the limitations period had started to run with the notice by South Central Savings, the statute was tolled by the renewal and extension agreement in the note from Shepler to Kubena in May of 1973, under provisions of Article 5522. Although appellant claimed at the trial that her copy of the note did not incorporate the renewal and extension agreement, execution of the note was not denied by verified pleading required by Rule 93(h), Texas Rules of Civil Procedure. The note was received in evidence as fully proved.

If it be said that limitations started to run with filing by Kubena of his counterclaim in February of 1973, service of citation on the counterclaim was obtained in 1976, less than four years later. However, in this case, service did not become necessary to toll the statute, since Loyce Shepler made personal appearance for trial of the cause on the occasion that a pretrial conference resulted in August of 1973, some six months after filing of the counterclaim by Kubena. See 2 McDonald, Texas Civil Practice, sec. 7.53 (1970).

We hold that suit by Kubena under his counterclaim was not barred by the statute of limitations because not brought within four years after acceleration of maturity on the note.

The basis for appellant’s claim of a homestead interest in the property, sufficient to prevent foreclosure of the lien held by Kubena, begins with occupancy of the eighty acres by appellant and her husband in 1964. At that time the property was owned by Square Peg Farms, a corporation, which late in 1963 had executed a deed of trust to the eighty acres in favor of South Central Savings to secure a note for $25,-000. It appears that when the Sheplers occupied the property as a homestead, it was in subordination to the title of the corporation and amounted at most to a tenancy at will. See Robb v. San Antonio St. Ry. Co., 82 Tex. 392, 18 S.W. 707, 708 (1891); Cleveland v. Milner, 141 Tex. 120, 170 S.W.2d 472 (1943).

With the Sheplers still living on the property, Square Peg Farms in March of 1966 executed a deed of trust on the place to South Central Savings, securing a note for $38,000. This deed of trust reflected renewal and extension of the deed of trust given in 1963 securing the note for $24,000, with an additional loan of $14,000.

Appellant contends that because the homestead interest existed on the property in 1964, any lien placed on the property thereafter is invalid under Article XVI, section 50, of the Constitution of Texas. This section (1) restricts power of the holder of the homestead right in encumbering or alienating the homestead interest, and (2) exempts the homestead interest from forced sale in satisfaction of judgments. Since Square Peg Farms, a corporation, could have no homestead interest in the property, its power to borrow money and pledge the realty as security for the debt was not in violation of Section 50.

Encumbrances placed on the property prior to occupancy by the Sheplers as their homestead could not be affected by subsequent impressment of any homestead interest. First Nat. Bank of Corsicana v. Zarafonetis, 15 S.W.2d 155, 158 (Tex.Civ.App. Waco 1929, writ ref’d); Machicek v. Barcak, 141 Tex. 165, 170 S.W.2d 715, 717 (1943). Occupancy of the property, even with claim of homestead, will not impair an existing deed of trust, nor will it impair power to renew or extend the lien or debt. Dillon v. Kauffman & Runge, 58 Tex. 696 (1883); Price v. McAnelly, 287 S.W. 77 (Tex.Civ.App. San Antonio 1926, writ dism’d).

Existence of a possessory homestead interest, as held by the Sheplers, did not extend the protection and restrictions of the homestead guaranties to the title owner and thereby impress a homestead upon the corporation as well. Benefits of homestead laws are based upon the homestead claimant’s rights in the property and have no separate existence independent of such rights, the result being that the homestead right in property can rise no higher than the right, title, or interest which the claimant owns in the property. Sayers v. Pyland, 139 Tex. 57, 161 S.W.2d 769, 773 (1942); see also 40 Am.Jur.2d Homestead, sec. 3.

The Sheplers, as holders of a pos-sessory interest homestead in the land, which we find to be that of tenancy at will, were not empowered to restrict the title owner, Square Peg Farms, from encumbering the property which was not used by the fee owner as its homestead. Nor does Loyce Shepler have authority in law to prevent judicial foreclosure and sale of the property, since her homestead exemption from forced sale protects only such estate as she holds in the property. Sayers v. Pyland, supra.

We have concluded that Mrs. Shepler, having naked possession without any title when she and her husband occupied the property as their homestead, may maintain her claim of homestead against all creditors save the true owner or one having better title. Only the possessory estate will be protected from forced sale, and the posses-sory estate will not be affected by sale of fee title. Cleveland v. Milner, 141 Tex. 120, 170 S.W.2d 472 (1943), citing as controlling Birdwell v. Burleson, 31 Tex.Civ.App. 31, 72 S.W. 446, 449 (Austin 1902, writ ref’d). See also 89 A.L.R. 511, 512-520; 74 A.L.R.2d 1360, sec. 3.

