text:
    George PRESTON, Jr., et ux., Delores Preston, Appellants, v. SEARS, ROEBUCK & COMPANY and Whirlpool Corporation, Appellees.
    No. 8605.
    Court of Civil Appeals of Texas, Texarkana.
    Sept. 29, 1978.
    Rehearing Denied Oct. 24, 1978.

      Gerard B. Rickey, Pace, Chandler & Rickey, Dallas, for appellants.
    Timothy E. Kelley, Dallas, for appellees.
   ODEN, Justice.

Appellants, George Preston, Jr. and wife, Delores Preston, purchased a Kenmore Automatic Washer from Sears, Roebuck & Company, one of the appellees. Whirlpool Corporation, the other appellee, manufactured the automatic washer. The washer’s water level switch was stuck in reset. Neither appellee was cognizant of the defect and appellants do not suggest that appellees had any intent to deceive them. The washer overflowed during its first use causing extensive damage to appellants’ residence and furniture. Mr. and Mrs. Preston filed suit against Sears and Whirlpool wherein they asserted that the appellees breached certain express and implied warranties and that they were thereby entitled to the remedies provided for in Section 17.50 of the Consumer Protection Act (Supp.1978), in addition to their other remedies provided by law. Section 17.50 reads in pertinent part as follows:

“§ 17.50. Relief for Consumers
(a) A consumer may maintain an action if he has been adversely affected by any of the following:
(2) breach of an express or implied warranty;
(b) In a suit filed under this section, each consumer who prevails may obtain:
(1) three times the amount of actual damages plus court costs and attorneys’ fees reasonable in relation to the amount of work expended;

A judgment was entered in favor of Mr. and Mrs. Preston for their actual damages in the amount of $4,200.00; however, the court refused to award treble damages and attorney’s fees. The sole issue presented for our review is whether such refusal was error. The Supreme Court has adopted the view that the treble damage penalty is mandatory if the act applies. Woods v. Littleton, 554 S.W.2d 662 (Tex.1977). Thus, we must determine if the act applies. If it does, the court erred in refusing to award treble damages and attorney’s fees and we must reverse and render judgment in favor of Mr. and Mrs. Preston for $12,600.00 plus attorney’s fees in the amount of $1,500.00. If the act does not apply, we must affirm.

The case is before us upon an Agreed Statement filed pursuant to Rule 378, Tex. R.Civ.P., which reads in pertinent part as follows:

I.
Plaintiffs, George Preston, Jr. and wife, Delores Preston, two individuals on June 14,1975, purchased from Sears, Roebuck & Company one new Lady Kenmore Automatic Washer, Model 24901 for personal use by their family in Dallas, Texas. George Preston, Jr. and wife, Delores Preston, paid the purchase price of $354.99 to Sears, Roebuck and Company. The automatic washer was manufactured by Whirlpool Corporation. Sears, Roebuck & Company delivered and installed the new washer at the residence of George Preston, Jr. and Delores Preston on the 18th day of June, 1975. The first use of the new washing machine was by Delores Preston on the following day, June 19, 1975. At the time of delivery and installation by Sears, Roebuck & Company and through the time the washer was first used by Delores Preston, the water level switch to the washer was stuck in reset. That caused the washer on its first use to overflow and flood a portion of the home of George Preston, Jr. and wife, Delores Preston. Water damage resulted to property of George Preston, Jr. and Delores Preston.
II.
Sears, Roebuck & Company delivered to George Preston, Jr. and Delores Preston the express written Warranty on the washer, a true copy of which is attached hereto as Exhibit A and incorporated herein for all purposes. George Preston, Jr. and wife, Delores Preston, relied upon the written Warranty furnished by Sears, Roebuck & Company in the purchase of the new washer on June 14, 1975.
III.
The actual financial or monetary loss sustained by George Preston, Jr. and wife, Delores Preston, as a proximate result of the washer overflow on June 19, 1975, was the sum of $4,200.00.
IV.
Following the occurrence of June 19, 1975, Sears, Roebuck & Company repaired and adjusted the water level switch to the automatic washer, without charge to George Preston, Jr. and wife, Delores Preston.
V.
The sum of $1,000.00 is a reasonable sum for the fee of the attorney for George Preston, Jr. and Delores Preston when viewed in relation to the amount of work expended for trial in the trial court. In addition, the sum of $500.00 is a reasonable sum for the fee of the attorney for George Preston, Jr. and wife, Delores Preston, in relation to an appeal to the Court of Civil Appeals. The sum of $350.00 is a reasonable sum for the attorney’s fee of the attorney for George Preston, Jr. and wife, Delores Preston, in relation to an Application for Writ of Error to the Supreme Court of Texas.

The relevant portions of Exhibit A to the Agreed Statement state:

“SEARS GUARANTEES YOUR KENMORE AUTOMATIC WASHER, when used for private family purposes in the United States or Canada, to be free from defects in material or workmanship as follows:
Sears will
From date of sale and for a period of—
1. 5 Years — furnish replacement gear case parts if needed as listed below at no charge. However, after 1 year there will be a labor charge for removal and installation of gear case parts.
2. 5 Years — furnish replacement for ‘Vari-Flex’ agitator if needed at no charge. (All other agitators — replacement will be furnished for 2 years if needed) However, after 1 year there will be a labor charge for removal and installation of the agitator.
3. 2 Years — furnish all mechanical and electrical replacement repair parts at no charge. However, after 1 year there will be a labor charge for removal and installation of repair parts.
4. 1 Year — perform all service (labor) required to replace any parts mentioned above or any necessary mechanical adjustments, at no charge.
5. 30 Days — replace and install any defective porcelain finished parts at no charge.”

An agreed statement filed pursuant to Rule 378, Tex.R.Civ.P., is presumed to embrace every fact in the case and no other facts or findings may be presumed or inferred, except such facts as are necessarily implied from those expressly stipulated. Price v. Surf Lease Service, Inc., 472 S.W.2d 812 (Tex.Civ.App. Beaumont 1971, no writ); Stewart v. Mobley, 500 S.W.2d 246 (Tex.Civ. App. Beaumont 1973, writ ref’d n. r. e.).

The trial court and the parties are all in agreement that Mr. and Mrs. Preston are entitled to a judgment for at least $4,200.00 and we are not concerned with the legal theory upon which a judgment for this sum was rendered. Our concern is whether Section 17.50(a)(2) is applicable. A close examination of the agreed statement leads us to the conclusion that it isn’t. We cannot presume that the trial court based its judgment on a finding that appellees breached an implied warranty. The warranty set forth in the agreed statement is, of course, an express warranty. The pivotal portion of the express warranty under review is, “to be free from defects in material or workmanship as follows: . . . ” (Emphasis added.) In our opinion, the express warranty relates to Sears’ obligation to repair the automatic washer. It is not an express warranty that the washer is free from defects in materials or workmanship. The automatic washer was repaired at no cost to Mr. and Mrs. Preston. Since the express warranty related to repair, there was no breach and Section 17.50(a)(2) is not applicable.

It is not necessary for us to determine if Section 17.50(a)(2) requires that one such as appellants show an intent to deceive before a breach of an express or implied warranty will give rise to an award of treble damages under the act, however, we think it noteworthy that it was held in Singleton v. Pennington, 568 S.W.2d 367 (Tex.Civ.App. Dallas 1977, no writ), that an intent to deceive must be proved before treble damages are recoverable under Section 17.-50(a)(1) as it relates to Section 17.46(a) and Section 17.50(a)(3).

The judgment of the trial court is affirmed.

      . Deceptive Trade Practices-Consumer Protection Act, Texas Business & Commerce Code, Sec. 17.41, et seq. (Supp.1978), hereinafter referred to as “the act.” All future statutory references are to the act unless otherwise stated.

      . The acts complained of occurred before the enactment of Sec. 17.50A (Supp.) of the act effective May 23, 1977, and the amendment which was effective September 1, 1975. The references to the act pertain to the statute enacted in 1973 because the amendments were not retroactive. See Woods v. Littleton, infra.

      . False, misleading or deceptive acts or practices in the conduct of any trade or commerce.

      . Any unconscionable action or course of action by any person.


source: Caselaw Access Project

author: RAY, Justice.

license: Public Domain

text:
    Mrs. F. Hastings PANNILL, Relator, v. The Honorable Virgil E. MULANAX, District Judge, et al., Respondents.
    No. 8533.
    Court of Civil Appeals of Texas, Texarkana.
    Sept. 29, 1978.
    Rehearing Denied Oct. 24, 1978.

