author: EWELL, Judge.

text:
    George H. ARROWOOD and wife, Ethel Arrowood, Plaintiffs-Appellees, v. Raymond WILLIAMS and wife, Marie Williams, Defendants-Appellants.
    Court of Appeals of Tennessee, Western Section.
    July 19, 1979.
    Certiorari Denied by Supreme Court Sept. 4, 1979.

      Lodge Evans, Elizabethton, for defendants-appellants.
    Thomas E. Mitchell, James T. Milliken, Johnson City, for plaintiffs-appellees.
   EWELL, Judge.

Plaintiffs below, hereinafter referred to as Arrowood, on September 22, 1958, purchased two acres of real estate located in the Fourth Civil District of Washington County, Tennessee. The east boundary of the tract was also the lower west boundary of a tract then owned by Dr. Arthur J. Willis. The original fence separating the tracts was constructed in the fall of 1943 or the spring of 1944. In 1962 Arrowood constructed across the entire eastern portion of his tract another fence approximately parallel to and from ten to thirteen feet west of the original fence in order to drive cattle between the two fences in moving them from pasture to water. On November 10, 1972, Dr. Willis sold his tract to the defendants below, hereinafter referred to as Williams; and on or about March 24, 1977, Williams removed the original fence claiming that his lower west boundary, being the east boundary of Arrowood, was along the fence constructed by Arrowood in 1962.

Arrowood insisted that his tract extended east to the line along which the original fence had been constructed in 1943-1944. Williams insisted that the tract of Arro-wood extended only to the 1962 fence. The area in dispute consists of a strip of land extending 222.5 feet north and south and from ten feet two inches to thirteen feet one inch east and west. Arrowood sued in Chancery requesting (1) an order restraining Williams from trespassing, (2) a mandatory injunction requiring Williams to restore the original fence, and (3) damages occasioned by the removal of the fence. Williams answered admitting removal of the fence but insisting that the common boundary was along the westerly fence still standing. The Chancellor found for Arro-wood establishing the boundary along the line of the original fence removed by Williams and ordering Williams to rebuild the fence in its original location with the provision that Arrowood have judgment against Williams in the amount of $325.00 in the event the fence was not rebuilt in 30 days.

Williams appealed filing four assignments and eight sub-assignments of error. The assignments and sub-assignments raise four basic issues determinative of this appeal. We will address these issues separately.

Williams insists that this is an ejectment suit and that Arrowood cannot prevail because he failed to deraign title to a common source under which both parties claim or to a grant from the State of Tennessee or the State of North Carolina. The Chancellor treated this suit as a boundary line dispute under T.C.A. 16-606, 16-607; and we concur in this action.

The material portions of the complaint are as follows:

Plaintiffs and defendants are residents of the 4th Civil District of Washington County, Tennessee. Plaintiffs purchased property adjoining the defendants almost 20 years ago, their deed having been of record for over seven years.
Said property of plaintiffs being more particularly described as follows, to-wit:
“Beginning at a post, A. J. Willis’ corner; with his line N. 22½ W. 222½ feet to a post; thence with a dividing line this day made, S. 58 W. 365 feet to a locust in the margin of a County Road; with the same S. 26½ E. 236 feet to a post; thence N. 57 E. 356 feet to the BEGINNING, containing 2 acres, more or less.”
Said deed being of record in the Register’s Office for Washington County at Jonesboro, Tennessee in Deed Book 319, page 565 and which property is enclosed by a fence.
There is one common line between the properties of the plaintiffs and defendants, same beginning at a post, A. J. Willis’ corner with his line N. 22¾⅞ W. 222½ feet to a post.
The defendants recently took down this fence over the protest of the plaintiffs and the defendants are now claiming that they own the property of the plaintiffs a distance of 222½ feet and varying in width ten to fourteen feet. The defendants made no claim to this property until recently.
Plaintiffs allege that they are entitled to a restraining order against the defendants restraining them from encroaching on their property or they will suffer irreparable damage and injury and likewise they are entitled to injunctive process requiring him to rebuild the line fence to its original status between the properties and that the defendants are liable for all damages occasioned by the wilful and malicious act and conduct of the defendant Williams.

The complaint concludes with a prayer for a restraining order, a mandatory injunction, damages and general relief.

