author: HALL, Justice.

text:
    RICHARD H. SIKES, INC., Appellant, v. L & N CONSULTANTS, INC., Appellee.
    No. 5997.
    Court of Civil Appeals of Texas, Waco.
    Sept. 13, 1979.
    Rehearing Denied Oct. 4, 1979.

      James K. Peden, III, David K. Meyercord, Strasburger & Price, Dallas, for appellant.
    Larry M. Lesh, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellee.
   HALL, Justice.

On August 25, 1972, Lomas & Nettleton Financial Corporation loaned $2,314,645.00 to First National Development Company. The money was used by First National, as intended by the parties, to acquire 34.86 acres located in the City of Dallas and to develop the land into lots for the construction of 250 townhouses to be known as Preston Square. The loan was evidenced by First National’s promissory note dated August 25, 1972; and it was secured by First National’s deed of trust-which was recorded on August 28, 1972. The trust deed conveyed the 34.86 acres which would be developed into the 250 townhouse lots; and it recited that in addition to the note of August 25, 1972, it secured “all other indebtedness, of whatever kind or character, owing or which may hereafter become owing” by First National to Lomas & Nettle-ton. At the time of the acquisition and development loan on August 25, 1972, First National and Lomas & Nettleton contemplated a future loan to finance construction of the initial 36 townhouses. This was accomplished on November 30, 1973, when Lomas & Nettleton loaned $1,700,000.00 to First National for that purpose. The loan was evidenced by First National’s promissory note bearing that date. Under those facts — the dragnet clause in the deed of trust of August 25, 1972, and the contemplated future loan at that time and its later fulfillment — the indebtedness evidenced by the November 30, 1973, promissory note was also secured by the August 25, 1972, deed of trust. Moss v. Hipp, (Tex.1965) 387 S.W.2d 656, 658.

First National also executed a deed of trust securing the November 30, 1973, note, which created a lien on the 36 townhouse lots. The deed of trust was recorded December 7, 1973. It provided in part as follows: “To the extent the proceeds of the note are used to pay any outstanding lien, charge or prior encumbrance against the herein described premises, such proceeds have been advanced by beneficiary at grantor’s request; and beneficiary shall be subrogated to any and all rights or liens owned or granted by any owner or holder of such outstanding liens, charges and prior encumbrances, irrespective of whether said liens, charges or encumbrances are released of record.” Lomas & Nettleton advanced $369,000.00 of the proceeds of the November 30, 1973, note to First National in reduction of the loan of August 25,1972; and it released from the August 25, 1972, deed of trust lien the 36 townhouse lots which were covered by the November 30, 1973, deed of trust. Under those circumstances, Lomas & Nettleton, the beneficiary under both trust deeds, became subrogated under the November 30, 1973, deed of trust to the August 25, 1972, deed of trust lien. Providence Institution For Savings v. Sims, (Tex.1969) 441 S.W.2d 516, 519.

In September, 1975, Lomas & Nettleton assigned both notes and deeds of trust to defendant-appellant L & N Consultants, Inc.

On August 25, 1972, the day that First National executed its promissory note to Lomas & Nettleton for the acquisition and development loan and the deed of trust securing the loan, plaintiff-appellant Richard H. Sikes, Inc., and First National entered into a written contract under which plaintiff, as general contractor, would construct the initial 36 townhouses in Preston Square for First National. The contract was not recorded in the Mechanic’s Lien Records; and plaintiff did not take any action under the contract toward construction of the townhouses until November, 1972. Therefore, under the provisions of section 2 of Article 5459, Vernon’s Tex.Civ. St., plaintiff’s mechanic’s lien incepted in November, 1972, which was of course after the deed of trust securing the acquisition and development loan was recorded on August 28, 1972.

Plaintiff completed its work under the contract in August, 1975; and in September, 1975, it recorded its mechanic’s and materialman’s lien in the amount of $83,-197.65. Following default by First National on the promissory notes, defendant foreclosed its liens; and on October 7, 1975, defendant purchased the 36 lots at foreclosure sale under the November 30, 1973, deed of trust for $350,000.00 and the remaining acreage at foreclosure sale under the August 25, 1972, deed of trust for $1,300,000.00.

Plaintiff brought this suit against defendant to enforce its mechanic’s and mate-rialman’s lien against the property. Particularly, plaintiff pleaded for enforcement of its lien against improvements “which can be removed without material injury to the land or [remaining] improvements or to the improvements removed.” Defendant answered with a general denial and several special denials, and a counterclaim for expenses allegedly incurred by it to repair and complete defective workmanship by plaintiff. Defendant also alleged that plaintiff’s lien was extinguished by the foreclosure sales under the deeds of trust, that plaintiff’s recorded lien constituted an invalid cloud upon the title to the land, and that the lien should be cancelled and set aside.

After depositions had been taken and filed, defendant moved for summary judgment on the pleadings, the depositions, and the motion and its supporting affidavit. Plaintiff filed a controverting affidavit. After hearing, the motion was granted and judgment was rendered canceling and setting aside plaintiff’s lien and decreeing that plaintiff take nothing.

Defendant’s motion set forth these grounds for the summary judgment: (1) Plaintiff’s lien for labor and materials was subsequent and inferior to defendant’s deed of trust liens, and it was therefore extinguished by the foreclosure sales under the deeds of trust; and (2) under the record the lien was invalid and unenforceable because (a) a part of the labor and materials for which the lien was claimed were furnished by persons and corporations other than plaintiff and were not paid for by plaintiff, and (b) the remainder of the labor and materials for which the lien was claimed were expended by plaintiff on the construction and paving of a public street which does not abut the premises covered by the lien. We hold the record does not support the judgment on those grounds.

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

Article XVI, Sec. 37, Vernon’s Tex.Const., gives mechanics, artisans and materialmen of every class a lien on buildings and articles on which they labor or for which they furnish materials, and specifies that the Legislature shall provide by law for the speedy and efficient enforcement of the lien. The lien granted therein is self-executing as between the owner and the laborers and materialmen who contract dj-rectly with the owner, without need of any legislative act. First National Bank in Dallas v. Whirlpool Corp., (Tex.1975) 517 S.W.2d 262, 267; Hayek v. Western Steel Co., (Tex.1972) 478 S.W.2d 786, 789; Strang v. Pray, 89 Tex. 525, 35 S.W. 1054, 1056 (1896). Pursuant to the mandate set forth therein, the Legislature has enacted Articles 5452 et seq., Vernon’s Tex.Civ.St., prescribing the lien and providing for the securing, priority, and enforcement of the lien. Section 1 of Article 5459, dealing with attachment and enforcement of the lien, reads as follows:

“Section 1. The lien herein provided for shall attach to the house, building, improvements or railroad for which they were furnished or the work was done, in preference to any prior lien or encumbrance or mortgage upon the land upon which the houses, buildings or improvements, or railroad have been put, or labor performed, and the person enforcing the same may have such house, building or improvement, or any piece of the railroad property, sold separately; provided, any lien, encumbrance or mortgage on the land or improvement at the time of inception of the lien herein provided for shall not be affected thereby, and holders of such liens need not be made parties in suits to foreclose liens herein provided for.”

Under the terms of the statute, it is now settled that a deed of trust lien existing upon the land prior to the time of inception of the mechanic’s lien does not become subordinate to the mechanic’s lien; that foreclosure sale of the senior lien extinguishes the junior lien on the land and all improvements except improvements which can be removed without material injury to the land and pre-existing improvements or the improvements removed; that the mechanic’s lien is superior to the prior deed of trust lien on the removals; and that the removals may be foreclosed on and sold to satisfy the mechanic’s lien. Diversified Mortgage Investors v. Lloyd D. Blaylock General Contractor, Inc. (Tex.1978) 576 S.W.2d 794, 806; First National Bank in Dallas v. Whirlpool Corp. (Tex.1975) 517 S.W.2d 262, 269; Houk Air Conditioning, Inc. v. Mortgage & Trust, Inc., 517 S.W.2d 593, 595 (Tex.Civ.App.—Waco 1975, no writ).