      F. Hastings Pannill, Sr., Huntsville, for relator.
    Jeffrey H. Hubbard, Houston, for respondents.
   RAY, Justice.

This is an original proceeding in this Court in the nature of a petition for writ of mandamus and writ of prohibition. Mrs. F. Hastings Pannill, relator, obtained a temporary writ of prohibition in this Court on July 15, 1977, in which it was ordered that the District Judge, Virgil E. Mulanax, and the other respondents be prohibited from taking any further action in “issuing or serving or having served on relator any notices of intention to take depositions, any demands or notices for production of documents, any other pre-trial discovery proceedings, or any notices, subpoenas or demands of any kind in connection with the prosecution of said Cause No. 147-76 pend-

ing in the District Court of Marion County, Texas,” styled Fort Bend Chapter, The National Society, Daughters of the American Revolution, Et Al v. Mrs. Hastings Pannill, Mrs. Jesse M. DeWare, III, Et Al, and the Attorney General for the State of Texas (the second suit). There are several related cases in which this Court has delivered opinions. A trespass to try title suit (the first case) was also filed by various Texas chapters of the National Society of the Daughters of the American Revolution against Mrs. Pannill as State Regent and The Texas Society, Daughters of the American Revolution, Inc. and others to cancel a deed for the sale of the Freeman Plantation (the headquarters of The Texas Society, Daughters of the American Revolution, Inc.) to Mrs. Jesse M. DeWare, III and her two children. Mrs. Pannill filed her plea of privilege to have the suit as it related to her individually, transferred to Midland County. The trial court overruled the plea of privilege, but this Court, in an unpublished opinion, reversed the trial court and ordered the suit as it related to Mrs. Pannill individually, transferred to Midland County primarily because no cause of action was asserted against Mrs. Pannill in her individual capacity. The trial court then granted a summary judgment in favor of Mrs. Pannill as State Regent and The Texas Society, Daughters of the American Revolution, Inc. and the DeWares which had the effect of confirming the sale of the Freeman Plantation to the DeWares. This Court in (the first case) Governing Board v. Pannill, 561 S.W.2d 517 (Tex.Civ.App. Texarkana 1977, writ filed), reversed the trial court’s judgment granting the summary judgment and ordered a trial upon the merits. In the meantime, a second suit was filed in the District Court of Marion County by member chapters of The Texas Society, Daughters of the American Revolution, Inc. seeking to set aside the sale of the Freeman Plantation and seeking an injunction against the officers and former officers of The Texas Society, Daughters of the American Revolution, Inc. from incurring debts and from disposing of the assets of the Society other than in the ordinary course of business. It was alleged that the officers and former officers were using the assets of the corporation to pay legal fees to defend themselves in their acts of having sold the Freeman Plantation. The trial court granted the injunction. We have this day affirmed the action of the trial court, stating in substance, that the officers and former officers are enjoined from making unauthorized expenditures of corporate funds for their defense.

In the first suit, Governing Board v. Pan-nill, supra, this Court concluded that Mrs. Pannill should be retained as a party defendant in her capacity as a former State Regent of The Texas Society, Daughters of the American Revolution, Inc. because an action may be asserted by the corporation acting directly or through members in a representative suit against incumbent or former officers or directors of the corporation pursuant to Article 1396-2.03(B)(1) and (2), Tex.Rev.Civ.Stat.Ann., Texas Non-Profit Corporation Act. From the pleadings in the second suit, it appears that complaint has been made against Mrs. Pannill in her capacity as a former State Regent for having made an unauthorized sale of the Freeman Plantation, although such is not totally clear. It was the contention of Mrs. Pannill at the hearing on the application for the temporary writ of prohibition, that since this Court had ordered the action against her individually in the first suit transferred to Midland, that she was entitled to the same relief in the second suit and that the trial court should grant her plea of privilege in the second suit and transfer the cause of action against her either to Midland County or to Harris County, the county in which she alleges she presently resides. See 1 McDonald’s, Texas Civil Practice, Sec. 4.03.-3, pp. 415-420. No action had been taken by the trial court in the second suit on Mrs. Pannill’s plea of privilege prior to the time we granted the temporary writ of prohibition. It first appeared to this Court that the trial court might be interfering with the jurisdiction of this Court since we had stated that all actions against Mrs. Pannill individually should be transferred to the county of her residence. However, upon deeper study and reflection, we have concluded that the evidence has not been sufficiently developed for us to make a determination of whether or not the trial court will interfere with the jurisdiction of this Court and we will therefore dissolve the temporary writ of prohibition and refuse to grañt the permanent writ of prohibition at this time so that the trial court may proceed to hear the plea of privilege filed by Mrs. Pannill in the second suit.

In Smith v. Grievance Committee, State Bar of Texas for District 14 — A, 475 S.W.2d 396, 399 (Tex.Civ.App. Corpus Christi 1972, no writ), the court stated:

“The writ of prohibition as used in Texas has three principal functions: (1) Preventing interference with the higher courts in deciding a pending appeal; (2) preventing an inferior court from entertaining suits which will relitigate controversies which have already been settled by the issuing courts; and (3) prohibiting a trial court’s action when it affirmatively appears that the court lacks jurisdiction. . .

A writ of prohibition will not be entertained where there is an adequate remedy at law by appeal. Prince v. Miller, 123 Tex. 118, 69 S.W.2d 52 (1934). The writ of prohibition, like the writ of mandamus, is not a writ of right, but it is one of discretion, to be granted or denied according to the circumstances of each case. City of Houston v. City of Palestine, 114 Tex. 306, 267 S.W. 663, 664 (1924).

It appears that justice will best be served by having the trial court hear the plea of privilege so that the facts can be developed concerning what action is asserted against Mrs. Pannill. The trial court can then rule on the plea of privilege and if Mrs. Pannill is dissatisfied with the trial court’s ruling, she may have her remedy at law by appeal. Prince v. Miller, supra.

Relator Pannill’s petition for a permanent writ of prohibition is denied. The temporary writ of prohibition is dissolved and relator’s petition for writ of mandamus is denied at this time in order to give the trial court an opportunity to proceed as promptly as practical to hear and determine relator’s plea of privilege.

CORNELIUS, C. J., not participating.

      . The opinion which was originally ordered not to be published in 1976 is this day being ordered published.


author: EVANS, Justice.

text:
    STEMCO MANUFACTURING COMPANY, INC., Appellant, v. LOUIS DELHOMME MARINE, INC., Appellee.
    No. 17251.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 5, 1978.
    Rehearing Denied Nov. 2, 1978.
    Lapin, Totz & Mayer, William Petersen, Houston, for appellant.
    Charles R. Vickery, Jr., and Don M. Kennedy, Houston, for appellee.
   EVANS, Justice.

The appellant has moved this court to reverse and remand the cause for a new trial, alleging that the court reporter’s stenographic notes have been lost and that it is, therefore, not possible to obtain and file with this court a full and complete statement of facts. The appellee has filed a reply to the appellant’s motion, contending that the appellant has not shown due diligence in trying to obtain a narrative statement of the evidence by agreement or by request to the trial judge under the provisions of Rule 377, and 378 Texas Rules of Civil Procedure.

If an appellant, through no fault of his own and after the exercise of due diligence, is unable to obtain a statement of facts, he may be entitled to a reversal and remand if his right to have the cause reviewed on appeal can be preserved in no other way than by a retrial of the case. Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697, 700 (1936). If the proceedings in the trial court were not recorded by a court reporter, the appellant is not entitled to a reversal on the ground of the unavailability of a statement of fact unless the appellant makes a showing of no fault or negligence on his part and that he attempted without success to obtain a condensed statement in narrative form under Rule 377 or an agreed statement under Rule 378, Texas Rule of Civil Procedure. Whatley v. Whatley, 493 S.W.2d 299 (Tex.Civ.App.— Dallas 1973, no writ); Phillips v. Phillips, 532 S.W.2d 161 (Tex.Civ.App.—Austin 1976, no writ). However, where the record establishes that the proceedings were recorded by a court reporter and that the court reporter’s notes were lost through no fault or lack of diligence on the part of the appellant, he is entitled to have the case retried if a complete statement of facts is essential to a review of his points on appeal. Waller v. O’Rear, 472 S.W.2d 789 (Tex.Civ.App.—Waco 1971, writ ref’d n. r. e.); Goodin v. Geller, 521 S.W.2d 158 (Tex.Civ.App.—Waco 1975, writ ref’d n. r. e.).

The motion in the case at bar reflects that the appellant’s points of error on appeal raise questions for this court’s review as to the evidence to support the findings upon which the judgment is based. Under such points of error this court has the burden of reviewing the entire record, and this burden cannot be discharged in the absence of a complete or an agreed statement of facts.

It is quite unlikely that the appellant could have obtained an agreed statement of facts which would permit this court to review these points, and the appellant was not required, under such circumstances, to show that an effort was made to obtain an agreed statement. Waller v. O’Rear, supra; Goodin v. Geller, supra.

The judgment of the trial court is reversed and the cause is remanded for a new trial. The costs of appeal are taxed one-half against the appellant and one-half against the appellee.


author: MURRAY, Justice. CADENA, Chief Justice,

text:
    Nora Mae TYLER et al., Relators, v. George E. COOK et al., Respondents.
    No. 16171.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 11, 1978.

      Hardy W. Hollers, Samuel D. McDaniel, Austin, for relators.
    Warren Weir, Goehman & Weir, San Antonio, H. Clyde Farrell, Crystal City, for respondents.
   OPINION

MURRAY, Justice.

In this proceeding, Relators are Nora Mae Tyler, the duly elected and certified nominee of the Democratic Party for the office of County and District Clerk of La Salle County, Texas; Vernon Brown, the duly nominated and certified nominee of the Democratic Party for County Judge of La Salle County, Texas; and Roberto F. Aldaco, the duly nominated and certified nominee of the Democratic Party for County Commissioner, Precinct 2, La Salle County, Texas. They seek by this proceeding to have writs of mandamus issued to George E. Cook, County Clerk of La Salle County, Texas, directing that the names of Henry F. Pottash, Louis R. Garcia and Agapito Delgado, III, not be printed upon the official ballot for the November 1978 general election as independent candidates for the offices of County Judge, County and District Clerk, and County Commissioner, Precinct 2, of La Salle County, Texas, respectively. The petition for the writ is denied.