The essence of the defense offered by Williams is set forth in that portion of the answer which follows:

(I)t is admitted that there is a common line between the properties of the plaintiffs and the defendants, but the line is not located where the plaintiffs claim that the line is located. There were two fences running parallel and about ten feet apart which provided a lane for access to plaintiffs’ land. The westerly fence line is the line between the properties of the parties, and it is still standing. Defendant Raymond Williams removed the easterly fence line which was and is located upon defendants’ land and which fence was not the division line between the properties of the parties.

In the course of the cross-examination of plaintiff, George Arrowood, by the attorney for Williams, the following exchange occurred:

“Q. . . . Now actually, the two as you testified here, there are two fences along there, and the two fences made a little lane for this distance that you’re disputing, isn’t that right, Sir?
“A. Yeah, that’s right.
“Q. Two fences. So the question is which fence is the line? That’s what the dispute is about, isn’t it?
“A. That part of it up there is, yeah.”

The foregoing succinctly summarizes the essence of this litigation which, in fact, is a boundary line dispute. It follows that under T.C.A. 16-607 Arrowood did not have the burden of proving a complete deraignment of title from a state grant or a common source but was only required to prove clearly that he was the true owner of the land as described in the complaint. Excepting the location of the east boundary, this was admitted by Williams in the answer. Further, the proof establishes the fact that both tracts were owned by Vergie French Poore and husband, R. W. Poore, and sold by them to separate parties at public auction in 1943. Therefore, title to the separate tracts was in fact deraigned to a common source. This deraignment with respect to the Williams tract was established formally by the filing of copies of the legal instruments constituting the chain of title. With respect of the Arrowood property, the deraignment was proven by the uncontro-verted testimony of witnesses.

The Chancellor in his Opinion, given orally at the conclusion of all the proof in the case, stated in part, as follows:

The Plaintiff in this case proved beyond any doubt that he had been in possession of the property for more than seven years under the deed which he acquired on the 22nd day of September, 1968 (sic: 1958). And that George H. Arrowood and wife, Ethel Arrowood, had used the property openly, notoriously, adversely and hostile to the rest of the world. That they had farmed it and used it as their property and that the old fence row was the boundary line. The proof shows that under seven years open, adverse, notorious possession and that they had paid taxes on the same and that they had held out to the world that it was their property; that they had used this lane for the movement of cattle from the D. W. Whaley property over to the property of his brother-in-law and to his own property, that is, to George H. Arrowood and wife, the Plaintiffs’ property. This constitutes such deeds and acts and open, notorious and adverse possession under a color of title and a deed recorded so as to establish an absolute ownership of the same by adverse possession under color of title and under a seven year’s deed.

Williams insists that the Chancellor erred in finding that Arrowood had taken title to the property in question by adverse possession for a period of seven years because the applicable statute (T.C.A. 28-201) requires Arrowood to prove that he is claiming under a conveyance “purporting to convey an estate in fee” and further that such conveyance had been recorded in the Register’s office for the full term of seven years. Williams complains that Arrowood failed to allege and prove facts sufficient to comply with the foregoing statutory requirements. From a thorough examination of the entire record in this case we find there is merit to this contention.

While it is apparent that during the course of the trial there was available to the attorneys for the respective parties and the witnesses a copy of the deed whereby Arrowood acquired title, such copy was not made an exhibit in the case and was not read into the record. It is clearly established that Arrowood acquired title by deed dated September 22, 1958, from The Banking & Trust Company. In order to finance the purchase Arrowood obtained a loan secured by a trust deed on the subject real estate. The original of the trust deed was introduced and identified as exhibit one. The certificate of the Register of Washington County on the trust deed reflects that it was recorded on September 23, 1958. On the first page, following a legal description of the two acre tract, there appears the following:

And being the same property conveyed to The Banking & Trust Company, Jones-boro, Tenn., by Trustees’ Deed dated August 21, 1958 (B. P. Roach and W. C. Allison, Trustees), and of record in the Registry for Washington County, Tennessee, in Deed Book 319, page 563, to which reference is hereby made.
And being that same property conveyed to the parties of the first part by deed from The Banking & Trust Company, dated September 22, 1958, and of record in the Registry aforesaid in Deed Book 319, page 565, to which reference is hereby made.