In its judgment the trial court decreed that the “deed of trust and deed of trust lien as it existed on the 8th day of March, A.D. 1966 ... be and the same is hereby foreclosed and that the Plaintiff Loyce A. Shepler and the Cross-Defendants [naming them] . . . and each of them be. and are hereby forever forclosed [sic] against and barred from all right, title, claim and equity of redemption whatsoever in and to the above described land and premises.”

Thus the judgment fails to recognize the interest of Mrs. Shepler in her possessory homestead as a tenant at will. The judgment is modified to provide that Mrs. She-pler’s homestead interest in the possessory estate of a tenancy at will is not subject to forced sale by her creditors and her homestead estate will survive judicial foreclosure of the deed of trust and sale of the property. The longevity of appellant’s estate will depend ultimately upon decision of the new fee title owner, at whose option the tenancy at will may be terminated or extended.

Judgment of the trial court is modified to the extent indicated, and as modified the judgment is affirmed.


text:
    TEXAS EMPLOYMENT COMMISSION and Deborah Kay Wilson, Appellants, v. Robert M. CADY, Appellee.
    No. 19447.
    Court of Civil Appeals of Texas, Dallas.
    March 8, 1978.
    Gayle Johnson Cipriano, Asst. Atty. Gen., Austin, for appellants.
    Robert M. Cady, pro se.
   ROBERTSON, Justice.

Robert M. Cady sued to set aside an order of the Texas Employment Commission which provided that any benefits paid to Deborah Kay Wilson, Cady’s former employee, would be charged back to Cady’s tax account for use in computing his tax rate.. The order was based on Cady’s failure to file a protest to the claim within the ten day notice period provided by Article 5221b — 4(b) of the Texas Revised Civil Statutes. Although the constitutionality of the notice provision was not raised by the pleadings, the trial court nevertheless concluded that the notice provision violated Cady’s constitutional guarantee of due process of law by failing to afford fair notice of his former employee’s claim for unemployment compensation before foreclosing his right to present arguments against the claim. The trial court then remanded the claim to the Texas Employment Commission for reconsideration. The Commission and Wilson now appeal. We reverse and render.

Article 5221b — 4(b) of the Texas Revised Civil Statutes provides, in applicable part:

An unemployed individual who has no current benefit year may file an initial claim in accordance with rules or regulations prescribed by the Commission. The Commission shall mail a notice of the filing of such initial claim to the individual or organization for which the claimant last worked prior to the effective date of the initial claim ... If the individual or organization to which such notice is mailed has knowledge of any facts that may adversely affect such claimant’s rights to benefits, or that may affect a charge to its account, it shall notify the Commission of such facts promptly. If such individual or organization does not mail or deliver such notification to the, Commission within ten (10) days from the date notice of a claim was mailed to it by the Commission, such individual or organization shall be deemed to have waived all rights in connection with such claim . [Emphasis added]

Since Cady admitted receiving the notice, but offered no evidence regarding the date of its receipt, our sole question is whether the ten day notice provided by this statute is insufficient, as a matter of law, to satisfy the requirements of constitutional due process.

In order for notice to be effective, it must afford the recipient a reasonable opportunity to defendant the asserted claim. Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Roller v. Holly, 176 U.S. 398, 20 S.Ct. 410, 44 L.Ed. 520 (1900); Sgitcovich v. Sgitcovich, 150 Tex. 398, 241 S.W.2d 142 (1952), cert. denied, 342 U.S. 903, 72 S.Ct. 291, 96 L.Ed. 676 (1952). Although the legislature’s authority to prescribe the length of notice is not absolute, “only in a clear case will a notice authorized by the legislature be set aside as wholly ineffectual on account of the shortness of the time.” Bellingham Bay & British Columbia R.R. Co. v. City of New Whatcom, 172 U.S. 314, 318, 19 S.Ct. 205, 206, 43 L.Ed. 460 (1898). Under these authorities, we cannot say that, as a matter of law, ten days from the date of mailing the notice is a constitutionally insufficient period of time within which to require a response regarding an employee’s claim for unemployment benefits. One who claims unemployment benefits naturally desires a prompt decision on the merits of the claim, and an abbreviated notice period serves to speed the administration process so that, if the claim is proper, relief may be granted quickly and efficiently.