The record in our case shows without contradiction that there were improvements furnished and installed by plaintiff’s subcontractors in the form of carpets, appliances, components of the air conditioning and heating equipment, smoke detectors, burglar alarms, light fixtures, and locks on doors, which fit within the removals rule. Accordingly, if those items were properly available to plaintiff for satisfaction of its lien, then plaintiff’s lien thereon was superior to the prior deed of trust liens and was not extinguished by the foreclosure sales under the trust deeds.

The work directly performed by plaintiff in the construction of the townhouses was a large portion of the carpentry, all of the cleaning up, part of the concrete work, and the sidewalks and other flatwork. The balance of the work, including the furnishing and installation of the removals enumerated above, was performed by plaintiff’s subcontractors. Additionally, during the course of the construction of the townhouses and as a part of that contract First National orally requested that plaintiff construct a public street known as Noel Road and agreed to pay plaintiff for the work. The 250 townhouse lots of Preston Square abut and are surrounded by a public street known as Montego Plaza which is the only access to the lots. We interpret the record to show that Montego Plaza was constructed as a part of the original development of the lots. Noel Road extends 3,300 feet from Montego Plaza to LBJ Freeway in Dallas, and is the only public access to Mon-tego Plaza. Noel Road was constructed by plaintiff through its subcontractor at the cost of $82,000.00. Plaintiff paid the subcontractor in full and has been reimbursed for all but $35,777.87 which is still owed to plaintiff by First National for the road construction.

Plaintiff alleged that when it completed the contract, First National owed plaintiff a balance of $205,723.78 for the labor and materials furnished by plaintiff for construction of the improvements. This balance due was reiterated in plaintiff’s controverting affidavit to defendant’s motion for summary judgment.

When plaintiff filed this suit it owed its subcontractors the sum of $47,419.78. After the suit was filed, First National paid two of the subcontractors and plaintiff paid four others, but plaintiff still owes its subcontractors $35,915.65. This debt includes $503.77 to a hardware company, $13,137.56 and $430.04 to two carpet companies, $4,452.50 to a smoke detector and burglar alarm company, and $5,140.52 to an air conditioning company, all incurred in part for the purchase of some of the removals claimed by plaintiff. The remainder of the debt is for improvements that cannot be removed. One of the carpet suppliers has filed a lien and it has also filed suit against plaintiff, but it has not filed suit to foreclose its lien. The supplier of the smoke detectors and burglar alarms has also filed suit against plaintiff. Additionally, plaintiff has given its note for $6,615.32 to a concrete company for foundation work which is included in the sum owed to the subcontractors. Except for the $35,915.65 balance, all of the subcontractors have been paid in full.

During the deposition of plaintiff’s president, he was asked by defendant’s counsel, “What makes up the balance of the $83,-197.65 lien claim?” Plaintiff’s counsel interrupted to say, “Let me clarify something there. You are just talking about how he calculated [the amount of the lien].” Defendant’s counsel responded, “Right.” Plaintiff’s counsel then said, “Let me clarify that’s not the amount he claims is due under the contract. That’s just how he calculated [the amount of lien].” Defendant’s counsel responded, “All right, we will get to that.” Then, plaintiff’s president continued by stating that the amount of the lien was reached by plaintiff by adding the $47,419.78 it then owed to its subcontractors and the $35,777.87 balance owed to plaintiff for the construction of Noel Road.

Defendant contends that plaintiff’s lien is invalid because (1) it is based in part upon the construction of Noel Road which, not abutting the premises upon which the lien is attached, is not an improvement to the premises for lien purposes within the meaning of section 1 of Article 5452, which defines “improvement” to include inter alia “abutting sidewalks and streets”; and because (2) it is based upon debts to subcontractors which have not been paid. Even if we should agree with defendant that those items will not support plaintiff’s lien, the defense is factually incomplete under the record and therefore will not support the summary judgment. The facts set forth above show that plaintiff merely used the amounts of those items in calculating the sum it would claim as its lien, and that its lien is not based solely thereon. Rather, plaintiff’s lien is based upon the unpaid balance of its contract in the amount of $205,723.78. The deduction of the above items (now totaling $71,693.52) from the amount due plaintiff under the contract still leaves the balance of $134,030.26 upon which the lien is based. Defendant cannot claim invalidity merely because plaintiff chose to perfect its lien for $83,197.65, whatever the method of calculation. For this reason, we need not decide and do not decide whether Noel Road was an improvement within the statute.

Defendant also asserts that plaintiff’s lien does not attach to the removals because those improvements were placed there by others, that is, by plaintiff’s subcontractors; and that, in any event, plaintiff should not be permitted to foreclose its lien against the removals because it has not paid the subcontractors in full. The second contention assumes that the proof establishes as a matter of law that there are no removals within the project for which the suppliers and laborers have not been paid, but the record does not support that proposition. Consequently, if the contention were legally correct, it is based upon an unresolved fact question and for that reason alone would fail in this summary judgment case. However, for the reasons that follow, we hold that both contentions are unsound as a matter of law.

Article 5452 provides in part as follows:

“1. Any person or firm, lumber dealer or corporation, artisan, laborer, mechanic or subcontractor who may labor, specifically fabricate material, or furnish labor or material: (a) for the construction or repair of any house, building or improvement whatever; . . . within this state under or by virtue of a contract with the owner, owners, or his or their agent, trustee, receiver, contractor, contractors, or with any subcontractor; upon complying with the provisions of this Chapter shall have á lien on such house, building, fixtures, improvements . and shall have a lien on the lot or lots of land necessarily connected therewith . to secure payment: (a) for the labor done or material furnished or both for such construction or repair .
“2. For the purposes of this Act, the following definitions shall apply:
“a. Labor is to be construed to mean labor used in the direct prosecution of the work.
“b. The words ‘material,’ ‘furnish material,’ or ‘material furnished’ as used in this Act are to be construed to mean any part or all of the following:
“(1) Material, machinery, fixtures or tools incorporated in the work, or consumed in the direct prosecution of the work, or ordered and delivered for such incorporation or such consumption.”

It is clear under the statute that a perfected mechanic’s and materialman’s lien extends to all of the improvements without regard to who placed them there. The cases so hold. See, Wilson v. Hinton, 131 Tex. 593, 116 S.W.2d 365, 367 (1938); Wallace Gin Co. v. Burton-Lingo Co., 104 S.W.2d 891, 892 (Tex.Civ.App.—Austin 1937, no writ). Therefore, plaintiff’s lien for labor and materials directly contributed by it would cover all of the improvements. Additionally, the labor, and materials of plaintiff’s subcontractors were actually furnished to First National by plaintiff under contract with plaintiff, and not by the subcontractors, and under the statute plaintiff’s lien attached to the resulting improvements.

