author: BISSETT, Justice.

text:
    Gilda S. BOZEMAN, Administratrix of the Estate of Gilbert Sepulveda, Deceased, et al., Appellants, v. Jack FOLLIOTT, Appellee.
    No. 1187.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 22, 1977.
    Rehearing Denied Oct. 20, 1977.

      J. L. Covington, Covington & Morrow, Benjamin S. Hardy, Hardy, Sharpe & Rodriguez, Brownsville, for appellants.
    Orrin W. Johnson, Johnson & Davis, Har-lingen, for appellee.
   OPINION

BISSETT, Justice.

This is an appeal from a judgment which sustained defendant’s plea in abatement to the action filed by the plaintiffs. Involved is a suit to cancel a trustee’s deed to a 36.12 acre tract of land in Cameron County, Texas. The plaintiffs were: Gilda S. Bozeman, administratrix of the Estate of Gilbert Se-pulveda, Deceased, Raquel Sepulveda Alda-ma and Felix Sepulveda. Jack Folliott was defendant.

Suit was filed in the District Court of Cameron County, Texas, on April 23, 1974, and was docketed as Cause No. 58672-A. Plaintiffs alleged: 1) Gilbert Sepulveda, at the time of his death on April 20, 1972, was the owner of the land in question; 2) Gilda S. Bozeman is the administratrix of the Estate of Gilbert Sepulveda, Deceased; 3) Raquel Sepulveda Aldama and Felix Se-pulveda “own an undivided interest in the land”; and 4) the 36.12 acre tract was sold to Jack Folliott, defendant, on June 5,1973, at a trustee’s sale “under a certain deed of trust.” The only ground alleged for cancellation of the trustee’s deed reads:

“A Trustee’s sale of property owned by a decedent made within four year (sic) of the death of the decedent is, under the law, voidable at the election of the Administrator of the decedent’s estate. Plaintiff, as Administratix (sic) of the Estate of Gilbert Sepulveda, Deceased, is entitled to have the aforesaid Trustee’s sale to Defendant set aside and nullified, and this action is brought by Plaintiff to so set aside and nullify said Trustee’s sale and to have the Trustee’s Deed to Defendant cancelled.”

Among other defensive pleadings urged to plaintiffs’ petition was a plea in abatement, which was filed by Folliott on April 25, 1974. He alleged that the cause should be abated and the action dismissed for the reasons:

(1) Gilda S. Bozeman was not authorized to act as administratrix of the Estate of Gilbert Sepulveda, Deceased, on April 25, 1974, and the only person who was then authorized to act on behalf of the Sepulveda Estate was Gloria Sepulveda, the executrix thereof, who was not a party to the suit filed by plaintiffs;
(2) neither Raquel Sepulveda Aldama nor Felix Sepulveda have any standing to attack the trustee’s sale and deed on the ground set forth in plaintiffs’ petition, because their undivided interest in the land was not subject to administration under the Estate of Gilbert Sepulveda, Deceased;
(3) plaintiffs have not tendered to defendant (or into court) any monies expended by him (Folliott) in discharging the debts owed by Gilbert Sepulveda, Deceased, “and without doing equity,” the action asserted by plaintiffs should be abated and the suit dismissed.

The plea in abatement was first heard by the trial court on May 1,1974. After hearing evidence, the plea was sustained on the ground that the trial court did not have jurisdiction. The cause was dismissed with prejudice. On appeal, this Court reversed the judgment of the trial court and remanded the cause with instructions to the trial court to reinstate the case on its docket and to rule on the merits of Folliott’s plea in abatement. Folliott v. Bozeman, 526 S.W.2d 577 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.). After such reinstatement of the case on the docket of the trial court, following the reversal and remand by this Court, the matter of Fol-liott’s plea in abatement stood on the docket exactly where it was when the parties, having introduced evidence thereon, rested on May 1, 1974. See Mitchell v. Mitchell, 84 Tex. 303, 19 S.W. 477 (1892); Dunbar v. Dunbar, 233 S.W.2d 358 (Tex.Civ.App.—San Antonio 1950, mand. overruled). Nothing remained for the trial judge to do but to render judgment on the merits of the plea in abatement. The trial judge, following the instruction of this Court, ruled on the merits of the plea in abatement on the basis of the evidence that had been adduced at the hearing on May 1, 1974. The present appeal is from this later ruling. Folliott again presented the plea to the trial court on September 9, 1976, when the trial court took it under submission.

Thereafter, on October 6, 1976, Gilda S. Bozeman, as “administratrix of the Estate of Gilbert Sepulveda, Deceased,” and Raquel Sepulveda Aldama and Felix Sepulveda, filed separate “First Amended Petitions,” which named Folliott and others as defendants. In those petitions, the ground set out in the original petition was abandoned; in the amended petitions, Gilda S. Bozeman as the personal representative of the Sepulve-da Estate, pled seven (7) independent grounds in support of her contention that the trustee’s sale was void, and the other plaintiffs, in their individual capacities, assert five (5) independent grounds as to why the trustee’s sale should be set aside.

The trial court, by judgment which was signed on November 5, 1976, in addition to stating that any claims for relief of the plaintiffs not contained in their original petition and not presented until “after the Court took Defendant’s pleas and motions under submission on September 9, 1976, should be severed and set aside for a separate trial,” decreed:

“1.
It is ORDERED that the pleas in abatement and motions to dismiss of the Defendant, Jack Folliott, be, and the same are hereby sustained; and the claims for relief of the Plaintiffs, Gilda S. Bozeman, Administratrix of the Estate of Gilbert Sepulveda, Deceased, Raquel Se-pulveda Aldama and Felix Sepulveda, for cancellation of the Trustee’s Deed and sale of June 5,1973, as described in Plaintiffs’ Original Petition, be, and the same are hereby dismissed and denied.”
* * * * * *
“3.
It is ORDERED that any claims for relief of the Plaintiffs (other than those made in their Original Petition herein abated and dismissed) are severed and set aside for separate trial as their separate causes of action, to be numbered 76— 1963C on the docket of this Court.”

Plaintiffs have duly and timely perfected an appeal from a portion of that judgment. They contend in a single point of error:

“The District Court erred in granting the plea in abatement and dismissing Appellants’ claims to set aside the trustee’s sale and cancel the trustee’s deed, since Appellants were not required to make restitution to Folliott and, even if they were, Appellants made sufficient offer to tender in their amended pleadings.”

We limit our consideration of the appeal to the one point presented by plaintiffs. Therefore, we are not here concerned with the claims asserted by plaintiffs in their amended petitions, including the claim that they “made sufficient offer to tender (to Folliott) in their amended pleadings.” Plaintiffs do not attack the judgment which severed the claims made by them in the amended petitions from the claim asserted by them in their original petition. We express no opinion with respect to those claims, or whether they, or any of them, are subject to a plea in abatement. The judgment which has been appealed speaks only to “the claims for relief” asserted by plaintiffs in their “Original Petition” for “cancellation of the Trustee’s Deed and sale of June 5, 1973.” We consider only that portion of the judgment which is attacked by plaintiffs’ single point of error.

When the plea in abatement was again presented on September 9, 1976, no one sought to introduce any additional evidence with respect to the matters raised by the plea. We summarize the evidence adduced at the hearing on May 1, 1974 insofar as it bears on plaintiffs’ point of error here presented.

The land in question was conveyed by H. H. Whipple to Gilbert Sepulveda by deed dated March 29, 1966, wherein the grantor reserved a vendor’s lien to secure the payment of a certain promissory note of even date therewith in the amount of $20,000.00, which was executed by the grantee as part of the purchase price for the land. The note was additionally secured by a deed of trust. Thereafter, Gilbert Sepulveda, by deeds dated October 27, 1966, conveyed an undivided one-fourth interest in the land to Raquel Sepulveda Aldama, his sister, and an undivided one-fourth interest therein to Felix Sepulveda, his brother. The deeds were made subject to the liens securing the note to Whipple, and each of the grantees assumed and agreed to pay one-fourth of said note. On April 26, 1967, Gilbert Se-pulveda, Raquel Sepulveda Aldama and Felix Sepulveda executed a deed of trust to the National Bank of Commerce of Brownsville, Texas, to secure the payment of a certain note to the Bank in the amount of $7,543.70.

Gilbert Sepulveda died testate on April 20, 1972. Both the vendor’s lien note to Whipple and the deed of trust note to the Bank were in default on the day of his death. His widow, Gloria Sepulveda, who was named independent executrix in the will, filed the will for probate on September 14, 1972, and sought to be appointed independent executrix thereof. The will was not admitted to probate until December 30, 1973. Gloria Sepulveda qualified as executrix of the estate on the same day. No reason was given for the long delay between the date application was made to probate the will and for letters testamentary, and the date it was admitted to probate, when Gloria Sepulveda qualified as executrix of the estate.

In the meantime, each of the trustees under the above-mentioned deeds of trust, pursuant to a request from each of the respective payees of the notes, above-mentioned, posted notice of foreclosure of the outstanding liens on May 14, 1973. The land was sold by the trustee for the Bank, the owner of the second lien, on June 5, 1973 to Folliott for $16,500.00 cash. The trustee for Whipple, the owner of the first lien, did not conduct a trustee’s sale on June 5,1973. Folliott, at, or just prior to the sale made by the trustee for the Bank, purchased the note and lien held and owned by Whipple for approximately $13,000.00.

Prior to the institution of the instant suit, Gloria Sepulveda, acting individually, on June 8, 1973, instituted suit against Folliott to set aside the aforesaid trustee’s sale; that suit was docketed as Cause No. 56990-A. On August 29, 1973, an amended petition was filed in Cause No. 56990-A wherein it was alleged that Gloria Sepulveda, acting individually and as executrix of the Estate of Gilbert Sepulveda, Deceased, joined by Raquel Sepulveda Aldama and Felix Sepulveda, as plaintiffs, sought to set the trustee’s sale aside. The plaintiffs in Cause No. 56990-A took a nonsuit against Folliott on April 22,1974. Gloria Sepulveda had not been appointed executrix of the Sepulveda Estate on August 29, 1973, when the amended petition was filed; she was, however, the executrix of the estate on April 22,1974, when the nonsuit was taken.