The right of a person to have his name placed on the general election ballot as an independent candidate is governed by Article 13.50 of the Texas Election Code, which reads in part as follows:

Subdivision 3. The name of a nonpartisan or independent candidate may be printed on the official ballot in the column for independent candidates, after a written application signed by qualified voters addressed to the proper officer, as herein provided, and delivered to him within 30 days after the second primary election day, as follows:
If for a county office, the application shall be signed by five per cent of the entire vote cast for Governor in such county at the last preceding gubernatorial general election, and shall be addressed to the county judge.
Subdivision 4. No application shall contain the name of more than one candidate. No person shall sign the application of more than one candidate for the same office; and if any person signs the application of more than one candidate for the same office, the signature shall be void as to all such applications. No person shall sign such application unless he is a qualified voter, and no person who has voted at either the general primary election or the runoff primary election of any party shall sign an application in favor of anyone for an office for which a nomination was made at either such primary election.
Subdivision 5. In addition to the person’s signature, the application shall show each signer’s address, the number of his voter registration certificate, and the date of signing.
Subdivision 6. Any person signing the application of an independent candidate may withdraw and annul his signature by delivering to the candidate and to the officer with whom the application is filed (or is to be filed, if not then filed), his written request, signed and duly acknowledged by him, that his signature be can-celled and annulled. The request must be delivered before the application is acted on, and not later than the day preceding the last day for filing the application. Upon such withdrawal, the person shall be free to sign the application of another candidate for the same office.

Tex.Elec.Code Ann. art. 13.50 (Vernon Supp.1978).

In the petition for writ of mandamus, relators have raised two alleged defects in respondents’ application for places on the official ballot: (1) the lack of timeliness of certain signatures on respondents’ application; (2) the insufficiency of addresses accompanying certain signatures on the applications. It is undisputed that most of the signatures on respondents’ application were obtained before the primary election in La Salle County, Texas, on June 3, 1978. Without these signatures respondents’ application would not meet the requirements of Art. 13.50, Sub. 3. The vast majority of the addresses of the signers of the application of respondents contained only the box number, post office box or general delivery in La Salle County only. Without these signatures, respondents’ application would again fail to satisfy the requirements of Art. 13.50, Sub. 3.

Article 13.50 does not expressly provide that the signatures be obtained after the primary election. We believe the legislature intended that the signers should be qualified voters who did not participate in a primary election of any organized political party. None of the voters whose names appeared on the respondents’ application were persons who voted in either the general primary election or the runoff primary election of any party in 1978. In direct contrast to Art. 13.50, Art. 13.45 specifically provides that signatures obtained before a certain date are void and that the petition may not be circulated until after a named occurrence. “The petition may not be circulated for signatures until after date of the party’s precinct conventions. Any signatures obtained on or before that date are void.” Tex.Elec.Code Ann. art. 13.45 (Vernon Supp.1978).

We believe that if the legislature intended the highly penal result of complete removal of respondents from the ballot, when signatures are obtained before the primary election, it would have expressly prohibited such in Art. 13.50. This Court has consistently refused to give a highly penal construction to election laws in the absence of an express statutory provision. Orth v. Benavides, 125 S.W.2d 1081 (Tex.Civ.App.—San Antonio 1939, writ dism’d); King v. Fitch, 181 S.W.2d 926 (Tex.Civ.App.—San Antonio 1944, no writ). In King, this Court refused to interpret the statute requiring payment of a filing fee assessment by a certain date to be a condition precedent and stated:

Before we would be justified in holding that Article 3116 should be construed as meaning that no candidate who did not pay his assessment on or before Saturday before the fourth Monday in June could have his name placed on the ballot, such meaning would have to be clearly expressed. Such a construction would give to this article a very highly penal effect. Penal statutes are to be construed strictly and not liberally. It is plain that the Legislature did intend that candidates should pay their assessments on or before the Saturday before the fourth Monday in June preceding a primary election in July, but it is equally clear that the Legislature has not prescribed the drastic penalty urged by appellee for the failure to do so.

181 S.W.2d at 928.

La Raza Unida Party v. Dean, 462 S.W.2d 570 (Tex.1970), cited by Relators, was a case where the petition was circulated for placing the La Raza Unida Party on the ballot before the candidates of the party had been named at its nominating convention. The Supreme Court invalidated the petition and stated:

The statute does not expressly provide that the application to have the names of the party’s nominees printed on the ballot shall be signed and filed after the names of the nominees have been certified to the county clerk, but that seems to us to be the only logical and reasonable interpretation; otherwise, party leaders could foist upon the signers totally unacceptable candidates and thus defeat the purpose of the application. We do not believe the legislature intended that voters should be blindfolded when asked to sign an application to have the names of a party’s nominees printed on the ballot.

462 S.W.2d at 571.

In this case, the signers of the petition knew exactly whom they were supporting, since they signed on behalf of the candidate himself rather than on the party. Further, Sub. 6 of Art. 13.50, involved in the instant case, specifically provides for a procedure by which the voter may withdraw his support for the candidate whose petition he had signed. This provision appears tailored to meet precisely the problem raised and lent support to respondents’ contention that the legislature never intended to limit petition signing to the 30 days after the primary. In La Raza, there was no such provision for withdrawing a signature.

Relators’ contention that the addresses given by the signers do not satisfy the requirements of Art. 13.50 is without merit. La Salle County is a rural county. Only three towns have post offices. Mail is delivered on only one rural route; therefore, many qualified voters residing in La Salle County do not have a street address or a rural route address. A review of the 1978 registration list for La Salle County reveals that the addresses shown are the same as the addresses on respondents’ application. Article 13.08(d), which is the provision providing how one may qualify for the primary election ballot in lieu of a filing fee, provides in part as follows: “The petition must show the following information with respect to each signer: His address (including his street address if residing in a city, and his rural route address if not residing in a city), his current voter registration certificate number . . . , and the date of signing.” Tex.Elec.Code Ann. art. 13.08(d) (Vernon Supp.1978). The specificity included in Art. 13.08(d) is not contained in Art. 13.50. It would appear that a qualified voter living in a rural county not having a street address nor a rural route address would not be qualified to sign a petition under Art. 13.08(d). We doubt that the Legislature intended to disenfranchise such qualified voters under Art. 13.08(d).

As pointed out above, Art. 13.50 does not expressly require that the signatures be gathered after the primary nor that the addresses be stated with any degree of specificity. No harm has been shown as was present in La Raza. We hold that the respondents’ application substantially complied with the Code, and their right to appear on the ballot has been established.

The writ of mandamus is denied.

CADENA, Chief Justice,

dissenting.

That portion of Subdivision 4 of Article 13.50 which declares that “. . . no person who has voted at either the general primary election or the runoff primary election of any party shall sign . . .’’is clear and unambiguous. The same is true of the language of Article 13.51 which requires that the following statement appear at the head of each page of the application: “I have not participated in the general primary election or the runoff primary election of any party which has nominated, at either such election, a candidate for the office for which I desire_(here insert the name of the candidate) to be a candidate . . . .” Tex.Elec.Code Ann. arts. 13.50, 13.51 (Vernon Supp.1978).

Unless we attribute an almost complete lack of knowledge of grammar to our legislators, we cannot escape the conclusion that the statutory scheme requires that the signatures be gathered after the general primary election or the runoff primary election, as the case may be. It is utter foolishness to require a person to state that he has not participated in an event which is not to occur until some future date.

It is true that Article 13.45 specifically provides that signatures obtained before a specific date are not to be counted, but this does not justify the conclusion that the Legislature intended language referring to a past event to be made referable to a future event. The majority opinion in this case construes the applicable provision as though it read that the-statement of the voter should be to the effect that he has not voted in any primary election and that he will not vote in any future primary during the remainder of the voting year. If the Legislature had intended to so provide, it would have had no more difficulty in expressing such intent in Article 13.50 and Article 13.51 than it did in drafting Paragraph (b) of Subdivision 2 of Article 13.45, which provides as follows: “The following statement shall appear at the head of each page of the petition: ‘. . .1 have not voted in any primary election and I will not vote in a primary election of any other party during the remainder of this voting year.’ ”

Since the Legislature has demonstrated its ability to choose appropriate language to demonstrate its intent that signatures may be gathered prior to the primary election in Article 13.45(2)(b), it is not inappropriate for a court to assume that our legislators knew the difference between “have not participated” and “will not participate.”

I would grant the relief sought.

      . Hereafter, all references to statutory articles are to the Texas Election Code.


author: CORNELIUS, Chief Justice.

text:
    PARGAS OF LONGVIEW, INC., Appellant, v. Franklin JONES ex ux., Appellees.
    No. 8595.
    Court of Civil Appeals of Texas, Texarkana.
    Oct. 17, 1978.
    Rehearing Denied Nov. 7, 1978.

      H. P. Smead, Jr., Smead & Anderson, Longview, for appellant.
    Franklin Jones, Jr., Jones, Jones & Baldwin, Marshall, for appellees.
   CORNELIUS, Chief Justice.

Franklin Jones, Sr., filed suit against Pargas to recover damages resulting from Pargas’s removal of a butane gas tank from his property. Liability was predicated upon three theories: violation of the Texas Debt Collection Act, willful trespass, and conversion. After a non-jury trial the district court awarded Jones $175.00 for the value of the tank, $750.00 damages for mental anguish, $1,000.00 exemplary damages and $1,250.00 attorney’s fees.