Finally, without detailing the statutes, we believe it is implicit in Articles 5453, 5454, 5463, and 5469 that the general contractor who through subcontractors makes improvements under contract with the owner is entitled to foreclose his lien on all of the improvements whether or not the subcontractors have been paid. The owner is not in contractual privity with the subcontractors, and he is not personally liable to them for their labor and materials. The original contractor is liable. If the subcontractors do not perfect their liens under the statutes, they may not look to the owner for payment, but the contractor remains liable to them. If the subcontractors do not perfect liens for payment and the- contractor is not permitted a lien and its foreclosure on their improvements simply because they have not been paid, then the owner receives the improvements unencumbered by a lien for their payment, and the contractor may only look to the personal financial ability of the owner for funds for payment of the subcontractors. An interpretation of the statutes to that effect would encourage the owner not to pay the contractor for the improvements, penalize the contractor having financial difficulty resulting from the owner’s failure to pay, and expose the contractor to lawsuits by his subcontractors (like those against plaintiff, here) and thus deny protection of the lien to the party most in need of it. On the other hand, allowing the contractor’s lien to extend to the improvements (including removals) furnished by his unpaid subcontractors does not expose the owner (or his successor in interest) to an unwarranted risk of double liability. In the event of suit against the owner by a subcontractor with a perfected lien, the contractor must defend the suit at his own expense under the provisions of Article 5463, and the owner is granted protection against double payment under the statute. If the contractor brings the suit, the subcontractors may be brought in as additional parties under the provisions of Rule 39 Vernon’s Tex.Civ.St. Under the provisions of Article 5472e, all funds paid to the contractor under his lien based on the improvements made by his subcontractors are trust funds held by him for the benefit of the subcontractors; and the contractor is subject to penal sanctions for a violation of the trust.

The judgment is reversed, and this case is remanded for trial.


source: Caselaw Access Project

author: DICKENSON, Justice.

license: Public Domain

text:
    David FRIEDMAN et al., Appellants, v. Robert OLSON, Appellee.
    No. 5264.
    Court of Civil Appeals of Texas, Eastland.
    Sept. 13, 1979.
    Rehearing Denied Oct. 4, 1979.
    Toby L. Gerber, Berman, Fichtner & Mitchell, Dallas, for appellants.
    Ernest E. Figari, Jr., Hewett, Johnson, Swanson & Barbee, Dallas, for appellee.
    Fred M. Kuehne, III pro se.
   DICKENSON, Justice.

David Friedman and Martin Shaffer sought an accounting and other relief from Robert Olson in connection with a real estate joint venture. Based upon the jury’s verdict that Friedman and Shaffer had abandoned the joint venture, were estopped from claiming an interest in the joint venture, and were in default under the terms of the joint venture agreement, judgment was rendered that they take nothing from Olson. They appeal. We affirm.

Robert Olson has perfected a cross-appeal from the trial court’s action in sustaining Friedman and Shaffer’s exceptions to his counterclaim for fraudulent concealment of material facts and in excluding evidence offered in support of the counterclaim. We reverse the trial court’s judgment insofar as it denied the counterclaim for fraud, severing and remanding that cause of action.

BACKGROUND

Friedman, Shaffer, Olson and one other joint venturer, Fred M. Kuehne, III, signed the “Agreement of Chateau Joint Venture” which is dated February 4, 1974, concerning the Chateau Apartments which they purchased in the name of Fred M. Kuehne, III, Trustee. The agreement provided that Olson and Shaffer would each make an initial contribution of $20,000 and that the other two venturers would not be required to make any initial contributions. Subsequent contributions were to be made by the four venturers on the basis of 25% each for the payment of all costs and expenses in the operation and maintenance of the venture property. Failure of a joint venturer to make his contribution was an “event of default” which gave the nondefaulting ven-turers the right to acquire his interest at “the lower of” fair market value or the total cash investment of the defaulting ven-turer, as of the date of default.

The apartment house was in a “distress situation” when it was acquired by the four joint venturers. It continued to lose money in 1974 and 1975, requiring additional contributions of capital. Effective July 18, 1975, Kuehne resigned from the venture. Olson became the “de facto” manager of the venture, keeping the books and paying the bills. The jury found that Friedman and Shaffer were estopped to make any objection to Olson’s assumption of the position of manager. The jury also found that Shaffer defaulted on his obligations under the agreement on June 20, 1975, and that Friedman defaulted on September 24, 1975. At that time, the venture was losing money, and Olson made all of the capital contributions which were required. There was evidence the liabilities exceeded the value of the assets. On September 29, 1975, Friedman and Shaffer told Olson they were not going to “pour anymore money into this rathole.” Shaffer wrote a letter to Olson confirming that conversation and stating that he would “give up to you any interest I have in Chateau Apartments.” The apartments began to make money after Olson completed the renovation in 1976, and then Friedman and Shaffer asserted a claim to the apartments, seeking an accounting and other relief.

After the joint venture agreement was ^executed, Olson learned that Friedman and Shaffer had made a side agreement that they would split the $20,000 original contribution which Shaffer was obligated to make. Olson also learned that Friedman and Shaffer had been convicted in federal court of making false statements to a governmental agency in connection with previous real estate activities; that they had been convicted of making false oaths in connection with bankruptcy proceedings; that both had served penitentiary sentences in connection with those convictions; and that both of them had previously taken bankruptcy. He learned that they were not “successful and capable real estate operators with a prior successful business history,” which they had represented to him in connection with getting him to enter the joint venture agreement with them.

APPEAL BY FRIEDMAN AND SHAFFER

Friedman and Shaffer have briefed seven points of error. The first point argues that the trial court erred in overruling their motion for judgment and in failing .to enforce the venture agreement’s provisions for dissolution. We disagree. The jury’s finding that they are es-topped to claim any interest in the Chateau Joint Venture bars their recovery. The second point argues that the trial court erred in refusing to submit their requested special issues. We disagree. Those issues become immaterial in view of the jury’s finding that they are estopped to claim any interest in the venture. Moreover, their requested issues were not controlling issues within the meaning of Tex.R.Civ.P. 279. The third point contends the trial court erred in divesting their ownership rights in the real estate owned by the venture because they could not abandon or be es-topped to claim their interest in the real estate. We need not discuss the question of “abandonment” of their undivided interest in the equitable title to the apartment house complex in view of the jury’s finding of estoppel. A party can be estopped to claim an interest in real estate. See “Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934, at 937 (Tex.1972); Burnett v. Atteberry, 105 Tex. 119, 145 S.W. 582, at 587 (1912); Farmer v. Thompson, 289 S.W.2d 351, at 356 (Tex.Civ.App.—Fort Worth 1956, writ ref’d n. r. e.); 4 Tiffany, Real Property § 1235 (3d ed. 1939); 22 Tex.Jur.2d, Estoppel § 4 (1961).

The fourth point argues that the trial court erred in its submission of the issue on abandonment. This was an independent ground of recovery which we need not discuss in view of the jury’s finding of estop-pel.

The fifth point contends the trial court erred in its submission of the issues on estoppel. We disagree. The trial court defined estoppel as follows:

“Estoppel” means the effect of the voluntary conduct of any person whereby said person is precluded from asserting rights against another person who relies on said conduct; and it arises where any person, by his acts, statements, admissions, or silence when it is his duty to speak, intentionally or through culpable negligence, induces another to believe that certain facts exist, and the other person rightfully relies and acts on said belief, and who will be prejudiced if the former is permitted to deny the existence of said facts.

Following that definition, the jury was asked to find whether Friedman and Shaffer were estopped to claim any interest in the Chateau Joint Venture. They argue that each element of estoppel should be submitted in a separate issue. We disagree. Tex.R.Civ.P. 277 now permits a combination of elements or issues.

The other points of error presented by Friedman and Shaffer have been considered, and they are overruled.

CROSS-APPEAL BY OLSON

Robert Olson contends that the trial court erred in sustaining the exceptions to his counterclaim against Friedman and Shaffer. We agree. We must accept as true all of the allegations contained in that counterclaim for the purpose of testing its sufficiency. Connally v. Continental Southland Savings & Loan Ass’n, 121 Tex. 565, 51 S.W.2d 293 (Com.App.1932, opinion adopted); Farias v. Besteiro, 453 S.W.2d 314 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d n. r. e.). Concerning fraudulent misrepresentation, see Oilwell Division, United States Steel Corporation v. Fryer, 493 S.W.2d 487, at 491 (Tex.1973) and Tex. Bus. & Com.Code Ann. § 27.01 (1968).