There was considerable activity in the County Court of Cameron County, sitting in probate, on April 23, 1974 with respect to the Estate of Gilbert Sepulveda, Deceased. On that date:

(1) Gloria Sepulveda filed an application to resign as executrix of the estate, which was accepted by the court, subject to the subsequent filing of a full accounting;
(2) Gilda S. Bozeman, a daughter of Gilbert Sepulveda, made application to be appointed administratrix with will annexed of the Estate of Gilbert Se-pulveda, Deceased;
(3) the court appointed Gilda S. Bozeman as administratrix with will annexed and set bond at $1,500.00, which was posted and approved by the court;
(4) Gilda S. Bozeman took the oath required of such an administratrix.

The next day, April 24, 1974:

(1) the probate court vacated the above-mentioned orders of April 23, 1974;
(2) the court further ordered that “no action shall be taken upon either of said Applications filed herein on April 23, 1974, until due notice and hearing is held upon the same.”

Plaintiffs, in their original petition, did not offer to tender any money to Folliott. They admit in their brief that neither they nor Gloria Sepulveda have ever tendered “to Folliott monies equivalent to the monies expended by him to purchase the tract at the trustee’s sale or to pay the amount of the first-lien indebtedness to Whipple.”

Detailed findings of fact and conclusions of law were filed by the trial court. None of the findings have been attacked by plaintiffs. The court concluded that plaintiffs were required “to tender restitution” to Folliott before proceeding with an action to cancel the trustee’s deed; and “having failed to do so, further action by them is barred.” That conclusion is challenged by plaintiffs. However, the further conclusion that Raquel Sepulveda Aldama and Felix Sepulveda did not have standing to attack the trustee’s sale has not been questioned by a point of error.

Where a person dies testate, administration of his estate is opened when a will, which appoints an executor who is qualified to act independently of the probate court, is admitted to probate. Cocke v. Smith, 142 Tex. 396, 179 S.W.2d 954 (1944). Where there is an intestacy, administration on the decedent’s estate is opened when the probate judge signs an order which grants administration and appoints an administrator, and the administrator files the required bond and makes and files the oath. Stokes v. Pearce, 285 S.W.2d 475 (Tex.Civ.App.—Eastland 1955), affirmed in Pearce v. Stokes, 155 Tex. 564, 291 S.W.2d 309 (1956).

Where the deceased mortgagor of property dies intestate and administration is opened on his estate within the time prescribed by law, a sale of the property under a preexisting deed of trust made after administration is opened and before it is closed is void, because the opening of the administration suspends the power of sale under the deed of trust. Robertson’s Adm’x v. Paul, 16 Tex. 472 (1856); Pearce v. Stokes, supra. However, the rule is different with respect to independent administrations, where the control of the decedent’s estate is in the hands of an executor. “The law is settled that a trustee under a deed of trust can exercise the power of sale after the death of the grantor when the grantor’s estate is being handled under an independent executor as provided and directed in the will.” Fischer v. Britton, 125 Tex. 505, 83 S.W.2d 305, 306 (1935). Accord, Pearce v. Stokes, supra; Freece v. Truskett, 130 Tex. 90, 106 S.W.2d 675, 677 (Tex.Com.App.1937, opinion adopted).

While it is true that an estate which is being administered by an independent executor is still within the scope of the general administration of the probate court, and that such court may, in certain situations, take charge of the estate and administer it under regular administration, the taking of the administration out of the independent control of the executor, and subjecting it to regular administration, does not negative the prior existence of a valid power of sale conferred by a deed of trust. The assumption of control by the probate court does not invalidate the acts of the independent executor or change the prescribed procedure applicable while the executor had independent control of the estate. It was stated in Taylor v. Williams, 101 Tex. 388, 108 S.W. 815, 817 (1908):

“. . . No creditor can go into the probate court to enforce his claim against an executor so long as his independent control is allowed to continue, whereas all creditors are required to go into that court to enforce claims against regular administrators. In the case of independent administrations the statutes have not required any course of procedure through which relief may be had, while in the other case the mode of proceeding is carefully and exclusively prescribed. The conclusion is that the creditor is left to pursue the general rules of law by which remedies are given, and one of those remedies, in cases like this, is the exercise of the power of sale. We can find no reason for holding that such a power cannot be exercised, seeing that it is not extinguished by death, nor forbidden by any provision of the probate law, like those controlling regular administrations.”
* * * * * *
“. . . The authority given to the probate court to make certain orders while the estate is being independently administered does not affect the question, and the taking of the administration out of the independent control of the executor, and subjecting it to regular administration as other estates, only determines the proper course of proceedings thereafter to be had. . . . ”

The removal of a personal representative of the estate of a decedent, either as executor or administrator thereof, deprives the personal representative of the authority to do anything further with respect to the administration of the estate. Slay v. Davidson, 88 S.W.2d 650 (Tex.Civ.App.—Beaumont 1935, writ ref’d); Felton v. Birchfield, 110 S.W.2d 1022 (Tex.Civ.App.—Fort Worth 1937, writ dism’d); 33 C.J.S. Executors and Administrators § 91.

As a general rule, although there are exceptions, the party who seeks cancellation of a deed to property must restore the consideration paid by the purchaser, or, in other words reestablish the status quo of the purchaser, and if he fails to do so, and thus do equity, the court may properly deny relief and refuse to cancel the deed. Texas Company v. State, 154 Tex. 494, 281 S.W.2d 83 (1955); DePuy v. Bodine, 509 S.W.2d 698 (Tex.Civ.App.—San Antonio 1974, writ ref’d n. r. e.); Guion v. Guion, 475 S.W.2d 865 (Tex.Civ.App.—Dallas 1971, writ ref’d n. r. e.). Plaintiffs did not plead any facts which would support an exception to the rule, nor do they rely on any exception in this appeal.

In the instant case, Gloria Sepulveda filed an application to probate the will of Gilbert Sepulveda, Deceased and for issuance of letters testamentary on September 14, 1972. The application for such independent administration on the Sepulveda Estate was pending from that date until December 30, 1973, when administration was formally opened, and the decedent’s will was admitted to probate. After qualification, Gloria Sepulveda’s rights as the executrix of the estate related back to the date of the testator’s death, as provided by Tex.Prob.Code Ann. § 37 (Supp. 1976-77), which states in part:

“. . . upon issuance of letters testamentary . . . the executor . shall have the right to possession of the estate as it existed at the death of the testator . . . and he shall recover possession of and hold such estate in trust to be disposed of in accordance with law.”

Gloria Sepulveda, in her capacity as independent executrix, was the only authorized personal representative of the Sepulveda Estate from December 30,1973 until February 7, 1975, with the possible exception of one day, that of April 23, 1974. The appointment of Gilda S. Bozeman as adminis-tratrix of the Sepulveda Estate on February 7,1975, was, broadly speaking, a continuation of the administration of the estate with, however, this distinction: from September 14, 1972 until February 7, 1975, the administration was independent of control by the probate court; beginning February 7,1975, the administration has been regular and under the control of the probate court.

Acts done or accomplished by Gloria Sepulveda during her tenure as independent executrix of the Sepulveda Estate, absent fraud committed by her or other factors which are not here present, are valid and are not subject to being retroactively set aside. The authority of Gilda S. Boze-man to act in behalf of the Sepulveda Estate was prospective from the date of her appointment and qualification as adminis-tratrix thereof, and not retroactive. The plea in abatement, here involved, was filed while the administration of the Sepulveda Estate was independent; the hearing was had thereon on May 1, 1974, when the administration was still independent. On both of those dates, Gloria Sepulveda was the duly appointed and qualified independent executrix of the estate. She was not, at that time, actively seeking a cancellation of the trustee’s deed. She did not at a later date, and while she was executrix of the estate, attempt to set aside the trustee’s sale.

Irrespective of whether the appointment of Gilda S. Bozeman on April 23, 1974, as administratrix of the Sepulveda Estate, was valid or not, which we do not decide, she was removed as administratrix the next day, April 24, 1974. She did not appeal from that order. She was not the administratrix of the Sepulveda Estate on April 25, 1974, when Folliott filed his plea in abatement, nor was she administratrix of the estate on May 1, 1974, when the plea was presented to the trial court, and a hearing was held thereon. She was not the original personal representative of the Se-pulveda Estate. That person was Gloria Sepulveda. Gilda S. Bozeman, when she was duly appointed administratrix on February 7, 1975 and qualified pursuant to her appointment, became the successor personal representative of the estate with the power and duty of further administering the estate under Tex.Prob.Code Ann. § 224 (1956), and nothing more. She gained no new rights in the estate properties which had been sold during the tenure of her predecessor personal representative. It was her duty to take possession of only unadminis-tered effects of the decedent. Todd, Adm’r, v. Willis, 66 Tex. 704, 1 S.W. 803 (1886); 34 C.J.S. Executors and Administrators §§ 1023, 1026.

We hold that Gilda S. Bozeman, was not the administratrix of the Estate of Gilbert Sepulveda, Deceased, at any time from April 24, 1974 until February 7, 1975, and did not have any authority to act in behalf of the Sepulveda Estate during that interval of time. Furthermore, she, as the duly qualified administratrix of the estate on November 5, 1976, when the trial court rendered the judgment which has, in part, been attacked in this appeal, had no justiciable interest in the proceedings had in this case which deal with the plea in abatement. Since she did not have authority to prosecute the suit at the time the plea in abatement was filed and when the hearing was had thereon, it is not necessary that we decide in this appeal whether she was required to make tender to Folliott of the moneys paid by him to the trustee before she would be entitled to a judgment canceling the trustee’s deed. The trial court properly sustained the plea as to her as purported “administratrix of the Estate of Gilbert Sepulveda, Deceased,” who, attempted to bring “this action on behalf of said Estate.”

Raquel Sepulveda Aldama and Felix Sepulveda, being alive at the time of the filing of the plea in abatement, at the time of the hearing thereon, and at the time judgment was rendered, did not allege any ground in the original petition which was legally sufficient to cancel the trustee’s deed insofar as it conveyed their undivided interest in the 36.12 acre tract to Folliott. Their ownership in the land was not affected by or subject to the administration on the Estate of Gilbert Sepulveda, Deceased. The plea in abatement as to them was properly sustained on the ground that they did not, for the reason asserted in their original petition, have standing to attack the trustee’s deed.