The trial court’s findings of fact reveal that, shortly after World War II, Jones installed a butane gas system at his second residence on Caddo Lake. The system consisted of one unit with outlets in the residence and a buried storage tank connected to the outlets by buried pipes. In 1967, the buried tank was replaced by a larger 250 gallon tank installed by Pargas. The replacement tank was not buried but was placed on concrete blocks and was connected to the gas system as an integral part of it. Jones was under the impression that he purchased the tank and that it was to be paid for periodically as he purchased gas. Pargas contended that it merely leased the tank to Jones, but it did not charge a rental for the tank as long as the customer was purchasing gas. The tank remained at the residence and there was no dispute until September of 1976 when Pargas wrote Jones that, because he had not purchased any gas from it since 1973, it would like to pick up the tank and replace it with a smaller one. Jones replied that he thought he had bought the tank, but offered to purchase it if he had not already done so. Pargas then advised Jones by mail that its previous letter was in error and that the tank would be picked up on November 1, 1976, “when the lease runs out” unless Jones gave notice to the contrary. Jones thereupon demanded that Pargas produce its lease covering the tank, if it had one, and warned that any attempt to remove the tank would be a trespass which he would resist. Without further response or notice, Pargas’s employee Scott and a helper went to Jones’s property between Christmas and New Years, entered the fenced and locked premises by removing wires from the fence, ruptured the gas lines, disconnected the tank and carried it away. The court found there was no written lease between Pargas and Jones covering the tank; the tank had become Jones’s property as a fixture attached to the realty; Pargas had no contractual or other right to invade Jones’s premises; and that the entry was deliberate, willful and unlawful.

Pargas has assigned seventeen points of error which contend generally that the Debt Collection Act was not applicable and that the awards for mental anguish, exemplary damages and attorney’s fees were not authorized.

The cause of action did not come within the provisions of the Debt Collection Act. That Act applies to certain prohibited actions of a creditor or a debt collection agency in an attempt to collect a debt arising from a consumer transaction. The controversy here does not involve a debt- or/creditor relationship. It is simply a dispute over the ownership of a tank and the corollary right of the alleged owner to retrieve that property. The district court concluded that Jones’s alleged obligation to return the tank was a “debt,” analogous to the situation in Ledisco Financial Services, Inc. v. Viracola, 533 S.W.2d 951 (Tex.Civ.App. Texarkana 1976, no writ), where we held that the obligation of a debtor to return a credit card to a creditor was a “debt” within the meaning of the Debt Collection Act. But the situation in Ledisco was entirely different from that here. In that case the credit card holder owed money to the issuer as well as the obligation to return the cancelled credit card, and we held that efforts on the part of a debt collection agency to retrieve the card constituted an integral part of the debt collection process. In the instant case, no pecuniary debt was owed or claimed, and the parties were merely contesting the rights of ownership and possession of property. To extend the provisions of the Debt Collection Act to such a dispute would, in our judgment, be contrary to the intent and purposes of the Act.

However, as the court found that Pargas had no contractual or other right to go upon Jones’s property and by doing so committed a deliberate, willful and forcible trespass, the judgment, except for attorney’s fees, was authorized on the theory of trespass and conversion.

The trial court found that the tank had been installed in such a manner that it became an integral part of the heating system of the residence and thus was attached to and became a part of the realty as a fixture. There is ample evidence to sustain such a finding. Consequently, the tank became Jones’s property, and a recovery of its stipulated value was proper. 25 Tex.Jur.2d, Fixtures, Sec. 3, p. 394; see also, Harris v. Harris, 174 S.W.2d 996 (Tex.Civ.App. Fort Worth 1943, no writ); and Herrin v. Bunge, 336 S.W.2d 281 (Tex.Civ.App. Houston 1960, no writ).

The court also awarded $750.00 as actual damages for mental anguish suffered by Mr. Jones. Ordinarily, damages for mental suffering are not recoverable unless they result from or are accompanied by physical injury. But one exception to the rule is that actual damages resulting from mental distress may be recovered, as a separate and independent element, when caused by a deliberate and willful trespass in which actual damage to plaintiff’s property is sustained. Michels v. Crouch, 150 S.W.2d 111 (Tex.Civ.App. Eastland 1941, writ dism’d judgmt. cor.); Michels v. Crouch, 122 S.W.2d 211 (Tex.Civ.App. Eastland 1938, no writ); Cartwright v. Canode, 138 S.W. 792 (Tex.Civ.App. Fort Worth 1911), aff’d, 106 Tex. 502, 171 S.W. 696 (1914); 17 Tex. Jur.2d, Damages, Sec. 131, p. 197; 38 Am. Jur.2d, Fright, Shock, Etc., Sec. 31, p. 38; 25 C.J.S. Damages § 68, p. 826; Annot., 28 A.L.R.2d 1089. Even if the tank was not a fixture, Pargas’s entry on Jones’s property under the circumstances present here constituted a trespass. Willfulness of the trespass and actual damage to the property were both present, and the trial court found that the trespass was committed at such a time and under such aggravated circumstances that it proximately resulted in severe mental distress and suffering on the part of Mr. Jones. The award was therefore authorized.

Pargas also attacks the award of exemplary damages. In the case of a trespass, punitive damages may be recovered if actual damage has been sustained and the trespass upon the plaintiff’s property is shown to have been deliberate and intentional. Hood v. Adams, 334 S.W.2d 206 (Tex.Civ.App. Amarillo 1960, no writ); 56 Tex.Jur.2d, Trespass, Sec. 33, pp. 39, 40. When it is sought to hold a corporation liable for exemplary damages because of the act of an agent, it must also be shown either that the agent was one whose acts can be considered the acts of the corporation itself, or that the act of the agent was previously authorized or subsequently ratified by the corporation, or that the act was one which the corporation should reasonably have anticipated that the agent would do. Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934); Ledisco Financial Services, Inc. v. Viraeola, supra. Here the undisputed evidence revealed that Pargas’s agents made the entry upon Jones’s premises willfully and deliberately after having been warned not to do so, the act was previously authorized and subsequently ratified by the corporation, and the invasion of the property was accomplished by an unlawful breaking and entering. Such actions meet the requirements for exemplary damages as set out above, and the court’s award was therefore not improper.

The judgment’s award of attorney’s fees was based upon the provisions of the Debt Collection Act authorizing such an award in cases coming within the Act. As this case did not come within that Act, and an award of attorney’s fees is not authorized in suits for trespass and conversion, the award cannot be sustained and will be deleted from the judgment.

The judgment of the district court is reformed to delete therefrom the award of attorney’s fees. As reformed, the judgment is affirmed.

HUTCHINSON, J., not participating.

ON REHEARING

In its motion for rehearing Pargas argues that, even though the tank became a fixture, it did not become Jones’s property absent a conveyance or an establishment of title by limitation.

The significance of a fixture is that it becomes a part of the land to which it is attached. 35 Am.Jur.2d, Fixtures, Sec. 3, p. 700, and cases cited. When a person having no estate in land enters thereon and affixes personalty thereto, the personalty becomes part and parcel of the freehold, and its title passes to the landowner unless there is an express or implied agreement to the contrary. Meeker v. Oszust, 307 Mass. 366, 30 N.E.2d 246 (1940); Heiselt Construction Co. v. Morrison-Knudsen Co., 176 F.2d 207 (10th Cir. 1949); 36A C.J.S. Fixtures § 25, p. 673; 35 Am.Jur.2d, Fixtures Sec. 8, p. 706. See also United States v. Pacific Railroad Co., 120 U.S. 227, 7 S.Ct. 490, 30 L.Ed. 634 (1887). The court here found there was no agreement to the contrary and that the annexation met the test required for a fixture. Consequently, the tank became a part of the realty and title thereto passed to the owner of the realty.

The motion for rehearing is respectfully overruled.

HUTCHINSON, J., not participating.

      . Tex.Rev.Civ.Stat.Ann. art. 5069-11.01, et seq. (Supp.1978).

      . Pargas had moved its operation from Marshall to Longview, and Jones had thereafter purchased his gas from dealers located nearer to his residence.


author: McKAY, Justice. MOORE, Justice,

text:
    TEXAS HEALTH FACILITIES COMMISSION, Appellant, v. BAPTIST GENERAL CONVENTION of Texas d/b/a Hendrick Memorial Hospital, Appellee.
    No. 1178.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 19, 1978.
    Rehearing Denied Nov. 16, 1978.

      Carla J. Cox, Asst. Atty. Gen., Austin, for appellant.
    C. Dean Davis, Fred E. Davis, Davis, Davis & Sharp, Austin, for appellee.
   McKAY, Justice.

Our opinion dated September 21, 1978, is withdrawn, and the following opinion is substituted therefor.

Appellee, Baptist General Convention of Texas, doing business as Hendrick Memorial Hospital (Hospital) brought this suit against Texas Health Facilities Commission (Commission) seeking to reverse, set aside and hold null and void an order of the Commission denying the application of the Hospital for a Certificate of Need for the construction of five (5) shelled upper floors to its physical therapy/laboratory building addition. The trial court set aside and held for naught the order of the Commission, ordered the matter remanded to the Commission with instructions to grant the Hospital’s application for the Certificate of Need, and the Commission brings this appeal.