In the first paragraph of the trust deed George H. Arrowood 'and wife, Ethel Arro-wood are identified as “parties of the first part”.

From the foregoing it is clear that a conveyance from The Banking & Trust Company to Arrowood was recorded on or before September 23,1958, and, consequently, has been of record for more than seven years. However, nowhere in the record is it proven that the conveyance purports to convey an estate in fee.

Williams also insists that the Chancellor erred in stating in his opinion the following: “The plaintiffs in this case have been in possession of the property for more than twenty years and have had their deed of record for more than twenty years.” This is obviously an erroneous statement. The proof shows that the property was acquired by Arrowood by deed dated September 22, 1958. This suit was tried below on July 31, 1978.

With due regard to the failure of Arrowood to prove the quantity or quality of the title conveyed to him by The Banking & Trust Company and the fact that Arrowood had been in possession of the strip of land in question for less than twenty years, we have carefully reviewed this case de novo upon the record of the Trial Court as required by T.C.A. 27-303, mindful of the fact that the case comes to us accompanied by a presumption of the correctness of the judgment or decree of the Trial Court, unless a preponderance of the evidence is otherwise. Edwards v. Edwards, 501 S.W.2d 283 (Tenn.App.1973); Davis v. Bank of Illinois, 561 S.W.2d 144 (Tenn.1978); Pettyjohn v. Brown Boveri Corporation, 63 Tenn.App. 546, 476 S.W.2d 268 (1971); Tipton County Board of Education v. Dennis, 561 S.W.2d 148 (Tenn.1978). We find that notwithstanding the above noted deficiencies the judgment of the Trial Court is supported by a clear preponderance of the evidence in the case.

The Judgment entered by the Trial Court decrees, among other things, the following:

That the dividing line between the property of plaintiffs and the property of the defendants, being referred to as North 22½ West 222½ feet, follows the old fence, a portion of which the defendants removed and that said old fence has been the dividing line between the properties for more than 20 years without question until defendants made claim thereto sometime in 1976 or 1977.

The foregoing is supported by the uncon-troverted proof in this case. The Arrowood property was conveyed by Poore to John Whaley, father of Ethel Arrowood, in 1943. In 1952 John Whaley conveyed a portion of the property not here in question to D. W. (Dovie) Whaley, brother of Ethel Arrowood, and the two acres here in question to Elmer Whaley. Elmer Whaley mortgaged the property to The Banking & Trust Company to secure a loan upon which he ultimately defaulted resulting in foreclosure. The Banking & Trust Company bought the property at foreclosure sale and on September 22, 1958, conveyed it to George and Ethel Arrowood.

The Williams property was conveyed by Poore to M. M. English, father of Marie Williams, in 1943. English conveyed the property to Dr. Arthur J. Willis in 1949, and on November 10, 1972, Dr. Willis conveyed the property to Raymond and Marie Williams.

In June of 1943 when all of the property in question was owned by Poore and before the auction sale there was a survey, following which the corners of the respective parcels were marked. In the fall of 1943 or the spring of 1944 Whaley, with the knowledge and consent of English, constructed a fence along their common boundary. English participated to the extent of furnishing some posts. This fence remained in place, undisturbed, until March 24, 1977, when Williams removed that portion separating his property and the property of Arrowood. The fence had been universally recognized as a boundary line fence for a period of approximately thirty-three years. During that time Arrowood and his predecessors in title had been in actual, open, notorious, continuous, adverse and peaceable possession of the property in dispute separated by the fence from the property of Williams and his predecessors in title. We find that Arrowood has shown by clear, positive and uncontradicted proof that the property in question was held adversely for more than thirty years and that this showing supports the judgment of the Trial Court notwithstanding the absence of proof as to the quantity or quality of title conveyed to Ar-rowood by The Banking & Trust Company. We are of the opinion that each of the parties in the chain of title and succession of conveyances, from John Whaley to Arro-wood had the right to tack his or her possession to that of his or her predecessor in title for the purpose of acquiring title by twenty years adverse possession. See Derryberry v. Ledford, 506 S.W.2d 152 (Tenn.App.1973); Peoples v. Hagaman, 31 Tenn.App. 398, 215 S.W.2d 827 (1948); Staub v. Hampton, 117 Tenn. 706, 101 S.W.2d 776 (1907).