The trustee’s deed was regular on its face. It was not void, nor was it voidable “at the election of the Administratrix of the decedent’s estate,” as alleged by plaintiffs in their original petition. Plaintiffs have not shown this Court any reason or ground why the judgment of the trial court should be disturbed in any manner. Plaintiffs’ point cannot be sustained; accordingly, it is overruled.

Folliott complains in a cross-point that the trial court “erred in finding (or concluding) that on March 6, 1968, the Bank (‘NBC’) accelerated and matured Sepulve-da’s note,” because there was no evidence to support such finding (or conclusion). Although we agree with him, the cross-point does not affect the decision herein rendered. The basis for that finding (or conclusion) is found only in a letter from the Bank, dated March 6, 1968, to Gilbert Se-pulveda, wherein Sepulveda was advised that certain notes, including the aforesaid deed of trust note to the Bank, were delinquent. He was requested to “make some arrangement with us,” and was advised that “these notes will be turned over to the attorney for collection and judgment within two weeks if we do not hear from you and make other arrangements.” Nothing further appears in the record as to an acceleration of the deed of trust note by the Bank. The letter does not warrant said finding (or conclusion).

The judgment of the trial court is AFFIRMED.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    TENNESSEE GAS PIPELINE COMPANY, Relator, v. Honorable Percy A. HARTMAN, County Judge, et al., Respondents.
    No. 1285.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 22, 1977.
    Robert J. Patterson, Keys, Russell, Seaman & Mansker, Corpus Christi, for relator.
    James M. Whitten, R. D. Hatch, Sinton, for respondents.
   OPINION

PER CURIAM.

This is an original mandamus proceeding. Relator’s motion for leave to file was granted on September 15, 1977, and a hearing on the application for mandamus was held on September 20, 1977. The Respondents, although duly notified, did not appear in this Court.

This Court of Civil Appeals has jurisdiction to entertain the application for writ of mandamus under Tex.Rev.Civ.Stat.Ann. art. 1824 (1967) which reads as follows:

“Said Courts or any Judge thereof, in vacation, may issue the writ of Mandamus to compel a Judge of the District or County Court to proceed to trial and judgment in a cause, returnable as the nature of the case may require.”

This proceeding was brought by Relator, Tennessee Gas Pipeline Company, seeking to compel Respondent, the Honorable Percy A. Hartman, in his capacity as County Judge of San Patricio County, Texas, to enter judgment on a verdict received in a jury trial case styled “C. F. Spiekerman v. Tenneco,” Cause No. 2537. The Respondent ordered a mistrial on the sole ground that the jury verdict contained conflicting issues.

In October, 1976, C. F. Spiekerman filed suit in San Patricio County Court against Relator seeking to recover $636.84 for damages sustained by his tractor when Gilberto Rosa, employee of Plaintiff and operator of the tractor, collided with an allegedly obscure pipeline marker owned by Relator.

Plaintiff alleged that Relator was negligent in allowing weeds to grow around and hide the marker and that such negligence was the proximate cause of the accident. Relator denied such allegations and alleged contributory negligence by Plaintiff and/or Gilberto Rosa. Relator further filed a counterclaim for $899.56, the cost of repairing the damaged pipeline marker, and alleged that Plaintiff and/or Gilberto Rosa were negligent, and that such negligence was the proximate cause of the collision and Relator’s damage.

The case went to jury trial on August 11, 1977. Trial ended that same day and Respondent submitted nine (9) Special Issues to the jury. The pertinent issues submitted and their respective answers appeared as follows:

“ISSUE NO. 1

On the occasion in question did the Defendant, Tennessee Gas Pipeline Company fail to keep the area in question as free of weeds as a pipeline company of ordinary prudence would have kept the area in question.

Answer: ‘Yes’ or ‘No’.

Answer: No

If you have answered Issue No. 1 ‘Yes’, and only in that event, answer Issue No. 2; otherwise, do not answer Issue No. 2.

ISSUE NO. 2

Was such failure a proximate cause of the occurrence in question:

Answer ‘Yes’ or ‘No’.

Answer: _

ISSUE NO. 3

Do you find from a preponderance of the evidence that on the occasion in question Gilberto Rosa failed to keep such a lookout as a person using ordinary care would have kept?

Answer ‘we do’ or ‘we do not’.

Answer: We do

If you have answered Issue No. 3 ‘we do,’ then answer Issue No. 4; otherwise do not answer Issue No. 4.

ISSUE NO. 4

Do you find from the preponderance of the evidence that such failure was a proximate cause of the occurrence in question?

Answer ‘We do’ or ‘We do not.’

Answer: We do

ISSUE NO. 5

Do you find from a preponderance of the evidence that on the day in question C. F. Spiekerman failed to inform Gilberto Rosa of the Tennessee Gas Pipeline vent as a person using ordinary care would have done?

Answer: ‘He did so fail’ or ‘He did not so fail’.

Answer: He did so fail

If you have answered issue no. 5 ‘He did so fail’, then answer issue no. 6; otherwise do not answer issue no. 6.

ISSUE NO. 6

Do you find from a preponderance of the evidence that such failure to inform Gilberto Rosa of the Tennessee Gas Pipeline vent was a proximate cause of the occurrence in question?

Answer: ‘We do’ or ‘We do not’.

Answer: We do

ISSUE NO. 7

If, in answer to Issues Nos. 2, 4, and 6, you have found that the acts or omissions of more than one person proximately caused the occurrence in question, then answer the following issue; otherwise, do not answer the following issue. For the purpose of your answer to the following issue, negligence includes any act or omission found by you in answers to such issues to have been a proximate cause of the occurrence in question.

What percentage of the negligence that caused the occurrence do you find from a preponderance of the evidence to be attributable to each of the parties found by you to have been negligent?

The percentage of negligence attributable to a party is not necessarily measured by the number of acts or omissions found.

Answer by stating the percentage, if any, opposite each name.

C. F. Spiekerman _50_%

Tennessee Gas Pipeline Company _50_%”

Upon the jury’s return to the courtroom and delivery of their answers, Respondent read the questions and answers aloud. The foreman of the jury further informed the Respondent that the above findings were unanimous. The jury was then dismissed.

Plaintiff’s counsel thereafter moved for a mistrial because of conflict in the answers to special issues. The mistrial was granted.

On August 24, 1977, Relator filed a Motion for Judgment on the Jury Verdict. Said motion was denied and Respondent, Judge Hartman, entered the following order:

“ORDER OVERRULING MOTION FOR JUDGMENT AND DECLARING MISTRIAL
On this the 24th day of August, 1977, came on to be heard Defendant’s Motion for Judgment, and it appearing to the Court that the Jury had unanimously answered Special Issues # 1, 3, 4, 5, 6, 7, 8, and 9, and such a verdict being received and accepted by the Court, but the Court being of the opinion that the verdict returned contains issues which materially conflict, it is therefore, ORDERED, ADJUDGED AND DECREED, that Defendant’s Motion for Judgment be, and the same is hereby, overruled and, based solely upon the foregoing recital, as to conflicting issues contained in the verdict, a mistrial is declared.
SIGNED AND ORDERED ENTERED this 24th day of Aug. . 1977.
/s/ Percy A. Hartman
PRESIDING JUDGE”

Relator contends that the answers to issues one and seven are not in irreconcilable conflict because the jury’s negative answer to the liability issue, issue number one, rendered the jury’s answers to the comparative negligence issue, issue number seven, immaterial, and therefore, it was the ministerial duty of the judge to enter a judgment based on the verdict.

It is the well established rule that appellate courts will not review by mandamus an action of the trial court granting a new trial while the trial court still has jurisdiction of the cause. Johnson v. Court of Civil Appeals For Seventh Supreme Judicial District of Texas, 162 Tex. 613, 350 S.W.2d 330 (1961); City of Perryton v. Boyer, 423 S.W.2d 170 (Tex.Civ.App.—Amarillo 1968) (mandamus denied); Allan v. Materials Transportation Company, 372 S.W.2d 744 (Tex.Civ.App.—Corpus Christi 1963, no writ). The Supreme Court has recognized two exceptions to this rule. First, the trial court’s order for a new trial can be set aside by mandamus when the trial court’s order granting the motion is wholly void. Second, mandamus will also lie when the trial court has granted a motion for a new trial specifying in the written order as the sole and exclusive ground, the existence of an irreconcilable conflict in the jury’s answers when, as a matter of law, no irreconcilable conflict exists. Johnson v. Court of Civil Appeals For Seventh Supreme Judicial District of Texas, 162 Tex. 613, 350 S.W.2d 330 (1961); King v. Smith, 459 S.W.2d 202 (Tex.Civ.App.—Corpus Christi 1970) (partial verdict sufficient to support a judgment; mandamus granted); Spikes v. Smith, 386 S.W.2d 346 (Tex.Civ.App.—Corpus Christi 1965) (mandamus denied).

The case before us involves an order declaring a mistrial and not the granting of a new trial. Although mistrial and new trial are not the same, it has been held that the similarity between them is sufficient to bring a trial court’s order granting a mistrial within the rule laid down by the Supreme Court in the Johnson case above cited. Ware v. Marquez, 511 S.W.2d 594 (Tex.Civ.App.—El Paso 1974) (mandamus denied); Jones v. Smith, 470 S.W.2d 305 (Tex.Civ.App.—Houston [1st Dist.] 1971) (mandamus denied); Allen v. Long, 408 S.W.2d 342 (Tex.Civ.App.—Dallas 1966) (mandamus denied); Meyer v. State ex rel. Lefler, 372 S.W.2d 764 (Tex.Civ.App.—Beaumont 1963) (mandamus denied).

Where there is no irreconcilable conflict in the jury findings, it is the ministerial duty of the judge to enter a judgment on the verdict. Traywick v. Goodrich, 364 S.W.2d 190 (Tex.Sup.1963) (mandamus granted); Spikes v. Smith, 386 S.W.2d 346 (Tex.Civ.App.—Corpus Christi 1965) (mandamus denied). The trial court must reconcile apparent conflicts in the jury’s findings if this can reasonably be done in the light of the pleadings and the evidence, the manner in which the issues were submitted, and in view of the other findings when considered as a whole. Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558 (1949).