The Hospital alleged that it was located in Abilene, Taylor County, Texas, was licensed by the State for 464 beds, and serviced a 19 county area; that it filed an application for authority to construct five (5) upper floors (a total of 75,920 square feet) to the physical therapy/laboratory building, such five floors to be shelled in for later completion according to the needs and growth of the Hospital; that the Hospital’s application for a Certificate of Need for the five shelled-in floors was consolidated with three other applications of the Hospital, and that a hearing was conducted on all four applications on August 9, 1976; that the Hospital appeared by its attorneys, produced witnesses and evidence in support of the four applications, and that there were no contesting parties nor interested parties at the hearing held before a hearing officer; that thereafter the hearing officer recommended certain findings of fact, and a finding that as a matter of law the Hospital had not established need as defined by the criteria outlined in Article 4418h, Tex.Rev. Civ.Stat., and the rules promulgated thereunder by the Commission.

The Hospital further alleged that thereafter on November 10, 1976, the Commission voted to deny the application for the five-story shell structure; that the Hospital filed its motion for rehearing which was overruled by operation of law without formal action; that the Hospital fully exhausted its administrative remedies; that the order of November 10, 1976, denying the application for Certificate of Need is invalid and void because such order and its findings are not reasonably supported by substantial evidence of record inasmuch as the only evidence of record is reasonable and competent evidence showing that the Hospital has a need as contemplated by Article 4418h, and the rules and regulations of the Commission promulgated thereunder, and that the Hospital has sufficiently satisfied each of the criteria for the project; that the order of the Commission is arbitrary and capricious and is a clear and unwarranted abuse of discretion in that (1) there is no evidence to support the order of the Commission; (2) the reliable and probative evidence in the record supports the application of the Hospital for authority to construct the five-story shell and shows a reasonable need for the proposed construction; and (3) the recommendation of the hearing officer and the order of the Commission contained errors, misstatements of fact, unsupported and contradictory findings of fact, and an erroneous finding of law.

The allegations of the Hospital further stated that the action of the Commission demonstrated that the Commission does not favor and does not intend to approve applications to construct shell space and has failed to adopt specific criteria to evaluate projects which include shell space.

By its answer the Commission denied its order was invalid or void; denied that the order was not reasonably supported by substantial evidence or that it was arbitrary or capricious; denied that there was an abuse of discretion by the Commission; and alleged that judicial review of the order is governed by the substantial evidence rule per Article 6252-13a, sec. 19, Tex.Rev.Civ. Stat.

The trial court made no findings of fact inasmuch as such findings were made by the Commission; however, the trial court made the following conclusions of law:

“(1) The Order of the Texas Health Facilities Commission is arbitrary and capricious and not supported by the substantial evidence of record because the substantial evidence, in view of the reliable and probative evidence of record as a whole, established ‘need’ pursuant to Article 4418h, Tex.Rev.Civ.Stat., and the Rules and Regulations of the Texas Health Facilities Commission promulgated thereunder.
“(2) The Order of the Texas Health Facilities Commission is arbitrary and capricious and is characterized by an abuse of discretion in that there is no reliable or probative evidence of record to support denial of the Application of Baptist General Convention of Texas, d/b/a Hendrick Memorial Hospital; but, on the contrary, all reliable and probative evidence of the record as a whole is supportive of the granting of said Application.
“(3) The Order of the Texas Health Facilities Commission is arbitrary and capricious and is characterized by an abuse of discretion because the Commission has failed to discharge its legislative mandate and legal duty contained in Section 3.10, Article 4418h, Tex.Rev.Civ.Stat., to promulgate rules establishing criteria to determine whether an applicant is to be issued a Certificate of Need for a project involving shelled-in space, and instead has resorted to its ‘general’ criteria which does not enable a proper evaluation of a proposed ‘shell’ project.”

By its first point of error the Commission contends that the trial court erred in holding that the Hospital had established “need” pursuant to Article 4418b, Tex.Rev. Civ.Stat., and the rules and regulations of the Commission. The Commission’s second point says the trial court erred in holding there is no reliable or probative evidence of record to support the denial of the Hospital’s application, and its third point complains that the trial court erred in finding that all of the reliable and probative evidence of record supports granting of the application. These three points will be discussed together.

Section 3.01 of Article 4418h (Health Planning and Development Act) provides in part:

“(a) Each person must obtain from the commission a certificate of need or an exemption certificate in accordance with this Act for a proposed project to:
“(1) substantially expand a service currently offered or provide a service not currently offered by the facility;
“(2) construct a new facility or change the bed capacity of an existing facility; “(3) modify an existing facility;
“(4) convert a structure into a healthcare facility; or
“(5) organize an HMO which requires a new or modified facility.
“(b) For purposes of Subsection (a) of this section:
“(1) the determination of a change in the bed capacity of a facility is based on the bed capacity of the facility, at the time of the application; and “(2) modification includes the acquisition of land and the acquisition, repair, or replacement of facilities or equipment.
“(c) The commission by rule shall define and determine the terms and conditions under which a project comes within the meaning of Subdivisions (1) — (5) of Subsection (a) of this section.”

Section 3.10 of Article 4418h provides in part:

“(a) The commission shall promulgate rules establishing criteria to determine whether an applicant is to be issued a certificate of need for the proposed project.
“(b) Criteria established by the commission must include at least the following:
“(1) whether a proposed project is necessary to meet the health-care needs of the community or population to be served;
“(2) whether a proposed project can be adequately staffed and operated when completed;
“(3) whether the cost of the proposed project is economically feasible;
“(4) if applicable, whether a proposed project meets the special needs and circumstances for rural or sparsely populated areas; and
“(5) if applicable, whether the proposed project meets special needs for special services or special facilities.”

The Commission contends that the issue presented is whether the trial court exceeded the proper scope of judicial review in substituting its judgment for that of the Commission in finding and holding that the Hospital had established “need” as a matter of law under Article 4418h. Argument is made by the Commission that it, in concluding that the Hospital had failed to establish “need,” properly interpreted the statute and its own rules as “implicitly requiring each applicant for a Certificate of Need to designate a use for the proposed facility,” and the Hospital had not done so, that without a designated use the Commission considered it impossible to determine whether the evidence presented by the Hospital had met each of the required criteria, and therefore could not determine whether “need” had been established.

Section 3.15 of Article 4418h provides that an applicant or party who is aggrieved by an order of the Commission granting or denying a Certificate of Need is entitled to judicial review under the substantial evidence rule. Section 1.04 of the same article provides that the Administrative Procedure and Texas Register Act applies to all proceedings under the Health Planning and Development Act except where inconsistent with it.

Administrative Procedure and Texas Register Act, Article 6252-13a, sec. 19(e), provides:

“The scope of judicial review of agency decisions is as provided by the law under which review is sought. Where the law authorizes appeal by trial de novo, the courts shall try the case in the manner applicable to other civil suits in this state and as though there had been no intervening agency action or decision. Where the law authorizes review under the substantial evidence rule, or where the law does not define the scope of judicial review, the court may not substitute its judgment for that of the agency as to the weight of the evidence on questions committed to agency discretion but may affirm the decision of the agency in whole or in part and shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
“(1) in violation of constitutional or statutory provisions;
“(2) in excess of the statutory authority of the agency;
“(3) made upon unlawful procedure;
“(4) affected by other error of law;
“(5) not reasonably supported by substantial evidence in view of the reliable and probative evidence in the record as a whole; or
“(6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

The Hospital filed four applications for Certificates of Need: (1) for replacement, expansion and modification of the existing laundry; (2) for the construction of five shelled upper floors to the proposed physical therapy/laboratory building addition; (3) for construction of a two-story building addition to replace existing emergency room and admitting office area; and (4) for construction of a two-story building addition to provide fire escape towers, replacement for existing physical therapy department and existing clinical laboratory department, a 200-seat auditorium for educational purposes, and replacement of administrative offices with enlarged facilities. Three of the applications were granted; only the application for five shelled upper floors was denied.

With respect to the application denied for the five-story shell space, the Commission made the following findings of fact:

A. Need Demand:

(1) That the service area of the hospital included nineteen (19) counties making up the Council of Governments area;
(2) That 30% of the patients of the hospital come from outside Taylor County;
(3) That the 1970 population of Taylor County was 97,853 persons;
(4) That by 1980 the population of Taylor County is projected to be 105,484;
(5) That in 1970 the population of the Hill-Burton area, which includes Taylor, Callahan and Shackelford Counties was 109,381;
(6) That by 1980 the Hill-Burton area population is projected to be 115,809;
(7) That in 1970 the population of the Council of Governments area was 280,-081 persons;
(8) That in 1980 the population of the Council of Governments area is projected to decline to 270,692;
(9) That the hospital is a medical/surgical hospital facility located in Abilene, Taylor County, Texas, licensed to operate 464 beds;
(10) That Hendrick Memorial Hospital presently operates 409 to 411 beds;
(11) That during the last full twelvemonth period the hospital had an average daily census of 315 patients or an average occupancy rate of 74.5%;
(12) That during the first eleven months of fiscal 1976 the hospital had an average daily census of approximately 318 patients resulting in an average occupancy rate of approximately 77.8% of 409 beds;
(13) That in 1975 the total number of patient days declined 1.98% from 1974;
(14) That in 1976 the total number of patient days is projected to increase .92% over the total for 1975;
(15) That in 1976 the total admissions is projected to decline by 7.42%;
(16) That the proposed project provides for the construction of a five-story 75,-920 square foot shelled structure with an unspecified use;
(17) That there is not substantial evidence of record which establishes that the demand for inpatient services is such that the proposed project is required to meet the reasonable health care needs of the community served by the hospital.