That portion of the judgment which denied Robert Olson’s counterclaim for fraud is reversed, and that counterclaim is severed and remanded. The remainder of the judgment is affirmed.


author: CLAYTON, Justice.

text:
    James HARTMAN et al., Appellants, v. HARDIN MEMORIAL HOSPITAL et al., Appellees.
    No. 8145.
    Court of Civil Appeals of Texas, Beaumont.
    June 22, 1978.
    Harry S. Jones, Bellaire, for appellants.
    Paul J. Holmes, James W. Mehaffy, Jr., Beaumont, for appellees.
   CLAYTON, Justice.

Plaintiffs below brought this suit to recover damages from Hardin Memorial Hospital, Hardin County Hospital Authority, and the County of Hardin for an injury sustained by James Hartman, Jr., resulting from an injection administered by an employee of the hospital. Summary judgment was granted for defendants based on the doctrine of governmental immunity, and plaintiffs have appealed from such judgment.

By deposition testimony, the mother testified that her minor child, two years of age at the time of the incident about which complaint is made, had been taken into the defendant hospital on Sunday, April 30, 1972; that at such time the child had a throat infection and “had it since about eight months off and on.” She had carried the child to the emergency room of the hospital and contacted the doctor who had been treating the child on previous occasions. Upon being asked if the child was “docile, sleepy or crying or how was the child behaving” she replied, “[H]e was fine. He may have had a little fever.” She thought the child “had a virus and that is why I carried him over to her [the doctor].” She asked the doctor if she should “go ahead and contact the throat specialist for him to have his tonsils out. He had been sick quite a bit with them.” The doctor apparently agreed and then prescribed an injection for the child at that time. The doctor then left, and a nurse came in and administered the injection. While giving this injection, the mother testified, that “she [the nurse] bent the needle off in his hip.”

The summary judgment was granted by the trial court upon “finding that the defendant is a non-profit hospital district organized under the laws of the State of Texas, and, as such, is immune from liability in this case by virtue of the doctrine of governmental immunity . . ..”

Plaintiff filed this suit under the provisions of the Texas Tort Claims Act, Tex.Rev.Civ.Stat.Ann. art. 6252-19, § 3, et seq. (1970), as amended (Supp.1978).

Plaintiffs have appealed the summary judgment on one point or error in which they contend that the Tort Claims Act waives governmental immunity in this case.

See. 3 of the Tort Claims Act provides in part as follows:

“Each unit of government in the state shall be liable for death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable . . . .”

The summary judgment proof in the record before us clearly shows the defendant hospital is a publicly owned hospital and that the waiver of governmental immunity provided by the Tort Claims Act applies to it. See Overton Memorial Hospital v. McGuire, 518 S.W.2d 528 (Tex.1975) (per curiam). The needle involved in our case is “tangible property” within the meaning of Sec. 3 of the Act, and plaintiff has alleged an injury caused by the “condition or use” of such property. See Lowe v. Texas Tech. University, 540 S.W.2d 297 (Tex.1976); Overton Memorial Hospital v. McGuire, supra; Mokry v. University of Texas Health Science Center, 529 S.W.2d 802 (Tex.Civ.App.—Dallas 1975, writ ref’d n. r. e.).

Defendants’ contention in their brief is that Sec. 14(8) of the Act provides an exception to the waiver of governmental immunity in the factual situation in this case. This section provides that the Act does not apply to:

“(8) Any claim arising out of the action of an officer, agent, or employee while responding to emergency calls or reacting to emergency situations when such action is in compliance with the laws and ordinances applicable to emergency action.”

The facts stated above merely show that the nurse, whose acts give rise to plaintiffs’ cause of action, administered an injection to the minor child. There are no facts in this record showing that an emergency existed or that such an injection was administered in an emergency situation. The mere fact that the injection was administered on a Sunday in the emergency room does not, of itself, establish that the same was done in an emergency situation. The facts of this record do not establish as a matter of law an emergency situation and do not show that the acts of the nurse were committed while “reacting to emergency situations” within the meaning of Sec. 14(8) of the Tort Claims Act.

The trial court’s action in granting defendants’ motion for summary judgment was in error, and the judgment is reversed, and the case is remanded for a trial upon its merits.

REVERSED and REMANDED.


author: KEITH, Justice.

text:
    M. B. DENTON et al., Appellants, v. CITY OF AUSTIN, Appellee.
    No. 8307.
    Court of Civil Appeals of Texas, Beaumont.
    July 12, 1979.
    Rehearing Denied Aug. 29, 1979.

      Barr McClellan, Austin, for appellants. Jerry L. Harris, Sheila Finneran, J. Pat Bond, Austin, for appellee.
   KEITH, Justice.

Plaintiffs appeal from an order which denied the temporary injunction which was sought to restrain the defendant City from suspending Denton’s master electrician’s license. The denial was based upon a finding in the judgment that the plaintiff had “failed to show a probable right which would entitle them to a temporary injunction.”

However, the court did order the status quo to be maintained and continued in effect a restraining order theretofore entered forbidding City from suspending the license pending perfection of the appeal. Having perfected his appeal to the Court of Civil Appeals for the Third Supreme Judicial District at Austin, that court granted plaintiff’s motion to extend the restraining order pending the determination of the appeal. The case reaches our docket upon transfer by the Supreme Court of Texas.

Factual Statement

Appellant was licensed originally as a master electrician by City in 1971, and such license had been renewed annually by payment of a fee. At all times material to this suit, plaintiff was engaged in the business of an electrical contractor doing both residential and commercial work under his corporate name. Under the Electrical Code of the City of Austin, no electrical work could be done commercially by any entity except one under the guidance of a master electrician. Plaintiff’s license permitted his company to engage in such activities.

His company employed twelve electricians, all of whom were licensed, and his monthly payroll was between twelve and fifteen thousand dollars on a gross volume of thirty-five to fifty thousand dollars a month.

On July 27,1978, the Clerk of the Municipal Court of the City of Austin wrote a letter to plaintiff advising that he had been charged by complaint filed in such court with the offense of “VIOLATION OF ELECTRIC CODE” and the hearing would be held in such court on August 4,1978, and that he should be present.

Plaintiff learned, when he appeared in court, that it was charged that on July 21, 1978, he had violated the code, the material provisions of the complaint being set out in the margin. Although accompanied by counsel, plaintiff pleaded guilty to such charge and paid the fine assessed by the court, $13.50.

On September 19, 1978, he received a letter from the City’s Director, Building Inspection Department, informing him that because of his conviction in the Municipal Court, noted earlier, “your master electrician’s license previously issued to you by the City of Austin Building Inspection Department has been automatically suspended for six months, effective August 15, 1978.”

No hearing was had by any agency of the City except the criminal proceedings in the Municipal Court. Suit was filed almost immediately after receipt of notification of suspension of the license, but the order of suspension has been held in obeyance by court order so that plaintiff is, insofar as we know, still in business.

We quote in the margin the operative language of the provision upon which City relies for the “automatic suspension.”

Opinion

Although plaintiff was not licensed to practice one of the learned professions, his privilege to engage in the work of a master electrician in the City of Austin, once acquired, was a right protected by the due process clause of the state and federal constitutions. House of Tobacco, Inc. v. Calvert, 394 S.W.2d 654, 657 (Tex.1965), and cases therein cited. Once the privilege is granted, it cannot be taken away “except for good cause,” since the licensee’s very existence depends upon the license. Id.

As noted in House of Tobacco, being “entitled to due process of law, [he] was denied such, since the order forfeiting his permit was a final one.” Id.

The Electrical Ordinance is printed in a booklet form which contains more than forty pages of fine print, much of which is technical in nature. The suspension provision relied upon by City does not provide for notice or hearing before suspension of the license, nor does it provide for an appeal from an order of suspension.