In this case, the only apparent conflict in the jury’s findings is a conflict between the liability issue, Special Issue No. 1, absolving Relator of negligence and the comparative negligence issue, Special Issue No. 7, apportioning 50% of the total negligence to Relator. The case of Ingles v. Cohen, 543 S.W.2d 455 (Tex.Civ.App.—Waco 1976, writ ref’d n. r. e.) is factually similar to the present case. In Ingles, the Court held that a trial judge properly harmonized any apparent conflict between a specific finding of no negligence in the liability issue and an apportionment of negligence to the plaintiff in the subsequent comparative negligence issue. In so holding, the court noted that the specific finding directed toward the liability aspect of the verdict controls over the general findings of comparative negligence. We agree with this holding. See also Sproles v. Rosen, 126 Tex. 51, 84 S.W.2d 1001 (Tex.Com.App.1935, opinion adopted).

The trial court should have reconciled any apparent conflict in the jury’s findings and should have entered judgment on the jury’s verdict. We are confident that the Respondent will now proceed in accordance with the law as we have set it out herein without the necessity of our issuing a writ of mandamus, but in the event he should fail to so proceed, the necessary writ will be issued to insure that this opinion is given effect.


author: RAY, Justice.

text:
    Bob ARMSTRONG, Appellant, v. Edgar RICE et al., Appellees.
    No. 8437.
    Court of Civil Appeals of Texas, Texarkana.
    Sept. 27, 1977.
    Rehearing Denied Oct. 18, 1977.

      John L. Hill, Atty. Gen., Austen H. Furse, Asst. Atty. Gen., Austin, for appellant.
    J. R. Cornelius, The Cornelius Law Firm, Jefferson, for appellees.
   RAY, Justice.

This is a summary judgment proceeding.

Appellees (plaintiffs), Edgar Rice, Sr., et al., brought this suit in the District Court of Marion County, Texas, against appellant (defendant), Bob Armstrong, Commissioner of the General Land Office of Texas, and 0. W. Breland, seeking to cancel a grazing lease executed by the Commissioner to Bre-land on the ground that appellees owned the land covered by the lease and that the lease constituted a cloud on appellees’ title. The trial court granted appellees’ motion for summary judgment cancelling the lease. Appellant Armstrong has perfected his appeal and submits five points of error for our consideration.

The claim of ownership by the appellees to the land in question is based in part upon the resolution of boundary disputes by this court in Thomas Jordan v. Skelly Oil Company, 296 S.W.2d 279 (Tex.Civ.App.Texarkana 1956, writ ref’d n.r.e.) and Breland v. Rice, 477 S.W.2d 906 (Tex.Civ.App.Texarkana 1971, writ ref'd n.r.e.). The appellees made repeated references to these holdings in a third amended motion for summary judgment, which motion was granted by the trial court although no supporting affidavits were attached to the motion.

The parties have briefed every aspect of this case in detail. Further elaboration on the facts is, however, unnecessary for the disposition of this appeal. The merits of the appellees’ claim cannot be reached.

The appellant correctly asserts that the failure of the appellees to attach any affidavits to their third amended motion for summary judgment results in an absence of evidence in support of the motion, and leaves an abundance of material fact issues to be determined by the trier of fact. Every fact alleged in the appellees’ original petition and third amended motion for summary judgment was denied and controverted by the appellant.

Of primary importance is the dispute over the validity of the appellant’s claim of right to these lands on the basis of this court’s holdings in Jordan supra, and Breland, supra. The appellees’ petition and motion for summary judgment do not establish a prima facie entitlement to recovery as a matter of law. Their references and conclusions concerning the contents and nature of prior judgments were not competent evidence to support a summary judgment where no copies of the former judgments or abstracts of the former judgments were attached. Schuster v. Reid, 544 S.W.2d 800 (Tex.Civ.App.Austin 1976 no writ).

It is evident from the transcript of this suit "that sworn copies of the prior judgments and of other instruments were affixed to a prior motion for summary judgment. All papers referred to in an affidavit in support of a motion for summary judgment must, however, “be attached thereto or served therewith.” Tex.R.Civ.P. 166—A(e). Documents which had been attached to an original motion for summary judgment, but none of which were attached to an amended motion were not entitled to consideration in ruling on the amended motion. Gillam v. Sullivan, 352 S.W.2d 507 (Tex.Civ.App.Fort Worth 1961, writ ref’d n.r.e.). The prior motion was supplanted in all regards, no longer to be considered as part of the record of the cause. Tex.R.Civ.P. 65.

The appellees correctly point out that even in the absence of affidavits, the court may consider in support of the motion for summary judgment not only the pleadings, but also all matters of which the court takes judicial notice. 4 McDonald’s Texas Civil Practice, Sec. 17.26.5, p. 142. The appellees would seek to take advantage of the rule of Victory v. State, 138 Tex. 285, 158 S.W.2d 760, 763 (1942), wherein it is stated:

“It is the established law of this state that courts may take notice of their own records and a former judgment may be held to be conclusive in a subsequent action when the record shows a judgment rendered in a cause involving the same subject matter between the same or practically the same parties, even though no plea of res adjudicata was interposed in the subsequent suit.”

See Barnett v. Maida, 523 S.W.2d 325 (Tex.Civ.App.Beaumont 1975, writ ref’d n.r.e.); 1 McCormick & Ray, Texas Law of Evidence, Sec. 186, p. 206.

The instant case has had a similar history to the prior Jordan and Breland actions. All were instituted in the 76th District Court of Marion County and appealed to this Court. It can be presumed without being decided that were the instant case not governed by the peculiar requirements of Rule 166-A, this Court and the trial court might have taken judicial knowledge of their own judgments for possible application to the case at bar.

Such procedure has been specifically repudiated by the courts of this state in summary judgment cases. The leading case is Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961). The movant there asked for summary judgment based on the doctrine of res judicata, referring to a previous judgment in the same court. The records of that previous case were not on file nor before the court in the new action, however, and the Supreme Court found that no proof was available to support the granting of a summary judgment. See also In Re Estate of Pettengill, 508 S.W.2d 463, 465 (Tex.Civ.App.Amarillo 1974, writ ref'd n.r.e.).

A similar conclusion was reached in Langdeau v. Dick, 356 S.W.2d 945 (Tex.Civ.App.Austin 1962, writ ref’d n.r.e.). There an affidavit in support of a motion for summary judgment made reference to matters asserted to be within the judicial knowledge of the court by referring to other matters pending before it. Gardner v. Martin, supra, was said to render null an affidavit making reference to such instruments that were not affixed.

In Gist v. Stamford Hospital District, 541 S.W.2d 510 (Tex.Civ.App.Eastland 1976, writ ref’d n.r.e.), the court, citing Gardner v. Martin, refused to take judicial notice of the res judicata effect of one of its prior holdings in an action for summary judgment. Victory v. State, supra, and Barnett v. Maida, supra, to the contrary were specifically distinguished as not involving actions for summary judgment.

Although the instant case deals with the doctrine of stare decisis rather than res judicata, this distinction is not material. The failure to attach certified copies of the documents relied upon to the motion or affidavit in support of the summary judgment must be viewed as a fatal omission. Texas National Corporation v. United, 493 S.W.2d 738 (Tex.1973); Jackson v. Randall, 544 S.W.2d 439 (Tex.Civ.App.Texarkana 1976, no writ).

It is apparent from the briefs of the parties that the unreached issue of the application of the doctrine of stare decisis in a summary judgment action involving a boundary dispute is factually complex. A heavy burden of proof of identity of fact situations is on the party who would take advantage of the doctrine. See generally 34 Tex.Jur.2d, Judgments, Sec. 452; Atch-ley v. Superior Oil Company, 482 S.W.2d 883 (Tex.Civ.App.Beaumont 1972, writ ref’d n.r.e.); Swilley v. McCain, 374 S.W.2d 871 (Tex.1964); Shield v. Shield, 286 S.W.2d 252 (Tex.Civ.App.El Paso 1955, writ ref’d n.r.e.).

In Jordan and Breland this Court decided that Big Cypress Bayou was the south boundary line of the Clark Simmons Survey and the B. F. Lynn Survey in Marion County. When properly raised these decisions are stare decisis involving the south boundary lines of these two surveys. It may be observed that the identity of facts in the present case to those in Breland and Jordan is less than obvious.

This matter is, however, not presently before this Court. Reversal of the present action is dictated by the absence of competent evidence in support of the motion for summary judgment.

The appellant’s remaining points of error have been considered and are found to be without merit. In appellant’s second point of error the complaint is made that appellees failed to plead the statutory authorization for their suit against the State Land Commissioner. This omission may have caused frustration to the appellant, but it is hardly reversible error. Although a pleading does not invoke the law that is deemed to be applicable to the case made, the court will notice and apply the proper rule. 45 Tex.Jur.2d, Pleading, Sec. 24, pp. 403-404. No harm is done in failing to plead the law. Longhorn Trucks v. Bailes, 225 S.W.2d 642, 644 (Tex.Civ.App.Austin 1949, mandamus overruled).

Appellant’s third point of error asserts that this action must not only be reversed, but dismissed for failure of counsel for appellees to show his authority to bring this action. Appellant made known to the trial court through sworn motion his belief that the instant suit was instituted against him without authority. The burden of proof was then placed upon counsel for the appellees to show sufficient authority from the appellees to prosecute the cause. Angelina County v. McFarland, 374 S.W.2d 417 (Tex.1964); Mobile Homes of America, Inc. v. Easy Living, 527 S.W.2d 847 (Tex.Civ.App.Fort Worth 1975, no writ); Tex.R.Civ.P. 12; 7 Tex.Jur.2d, Rev. Part 1, Attorneys at Law, Sec. 75.

Counsel for the appellees responded by filing sworn affidavits from three of the named appellees. The affiants stated that each had been authorized by his relatives to employ the counsel whose authority was in question.

The trial court overruled the motion to show authority in disposition of the case. The appellant now questions the sufficiency of the affidavit to establish appellees’ counsel’s authority to bring this particular suit in appellees’ long legal battle over the land in question, or to represent all of the named appellees.

Each of the affidavits is worded differently. None employs great specificity in defining the scope of authority of counsel. Their cumulative effect, however, is indicative of some evidence of authority of counsel to prosecute the present action.

Counsel for the appellees was not required to establish his authority to represent all litigants so aligned. Any error in finding that he had authority to represent all, if indeed his authority was limited only to some, was not reversible. Stanaland v. Traders & General Ins. Co., 145 Tex. 105, 195 S.W.2d 118 (1946).