The Commission further found that there was no additional manpower required for the proposed project, that the Hospital has the financial ability to finance the project, but there was not substantial evidence of record which established the use of the proposed project or proposed revenues to be derived from it, nor substantial evidence establishing the effect of the proposed project on existing facilities in appellee’s service area.

There was no contest filed to the application, nor was there any party present at the hearing before the Commission or the hearing officer who objected to the application.

It is noted that Sec. 3.10 of Art. 4418h provides that the Commission shall promulgate rules establishing criteria to determine whether an applicant is to be issued a Certificate of Need for a proposed project. The Commission adopted Rule 315.14.001, entitled Data and Criteria for Certificates of Need, which enumerates the sources from which facts and information shall be obtained in evaluating and considering applications for Certificates of Need. This rule provides that data which the Commission deems pertinent shall be obtained from the Texas Department of Health Resources, and the basic geographical areas of consideration will be the county, Hill-Burton service area, regional planning council, health service area, and the state. The rule also provides the criteria set out, “if applicable, shall be considered in making a determination to grant or deny a certificate of need.” [Emphasis added.] These criteria include health care requirements of the population to be served, the population of the geographical areas, the existing or approved facilities and services, medical statistics, manpower, utilization of facilities or services, and other considerations.

The Commission argues that it considered it impossible to determine whether or not the evidence presented by the hospital met each of the requisite criteria since there was no designated use specified by the hospital. Neither the statute nor the Commission rules make reference to the construction of shelled space. The application here provides for five upper floors of shell space above and as a part of the two story physical therapy/clinical laboratory/administrative offices building.

From the language of the statute (Sec. 3.10, Art. 4418h) previously quoted, it would appear that the first three criteria must be affirmatively satisfied by evidence. Assuming that to be the rule then we must examine the record to determine whether there was substantial evidence presented which supports the Commission’s order. The record discloses that Taylor County, Texas, in 1970 had a population of 97,853; the 1980 projected population is 105,484. In 1970 the Council of Governments area (19 counties) had a population of 280,081 persons and the projection for 1980 is 270,692. Approximately 70% of the patients of the hospital live in Taylor County, and 30% live outside the county. In 1965 the hospital had 15,564 total admissions; in 1975 there were 18,523, resulting in an annual growth rate average for the period 1966 through 1975 of 1.73%. The number of patient days in 1965 was 91,506, in 1975 was 115,079, and was projected for 1980 to be 146,674, resulting in an annual growth rate average for the period of 1966-1975 of 2.39%. Laboratory procedures in 1964 were 170,000, in 1975 were 276,501, and were projected for 1976 to be 301,546. Emergency room admissions in 1965 were 10,044, and in 1975 were 16,902. At the time of the hearing the occupancy rate was 79% capacity.

The Commission, adopting the findings of the hearing officer, in order to support its conclusion made findings based on one year only — that in 1975 the total number of patient days declined 1.98% from 1974; however, as pointed out above, there was an average annual growth rate in patient days of 2.39% over the ten year period 1966— 1975. The findings of the Commission with reference to average daily census cover only the period of the first eleven months of fiscal 1976, and the previous last full twelve-month period; however, the record reflects that during the ten-year period there were several times when patients were in halls because of a larger census than patient rooms. The hospital had 114 physicians on its staff and anticipated an eight or nine per cent growth annually.

It was estimated that the construction cost would increase at least one per cent per month, and to delay construction of the shelled area to a later time would increase the cost many thousands of dollars. The evidence presented by the hospital also pointed out that to add the shelled area at a time other than when the first two floors were constructed would cause a disruption of services and interfere with a coordinated and organized traffic flow for efficient use of the new and old space.

In its original application the hospital stated that the shelled area was to be used for patient beds, but at the hearing the hospital indicated that before the construction for the area was completed a new application would be made which would specify the use intended, and that a particular use could not be determined with certainty at the time of hearing.

We disagree with the interpretation of the statute made by the Commission that the hospital was required to designate a particular use for the shelled space before a need could be established. Neither the statute nor the Commission rules so require.

The substantial evidence rule has been defined in many cases. It has been said that the test in determining whether an administrative decision finds reasonable support in substantial evidence as a whole is such that reasonable minds could not have reached the conclusion that the agency must have reached in order to justify its action. The issue is not whether the agency came to the proper fact conclusion but whether it acted arbitrarily and without regard to the facts. The record is to be considered as a whole, and it is for the court to determine what constitutes substantial evidence. Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022, 1029-30 (1942); Hardy Street Investors v. Texas Water Rights Commission, 536 S.W.2d 85 (Tex.Civ.App.-Waco 1976, writ ref’d n. r. e.).

Whether an order of an administrative agency is reasonably supported by substantial evidence is a question of law to be resolved by the court. Bank of North America v. State Banking Board, 492 S.W.2d 458 (Tex.1973).

The review of an order of an administrative agency is limited to questions of law, i. e., whether the action is within the powers delegated to the agency, and, if so, whether the action is arbitrary, capricious or unreasonable because not reasonably supported by substantial evidence. Texas State Board of Examiners in Optometry v. Carp, 388 S.W.2d 409 (Tex.1965).

While the test is whether the evidence as a whole is such that reasonable minds could not have reached the conclusion that the agency must have reached in order to justify its action, Auto Convoy Co. v. Railroad Commission, 507 S.W.2d 718, 722 (Tex.1974); Texas Construction Service Co. v. Railroad Commission, 535 S.W.2d 393 (Tex.Civ.App.-Waco 1976, writ ref’d n. r. e.), “[n]either an administrative agency nor a reviewing court upon appeal can pick and choose among the bits of the evidence in order to find some particular mix which will support a predetermined conclusion.” Cline v. Firemen’s Relief & Retirement Fund, Trustees, 545 S.W.2d 895, 897 (Tex.Civ.App.-Beaumont 1976, writ ref’d n. r. e.).

Apparently the Commission chose to support its order of denial of a Certificate of Need by relying upon the projected decline of population in the Council of Governments area and the projected decline in total admissions dn 1976. Since 70% of the patients are residents of Taylor County a projected decline in population in the 19-county area was more than offset by a projected increase in population in Taylor County. The statistics on admissions, patient days and daily census are more representative of the trend when viewed from several years experience rather than a recent 11- or 12-month period.

There would be no present use of the space which would be only exterior construction with stubbed-in utilities to the various floors, nor would there be any present need for manpower. There would be no revenue. The space would not be used for any purpose without the hospital applying again to the Commission for approval. The application in question here is for the construction of a shelled-in area and not for the use of it.

Considering the record as a whole it is our view that the substantial rights of the hospital were prejudiced because the Commission’s findings, inferences and con-elusions were not reasonably supported by substantial evidence in view of the reliable and probative evidence in the record as a whole, and were arbitrary, capricious and characterized by an abuse of discretion. Appellant’s first three points are overruled.

By its fourth point the Commission says that the trial court erred in holding that the Commission abused its discretion by failing to discharge its duty as set out in the statute and its rules in that it had not promulgated specific rules governing the issuance of Certificates of Need for projects involving shelled-in space. Appellant maintains in its brief that it, the Commission, is unable to determine whether there is a need because the Hospital has not designated a specific use for the shelled-in area for the future. We agree with the trial court that the Commission should promulgate a rule which applicants could follow concerning shelled-in space and whether a specific use of such shelled-in space must be specifically designated in advance at the time the application is submitted. Appellant’s fourth point is overruled.

From the record as a whole, and in considering the brief of the Commission, it is our view that the application was denied in the instant case because the Hospital would not commit itself as to the specific use to be made in the future of the shelled-in area, and that such denial was arbitrary and capricious.

By its final point, the Commission contends that it was error for the trial court to reverse its order denying a Certificate of Need and remand the matter to the Commission with instructions to approve and grant a Certificate of Need. We overrule this point.

A trial court may properly review an order of the Commission, and it may determine that the order was not supported by substantial evidence presented to the trial court or was arbitrary and capricious. The trial court may remand the cause to the Commission for further proceedings if there is a need for further action which involves the exercise of discretion by the Commission, but the court does not have authority to substitute its own discretion for that of the Commission. Marrs v. Railroad Commission, 142 Tex. 293, 177 S.W.2d 941, 950 (1944); Fire Department of City of Fort Worth v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664, 666-7 (1949); Lewis v. Metropolitan Savings & Loan Association, 550 S.W.2d 11, 16 (Tex. 1977); Art. 6252-13a, sec. 19(e), supra. However, for a court judgment to have a practical effect, when there are no further discretionary proceedings necessary the judgment of the court setting aside the Commission’s order carries with it the converse, i. e., that the Commission should grant the Certificate of Need. Railroad Commission of Texas v. Texas Company, 298 S.W.2d 666, 669 (Tex.Civ.App.-Austin 1957, writ ref’d n. r. e.). We, therefore, hold that the trial court’s judgment instructing the Commission to grant a Certificate of Need was proper and should be affirmed. Gerst v. Cain, 388 S.W.2d 168 (Tex.1965) [Civil Appeals opinion 379 S.W.2d 699],

The judgment of the trial court is affirmed.

MOORE, Justice,

dissenting.

I respectfully dissent. The Texas Health Facilities Commission was created by the 64th Legislature. The Legislature, responding to the federal mandate of Public Law 93-641, passed Article 4418h known as the Texas Health Planning and Development Act. The stated purpose of the Act is to insure that health care services and facilities are made available to all citizens in an orderly and economical manner, and further to assure that appropriate health planning activities be undertaken and implemented and that health care services and facilities be provided in a manner that is cost effective and is compatible with the health care needs of the various areas of population of the state. The general duties of the Commission have heretofore been set forth in the majority opinion and will not be restated here. In addition to such general duties, the Commission has promulgated detailed rules expanding on the criteria mandated by the statute.