Williams also insists that the Trial Court erred in ordering him to restore the fence or pay Arrowood the sum of $325.00. In his complaint Arrowood prayed for a mandatory injunction requiring Williams to restore the fence to its original position and for damages. In the Judgment the Court decreed as follows:

That the defendants, without any right whatsoever, tore down a portion of the line fence between the properties of plaintiffs and defendants, and the defendants shall, within thirty days from this date, rebuild said fence as it was prior to the same having been tom down, and in exactly in the same place that if was, in such condition as is satisfactory to and approved by the Court. If the defendants do not comply with this provisions, then the plaintiff shall recover from the defendants the sum of Three Hundred Twenty-five ($325.00) Dollars, for the purpose of rebuilding the fence in the same place the same was located prior to the defendants’ destruction thereof.

Under the pleadings and proof we find that the Chancellor acted properly in so decreeing. The only proof in the record as to the cost of restoring the fence came through the testimony of George Arrowood who estimated that the cost would be approximately $325.00. The Trial Court did no more than restore Arrowood to his original status.

All assignments and sub-assignments are overruled and the Judgment of the Trial Court is affirmed. This cause is remanded to the Chancery Court of Washington County for the enforcement of its Judgment. The costs of appeal are assessed against the appellants.

MATHERNE and NEARN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kearney M. ALBAUGH et al., Appellants, v. STATE BANK OF LA VERNIA, Appellee.
    No. A4071.
    Court of Civil Appeals of Texas, San Antonio.
    June 13, 1979.
    Daniel R. Rutherford, San Antonio, for appellants.
    William L. Knobles, Seguin, for appellee.
   OPINION

PER CURIAM.

The final judgment in this case was signed on March 30, 1979. Under Rules 354, 356 and 385, appellant was required to file an appeal bond within thirty days after the date of the judgment. Since the 30th day was a Sunday, the last day for timely filing of the bond was Monday, April 30. Rule 4.

On May 24, 1979, within the sixty-day period prescribed by Rules 385 and 386, appellant tendered the transcript to the clerk of this Court for filing. The transcript showed that the appeal bond was filed on May 3, 1979, after the expiration of the thirty-day period prescribed by the rules. The transcript also contained a copy of the envelope in which the bond had been mailed to the district clerk. The clerk of this Court was unable to determine whether there had been compliance with that portion of Rule 5 which provides that an appeal bond mailed to the proper clerk by first-class United States mail in an envelope properly addressed and stamped shall be considered timely filed if it is deposited in the mail one or more days before the last day for filing and is received by the clerk not more than ten days “tardily.” The rule provides that a legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing.

Appellant has now filed a certified copy of the letter of transmittal and of the envelope in which the letter and appeal bond were enclosed. The certificate reflects that the appeal bond was received by the clerk on May 3, 1979.

The metered stamp on the envelope shows the date of April 26. To the left of this stamp there is a postmark which reflects that the letter was mailed on May 1, 1979, in the afternoon.

It is clear that the “postmark” showing April 26 as the date of mailing was impressed on the envelope.by a postage meter stamp of the type used in business offices by persons other than the United States Postal Service. This stamp, at best, indicates the date on which the envelope was stamped by the meter. The date appearing on the metered stamp is set by the person operating the meter, so that, in fact, the metered stamp merely shows the date which appeared on the meter at the time the envelope was stamped, rather than the actual date.

The postmark “affixed by the United States Postal Service” shows that the letter was mailed during the afternoon of May 1, 1979, which was the day after expiration of the period during which the bond was required to be filed. According to this “official” postmark, the letter was not timely mailed and, therefore, the bond received by the clerk on May 3, 1979, was not filed within the time required by law.

The motion for extension of time is denied and the appeal is dismissed.

      . All references are to Texas Rules of Civil Procedure.

      . The opinion in Ector County Independent School District v. Hopkins, 518 S.W.2d 576 (Tex.Civ.App. — El Paso 1974, no writ), contains the statement, embodied in a footnote, that a date appearing on a metered stamp is “some evidence” of the date of mailing. 518 S.W.2d at 583 n. 1. In view of the manner in which postage meters located in private offices are operated, the metered stamp has little, if any, probative force as evidence of the date of mailing.


author: EVANS, Justice.

text:
    W. M. THOMPSON, Appellant, v. TEXAS COMMERCE BANK NATIONAL ASSOCIATION et al., Appellees.
    No. 17412.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    June 14, 1979.
    Rehearing Denied July 12, 1979.