The action of the trial court in overruling the motion to show authority is supported by the evidence and not against the great weight and preponderance of the evidence.

The judgment of the trial court is reversed and the case is remanded for further proceedings.

CORNELIUS, J., not participating.


author: KEITH, Justice.

text:
    John BOSWELL, dba John Boswell Chevrolet v. Dr. Ralph M. CONNELL.
    No. 8002.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 29, 1977.
    Rehearing Denied Oct. 13, 1977.
    Thomas K. Boone, Dallas, for appellant.
    Rex G. Roberts, Dallas, for appellee.
   KEITH, Justice.

The appeal involves the title to a motor vehicle, the Certificate of Title Act (hereinafter “Act”) and the “innocent purchaser” provisions of the Uniform Commercial Code (hereinafter “Code”). Connell as plaintiff filed suit against Boswell, the Texas Highway Department, and the Dallas County Tax Collector, seeking a certificate of title to a 1972 Chevrolet pickup truck. Boswell answered with a counterclaim for possession of the truck. The Highway Department and the Tax Collector have at all times agreed to be bound by the final judgment in this cause and did not participate in the trial nor are they involved in the appeal.

The case was submitted upon stipulations and answers to interrogatories and the trial court entered judgment for plaintiff (Con-nell) upon a finding that he had acquired the vehicle as a good faith purchaser as a buyer in the ordinary course of business. The judgment extinguished Boswell’s interest in the vehicle and ordered the issuance of a certificate of title to Connell. The trial court filed lengthy findings of fact and conclusions of law which we will have occasion to mention in our discussion of Boswell’s single point of error contending that the trial court erred in finding that Connell was a good faith purchaser for value, etc., "because the sale to Appellee was void under Sec. 51” of the Act.

At all times material to this suit, Boswell was a new and used car dealer and had possession of the used 1972 Chevrolet pickup truck involved in this suit and the certificate of title thereto. It was registered and licensed in this state. On August 12, 1974, one George Jenkins, purporting to represent Dixie Motors, a used car dealership, negotiated the purchase of the vehicle from Boswell and acquired possession, but not title, thereto. Boswell drew a sight draft upon Dixie Motors and attached the title to the vehicle. The draft was returned unpaid and Boswell still has the original certificate of title. In the meanwhile, on August 19, Jenkins traded the vehicle to Connell pursuant to a contract of sale whereby Connell traded him another vehicle and gave him a check for $322. Connell did not receive a certificate of title at the time the vehicle was delivered to him by Jenkins. The Jenkins/Connell transaction took place at Con-nell’s home following a telephone conversation he had had with Jenkins. Connell acquired the vehicle for personal, family and farming operations without knowledge of any security interest; he has had possession of the vehicle at all times since receiving it from Jenkins. As might be expected, Jenkins disappeared.

Although we have been furnished excellent briefs, the parties do not cite a case precisely in point and our own research has not revealed such authority.

We quote the material language found in Sec. 51, Act:

“It shall hereafter be unlawful for any person ... to offer for sale or to sell . . . any motor vehicle registered or licensed in this State without then and there having in his possession the proper receipt or certificate of title covering the motor vehicle so offered.”

It is provided in See. 53: “All sales made in violation of this Act shall be void and no title shall pass until the provisions of this Act have been complied with.”

In Guinn v. Lokey, 151 Tex. 260, 249 S.W.2d 185, 189 (1952), the Court gave full effect to Sections 51 and 53 of the Act. See also, Associates Investment Company v. Galloway, 403 S.W.2d 542, 543 (Tex.Civ.App.—Amarillo 1966, no writ). Although it did not cite Guinn v. Lokey, supra, the same result was reached in Mossler Acceptance Co. v. Burke, 252 S.W.2d 749, 751 (Tex.Civ.App.—Galveston 1952, writ ref’d n. r. e.), where the court noted that a person taking a lien from one claiming to own a vehicle had a duty to investigate the title of the tenderer of the lien and was charged with knowledge of the investigation. Thus, under the clear language of Sec. 53 of the Act, Jenkins’ transfer to Connell was void as to Boswell.

The trial court, holding that Connell acquired the vehicle as a good faith purchaser for value and as a buyer in the ordinary course of business, apparently relied upon Tex.Bus. & Comm. Code Ann. § 2.403 (1968) and § 9.307 (Supp. 1976-1977). Sec. 2.403 (a) of the Code provides that a person with voidable title has power to transfer a good title to a good faith purchaser for value, and is followed immediately by Sec. 2.403(b), reading:

“Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business.”

The relevant portion of Sec. 9.307 of the Code reads:

“(b) In the case of consumer goods, a buyer takes free of a security interest even though perfected if he buys without knowledge of the security interest, for value and for his own personal, family or household purposes unless prior to the purchase the secured party has filed a financing statement covering such goods.”

Boswell argues that the Act — not the Code — fixes the rights and determines the liabilities of the parties, citing Apeco Corporation v. Bishop Mobile Homes, Inc., 506 S.W.2d 711, 715 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.). As Justice Bissett points out in Apeco :

“Any sale of a vehicle prior to its registration is a ‘first sale’, and any sale thereafter is a ‘subsequent sale’. This distinction is material because of the requirement in the Act that an application for a certificate of title is essential to the validity of a ‘subsequent sale’.”

Only a first sale was involved in Apeco; and, since the Act was inapplicable, the Court turned to the Code provisions previously quoted and upheld the title of the good faith purchaser in ordinary course of business. (506 S.W.2d at 719)

Under the fact structure which we review, we find no conflict between the Code and the Act. Connell purchased the pickup truck at a “subsequent sale” from Jenkins who did not have, and could not transfer, a certificate of title. Under Sec. 53 of the Act the transfer was void and passed no title.

The judgment of the trial court is reversed and judgment now rendered that Boswell recover title and possession of the truck; but, since Connell has had possession, use, and enjoyment thereof since the dispute began and the vehicle has depreciated in value, we remand the cause to the trial court to enter an appropriate judgment granting to Boswell such additional monetary relief as might appear reasonable and proper under the record. All costs are adjudged against Connell.

      . Tex.Rev.Civ.Stat.Ann. art. 6687-1 (1977).

      . Tex.Bus.Comm.Code Ann. §§ 2.403 (1968) and 9.307 (Supp. 1976-1977).

      . As between the immediate parties, i. e., Jenkins/Connell, the provisions of the Act do not render the sale void. See Rush v. Smitherman, 294 S.W.2d 873, 877 (Tex.Civ.App.—San Antonio 1956, writ ref'd); Ballard v. Associates Investment Co., 368 S.W.2d 232, 234 (Tex.Civ.App.—Dallas 1963, writ ref'd n. r. e.).

      . Professor Lennart Larson comments on Ape-co by saying: “The decision seems consistent with earlier judicial construction.” “Annual Survey of Texas Law, Commercial Transactions,” 29 Sw.L.J. 118, 137-138 (1975).


author: HALL, Justice.

text:
    In the Matter of K_W_E_
    No. 5754.
    Court of Civil Appeals of Texas, Waco.
    Sept. 29, 1977.

      Douglas R. Bergen, Bergen and Crow, Waco, for appellant.
    Felipe Reyna, Crim. Dist. Atty., Rodney Goble, Asst. Dist. Atty., Robert W. Pearson, Asst. Dist. Atty., Waco, for appellee.
   HALL, Justice.

On motion of the State charging the juvenile appellant with the felony offenses of aggravated rape and aggravated sexual abuse, the Juvenile Court waived jurisdiction over appellant and ordered him transferred to the District Court for criminal proceedings under the provisions of V.T. C.A., Family Code, Section 54.02. Appellant seeks reversal of the order on three grounds: (1) That the court erred in overruling his motion for psychiatric examination pursuant to Family Code, Section 55.-05; (2) that the court did not set forth the specific reasons for its order as required by Section 54.02(h); and (3) that the court's finding that “the prospect of adequate protection for the public and the likelihood of reasonable rehabilitation of the child by the use of the procedures, services and facilities currently available to the Juvenile Court are in serious doubt” is not supported by any evidence because no evidence was adduced showing what “procedures, services and facilities” are currently available to the court. We overrule these contentions and affirm the judgment.

The motion for psychiatric examination which appellant asserts was erroneously overruled was made under Section 55.-05(b) which provides for psychiatric inquiry to assist in determining whether “a child alleged to have engaged in delinquent conduct or conduct indicating a need for supervision may not be responsible as a result of mental disease or defect.” Section 55.05(b) is not referable to a discretionary transfer proceeding which is concerned with adult responsibility for criminal activity, but applies “only in the event the child is to be tried as a juvenile on the issue of delinquent conduct or need for supervision.” R. K. A. v. State, 553 S.W.2d 781, 782 (Tex.Civ.App.—Fort Worth 1977, no writ). The motion was properly overruled.

If the juvenile court waives jurisdiction, it must state in the order “its reasons for waiver.” Section 54.02(h). In our case the court made numerous findings in support of its waiver, and then stated in the order, “THEREFORE, by reason of the foregoing findings” jurisdiction was waived. This satisfied the statute.

After finding that appellant committed the sex offenses asserted against him “in an aggressive and premeditated manner,” the court found further that “[his] attitudes toward sex are very distorted and his behavior in this area has the potential to erupt at any time; that his personality in this regard is very impulsive, volatile and unpredictable; that the danger associated with this part of him must not be minimized; that corrective treatment would take several years; and that because of the extreme and severe nature of the alleged crimes the prospect of adequate protection for the public and the likelihood of reasonable rehabilitation of the child by the use of the procedures, services and facilities currently available to the Juvenile Court are in serious doubt.” As we have said, appellant contends the last finding is erroneous because no evidence was adduced showing what “procedures, services and facilities” were available to the court. We overrule this contention. Whatever procedures, services and facilities were reasonably available to the court for appellant’s rehabilitation would have been within the court’s knowledge without need of proof. Meza v. State, 543 S.W.2d 189, 194 (Tex.Civ.App.—Austin 1976, no writ).

The judgment is affirmed.