Generally, in order for a Certificate of Need to establish “need,” the applicant must present sufficient evidence to justify an affirmative finding as to each of the applicable criteria designated in sec. 3.10 of Article 4418h, Y.T.C.S., and the Commission’s Rule 801. However, the application of the Hospital, because of its peculiar characteristics, created a case of first impression in which the Commission was requested for the first time to consider an application for the expansion of an existing facility in which the Applicant refused to designate the use to which the additional five story shell space was to be utilized. Although the Hospital had originally specified in its application that the shelled-in space was intended to be used to house 200 additional hospital beds, at the hearing on the application counsel for the Applicant informed the hearing officer that the Applicant no longer intended to designate that the shelled-in space would be used to house hospital beds. Rather, the Hospital desired only to apply for the shelled-in space with no intended use designated in the present application. Such use would be designated in subsequent applications for Certificates of Need regarding the shelled-in space when the Hospital made the determination of what function the space would be used for.

The Commission, in concluding that the Applicant had failed to establish “need” interpreted Article 4418h, sec. 3.10, supra, and Rule 801 as implicitly requiring each applicant for a Certificate of Need to designate the use expected to be made of the proposed facility. It is clear from the Hearing Officer’s recommendation and the order of the Commission, that both the Hearing Officer and the Commissioners concluded that it would be impossible for them to determine whether the evidence presented by the Applicant had met each of the requisite criteria since there was nothing before the Commission showing the designated use of the shelled-in space. Since under the Commission’s interpretation of the statute and the rules this determination could not be made, the Commission concluded that it could not determine whether “need” had been established and therefore denied the application on this ground. However the trial court, as well as the majority of this court, in reversing the order of the Commission concluded that it was not necessary for the Hospital in its application to build the five story shelled-in space to designate a particular use to which the space was to be devoted in order to establish need. Accordingly, the trial court, as well as the majority of this court, held that the Commission erred in interpreting sec. 3.10 of Article 4418h and Commission Rule 801 as requiring an applicant for a Certificate of Need for shelled-in space to designate the proposed use of such space. I cannot agree with this holding.

In the absence of any showing as to the use of the proposed facility, it would be absolutely impossible for the Commission to apply the criteria for review as outlined by sec. 3.10 of Article 4418h. According to Webster “need” refers to an urgent requirement of something essential or desirable that is lacking. Therefore “need” must have an object. Need implies use. In the absence of being apprised of the proposed use, how could the Commission determine whether the five floors of shelled-in space would be necessary to meet some specific health care need of the community or population, whether it could be adequately staffed when completed, and whether the cost is reasonably justified considering the anticipated revenue?

The Commission’s interpretation of its own statutes and rules may be overturned only where the court finds the ruling to be contrary to one of the categories designated in sec. 19(e) of the Administrative Procedure and Texas Register Act. Article 6252-13(a), V.T.C.S. In reversing the Commission’s ruling the trial court apparently determined that the Commission’s interpretation of its own statute and rules as requiring a designated use for shelled-in space was (1) affected by an error of law, or (2) that the ruling was arbitrary, capricious or characterized by an abuse of discretion or by a clearly unwarranted exercise of discretion. I cannot agree with either conclusion.

Where an administrative board is faced with the problem of construing and interpreting a statute, the board may exercise its administrative judgment or discretion in interpreting an applicable law. Pension Board of Police Officers Pension System of City of Houston v. Colson, 492 S.W.2d 307 (Tex.Civ.App.-Beaumont 1973, writ ref’d n. r. e.). Where an administrative agency is called on to make an initial interpretation of a statute, the criteria to be used by the courts in determining the validity of the ruling is whether the agency’s construction has a reasonable basis in law. Kelso Marine, Inc. v. Hollis, 316 F.Supp. 1271, 1272 (S.D.Tex.1970), affirmed 449 F.2d 342 (5th Cir. 1971). Upon applying the foregoing rules of law I am of the opinion that the Commission’s interpretation of its statute and rules construing them to mean that the applicant for a Certificate of Need is required to designate the intended use was neither arbitrary or capricious nor affected by any error of law. It appears to me that the Commission’s interpretation was grounded upon a reasonable basis in law and that the requirement of a designation of use for shelled-in space is in harmony with the general objectives of the Texas Health Planning and Development Act. See Jefco, Inc. v. Lewis, 520 S.W.2d 915 (Tex.Civ.App.-Austin 1975, writ ref’d n. r. e.). Some showing of how the proposed medical facility was to be used must be made. Otherwise there would be no way for the Commission to accurately determine what type of medical facility the shelled-in structure would be needed for in the future. To hold that the Commission is required to consider and pass on applications of Certificates of Need even though no use of the facility is designated would not only thwart the legislative intent expressed in the Act, but would also result in an administrative nightmare.

Further, I am unable to agree with the holding that the Commission erred in failing to promulgate specific rules governing the issuance of Certificates of Need on projects involving “shelled-in” space. As I view the record, the decision as to whether to promulgate a rule dealing with applications for shelled-in space is a matter lying within the sound discretion of the Commission. As the Supreme Court said in the Securities & Exchange Commission v. Chenery Corporation, 332 U.S. 194, 202-03, 67 S.Ct. 1575, 1580, 91 L.Ed. 1995 (1947), in addressing the issue of the Security & Exchange Commission’s authority to initiate a new rule through the adjudicative rather than a rule making process, the Court stated:

“Not every principle essential to the effective administration of a statute can or should be cast immediately into the mold of a general rule. Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations. In performing its important functions in these respects, therefore, an administrative agency must be equipped to act either by general rule or by individual order. To insist upon one form of action to the exclusion of the other is to exalt form over necessity.
“. . . [T]he agency must retain power to deal with the problems on a case-to-case basis if the administrative process is to be effective. There is thus a very definite place for the case-by-case evolution of statutory standards. And the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.”

Although the Board has statutory authority to prescribe rules and regulations, the choice between proceeding by a general rule or by individual ad hoc litigation is one that lies primarily within its informed discretion. Hicks v. Physical Therapists Examining Board, 221 A.2d 712, 715 (D.C.App.1966), affirmed, 129 U.S.App.D.C. 347, 394 F.2d 972 (1967) cert. denied, 390 U.S. 987, 88 S.Ct. 1181, 19 L.Ed.2d 1289 (1968). In regard to the Hospital’s application for a Certificate of Need without designating use, the Commission chose to deal with the issue of shelled-in space by applying the Commission’s interpretation through an adjudicative proceeding. In so doing, the Commission acted well within the bounds of its “informed discretion.” Essentially, it is the Hospital’s contention that the Commission was obligated to promulgate specific rules for applications of Certificates of Need for shelled-in space with no designated use. I do not believe the Commission was obligated to promulgate rules dealing with applications for Certificate of Need for shelled-in space with no designated use. To promulgate rules dealing with non-designated use applications for shelled-in space would be totally inconsistent with the legislative intent set forth in the Health Planning & Development Act.

Finally, I cannot agree with the holding that the Commission’s ruling was not supported by any substantial evidence. As I view the record, the substantial evidence rule is not the point in this case. Assuming arguendo, however, that the Commission was obligated to determine need even though the application for the shelled-in space contained no designated use, I am of the opinion that there is substantial evidence to support the Commission’s finding. Specifically, the Commission found that the Applicant failed to establish that the demand for inpatient services is such that the proposed five story shelled-in space was necessary to meet the reasonable health care needs of the community to be served. Commission’s Order AH76-0601-024, R.P. Yol. 1, D, 2. The test of substantial evidence, as correctly stated by the majority, is whether the evidence as a whole is such that reasonable minds could not have reached the conclusion that the agency reached in order to justify its action. In refusing the application, the Commission relied upon four factors in its finding that the Applicant failed to establish need for the shelled-in space. These four factors showed the following: (1) that in 1980 the population of the council of governments area served by the Hospital is projected to decline from 280,000 persons to approximately 271,000 persons in 1980; (2) that during the first eleven months of fiscal 1976 the Hospital had an average daily census of approximately 318 patients, resulting in an average occupancy rate of approximately 77.8 percent of 409 beds; (3) that in 1975 the total number of patient days declined 1.98 percent from 1974; and (4) that in 1976 the total admissions is projected to decline by 7.42 percent. This combination of facts showing a decline in hospital admissions from 1975 to 1976, plus an overall decline in total number of patient days from 1974 to 1976 indicates that both admissions and patient days have peaked barring some unforeseen increase in the length of patient stays or unforeseen population increase or disaster. Therefore the Commission could have reasonably concluded that as to the need/demand criteria Appellant Hospital had not carried its burden of showing that the future demand for inpatient services would be so great that the five story shell would be necessary to meet the reasonable health needs of the community to be served.