Plaintiff argues, and with persuasiveness and cogency, that such ordinance runs afoul of the constitutional requirements of due process as laid down in House of Tobacco, supra, and Industrial Accident Board v. O’Dowd, 157 Tex. 432, 303 S.W.2d 763, 766 (1957). Under the rationale of Francisco v. Board of Dental Examiners, 149 S.W.2d 619, 622 (Tex.Civ.App.—Austin 1941, writ ref’d), plaintiff was entitled to notice of a hearing to revoke his license. As said in Francisco :

“No character of notice, hearing or review of the order of revocation is provided. The order operates instanter, and the licensee is at once deprived of the right lawfully to practice his profession.”

To the extent that the ordinance in question authorizes the suspension of a license without notice, it contravenes the rules noted herein and is invalid.

This being an appeal from an order denying a temporary injunction, we are cognizant of the restricted authority granted to this court in reviewing the trial court’s action. See Davis v. Huey, 571 S.W.2d 859, 861-862 (Tex.1978):

“Appellate review of an order granting or denying a temporary injunction is strictly limited to determination of whether there has been a clear abuse of discretion by the trial court in granting or denying the interlocutory order.”

Unlike the fact situation facing the Court in Zmotony v. Phillips, 529 S.W.2d 760 (Tex.1975), the facts in the case at bar are undisputed and it is admitted, at least tacitly, that plaintiff will suffer irreparable damage if the temporary injunction is denied. Indeed, both the trial court and the Third Court of Civil Appeals have so held in this case, and we concur.

Following the precedent set in House of Tobacco, supra, and pursuant to Tex.R.Civ.P. 434, we render the judgment which the trial court should have rendered: That a temporary injunction be issued as prayed for by plaintiff’s petition. Plaintiff’s bond filed in connection with the temporary restraining order is continued in effect as a temporary injunction bond until the entry of a final judgment in the cause below.

Out of an abundance of caution, and in order to protect fully the rights of the plaintiff, we also order that the temporary injunction entered by the Third Court of Civil Appeals shall remain in full force and effect until dissolved or set aside by some court of competent jurisdiction.

Reversed and temporary injunction granted.

      . The license was issued to Denton, individually, but was used in the conduct of his business conducted under the name of M. B. Denton Electric, Inc., of which he was the sole stockholder. Throughout the opinion we will speak only of Denton, individually, as the plaintiff.

      . It was charged that plaintiff “did knowingly employ a person to perform work at 500 West Ben White Boulevard, therein situated, as a journeyman electrician when said person was not licensed as a journeyman electrician, contrary to Section 37-35(g), Section 37-1 and Section 37-20 of the Austin City Code, 1967 as amended.”

      . Section 37-37 of the Electrical Ordinance reads in part:
      “(a) The license of any person shall be automatically suspended upon final conviction of any of the following offenses:

      “(3) Employing as a master, journeyman or apprentice electrician any person not then licensed as provided in this chapter.
      “(b) The suspension provided for in this section shall in the first instance be for a period of six months.”

      . In some instances, other codes are included by reference. Thus, Section 37-3 requires that all electrical work “be done in accordance with the National Electrical Code and the National Electrical Safety Code,” neither of which are included in the ordinance except by reference.


text:
    COUNTY OF HARRISON, Appellant, v. Hestwood CLAYTON and Lilly Clayton, Individually and as Co-Executors of the Estate of Rupert Clayton, et al., Appellees.
    No. 8297.
    Court of Civil Appeals of Texas, Beaumont.
    July 12, 1979.
    Rehearing Denied Aug. 16, 1979.
    Richard M. Anderson, Marshall, Craig Porter, San Angelo, for appellant.
    R. James George, Jr., Austin, D. P. Hathaway, O. L. Parish, Jr., Ernest J. Grind-staff, Ballinger, for appellees.
   KEITH, Justice.

Plaintiff below appeals from a summary judgment entered in its action in trespass to try title to certain school lands situated in Runnels County. We affirm.

Plaintiff sought to establish superior title to two tracts of land situated in Runnels County. One tract consisting of 368 acres has been occupied by the defendant family since about 1907, while the other, consisting of approximately 586 acres, has been occupied by another defendant family for almost as long. Plaintiff claims such land constitutes a part of its school land which it received from the State in 1858.

Plaintiff’s school land was surveyed by one McDonald in 1852, and its patent is based upon his field notes. Defendants’ tracts lie to the north and the east of the land described in plaintiff’s field notes which it has occupied and has had under fence since at least 1916.

From the Commissioners Court records of Harrison County, it appears that between 1852 and about 1900, there were disputes between Harrison County and its neighbors over the exact location of its tract of land in Runnels County. It was shown by certified copies of minutes that Harrison County entered an order in 1914 establishing its boundaries in accordance with a survey of the land made by its surveyor, Cook, in 1903. This order authorized the county judge to execute a boundary agreement with adjacent landowners, including defendants’ predecessors in title, so as to establish the boundaries to its school land upon the ground. This agreement was executed and recorded in the deed records of Runnels County in 1914 and all parties, according to our record, lived peaceably under its terms until the filing of this suit in 1977 — some sixty-four years.

Defendants moved for summary judgment and attached to their motion the minutes of the Commissioners Court, the boundary agreement, the Cook survey, an affidavit of one who helped build the fences along the agreed boundaries, and proof of occupancy for many years.

Plaintiff appeals upon a single “Malooly” point of error. It contends that there were various fact issues presented in the pleadings and the affidavits precluding the trial court action granting the motion for summary judgment. The usual array of cases is cited in support of such contention and it argues that there were fact issues presented, e. g., “The Location of the Stone Mound”, referring to a mound mentioned in McDonald’s original survey in 1852. In its presentation, plaintiff studiously avoids meeting the issue presented by the defendants, i. e., the validity and binding effect of the 1914 boundary settlement.

Instead of facing such issue, plaintiff seems to dance around the doctrine of collateral attack and attempts to pole vault to a reversal without a pole.

We start with the fundamental principle that under our constitution, the Commissioners Court of Harrison County had full, plenary, and exclusive jurisdiction to deal with the county’s school land. Tex. Const. art. V, § 18. It has long been the law that under this constitutional provision, commissioners courts acting within the sphere of their authority are regarded as courts of general jurisdiction. Williams v. Castleman, 112 Tex. 193, 247 S.W. 263, 268 (1922).

Indeed, as was held in Yoakum County v. Gaines County, 139 Tex. 442, 163 S.W.2d 393, 396 (1942):

“[S]uch judgments are not subject to collateral attack, and are reviewable only upon an appeal or in a direct action for that purpose . . . .”

See also Henn v. City of Amarillo, 157 Tex. 129, 301 S.W.2d 71, 74 (1957).

Boundary agreements with reference to school lands have been recognized as being within the power of commissioners courts. Colorado County v. Travis County, 176 S.W. 845, 849 (Tex.Civ.App.—Amarillo 1915, no writ). In any event, such would be an implied power. See Bullock v. Calvert, 480 S.W.2d 367, 372 (Tex.1972). The Commissioners Court of Harrison County acted judicially in fixing the boundaries of its school lands in 1914. Such order may not now be attacked collaterally. Scott v. Graham, 156 Tex. 97, 292 S.W.2d 324, 327-28 (1956). See also Live Oak County v. Lower Nueces River Water Supply Dist., 446 S.W.2d 14, 22 (Tex.Civ.App.—Beaumont 1969, writ ref’d n. r. e.).

Plaintiff could prevail only by showing that its 1914 order fixing the boundaries to its land was void. Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325, 327 (1895). It made no such showing — and more importantly — made no effort to show that the prior judgment of its Commissioners Court was even subject to attack.

Having reviewed the record under the appropriate standards, e. g., Gibbs v. General Motors Corp., supra, and finding no error, the judgment of the trial court is in all things AFFIRMED.