      . All statutory references are to V.T.C.A., Family Code.


author: McDONALD, Chief Justice.

text:
    In the Matter of D_ H_, a child.
    No. 5807.
    Court of Civil Appeals of Texas, Waco.
    Sept. 29, 1977.
    Rehearing Denied Oct. 27, 1977.
    John L. Hill, Atty. Gen., David M. Kendall, Jr., First Asst. Atty. Gen., David H. Young, Asst. Atty. Gen., Austin, for appellant.
    John E. Hawtrey (Attorney Ad Litem), Seymour & Hawtrey, Bryan, Sarah L. D. Ryan, Bryan, Child Services Atty., for ap-pellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by the Texas Department of Human Resources (formerly Texas Department of Public Welfare) from that portion of a judgment requiring it to pay the balance of the Devereaux Foundation’s monthly charge over ($180.) for the care and keeping of D_ H_, a juvenile.

The Juvenile Court attorney of Brazos County on behalf of the State of Texas filed petition alleging D_ H_, a child 14 years of age, whose managing conservator was the Texas Department of Public Welfare, to be in need of supervision. The trial court found the child to have engaged in conduct indicating a need for supervision, and on June 28, 1977 rendered disposition order placing the child in the custody of the Devereaux Foundation at Victoria, Texas and placing her on probation for one year, subject to extensions until the child is 18 years of age.

The trial court ordered Brazos County to pay $180. per month to the Devereaux Foundation, and further ordered the Texas Department of Public Welfare to pay the “monthly charges remaining after the $180. per month has been paid” (which amounts to $1020. per month).

The Texas Department of Human Resources (formerly the Texas Department of Public Welfare) appeals from that portion of the judgment requiring it to pay for support of the child in the Devereaux Foundation, asserting the trial court erred in ordering such support, because it cannot constitutionally or statutorily comply with such judgment.

The Department asserts: 1) Money cannot be expended from the State Treasury without both a specific appropriation and a pre-existing law authorizing the expenditure; and 2) There is neither a specific appropriation, a pre-existing law, nor the statutory ability to authorize expenditure of money to place the child in the Dever-eaux Foundation.

The Texas Constitution provides in Article 8, Section 6 “No money shall be drawn from the Treasury but in pursuance of specific appropriation made by law”; and further Article 3, Section 44 provides: “The Legislature * * * shall not * * * grant, by appropriation or otherwise, any amount of money, out of the Treasury of the State, to any individual, on a claim, real or pretended, when the same shall not have been provided for by pre-existing law * * * ft

The record reflects that there is no appropriation authorizing a State expenditure to place D_ H_ in substitute care. And Section 70 of the appropriation of the 65th Legislature (1977) provides:

“None of the funds appropriated by this Act may be expended for payment of any judgment obtained against the State of Texas or any State Agency, except where it is specifically provided in an item or items of appropriation that the funds thereby appropriated may be used for the payment of such judgments”.

We think the trial court erred in requiring the State Department of Public Welfare to pay the $1020. per month to the Devereaux Foundation for the care of D_ H_. The record reflects Devereaux will not accept the child unless payment of their charges in the amount of $1200. per month are made.

Having found error in the judgment, we reverse the judgment and remand the case in the interest of justice. Morrow v. Shotwell, S.Ct., 477 S.W.2d 538; Scott v. Liebman, S.Ct., 404 S.W.2d 288. Accordingly, the case is remanded to the trial court in its entirety, so that the trial court may decree a disposition in D_ H_'s case which can be lawfully financed.

REVERSED AND REMANDED.


author: CORNELIUS, Justice.

text:
    In the Interest of Pamela Kates, A Child Thomas KATES, Appellant, v. Nadine SMITH, Appellee.
    No. 8499.
    Court of Civil Appeals of Texas, Texarkana.
    Oct. 4, 1977.
    Thomas R. Newman, Texarkana, for appellant.
    Nadine Smith, for appellee.
   CORNELIUS, Justice.

Appellant filed suit in the District Court of Bowie County seeking the legitimation of Pamela Kates, an eight-year-old female, as his lawful child and to be appointed her managing conservator. The district court granted legitimation but refused appellant’s other request and appointed instead the child’s natural mother, appellee Nadine Smith, as her managing conservator.

The child was born when appellee and appellant were living together but were not married to each other. Appellant was married but was separated from his wife. Ap-pellee had been married several times but was at that time divorced. Both parties conceded that appellant is the natural father. The child was in the joint custody of appellant and appellee from birth until their separation in January of 1970 and when they again lived together for some fifteen months in 1972 and 1973. At various times while the parties were separated the child resided with appellant in Georgia and Texas with appellee’s knowledge and consent. At other times she resided with appellee with appellant’s consent. At still other times appellant kept the child during the day and she stayed with her mother at night. Appellant became increasingly dissatisfied with the environment existing in appellee’s home and the activities which occurred there, and finally, in 1976 he filed suit to have the child legitimated as his lawful child and asked to be awarded custody of her.

The direct and circumstantial evidence produced by appellant concerning appellee and her home environment disclosed a history of unwholesome companions, activities and circumstances which could only be detrimental to the child’s welfare and raises serious doubts as to the advisability of placing the child’s custody with her. Appellee testified, however, that those activities and conditions existed only because she was unmarried at the time and was compelled to work nineteen hours a day, and that as she was now married and did not work she would be able to stay home and look after Pamela and her other children. Appellant lived alone. When he had custody of Pamela he left her with a babysitter during the day while he worked. As concerns the suitability of the living conditions in appellant’s home, his witnesses testified that he took good care of Pamela, took her to church with him regularly, and that she was happy and well adjusted. To the contrary, appel-lee’s evidence reflected seriously upon apel-lant’s character and living habits and indicated that he was seeking custody of Pamela more because he was jealous of appellee’s present husband than because of his concern for the child.

Appellant has assigned 8 points of error. They contend, among other things, that the decision to place Pamela’s custody with ap-pellee is against the overwhelming weight of the evidence, and that the court erred in relying upon a welfare department report which was ordered, made and considered without appellant’s knowledge and after the close of evidence at the hearing on custody.

It is not necessary for us to pass upon the question of the weight of the evidence because a new trial must be ordered due to the circumstances surrounding the consideration of the welfare department report.

Appellant’s petition was filed on July 12, 1976. On July 22nd the court held a hearing to determine temporary matters. After considerable evidence was heard, the court appointed appellant temporary managing conservator and set a hearing on the permanent appointment for August 10th. In its decree the court also ordered that Mr. Jimmy Jones, Bowie County Probation Officer, conduct an investigation into the background, home life and environment of Pamela and that he file a report with the court by August 6th. That report was filed on August 5th. It recommended that appellant be appointed permanent managing conservator. The hearing on permanent custody began on August 10th, and after a continuance it was reconvened and concluded on September 8th. Judgment, however, was not entered until November 12th. The formal judgment awarded custody to appel-lee, and among other things, recited that the court considered and based his judgment upon the pleadings, exhibits, oral testimony, the report of Mr. Jones and “. . .a supplemental investigation ordered by the court from Bowie County Welfare Unit . . . .” The supplemental report is in the transcript and shows on its face that it was made on October 4, 1976, approximately a month after the close of the hearing. Appellant states in his brief that he had no knowledge of the ordering or making of the investigation or the report until the formal judgment was signed and filed on November 12th. The statement is not challenged and will be accepted as true. The welfare department report is very lengthy and contains a long history of the conflicts between appellant and appellee over the child and other matters. It reflects adversely upon appellant’s character, attitudes and motives in seeking the child’s custody, and it indicates that appellant’s allegations concerning unsuitable conditions prevailing in appellee’s home were not well founded.

The provisions of the Texas Family Code make it mandatory that parties have the opportunity to examine and cross-examine any person making an investigation or report which is considered by the court in a suit affecting the parent-child relationship. Section 11.14 provides in part as follows:

“Sec. 11.14. Hearing
(a) Except as otherwise provided in this subtitle, proceedings shall be as in civil cases generally.
(c) The court may compel the attendance of witnesses . . . including a representative of the agency making the social study, who may be compelled to testify.
(e) The rules of evidence apply as in other civil cases.
(f) When information contained in a report, study, or examination is before the court, the person making the report, study, or examination is subject to both direct examination and cross-examination as in civil cases generally. . ” (Emphasis supplied.)

See also, Magallon v. State, 523 S.W.2d 477 (Tex.Civ.App. Houston—1st Dist. 1975, no writ). To deny a party the opportunity to examine or cross-examine the author of such a report deprives that party of a valuable right to deny, contradict or overcome by other evidence the matters contained in the report. Even if it can be said in such a case that the court’s decision would have been the same without considering the report, the aggrieved party still has been deprived of information possibly valuable to him and has been denied the opportunity to properly present his case both in the trial court and in the appellate court. See Rule 434, Tex.R.Civ.P. It may be argued that, as the trial judge announced at the close of the hearing on September 8, that he intended to award appellee custody of the child, the supplemental report was superfluous and had no bearing on the court’s decision. However, the court’s written judgment specifically stated that the supplemental report was considered. A formal judgment, plain and unambiguous in its terms, speaks for itself and is not to be impeached by or interpreted in the light of prior statements or acts of the court. Harrison v. Manvel Oil Co., 142 Tex. 669, 180 S.W.2d 909 (1944); 33 Tex.Jur.2d, Judgments, Sec. 83, p. 597. Furthermore, although the announcement indicated the court’s thinking at the time, it appears that the conclusions expressed were not final, else the supplemental report would not have been subsequently ordered.

Without question, the trial judge treated both parties fairly and did not intend to prejudice appellant by ordering the supplemental report. Under the circumstances, however, a procedure mandated by the Family Code, which would have a direct bearing upon the question of the best interest of the child, has not been followed. For that reason the judgment must be reversed and the cause remanded for a new trial. It is so ORDERED.


author: MURRAY, Justice.

text:
    Jerry R. HOLLEMAN and wife Inda S. Holleman and John Cornyn and wife Atholene G. Cornyn, Appellants, v. MISSION TRACE HOMEOWNERS ASSOCIATION, Appellee.
    No. 15796.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 5, 1977.

      John W. Davidson, Sawtelle, Goode, Davidson & Troilo, San Antonio, for appellants.
    Keith E. Kaiser, Cox, Smith, Smith, Hale & Guenther, Inc., San Antonio, for appellee.
   MURRAY, Justice.