      J. Robert Harris, Houston, for appellant.
    Butler, Binion, Rice, Cook & Knapp, Claude C. Roberts, Houston, for appellees.
   EVANS, Justice.

This is an appeal from a take-nothing judgment entered in a trespass to try title action. The plaintiff’s claim of title is based solely upon adverse possession under the ten year statute of limitation. Article 5510, Tex.Rev.Civ.Stat.Ann.

Because the trial court granted the defendants’ motion for instructed verdict at the close of the plaintiff’s case, it cannot be presumed that the trial court made a factual determination of the issues, and this court’s review is limited to the question of whether the plaintiff offered any competent evidence in support of each element of his claim of title. Olshan Lumber Company v. Bullard, 395 S.W.2d 670 (Tex.Civ.App.—Houston 1965, no writ).

In a trespass to try title action based upon a claim of limitation, it is the plaintiff’s burden to establish each of the required elements of peaceable and adverse possession, and where the plaintiff sues for a specific tract of land, he must prove the location of the described tract on the ground. Coleman v. Waddell, 151 Tex. 337, 249 S.W.2d 912, 913 (1952); Louisiana & Tex. Lumber Co. v. Kennedy, 103 Tex. 297, 126 S.W. 1110 (1910); Musgrove v. Foster Lumber Co., 89 S.W.2d 287, 288 (Tex.Civ.App.—Beaumont 1935, writ dism’d). Thus, a threshold question in this case is whether the plaintiff made a prima facie showing of the ground location of the tract of land described in his petition.

The tract of land in controversy is described in the plaintiff’s petition as follows:

“That certain tract of land in Harris County, Texas, out of the North ½ of Lot 3 of Plainview Subdivision of the NE ⅛ of Sec. 16, Block 4, W.C. Ry. Co. Survey, Abstract 1286, as shown on map or plat thereof recorded in Vol. 293 at page 293, Deed Records of Harris County, Texas;
BEGINNING at a point in fence line, the NE corner of tract of land referred to as tract No. 1, (being the South ½ of Lot No. 3 of Plainview Addition, W. I. Black Subdivision of the NE Vs, Section 16, Block 4, W.C. Ry. Co. Survey Abstract 1286) in deed dated April 16, 1947, from Mrs. George C. Bidwell to W. M. Thompson, recorded in Volume 1594, Page 382 of the Deed Records of Harris County, Texas, said point being also in the West boundary line of Sharmon Road;
THENCE North, with fence on the West boundary line of Sharman Road 150 feet more or less to corner fence post in the East line of said Lot No. 3 for the NE corner of this tract;
THENCE West along fence line 640 feet more or less to corner fence post, the NW corner of this tract;
THENCE South with fence line 150 feet, more or less to point in West line of Lot No. 3 and the NW corner of the South ½ of said Lot No. 3, and the SW corner of this tract;
THENCE East parallel with the North boundary line of Houston Lighting and Power tract 640 feet, more or less, to the place of beginning, containing 2 acres, more or less.”

The plaintiff’s petition specifically describes a 2 acre tract out of the north Vs of Lot 3 of the Plainview Subdivision. The trial court received in evidence certified copies of the recorded plat of the Plainview Subdivision and of a deed to the plaintiff covering the south ½ of Lot 3 in the subdivision. A drawing, shown below, was also received in evidence, not to establish the truth of the matters reflected thereon, but to serve as a basis for testimony to be offered.

The plaintiff’s proof tended to establish that the north line of the 2 acre tract was fenced and that the northeast corner of the tract was located at the dead end of Sharman Road. There was also testimony tending to show that fences were located along the east and west sides of the 2 acre tract. However, there was no evidence indicating the length of the fences along the east or west sides of the tract nor was there any evidence as to the location of a fence on the south side of the tract. Although there is some testimony from which the trier of fact could have inferred that the tract of land claimed by the plaintiff was contained within an enclosure, the evidence does not establish the physical location of each side of such enclosure on the ground. Thus, the plaintiff did not meet his burden of establishing by prima facie proof the ground location of the tract of land described in his petition.