      . Malooly Bros. v. Napier, 461 S.W.2d 119, 121 (Tex.1970): The District Court erred in granting Defendant’s Motion for Summary Judgment. '

      . Some of the cases relied upon by plaintiff are these: Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970); Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.1965); Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex.1963). We recognize the validity of the holdings in each of the cited cases; but they are not applicable to the case under review.


text:
    Anne Billups BRADSHAW, Appellant, v. Donald C. BILLUPS, Appellee.
    No. 5336.
    Court of Civil Appeals of Texas, Eastland.
    Aug. 23, 1979.
    Reba G. Rasor and Donald R. Smith, Koons, Smith & Johnson, Dallas, for appellant.
    Les E. Shackelford, Jr., Dallas, for appel-lee.
   DICKENSON, Justice.

Anne Billups Bradshaw, mother of a teenaged daughter, appeals an order requiring her to pay $100 per month child support. Donald C. Billups, father of the girl, has custody. The issue in this nonjury trial was whether the father made sufficient proof under Tex.Fam.Code Ann. § 14.08 (Supp.1978) to secure a modification of the divorce decree and to require the mother to begin paying child support. We affirm.

The parties were divorced on September 17, 1974. That decree awarded custody of the girl to the mother and ordered the father to pay $200 per month child support. On October 14,1976, the divorce decree was modified by agreement to change the custody of this child from the mother to the father. At that time the father did not seek to impose any child support obligations on the mother. In 1978 the father filed a motion to modify the 1974 judgment of divorce by requiring the mother to help support the child.

The mother did not testify at the 1978 hearing. Her adult son testified that she is employed as a stockbroker and that she lives in a nice apartment. Mr. Billups testified as to a change in circumstances of the minor daughter following the divorce in 1974. The daughter has been living with him since October of 1976. The mother has not provided any child support payments, but she has given the girl Christmas gifts and birthday presents. Mr. Billups testified that his ex-wife was earning about $800 per month in 1974. It was stipulated that she earned $12,597 in 1976, $12,600 in 1977, and that she would earn $14,159 in 1978. Mr. Billups also testified that in October of 1978 it was costing him approximately $500 per month to support the child, and he asked that the mother be required to pay $250 per month for child support.

Appellant has briefed three points of error. First, she contends that the trial court erred in treating the “relevant period” for showing a material change of circumstances as beginning on the date of the divorce in 1974, rather than the date of the 1976 modification. Next, she argues that there was no evidence of a substantial and material change of circumstances. Finally, she argues that there was insufficient evidence to show a substantial and material change of circumstances. All three points of error are overruled.

Mrs. Bradshaw cites Canavespe v. Havins, 478 S.W.2d 166 (Tex.Civ.App.—Fort Worth 1972, no writ), which states that the party who seeks to modify child custody must prove that since the last final judgment in a case involving custody of the child there had occurred one or more material changes of condition. That case is not in point because the 1976 modification did not put in issue the mother’s obligation to pay child support.

Mrs. Bradshaw also cites Labowitz v. Labowitz, 542 S.W.2d 922 (Tex.Civ.App.—Dallas 1976, no writ), which is similar on its facts to the present case. The court held that it was not necessary to determine whether the prior modification of the divorce decree “impliedly” provided for child support, since the trial court had found a material change of conditions in the period from the original decree, as well as during the period after the first modification. Therefore, the court’s statement that the “relevant period” commenced on the date of the first modification, rather than commencing on the date of the original decree, is dicta. We decline to follow that reasoning in view of our interpretation of the statutory language.

Section 14.08, supra, expressly provides that the court may modify an order or portion of a decree that designates a managing conservator or provides for child support if the circumstances have materially and substantially changed since the entry of the order or decree.

The 1976 order modified only a portion of the original 1974 decree. That modification did not require any child support payments from the mother. We hold that the “relevant period” for measuring a change of circumstances, as to the mother’s obligation to pay child support, begins on the date of the original decree. That is the decree which is being modified.

When the relevant period is measured from the original 1974 decree to the hearing in 1978, the evidence is legally and factually sufficient to show a material and substantial change of circumstances of the child and her parents. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), Tex.Fam.Code Ann. § 14.08 (Supp.1978).

The judgment of the trial court is affirmed.


author: PRESLAR, Chief Justice.

text:
    CARR WELL SERVICE, INC., Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 6824.
    Court of Civil Appeals of Texas, El Paso.
    Sept. 5, 1979.

      Law Offices of Bill Alexander, P. C., Bill Alexander, John L. Barnhill, Jr., Odessa, for appellant..
    Milburn, Warner & Bridges, P. C., Eben D. Warner, III, Odessa, Rassman, Gunter & Boldrick, John E. Gunter, Midland, for ap-pellee.
   OPINION

PRESLAR, Chief Justice.

This is a suit on a sworn account for unpaid premiums on insurance policies issued to the' Appellant by the Appellee. Based on a jury verdict, judgment was entered for the Appellee in the amount of $22,337.50. We reverse and remand.

The account sued on was for premiums of policies of workmen’s compensation, general liability, and car and fire insurance; the bulk of the account was for workmen’s compensation policies which included a retroactive adjustment based on actual losses. By the single issue submitted to it, the jury found that the unpaid balance was in the amount of $22,337.50; that also is the amount shown as the balance due on Appellee’s Exhibit 7. Exhibit 7 is a statement of account which was prepared on July 3,1975, at the request of the credit manager for the southwest division of the Appellee. It breaks down the amounts due on the separate policies, all of which were issued in 1972 and 1973. Appellant’s first point of error is that the trial Court erred in admitting Appellee’s Exhibit 7 for the reason that a proper predicate for admission was not proved under Art. 3737e, Tex.Rev.Civ.Stat.Ann. (Supp.1978-79). That Article, as applicable here, provides that a memorandum or record of an act shall be competent evidence of the occurrence of the act or event or the existence of the condition if the judge finds that:

(a) It was made in the regular course of business;
(b) It was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record;
(c) It was made at or near the time of the act, event or condition or reasonably soon thereafter.

The credit manager testified that Exhibit 7 was prepared in the normal course of business and came under his control and supervision; but, the evidence is that it was prepared in 1975 as to conditions or events which occurred in 1972 and 1973. Thus, the requirement of Article 3737e was not met because the memorandum was not prepared at or near the time of the acts, event or condition. Exhibit 7 should not have been admitted over Appellant’s objections that it was hearsay and not in compliance with Article 3737e to take it out of the hearsay rule. Without Exhibit 7, there is no proof in the record of the amount owed by the Appellant. There is testimony about the amount owed, but this testimony is given from Exhibit 7 and therefore is also hearsay. Holt v. Community Development & Construction Corporation, 575 S.W.2d 395 (Tex.Civ.App.—Beaumont 1978, writ ref’d n. r. e.).

Appellee contends that this Exhibit should have been allowed as a summary of lengthy records which was within the Court’s discretion to allow, citing Cooper Petroleum Company v. LaGloria Oil and Gas Company, 436 S.W.2d 889 (Tex.1969). This case recognizes the rule that where the underlying records are so voluminous that it would be impracticable to require the production of the entire mass to be perused by the jury or read aloud to them, courts have relaxed the best evidence rule by allowing summaries. As noted by the Supreme Court in Black Lake Pipe Line Company v. Union Construction Company, Inc., 538 S.W.2d 80 (Tex.1976), there are well established principles applicable to all summaries of voluminous records, the Court saying:

Since a summary is no more admissible than the underlying records, the admissibility of the underlying records must be established. Dallas Railway & Terminal Co. v. Guthrie, 146 Tex. 585, 210 S.W.2d 550 (1948). In order to overcome the hearsay objection to the admissibility of the underlying records, a proper predicate must be laid for the admission of such records as business records in accordance with Article 3737e, Texas Revised Civil Statutes Annotated. Jackson v. Fontaine’s Clinics, Inc., 499 S.W.2d 87 (Tex.1973).