This is a suit for a permanent injunction brought by the appellee, Mission Trace Homeowners Association, a planned unit development, to permanently enjoin the appellants, Jerry R. Holleman and wife, Inda S. Holleman, and John Cornyn and wife, Atholene G. Cornyn, from parking any motor vehicle overnight on the driveways leading to their garages and from failing and refusing to store their motor vehicles in their garages overnight. The Hollemans and Cornyns counterclaimed against the Association for a declaratory judgment to define the parking rights of homeowners within Mission Trace Subdivision. After a trial before the court without' a jury, judgment was entered permanently enjoining appellants from parking any motor vehicle overnight on the driveways leading to their garages in the Subdivision or on any other portion of the Subdivision over which they have only a right of passage or ingress or egress; from failing and refusing to park their motor vehicles in their garages in the Subdivision for overnight storage; and from violating the amendment to the Declaration of Covenants and Restrictions granting appellants only a right of passage over their driveways into their garages. All relief sought by appellants’ counterclaim was denied. An appeal to the Court of Civil Appeals for the Fourth Supreme Judicial District was duly perfected.

Appellants’ points of error on this appeal are essentially that (1) the Declaration of Covenants and Restrictions in effect at the time appellants purchased their homes in Mission Trace gave them the right to park their motor vehicles in their driveways; and therefore, appellee cannot restrict that right; (2) the requirement that motor vehicles cannot be parked overnight in driveways, adopted by Mission Trace Homeowners Association, is unreasonable; (3) the amendment to the Declaration of Covenants and Restrictions upon which such requirements were based was null and void; (4) the court erred in permitting appellee’s attorney to claim the attorney-client privilege on producing their law office time records; and (5) the court erred in denying appellants the relief sought in their counterclaim.

On June 15, 1972 the City Council of the City of San Antonio enacted Ordinance 40834, now codified as Section 42—106 through 42-111 and as portions of Section 42-7 of the City Code of San Antonio, Texas, which provided a new zoning classification for “Planned Unit Developments.” In Section 42-7 a “Planned Unit Development” is defined as “an area of land, controlled by a land owner, to be developed as a single entity. A planned unit development may include, but does not require, individual ownership of units, structures or property. Common areas, however, which relate to and serve the individual occupants, are an essential and major element of such developments.”

Section 42-106 of the City Code states the purpose of “Planned Unit Developments” in part as follows:

It is the intent of this article to encourage unified design of housing, commercial, industrial, or institutional areas and facilities, or combinations thereof, to provide for related developments having harmony of design and variety of function, and to provide for a greater flexibility in the design of buildings, yards, courts, and circulation than would otherwise be possible through the strict application of standard regulations. It is further the intent of this article to provide for:
(a) A maximum choice in the types of environment and living units available to the public.
(b) An integration of open space and recreation areas with residential development.
(c) A pattern of development which preserves trees, outstanding natural topography, and geologic features.
(d) A creative approach to the use of land and related physical development.
(e) An efficient use of land resulting in smaller networks of utilities and streets and thereby lower housing and maintenance costs.
(f) An environment of stable character in harmony with surrounding development.
(g) The development of vacant property within the presently developed urban area.
(h) The redevelopment of property where desirable by providing flexibility in redesign.

On September 11, 1973, Jack Devore, developer, established the Subdivision by filing a plat for Mission Trace Planned Unit Development.

The Subdivision was designed and developed by Devore, who sold lots for private ownership upon which he or other builders constructed garden homes and cluster homes. The common area is defined as follows by Section 42-7 of the City Code:

Common area shall mean a parcel or parcels of land, or an area of water, or a combination of land and water, and/or developed facilities including but not limited to areas for vehicular and pedestrian access and recreational facilities within the site designated for a planned unit development, and designed and intended for the use or enjoyment of occupants of the planned unit development. Common areas may contain such complimentary structures and improvements as are necessary and appropriate for the benefit and enjoyment of the occupants of the planned unit development.

The common area is all real property within the Subdivision for the common use and enjoyment of all property owners in the Subdivision. Jack Devore organized the Mission Trace Homeowners Association, a non-profit corporation, on October 16, 1972. Devore conveyed the common area to the Association on February 5, 1973. On February 5, 1973 Jack Devore filed an original Declaration of Covenants and Restrictions applicable to all property in the Subdivision, which was subsequently amended on March 6, 1973 and August 20, 1973.

The original Declaration of Covenants and Restrictions provided in part as follows:

Section 1. Owner’s Easements of Enjoyment Every owner shall have a right and easement of enjoyment in and to the Common Area which shall be appurtenant to and shall pass with the title to every Lot, .
Section 3. Parking Rights. Ownership of each Lot shall entitle the owner or owners thereof to the use of not more than two automobile parking spaces, which shall be incorporated in said unit as a two-car garage or a one-car garage and one parking space which shall be as near and convenient to said lot as reasonably possible, together with the right of ingress and egress in and upon said parking area.

Section 42-108(5)(e) of the City Code relating to Planned Unit Developments provides in part as follows:

(e) PARKING REQUIREMENTS. There shall be a minimum of two (2) paved parking spaces with adequate ingress and egress for every dwelling unit in all residential developments. * * * Parking in both residential and nonresidential areas shall be convenient to all dwelling units or other uses and, where appropriate, common driveways, parking areas, walks and steps shall be provided, maintained and lighted for night use.

Appellants, Cornyns, own Lot 10 in the Subdivision, which they purchased from Jack Devore, who constructed a garden home type dwelling unit thereon. They were the first residents of the Subdivision. The Cornyns purchased their property in the Subdivision subject to the original Declaration of Covenants and Restrictions. The driveway from the street in front of the Cornyns’ dwelling unit leads only to the Cornyns’ garage and serves no other dwelling unit. The Cornyns own in fee simple title approximately 13 feet of the driveway abutting their garage.

The Hollemans purchased Lot 39 in the Subdivision in May 1974 from Jack Devore, who had constructed a garden home on the lot. The Hollemans purchased their lot and dwelling subject to the original Declaration of Covenants and Restrictions. The driveway from the street in front of the Holle-mans’ dwelling unit leads only to the Holle-mans’ garage and to no other dwelling unit.

On June 26, 1975 the Board of Directors of the Association adopted a resolution requiring the members of the Association to park their motor vehicles in their garages for overnight storage. The Association filed suit against appellants to enforce the Board of Director’s resolution of June 26, 1975 on November 17, 1975.

On August 20,1976 an amendment to the original Declaration of Covenants and Restrictions was filed in the Deed Records of Bexar County, Texas, which stated in part:

Article II: Article II, Section 3, will hereby be amended to read as follows:
‘Parking Rights: Ownership of each lot shall entitle the owner or owners thereof to not more than two automobile parking spaces which shall be incorporated in the dwelling unit situated upon said lot, together with the right of passage over the driveway to and from said parking spaces.’

A Board of Directors is elected by the Homeowners Association. All individual property owners are members of the Homeowners Association and a Board of Directors is elected by the Association membership. The Association has all powers not reserved to the membership by other provisions of the By-laws, the Articles of Incorporation, or the Declaration of Covenants and Restrictions. Article VII, Section 1, of the By-laws of appellee provides that its Board of Directors shall have power to: “adopt and publish rules and regulations governing the use of the Common Area and facilities, and the personal conduct of the members and their guests thereon, . . .”

Planned Unit Developments, such as Mission Trace, present a relatively new and unique concept in cooperative living because of its mini-government which is empowered pursuant to its Declaration and By-laws to enact rules and regulations.

While it is true that appellants were granted a right and easement of enjoyment in and to the common area at the time they purchased their lots and homes in the Subdivision, it is equally true that their rights are subject to reasonable rules and regulations as adopted by the Board of Directors. See Hoey v. San Antonio Real Estate Board, Inc., 297 S.W.2d 214 (Tex.Civ.App.—San Antonio 1956, no writ).

The question presented is whether the covenant restricting overnight parking of any motor vehicle on driveways leading to garages overnight is reasonable.

All driveways in the Subdivision are part of the common area and subject to the restrictive covenant except for the 13 feet of Cornyns’ driveway. The common area is all real property within the Subdivision which is owned and held by the Association for the common use and enjoyment of all property owners in the Subdivision.

In Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (Fla.Civ.App.—1975), the court upheld the rule of a condominium association forbidding alcoholic beverages in the clubhouse and adjacent common area. The condominium association had similar powers of regulation as does the association in this ease, and the court stated that the test to be applied is one of reasonableness.

If a rule is reasonable the association can adopt it; if not, it cannot. It is not necessary that conduct be so offensive as to constitute a nuisance in order to justify regulation thereof.

Accordingly, the appellate court determined that the rule was reasonable and entered judgment for the condominium association.

In the present case the Board of Directors are authorized to make reasonable rules pertaining to the common area in the Subdivision. Certainly, the Association is not at liberty to adopt arbitrary or capricious rules bearing no relationship to the health, happiness, and enjoyment of life of the various unit owners.

The purposes for which the Association was organized included providing for maintenance, preservation, and architectural control of the residential lots and the common area in the Subdivision; promoting the health, safety, and welfare of the property owners in the Subdivision; and exercising the powers granted by the Declaration of Covenants and Restrictions applicable to the Subdivision. These powers include enforcement of the Covenants and Restrictions in the Declaration.

We hold the Covenant restricting overnight parking is in fact reasonable. Before the adoption of the restrictive regulation, the Board of Directors thoroughly considered aspects of aesthetics, safety, security, and convenience of all the homeowners and thereafter called a special meeting of the members of the Association for the purpose of determining the thoughts of the majority. Appellants received notification of the meeting and were permitted to express their views and vote on the matters submitted. More than two-thirds of the members present voted that the Board of Directors should require all residents of the Subdivision to park their automobiles in garages for overnight storage.

Considering the purposes set out in the Declarationa^and By-lawsT~tKeTnghly restrictive nature of the development, and the considerations taken by the Board before adoption of the restriction, the parking regulation is not unreasonable, arbitrary, or capricious.

In the Findings of Fact and Conclusions of Law, the trial court found that:

The Board of Directors of Plaintiff has diligently and without discrimination endeavored to enforce the resolution and the regulation pertaining to overnight parking of motor vehicles in members’ garages.
The resolution of the Board of Directors of Plaintiff and the regulation pertaining to the overnight storage of motor vehicles in members’ garages are neither arbitrary nor capricious and bear a relationship to the health, safety and welfare of the members of Plaintiff.

Appellants have failed to show that such findings were against the greater weight of the evidence, nor have they shown that the rule was unreasonable as a matter of law.