Although Cady urges us to judicially notice the “continuing breakdown in United States Mail deliveries,” and in so doing, to hold that this problem has rendered ten day notice from the date of mailing constitutionally insufficient, we do not believe that the current postal difficulties justify invalidation of this provision. The case cited by Cady to support this argument, Smith v. Iowa Employment Security Commission, 212 N.W.2d 471 (Iowa 1973), does not support his position. That case merely held that when the notice was received too late in the notice period to allow meaningful response, the notice was constitutionally deficient. In this case, however, there is no evidence regarding the date of receipt, and we cannot presume that receipt was excessively delayed. Early in this century, our supreme court upheld the sufficiency of mailed notice, and recognized the reliability of the postal service. See Rogers v. Moore, 100 Tex. 220, 97 S.W. 685 (1906). Despite the lamentable demise of overnight delivery, the mails are still sufficiently reliable to allow receipt and response within ten days of an original mailing.

Reversed and rendered.


text:
    Rosemary RIVAS, Appellant, v. COMMUNITY SAVINGS AND LOAN ASSOCIATION, Appellee.
    No. 15930.
    Court of Civil Appeals of Texas, San Antonio.
    March 8, 1978.
    Rehearing Denied March 29, 1978.

      Evans & Marshall, Louis E. Marshall, San Antonio, for appellant.
    Small, Craig & Werkenthin, Austin, for appellee.
   MURRAY, Justice.

Rosemary Rivas, appellant, filed suit against Community Savings and Loan Association, appellee, in the district court of Gillespie County, to recover damages for the alleged conversion of livestock. Appel-lee filed a counter claim to recover on a note. Appellee claimed a security interest in the livestock, to-wit, cattle and horses.

After a trial before a jury, the trial court instructed a verdict in favor of appellee on the note and held as a matter of law that the appellee did not have a security interest in the horses and submitted to the jury the issues concerning conversion of the horses. The trial court entered judgment on the jury’s verdict and the instructed verdict. After all offsets were calculated, appellee recovered the sum of $3,499.70 from appellant.

The appellant complains of the judgment of the trial court in 19 points of error and 8 supplemental points of error. We hold that it is not necessary to consider any of appellant’s point of error as they are not properly before this Court, and the judgment of the trial court should be affirmed.

At the close of the evidence appellee moved for an instructed verdict on its counter claim on the note and at this time appellant’s counsel stated in the trial court that: “There is no issue of fact as to the note. Yes, Judge, that’s correct, we don’t contest the directed verdict on the issue of fact at all; . . . .” The attorney for appellant clearly invited the court to grant the motion for instructed verdict on the note, and has thereby relinquished the right to review that action by a higher court. As stated in 3 Tex.Jur.2d Judgments § 190 (1962) at p. 592, “[a] party who clearly, voluntarily, and unconditionally acquiesces in, or ratifies, a judgment or order thereby relinquishes his right to a review by a higher court, except as to jurisdictional errors and defects.” (See cases cited in this text.)

After the court had granted an instructed verdict on the note, it proceeded to submit the issues on conversion to the jury. The jury answered the issues favorably to appel-lee and the court entered a judgment in favor of appellee on the verdict. The trial court overruled appellant’s amended motion for new trial, which contained four grounds of error as follows:

(1) The Court erred in granting Defendant’s motion in limine to suppress evidence of the market value of any horse not owned by Plaintiff at time of conversion.
(2) The Court erred in refusing the special issue requested by both Plaintiff and Defendant as to whether all blanks were filled in on that financing statement dated in November, 1973, prior to Plaintiff’s signing such financing statement.
(3) The Court erred in failing to render judgment providing for interest on the sum of $300.00, found to be Plaintiff’s damages, at the legal rate from date of conversion to date of judgment.
(4) The Court erred in not allowing Plaintiff time to research and prepare special issues dealing with legal defenses under the Consumer Credit Code to Plaintiff’s cross-action for damages.

At the time this case was decided and the appeal perfected, Rule 324, Tex.R. Civ.P. (1976), required that a motion for new trial be filed as a prerequisite to appeal. Appellant’s points of error presented in this Court are not germane to any assignment of error in appellant’s amended motion for new trial. Therefore we are without authority to consider them. Smith v. Davis, 453 S.W.2d 340 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n. r. e.; Sterling v. Tarvin, 456 S.W.2d 529 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n. r. e.); Tex.R.Civ.P. 374 (1976).

Plaintiff’s post-submission brief, claiming fundamental error, has been carefully examined by this Court and found to be without merit.

The judgment of the trial court is affirmed.