In the case before us, there is no showing that the records from which the summary was made would be admissible under that Article, and the mere fact that the Exhibit is a summary does not make it admissible.

We sustain Appellant’s Point of Error 1. All other points of error are overruled. The judgment of the trial Court is reversed and the cause remanded for a new trial.


author: DIES, Chief Justice.

text:
    GARTH COMPANY, Appellant, v. JEFFERSON COUNTY, Texas, Appellee.
    No. 8179.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 30, 1979.
    Floyd A. Landrey, Beaumont, for appellant.
    John G. Tucker, Beaumont, for appellee.
   DIES, Chief Justice.

Realizing the need for a new jail facility in Jefferson County, the Commissioners Court and the County Judge in 1972 con-eluded that a sixty-nine acre tract owned by Garth Co. in midcounty would provide a suitable location. On October 17, 1972, Jefferson County and the Texas Department of Corrections entered into an “Interlocal Agreement” under the terms of which Texas Department of Corrections agreed, upon receipt of a deed to the land, to build, operate, and maintain a regional correctional facility, and also to install and maintain water and sewer lines parallel to a proposed road. On November 3, 1972, the Texas Highway Department entered Minute Order No. 66885 declaring the road in question to be an official farm-to-market road, which meant, of course, that it would be constructed with State funds. At the November 8, 1972, meeting of the Commissioners Court of Jefferson County, the County Judge was authorized to receive, execute, and deliver any and all legal instruments pertaining to Garth Co., Texas Department of Corrections, and Texas Highway Department involved in the acquisition and construction of the detention center. Thereafter (November 20, 1972) the Commissioners Court accepted the order of the Texas Highway Department for the road and on November 27, 1972, authorized the County Judge to execute the deed and right-of-way easement to Texas Department of Corrections.

On November 30, 1972, Garth Co. for $1,000 per acre deeded the sixty-nine acres to Jefferson County, and thereafter on December 11, 1972, the contract between Jefferson County and Garth Co. was entered into. It is this contract that is the basis of the lawsuit filed by Garth Go., as plaintiff below, against Jefferson County, as defendant below, which we review.

In this contract Jefferson County agreed (1) to cause to be constructed the farm-to-market road referred to above, that provisions should be made for irrigation water to flow from the north to the south side of the road; (2) that Jefferson County should cause to be constructed water and sewer lines on the property; (3) if Jefferson County failed to complete the water mains before December 31,1974, it would be obligated in liquidated damages to a sum equal to the fair market price for laying and installing the water lines.

The plan for the Regional Detention Center was abandoned; Jefferson County did not fulfill its obligations under the contract of December 11, 1972, and Garth Co. filed suit against the county seeking damages or, alternatively, specific performance. Garth did not ask for rescission of the contract. Both parties made motions for summary judgment, which was given Jefferson County, and from which Garth Co. perfects this appeal. The parties will generally be referred to herein by name in the hope this will produce more clarity.

Jefferson County must assume a negative burden of showing as a matter of law that Garth Co. had no cause of action against the County, and that no material fact issues remain. Citizens First Nat’l. Bank v. Cinco Exploration Co., 540 S.W.2d 292, 294 (Tex.1976); Neigut v. McFadden, 257 S.W.2d 864, 868 (Tex.Civ.App.—El Paso 1953, writ ref’d n. r. e.).

Tex.Const. art. XI, § 7, reads in part: “But no debt for any purpose shall ever be incurred in any manner by any city or county unless provision is made, at the time of creating the same, for levying and collecting a sufficient tax to pay the interest thereon and provide at least two per cent (2%) as a sinking fund; and the condemnation of the right of way for the erection of such works shall be fully provided for.”

In McNeill v. City of Waco, 89 Tex. 83, 33 S.W. 322, 323 (1895), the Court spelled out these constitutional restraints:

“These constitutional provisions were intended as restraints upon the power of municipal corporations to contract that class of pecuniary liabilities not to be satisfied out of the current revenues, or other funds within their control lawfully applicable thereto, and which would therefore, at the date of the contract, be an unprovided-for liability, and properly included within the general meaning of the word ‘debt.’ They have no application, however, to that class of pecuniary obligations in good faith intended to be, and lawfully, payable out of either the current revenues for the year of the contract or any other fund within the immediate control of the corporation.”

It is clear from the testimony of the County Judge and the Commissioners that no effort was made to fund the contingencies of the contract involved because all involved expected the project to be financed by the State agencies involved.

The most that can be said is that Jefferson County might have been able to carry out the contract on its own resources. But this fact does, not satisfy the Constitution. For in T. & N. O. Railway v. Galveston County, 141 Tex. 34, 169 S.W.2d 713 (Tex.Comm’n App.1943, opinion adopted), the Court said:

“Although the obligation did not come for 28 years and amounted to only $5,302.59, a sum which may well have been within the ability of Galveston County to pay out of current revenues for the year 1936 or from some fund then within the immediate control of the county, certainly nobody would seriously affirm that such fact was reasonably within the contemplation of the parties when they made the contract. . . . Therefore, the parties could not contemplate, from any reasonable standpoint, that the indemnity clause would not some time fix a debt on the county in violation of the Constitution.”

See also Stevenson v. Blake, 131 Tex. 103, 113 S.W.2d 525 (Tex.Comm’n App.1938, opinion adopted).

The order granting Jefferson County a summary judgment is affirmed.

AFFIRMED.


author: STEPHAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Reginald DARRIS, Appellant.
    No. 39639.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 28, 1979.
    Robert C. Babione, Public Defender, Michael P. David, Asst. Public Defender, Richard A. Fredman, Sp. Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Marjorie Wholey Haines, Paul Robert Otto, Assistant Attys. Gen., Jefferson City, for respondent.
   STEPHAN, Presiding Judge.

Defendant Reginald Darris was found guilty by jury of burglary in the first degree, § 560.040, RSMo 1969, and sentenced by the trial court to fifteen years’ imprisonment under the Second Offender Act. Section 556.280, RSMo 1969. On this appeal, he contends the trial court erred in three respects: (1) in denying his pretrial motion to suppress testimony concerning a statement made by him before he was advised of his right to remain silent; (2) in refusing to allow defense counsel to reopen cross-examination of one of the state’s witnesses; and (3) in failing to grant his motion for a directed verdict at the close of all evidence because the state failed to prove that he entered the dwelling with the intent to steal or commit a felony. Having examined the transcripts and briefs, we find the points to be without merit and affirm.

Turning first to defendant’s attack on the sufficiency of the evidence, we set it forth in the light most favorable to the verdict. State v. Green, 575 S.W.2d 211, 212 (Mo.App.1978); State v. Nichelson, 546 S.W.2d 539, 542 (Mo.App.1977).

On February 23, 1977, at approximately 2:00 in the afternoon Mrs. Dorothy Williams was in her home at 4225 Red Bud in the City of St. Louis with her four-year-old grandson. Mrs. Williams had in her home personal property of value, including a color television set, stereophonic equipment, portable radios and jewelry. She heard a knock at her front door and, after a short delay, answered it. She found no one there. While at the front door, she heard a loud noise at the back of her home and proceeded to investigate. Upon reaching a hallway toward the back of the house, Mrs. Williams encountered the defendant, who was already inside the house. She asked him what he was doing and he said he had come to collect $500 that her son owed him. Mrs. Williams, denying that such could be the case, turned around and went out the front door. She knocked on the door of the upstairs flat but no one responded. Defendant followed her out the front door and ran south on Red Bud after telling her not to call the police. Mrs. Williams then went back inside, discovered that her back door had been kicked in, and called the police.