Mission Trace is a private association which has rules and regulations. Appellants have voluntarily bound themselves to abide by all lawful limitations imposed by appellee’s rules and the court should not interfere with appellee’s reasonable application of those rules.

The resolution of the Board of Directors of the Association, which restricts overnight parking in driveways, does not apply to the Cornyns’ 13 feet of driveway they own in fee simple. The By-laws of Mission Trace Homeowners Association, Article VII, Section 1, provides that the Board of Directors of appellee shall have the power to:

(a) adopt and publish rules and regulations governing the use of the Common Area and facilities, and the personal conduct of the members and their guests thereon, and to establish penalties for the infraction thereof; .

The By-laws authorize the Board of Directors to publish rules and regulations governing the common area, such authority did not extend to that portion of the Cornyns’ driveway which is owned in fee simple.

Use of the driveways within the Subdivision may be regulated and controlled by the Association and its Board of Directors pursuant to the powers set forth in the By-laws.

This finding is reformed to exclude any regulation of the 13 feet of driveway owned by the Cornyns’ in fee simple.

As we view this case, the Board of Directors of the Association has the power to make reasonable rules pertaining to the common areas used as driveways under the original Article II, Section 3, or the amendment to said Section 3, of August 20, 1976. Therefore, it is not necessary to determine the other points raised by appellants.

The judgment of the trial court is reformed as to that 13 feet owned by the Cornyns’ in fee simple. In all other respects the judgment is affirmed. The costs of this appeal are taxed against the appellants.


author: SHANNON, Justice.

text:
    Joseph Charles WINELY, Appellant, v. The STATE of Texas, Appellee.
    No. 12687.
    Court of Civil Appeals of Texas, Austin.
    Oct. 5, 1977.
    Kyle A. Morrow, Austin, for appellant.
    Jim McMurtry, County Atty., Patrick M. Kelly, Asst. County Atty., Austin, for appel-lee.
   SHANNON, Justice.

This is an appeal from the judgment of the county court of Travis County temporarily committing appellant, Joseph Charles Winely, to the Austin State Hospital. On July 5, 1977, Winely was committed by judgment for a period not exceeding ninety days for observation and treatment, if necessary. The judgment recited that Winely was adjudged mentally ill and required “observation and/or treatment” in a mental hospital for his own welfare and protection or the protection of others. After the transcript was filed in this Court, the Austin State Hospital on August 12, 1977, discharged Winely as having received “maximum hospitalization benefits.” Because the appeal is moot, we will grant appellee’s motion and will vacate the judgment of commitment and dismiss the cause.

Appellant attacks the judgment by three points of error, the first being that the county court erred in overruling appellant’s motion for continuance so that he might obtain a court reporter to make a record of the proceedings. The other two points urge this Court to reverse the judgment of the County Court, even in the absence of a statement of facts, upon the basis that there was no evidence to support the judgment or that there was insufficient evidence to support the judgment.

Appellee has filed a motion to dismiss the appeal for mootness.

We are of the opinion that the appeal is moot. After judgment was entered by the trial court and before oral argument in this Court, Winely was discharged from the Austin State Hospital as having received maximum hospitalization benefits. The existence of an actual controversy in a mental commitment case, as in other cases, is essential to the exercise of appellate jurisdiction. If the patient has been released, the appeal is moot. In re Ivey, 534 S.W.2d 163 (Tex.Civ.App.1976, writ ref’d n. r. e.).

Although his commitment terminated on August 12, 1977, Winely urges that this Court pass upon his points of error, particularly point of error one. As reason therefor, Winely argues in part, that the Mental Health Code has not been construed by many cases and the opinion of this Court would be of assistance to the bench and bar. To pass upon Winely’s points of error in the absence of his commitment would constitute the rendition of an advisory opinion on abstract questions of law. The courts have repeatedly held that the judicial power in the Constitution of Texas does not embrace the giving of advisory opinions. Fireman’s Ins. Co. of Newark, New Jersey v. Burch, 442 S.W.2d 331 (Tex.1968); United Services Life Insurance Co. v. Delaney, 396 S.W.2d 855 (Tex.1965); In re Ivey, supra.

Winely urges that his case falls within at least one of the two claimed exceptions to the doctrine of mootness. The first exception is that sometimes courts will decide disputes that might otherwise appear to be moot if the circumstances giving rise to the original controversy are “capable of repetition, yet evading review.” The other exception is the so-called “collateral consequences doctrine.” Both exceptions were examined by this Court in In re Ivey, supra. We are of the view that no reasons exist in this appeal for the application of either of the claimed exceptions to the general mootness rule.

Because the appeal is moot, the judgment of commitment is set aside, and the cause is dismissed.

Dismissed for Want of Jurisdiction.

PHILLIPS, C. J., not participating.


text:
    EDGAR S. DAUGHERTY, DAUGHERTY ENTERPRISES, Appellant, v. Mario MORALES, Appellee.
    No. 5765.
    Court of Civil Appeals of Texas, Waco.
    Oct. 6, 1977.
    Thomas P. de Steiguer, Austin, for appellant.
    Lynn Sanders, Austin, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Daugherty (landlord) from $1890.50 judgment in favor of plaintiff Morales (tenant) in a landlord-tenant case.

Plaintiff Morales sued defendant Daugherty alleging plaintiff rented an apartment from defendant; that at a time when plaintiff was not in default of his rental agreements, defendant wrongfully converted plaintiff’s property located in the apartment, and wrongfully retained plaintiff’s $50. security deposit.

Defendant answered by general denial, and cross acted for rent due, plus certain other damages.

Trial was to the court which found:

1) Defendant’s failure to return plaintiff’s $50. security deposit or provide itemized list of charges was in bad faith under the terms of the Texas Security Deposit Act (Art. 5236e).
2) Plaintiff did not abandon the apartment.
3) Defendant wrongfully seized plaintiff’s belongings from the apartment to plaintiff’s actual damage of $1. per day for loss of use of same; totalling $441.
4) The monthly rent of the apartment was $79.50 per month.
5) At the time of the wrongful seizure plaintiff owed defendant $130. in rent due and unpaid.
6) Defendant’s failure to return plaintiff’s belongings damaged plaintiff $250. exemplary damages plus $250. in attorney’s fees.
7) Plaintiff’s reasonable attorney’s fees in prosecution of the Texas Security Deposit Act violation are $750.

The trial court rendered judgment for plaintiff for $1890.50. 1) Treble $50. security deposit, or $150. plus $100. plus $750. attorney’s fees, (or $1000. for violation of the Texas Security Deposit Act.) 2) One month’s rent of $79.50 less $130. rent owed, plus actual damage of $441. plus exemplary damage of $250. plus $250 attorney’s fees, (or $890.50 for wrongful seizure of plaintiff’s property).

Defendant appeals on 16 points which we treat as 6 contentions.

1) Points 1-6 assert the trial court erred in awarding $1000. damages for asserted violation of the Texas Security Deposit Act.

2) Points 7-8 assert the trial court erred in awarding $441. actual damage for loss of use of plaintiff’s property contending there is no evidence or insufficient evidence to support same.

3) Points 9-10 assert there is no evidence or insufficient evidence to support the finding $130. was due as rent.

4) Points 11-12 assert there is no evidence or insufficient evidence to sustain the finding defendant wrongfully seized plaintiff’s belongings.

5) Points 13-14 complain there is no evidence or insufficient evidence to support $250. exemplary damages and $250. attorney’s fees for defendant’s seizure of plaintiff’s property.

6)Points 15-16 complain of the trial court’s denial of defendant’s damages on his cross-action.

Plaintiff rented an apartment from defendant in June 1975 for $79.50 per month, and made a $50. security deposit. Plaintiff paid the rent for June and July, but did not pay the rent for August. Plaintiff gave defendant a “hold check” for the August rent, and agreed to pay the August and September rent on September 3rd, and receive back the hold check. On September 5th plaintiff had not paid the August and September rent, and on such date telephoned defendant’s wife proposing to pay the rent for August and ½ the rent for September, and then move out. Defendant’s wife gave plaintiff no reply. Plaintiff spent the night of September 5th with a friend, and returned to his apartment on September 6th to find it was empty and that all of his belongings were gone. He learned defendant had taken his belongings and made effort to obtain their return, including having an attorney write defendant demanding their return plus return of the $50. security deposit. Defendant did not return plaintiff’s belongings or the $50. and plaintiff filed this suit.

Contention 1 asserts the trial court erred in awarding damages for defendant’s failure to return plaintiff’s $50. security deposit. Article 5236e VATS provides for such damage against a landlord who in bad faith retains a security deposit.

Here the record is without dispute that plaintiff had given defendant a “hold” check for the August rent under an agreement to pay the August and September rents on September 3rd (and receive the hold check back); and that plaintiff did not pay the August or September rent on September 3rd, or at any time. Under such facts defendant was not in bad faith in not returning the $50. security deposit.

Contentions 2 and 4 assert no evidence or insufficient evidence that defendant wrongfully seized plaintiff’s belongings; that $441. was suffered by plaintiff for loss of use of his belongings; and that plaintiff suffered exemplary damages and attorney’s fees by reason of the wrongful withholding of plaintiff’s property.

Defendant came into the apartment on September 6th and seized plaintiff’s belongings and refused to return them for 441 days. Plaintiff’s property was for the most part exempt from any landlord’s lien. The evidence is ample to sustain the findings as to wrongful seizure and damages for same.

Contention 3 asserts no evidence or insufficient evidence to sustain the finding that $130. in rent was due from plaintiff to defendant, and Contention 6 complains of the trial court’s denial of defendant’s damages on his cross-action. The evidence is ample to sustain the finding plaintiff owed $130. rent and defendant was credited with this amount. Beyond the $130. rents due, the evidence is ample to sustain the trial court’s denial of further damages on defendant’s cross-action.

Points 1 thru 6 are sustained; and 7 thru 15 are overruled. The judgment is reformed to delete recovery of $950. awarded for asserted violation of the Texas Security Deposit Act ($1000. less $50. security deposit which has not been repaid); recovery of the $890.50 damages for wrongful seizure of plaintiff’s property is affirmed; and as reformed is affirmed in the amount of $940.50 plus interest from January 25,1977.

Costs of appeal are taxed ½ each against the parties.

REFORMED and AFFIRMED.