In view of this court’s determination that the plaintiff’s proof was legally insufficient to establish the ground location of the tract described in his petition, it is unnecessary to consider the defendants’ further contention that the plaintiff failed to make a prima facie showing that the State had parted with title to the land in suit at some time prior to the commencement of the limitation period. See Houston Oil Company of Texas v. Gore, 159 S.W. 924 (Tex.Civ.App.—Galveston 1913, writ ref’d).

The trial court’s judgment is affirmed.

WALLACE and WARREN, JJ., also sitting.


author: KLINGEMAN, Justice.

text:
    Paul A. WILBORN, Jr., Appellant, v. FARM AND HOME SAVINGS ASSOCIATION, Appellee.
    No. 16122.
    Court of Civil Appeals of Texas, San Antonio.
    June 27, 1979.
    J. Ken Nunley, Dodson, Harpole & Nun-ley, Uvalde, for appellant.
    Kenneth W. Smith, Meyers, Miller & Middleton, Dallas, for appellee.
   OPINION

KLINGEMAN, Justice.

This is a summary judgment proceeding. Appellant, Paul A. Wilborn, Jr., complains that the trial court erred in refusing to grant his motion for summary judgment on a counterclaim filed by him seeking statutory penalties under Article 5069 of the Texas Consumer Credit Code, hereinafter referred to as the Code, and in granting Farm & Home Savings Association’s motion for summary judgment as to such counterclaim.

There is some question of whether the denial of Wilborn’s motion for summary judgment is properly before us. Assuming that such motion is properly before us we will consider both motions for summary judgment together. We have concluded after considering all of the summary judgment evidence that neither summary judgment should have been granted.

In summary judgment cases, the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff’s cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. The provisions of Rule 166-A of the Texas Rules of Civil Procedure are applicable alike to defendants and plaintiffs who move for summary judgment; the judgment should be granted, and if granted, should be affirmed only if the summary judgment record establishes a right thereto as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970); Parrott v. Garcia, 436 S.W.2d 897 (Tex.1969); Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.1965).

Appellant asserts that he is entitled to summary judgment on his counterclaim because the record establishes, as a matter of law, violations of the Code including (a) failure to disclose the kind, coverage, term, and amount of premium for insurance; (b) failure to comply with the provisions as to size of type setting out liability insurance coverage for bodily injury and property damage; (c) violation of the provisions as to delinquent installment payments; and (d) violations of the provisions as to time price differential. Farm & Home urges that the trial court properly granted its motion for summary judgment because (a) it is not a seller, but an assignee; (b) at the time it purchased the retail installment contract it had no knowledge of any failure to comply with the Code and that, under such circumstances, Wilborn’s acknowledgment of delivery of a copy of the retail installment contract constitutes conclusive proof of compliance with the Code as to a holder of the contract without knowledge to the contrary; (e) the summary judgment proof establishes that the contract complied with Code provisions as to required size of type; and (d) if there were any violations, they were not intentional but were the result of bona fide error.

Farm & Home’s motion for summary judgment is based on the pleadings and affidavits on file which include:

(1) an affidavit by an assistant vice-president of appellee that
(a) the file which was delivered to Farm & Home by the seller of the mobile home contained an application for mobile home insurance signed by Wilborn; such application contained information pertaining to insurance, including coverage, term, and amount of premium, and furnished Wilborn with all the information as to insurance required under the Code;
(b) Farm & Home in its regular course of business, after a contract is purchased, sends the buyer an instrument called a “Statement of Assignment or Negotiation,” which notifies the buyer of the assignment and states that if the buyer has any objection or complaint as to the contract or any claim or defense, Farm & Home must be notified within thirty days from the date the notice is mailed. The affi-ant stated that such a notice was mailed to Wilborn and no reply was ever received by Farm & Home;
(c) Farm & Home has complied with all the provisions of the Code. The affidavit also contains copies of various instruments relied on by Farm & Home; and
(2) an affidavit by an officer of a printing company which stated that he was “well qualified by training and experience to measure type” and that he had examined the contract involved and that in his expert opinion the type size which Wilborn claimed constituted a violation was ten-point type, as required by the Code.