While the record shows that the proposed shelled-in space, costing approximately two million dollars, is to be financed by a combination of private contributions and loans, the monies to pay off the loans on non-income producing space must come from other revenues. Appellee offered no evidence demonstrating how the revenues were to be derived from the proposed project. Such a prospect raises the specter of increased hospital cost generally and was a proper matter for consideration in determining whether the project was economically feasible. Further, the Appellee failed to put on any evidence of the availability of future manpower to staff future needs of the facility. The type of staff necessarily depends on the ultimate use of the proposed facility, and availability of staff cannot be determined unless the use of the facility is known. Adequate available manpower is a statutorily mandated prerequisite to the granting of a Certificate of Need. The Commission would not be authorized to grant a Certificate of Need unless there is some reasonable certainty that adequate manpower to staff the facility will be available in the future. Viewing the record as a whole, I am of the opinion that there was substantial evidence to sustain the ruling of the Commission denying the Certificate.

Accordingly, I would reverse the judgment of the trial court and render judgment sustaining the ruling made by the Commission.

      . References are to Texas Revised Civil Statutes unless otherwise noted.


author: COLEMAN, Chief Justice.

text:
    Roy L. FULLER, Appellant, v. Joe H. SECHELSKI, Appellee.
    No. 17198.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 19, 1978.
    Rehearing Denied Nov. 16, 1978.
    Edward Woolery-Price, Columbus, for appellant.
    Joe S. Falco, Jr., Navasota, Roger Knight, Jr., Madisonville, for appellee.
   COLEMAN, Chief Justice.

This was a proceeding to probate a lost will as a muniment of title. The trial was to the court without a jury and resulted in a judgment denying probate of the will of Rufus L. Sechelski, deceased. The judgment recites certain findings of fact and conclusions of law. Roy L. Fuller, a beneficiary under the will, appeals. The judgment will be affirmed.

Rufus L. Sechelski executed a will on September 18, 1963. In 1969 he suffered a stroke and upon being released from the hospital moved to a nursing home in Nava-sota, Texas. Helen Mercado, a niece, handled the business affairs of Mr. Sechelski after she was appointed guardian of his estate in 1971. She remained his guardian until his death on May 19, 1973.

Mr. Sechelski customarily kept his will in a suitcase in his room. Mrs. Mercado testified that while he was in the nursing home he gave her the original will to take to Mr. Bond, an attorney, because he wanted to change it. She took the will to Mr. Bond. Later she went to Mr. Bond’s office and told him not to make a new will leaving property to her because she did not want a problem. She stated that Mr. Bond handed her an envelope which she supposed contained the original will although she did not open the envelope to determine that fact. She gave the envelope back to Mr. Sechelski and he twisted it and kept twisting it and told her to get Mr. Bond there to change the will. This was the last occasion on which she saw the will.

In June, 1973, Mr. Fuller secured the services of Mr. James H. Whitcomb, an attorney. Mr. Whitcomb got in touch with Mr. Bond and obtained a zerox copy of a copy of the will which Mr. Bond had retained in his office. He also learned from Mr. Bond that Mrs. Mercado was the guardian of Mr. Sechelski. He then wrote Mrs. Mercado telling her that Mr. Fuller had asked him to look into the matter of the will of Mr. Sechelski and that he had obtained a copy of the will. He stated that he understood that she, Mrs. Mercado, had the original will and inquired what her intentions were as to the disposition of the will and when she planned to file it for probate. Mr. Whitcomb testified that he did not receive a written reply to his letter to Mrs. Mercado and that he did not remember whether she called him on the phone. He gave the zerox copy of the will to Mr. Fuller’s daughter, and this is the instrument which was later offered for probate.

Mr. Fuller testified to the effect that soon after he learned that Mrs. Mercado did not answer Mr. Whitcomb’s letter he called her by telephone and asked her about the will. She told him that she had it in safekeeping. Mrs. Mercado testified that one week after her uncle, Mr. Sechelski, passed away Mr. Fuller called and asked her if she was going to probate the will and she told him that she did not have it. She further stated that was the only time she had any contact with Mr. Fuller.

No other action was taken by Mr. Fuller with regard to the will until February or March 1977. At that time his wife called the courthouse in Grimes County and found out that something had been filed. When her husband returned from an out of town job several weeks later they discussed the matter and decided that the will must have been filed for probate. A few more weeks passed and they went to see an attorney. The will was then filed for probate as a muniment of title on June 10, 1977.

A written will which cannot be produced in court must be proved in the same manner as provided by law for an attested written will produced in court. In addition the proponent of a written will which cannot be produced in court must prove the cause of its non-production and that it cannot by any reasonable diligence be produced. Section 85, Texas Probate Code.

Section 73, Texas Probate Code, provides that no will shall be admitted to probate after the lapse of four years from the death of the testator unless there be proof that the party applying for probate was not in default in failing to present the same for probate within the four year period.

The trial judge recited in the judgment entered that the proponent, Roy L. Fuller, failed to present the purported will of Rufus L. Sechelski for probate within four years from the date of death as required by Sections 73 and 74 of the Texas Probate Code, but that proponent did make a diligent effort to locate the original will within the statutory period. The parties to this appeal appear to have treated the court’s finding that proponent made a diligent effort to find the original will as a finding that proponent was not in default in failing to present the will for probate within four years. It is more logical to suppose that the finding in question refers to the requirements of Section 85 of the Probate Code that the cause of the non-production of the will must be proved and that such cause must be sufficient to satisfy the court that the will cannot by any reasonable diligence be produced. The trial judge made a finding on the last point. He made no specific fact finding as to the cause of the non-production of the will. The burden of establishing this fact rested on Mr. Fuller. McClusky v. Owens, 255 S.W.2d 939 (Tex. Civ.App. — Dallas 1953, writ ref.).

There is no testimony concerning the character of a search, if any, that was made for Mr. Sechelski’s will or as to the disposition made of his personal effects after his death. While Mrs. Mercado testified that the last time she saw the will he was twisting it and asking her to get his lawyer, this event appeared to have happened some years before his death. Mr. Sechelski was survived by two brothers and there is no evidence that inquiry was made of either of them. Since the trial court refused to admit the will to probate no presumptions may be indulged to aid the case of the proponent. The trial judge made factual findings that the last time the will was seen it was in the custody and control of decedent and that diligent effort by proponent failed to produce it. He then concluded as a matter of law that the decedent destroyed the will with intent to revoke it. Sparkman v. Massey’s Estate, 297 S.W.2d 308 (Tex.Civ.App.—Dallas 1956, ref. n. r. e.).

The will was filed for probate more than four years after the death of the testator. The trial court made no finding that Roy L. Fuller was not in default in failing to present the same for probate within four years of the date of the testator’s death. The evidence does not establish this fact as a matter of law. Whether a proponent of a will is in default, as that term is used in Section 73 of the Probate Code, is- usually a fact question for the determination of the court or jury. See Farr v. Bell, 460 S.W.2d 431 (Tex.Civ.App.—Dallas 1970, writ ref’d n. r. e.).

The evidence does no more than raise a fact issue as to whether Mr. Fuller was in default in failing to present the will for probate. The failure to secure a finding on this issue requires that the judgment of the trial court be affirmed. Brown v. Byrd, 512 S.W.2d 753 (Tex.Civ.App.—Tyler 1974, no writ hist.).

Since we have reached the conclusion that the judgment must be affirmed by reason of the matters raised in appellee’s cross-point and discussed heretofore, it is unnecessary to discuss the appellant’s points of error. No point requiring reversal is presented.

Affirmed.


author: SHANNON, Justice.

text:
    Anne DROSTE v. HENDRICK-LONG PUBLISHING COMPANY.
    No. 12912.
    Court of Civil Appeals of Texas, Austin.
    Oct. 25, 1978.

      Norm an Darwin, Fort Worth, for appellant.
    M. Robert Blakeney, Kathryn C. Mallory, Seay, Gwinn, Crawford, Mebus & Blakeney, Dallas, for appellee.
   SHANNON, Justice.

Appellee, Hendrick-Long Publishing Company, has filed a motion to dismiss this appeal for want of jurisdiction. The basis for the motion is that the summary judgment appealed from is not final.

Appellant, Anne Droste, filed suit in the district court of Travis County against the State Board of Education; Marlin Brock-ette, Commissioner of Education; and Hen-drick-Long Publishing Company. Appellant sought by her suit to enjoin the defendants from “ . . . communicating to the public schools of Texas that the textbook, Texas, The Land and Its People, has been approved and [is] available for distribution to the public schools of Texas.” Pepper Jones Martinez, Inc., Publishers, intervened in the suit.

In response to Hendrick-Long’s motion, the district court entered summary judgment that appellant take nothing against Hendrick-Long. The summary judgment provided further “ . . . that this Order that [s/c] in no way affect [s/e ] Plaintiff’s [appellant’s] action against the other Defendants herein or the Intervenor’s action against Defendant Hendrick-Long . . ”

No order was entered severing appellant's cause against Hendrick-Long from her causes against the State Board of Education and the Commissioner of Education or from the intervenor’s cause against Hen-drick-Long.

An appeal may be prosecuted only from a final judgment. Generally, to be final, a judgment must dispose of all issues and parties in the case. North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966); Campbell v. Campbell, 550 S.W.2d 164 (Tex.Civ.App.1977, no writ).

A summary judgment that does not dispose of all parties and issues in the pending suit is not final, and is not appeala-ble unless a severance of that phase of the case is ordered by the trial court. Pan American Petroleum Corporation v. Texas Pacific Coal & Oil Company, 159 Tex. 550, 324 S.W.2d 200 (1959); Walker v. Wicker-ware, 527 S.W.2d 242 (Tex.Civ.App.1975, no writ); Commercial Standard Insurance Company v. Stonewall Insurance Company, 469 S.W.2d 310 (Tex.Civ.App.1971, no writ).

The appeal is dismissed.