St. Louis Police Detectives Edgar Holloway and Richard Jones were patrolling the area in an unmarked car when they heard a radio dispatch concerning prowlers at 4225 Red Bud. The dispatch described the suspect as wearing blue jean pants and a blue jean shirt. Upon nearing the address, the officers observed the defendant walking on the sidewalk approximately three hundred feet from the house. Since he matched the description they had, he was stopped, put in the squad ear and driven back to 4225 Red Bud. The police officers testified that when they first talked to appellant they told him that they wanted him to accompany them on a call and if he was not involved he would be released.

After the short trip to the Williams home, Jones went to the door and summoned Mrs. Williams. Holloway remained in the vehicle with defendant. As Mrs. Williams and Detective Jones walked toward the car, Mrs. Williams pointed at defendant and said, “That’s him.” At this point, defendant “blurted out” a statement to the effect that he had entered the house to collect $1,400 that Mrs. Williams’ son owed him. Holloway then informed defendant he was under arrest and advised him of his Miranda rights. Up to that point, the officers had asked no questions of defendant except his name. Defendant repeated his admission several times after the Miranda warning, on the way to and at the police station. Testifying in his own defense, defendant admitted gaining entrance to the home by kicking in the back door but insisted that he had no intention of stealing anything, that he was looking for Jerome Johnson to collect $500 he had lent to Johnson. It was made to appear that Johnson lived with his mother at 4252 Red Bud. Defendant claimed to have gone to the 4225 address as a mistake. The jury was, of course, free to disbelieve the defendant’s exculpatory evidence. State v. Brunson, 516 S.W.2d 799, 804[9] (Mo.App.1974). The evidence was sufficient for the jury to find that defendant forcibly entered Mrs. Williams’ home with the intent to steal. State v. Powell, 357 S.W.2d 914, 917 (Mo.1962); State v. Carson, 501 S.W.2d 503, 506[1-2] (Mo.App.1973). Her presence provided the element necessary for the crime to be burglary in the first degree. Section 560.040, RSMo 1969; State v. Murphy, 508 S.W.2d 269, 275 (Mo.App.1974).

With respect to defendant’s contention that the trial court erred in failing to suppress testimony concerning his statement at the time Mrs. Williams identified him, we note that no objection was made at the trial when the officers testified that defendant stated he had entered the premises, albeit for the purpose of collecting a debt. No objection having been made at the trial, defendant failed to preserve the point. State v. Hulsey, 557 S.W.2d 715, 718-719 (Mo.App.1977); State v. Yowell, 513 S.W.2d 397, 402-403 (Mo. banc 1974); State v. Bryson, 506 S.W.2d 358, 361 (Mo.1974). As pointed out in Yowell and Bryson, a defendant may not stand mute while arguably objectionable evidence is put in the record, take his chances with the jury, and then complain on appeal. This principle is underscored by the situation presented in the instant case: the testimony of the police officers as to what defendant said at the time of his arrest corroborated, in part, the defendant’s own testimony that he entered the Williams home by mistake, seeking to collect a debt, not to steal. Defendant may not have the benefit of the officers’ testimony to bolster his theory of defense at trial and then, having received an unfavorable verdict, use it to seek reversal of his conviction.

We have, nonetheless, considered the point under Rule 27.20(c) to determine whether the admission of the statement in evidence was plain error affecting substantial rights of the defendant. We hold it was not.

Appellant contends that his statement to the effect that the victim’s son owed him money was inadmissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because it was made before he had been advised of his right to remain silent. We believe neither the letter nor the spirit of Miranda supports such a view.

Under Miranda, an accused must be advised of certain federal constitutional rights before being subjected to “custodial interrogation” which was defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, supra, 444, 86 S.Ct. 1612. Thus, in order for the rule of Miranda to obtain, there must be both custody and questioning:

“To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, . . .” Miranda, supra, 478-479, 86 S.Ct. 1630 (emphasis added).

In the instant case, defendant had not been subjected to interrogation relating to the crime under investigation. When Mrs. Williams indicated by words or gesture that he was the man encountered in her home, he “blurted out” his statement. In Miranda, the majority opinion was careful to point out, “Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” Id., 478, 86 S.Ct. 1630. Defendant’s spontaneous utterance provoked by nothing more than Mrs. Williams’ indication of recognition was admissible against him.

Furthermore, even if error could conceivably be found in the admission of testimony concerning defendant’s statement, it was rendered totally harmless by the fact that he took the stand and testified on the same subject in even greater detail. State v. Crow, 486 S.W.2d 248, 251-252[2] (Mo.1972); State v. Hams, 515 S.W.2d 789, 791 (Mo.App.1974).

In the remaining assignment of error, defendant contends that the trial court erred in refusing to permit defense counsel to reopen cross-examination of Detective Holloway. During the initial cross-examination, Holloway testified that when they arrived at the Williams house, Detective Jones “went in to investigate the prowler call and he brought her out.” Defense counsel challenged Holloway, “I want to be fair to you, and I don’t have it typed up, but that’s not what you told me yesterday [during the hearing on the motion to suppress]. Is it?” A. “I don’t recall; but that’s exactly what happened.” Q. “So you didn’t testify yesterday that when you pulled up she was either coming out of her door or on the porch somewhere?” There then ensued a colloquy between court and counsel about having the court reporter type “that” up during a recess. The court agreed that “it’s going to be typed up and it will be gone into.” Holloway was recalled later during the course of the trial, and defense counsel stated “Officer, I had you recalled to the stand in order to apologize to you.” He then explained that he had examined the transcript of “yesterday’s proceedings” and it was substantially the same as the testimony defense counsel had earlier disputed. Defense counsel then sought and was granted permission to approach the bench. Defense counsel then made it known to the court for the first time that, in counsel’s opinion, another discrepancy existed between Holloway’s pretrial and trial testimony as to whether the defendant made his. incriminating statement while he was in the police vehicle or after he had been taken out of it to give Mrs. Williams a “second look.” The trial court refused to permit defense counsel to explore this claimed discrepancy, and we find no error in the ruling.

Defendant argues that the question “whether the defendant was in or out of the car when the statement was allegedly made is an important one.” The significance attached by defendant to this matter is that, if the statement was made outside the car, there would have been a “substantial likelihood” that Mrs. Williams would have heard it. Because she did not hear it, argues defendant, it could be inferred that the statement was never made. Taking the argument another, tenuous step forward, defendant argues that this would have detracted from Holloway’s credibility. We are not persuaded by such arguments. In view of Mrs. Williams’ testimony as to the explanation defendant made to her for being in the house, Detective Jones’ testimony as to the statement at the time of defendant’s identification by Mrs. Williams, and defendant’s own testimony at trial, it cannot be said that the state’s case depended in any significant manner on Holloway’s credibility. A trial court has a large measure of discretion in limiting cross-examination; exercise of that discretion is not to be disturbed on appeal, absent a clear showing of abuse. State v. Johnson, 486 S.W.2d 491, 496 (Mo.1972); State v. Richards, 536 S.W.2d 779, 788 (Mo.App.1976); State v. Smith, 534 S.W.2d 604, 610 (Mo.App.1976). Here, there was no abuse of discretion in limiting the cross-examination of Detective Holloway to the matter for which he had been recalled and refusing to permit inquiry into an extraneous matter of dubious materiality.

The judgment is affirmed.

KELLY and STEWART, JJ., concur.

      . Defendant also testified that he was acquainted with Mrs. Johnson but tendered no explanation for mistaking her for Mrs. Williams.

      . The case on which defendant relies principally in this part of his brief, State v. Thompson, 280 S.W.2d 838 (Mo.1955), is not apposite. In that case, the trial court refused to permit defense counsel to inquire of several witnesses who identified defendant at trial whether they had testified at the preliminary hearing that they could not identify him. The rulings were apparently made on the theory that what they testified to at the preliminary hearing was “immaterial.” The principal defense being alibi, the court said that the issue of “identification of the defendant as the person who committed the offense charged was the most important issue in the case, . . .” Id., 841.