Appellee Farm & Home’s summary judgment evidence at best raises only disputed issues of fact and does not establish that it is entitled to judgment as a matter of law. Farm & Home’s motion for summary judgment was, therefore, improperly granted.

Wilborn’s motion for summary judgment is also based on the pleádings and affidavits on file. The only affidavit filed by Wilborn was his own, in which he stated that he was the person who executed the retail installment contract involved and that the original copy attached to the affidavit was a copy which was received at the time the contract was executed.

From an examination of all the summary judgment evidence, including all the affidavits and the exhibits, we have concluded that there are disputed fact issues both as to some of Farm & Home’s defenses and as to the Code violations relied upon by Wilborn. There is reversible error, and the interest of justice would best be served by a general remand for full development of the evidence. The summary judgment evidence before us does not establish that either party is entitled to a summary judgment.

The judgment is reversed and the cause remanded to the trial court for a trial on the merits.

      .This case is before us in the following posture. Farm & Home filed a suit against Wil-born for an alleged deficiency owing on a mobile home, after the mobile home had been repossessed and sold. Wilborn answered by general denial and also filed a counterclaim for alleged violations of the Code, seeking judgment in the amount of $21,735, attorney’s fees in the sum of $5,000, and costs of court. Farm & Home’s answer contained defenses of waiver, laches and unintentional violations resulting from bona fide error, and asserted that Farm & Home was not a seller but rather an assignee without knowledge of any violations. Wilborn filed a motion for partial summary judgment based on the pleadings and affidavit on file and asked that the claim for attorney’s fees be severed. Farm & Home filed its motion for summary judgment asserting basically the defenses above set forth and, in particular, that it was a holder without knowledge of any violations of the Code and that Wilbom’s acknowledgment of delivery of a copy of the contract is conclusive proof of compliance with the Code as to a holder of that contract without knowledge to the contrary at the time it purchased the contract. The trial court overruled Wil-bom’s motion for summary judgment as to his counterclaim and granted Farm & Home’s motion for summary judgment. Wilbom’s motion to sever his counterclaim was granted by the trial court. The pleadings as to severance are confusing and leave some doubt as to the exact status of the case presently pending below.

      . See Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958).

      . See Snell, Assignee Liability Under the Texas Consumer Credit Code, 8 St. Mary’s L.J. 696 (1977).

      . Tex.Bus. & Com.Code Ann., art. 5069-7.02(7) (Vernon 1971).

      . See id. art. 5069-8.01(f) (Vernon Supp. 1978-1979).

      . See id. art. 5069-6.07 (Vernon 1971).

      . The summary judgment evidence is incomplete in many respects. It contains no information as to who prepared the loan instruments; whether Farm & Home furnished or required the type of instruments used, or was involved in the process; whether the insurance application signed by Wilborn was executed contemporaneously with the retail installment contract and comprised a part of the same transaction; and, with the exception of the affidavit of the self-styled printing expert, no other information as to the size of type complained of.


author: WALLACE, Justice.

text:
    Bruce BUNTING, Appellant, v. Joe FODOR, d/b/a U. S. European Motors, Appellee.
    No. 17278.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    June 28, 1979.
    Bertrand C. Moser, Houston, for appellant.
    Eikel & Davey, Robert Eikel, Houston, for appellee.
    Before EVANS, WARREN and WALLACE, JJ.
   WALLACE, Justice.

Bruce Bunting, plaintiff below, appeals from the granting of an instructed verdict in favor of appellee Joe Fodor, D/B/A U.S. European Motors, defendant below, in an action for damages arising from an alleged breach of warranty brought under the Deceptive Trade Practices Act, hereinafter referred to as the Act. Tex.Bus. & Comm. Code Ann. Section 17.50(a)(2). Plaintiff had purchased from defendant a used short block; it was guaranteed for 90 days or 4000 miles, whichever came first. The further nature and extent of the guarantee were not expressed.

Plaintiff experienced repeated mechanical problems with the automobile engine, including various parts of the short block. During the 90 day period of guarantee, plaintiff’s car was in defendant’s shop for various repairs for approximately 60 days. Each time the car was brought to defendant, he consistently made repairs without charge to plaintiff. Plaintiff suffered repeated breakdowns due to engine problems both during and after the 90 day period and sought actual damages in the amount of $2,000.00 for repairs to the automobile in question performed by third parties, automobile rentals, towing and loss of income occasioned by the alleged breach of warranty-

Trial was to a jury. The plaintiff rested his case without calling defendant, and the record is devoid of allegations or proof that defendant acted other than in good faith and with diligence. At the conclusion of plaintiff’s evidence, defendant moved for an instructed verdict and it was granted by the trial court. Appeal is taken from that judgment.

Plaintiff asserts an action lies under Section 17.50(a)(2) of the Act for breach of warranty even though the warranty concerns used goods. We agree.

Section 17.50(a)(2) of the Act provides that a consumer may maintain an action if he has been adversely affected by breach of an express or implied warranty. Section 17.45(4) defines “consumer” as an “individual, partnership or corporation, or governmental entity who seeks or acquires by purchase or lease any goods or services.” “Goods” is defined by Section 17.45(1) as “tangible chattels or real property purchased or leased for use.” No distinction is made between new and used goods. Section 17.44, which sets out guidelines for construing the Act provides:

“This subchapter shall be liberally construed and applied to promote its underlying purposes, which are to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection.”

In keeping with this expressed legislative intent, and in the absence of any expressed intent to the contrary, it cannot be said an action does not lie under the Act for a breach of warranty made in connection with the sale of used goods.

An exhaustive analysis of the Act was undertaken by the Dallas Court of Civil Appeals in Singleton v. Pennington, 568 S.W.2d 367, (Tex.Civ.App.—Dallas 1978, no writ) in an action by a consumer for damages resulting from an innocent misrepresentation by a seller of second-hand goods. That court intimated that used goods were covered under the Act. We expressly hold a cause of action may lie under the Act for breach of warranty even though the warranty relates to used goods.

Plaintiff’s petition asserts a breach of both an express warranty and an implied warranty “to compensate plaintiff for all towing expenses, car rentals and lost income occasioned by the malfunctions in the engine installed by defendant during the warranty.”

The Express Warranty

The express warranty in this case relates to defendant’s obligation to repair the short block, which he had installed in plaintiff’s automobile, for a period of 90 days or 4000 miles, whichever came first. There was no express warranty that the engine was free from defects in either material or workmanship. If any such warranty existed, it must be implied by law.

The evidence shows that at all times during the 90 day warranty period defendant performed all requested repairs at no charge to plaintiff. The repairs for which plaintiff now seeks recovery were made after the 90 day period and were performed by third parties. The car was not returned to the defendant, and he was offered no opportunity to make the repairs if, indeed, he was under a duty to do so.

Plaintiff failed to establish a breach of the express warranty to repair. Therefore, Section 17.50(a)(2) is not applicable unless an implied warranty of merchantability can be established. Preston v. Sears, Roebuck & Co., 573 S.W.2d 560 (Tex.Civ.App.—Texarkana 1978, no writ).

The Implied Warranty

The Deceptive Trade Practices Act does not create any implied warranties. Further, Section 17.46(b)(19) provides “that nothing in this subchapter shall be construed to expand the implied warranty of merchantability as defined in Sections 2.314 through 2.318 of the Business & Commerce Code to involve obligations in excess of those which are appropriate to the goods”. Prior to the enactment of the U.C.C. in Texas, our courts consistently held that there was no implied warranty of quality for goods purchased with the knowledge they were used. Holley v. Central Auto Parts, 347 S.W.2d 341 (Tex.Civ.App.—Austin 1961, writ ref’d n. r. e.). In an early construction of Section 2.314 of the U.C.C., it was determined that the implied warranty of merchantability did not apply to the sale of used goods. Chaq Oil Co. v. Gardner Machinery Corp., 500 S.W.2d 877 (Tex.Civ.App.—Houston [14th Dist.], 1973, no writ). Although the Chaq Oil case was decided prior to the enactment of the Deceptive Trade Practices Act, the express language of Section 17.46(b)(19) states that no warranties are created. Therefore, plaintiff must establish the existence of a warranty and a breach thereof before he is entitled to relief under Section 17.50(a)(2).

The express warranty to repair does not create an implied warranty of merchantability. The limits of an express warranty to repair were recently addressed in Preston v. Sears, Roebuck & Co., supra, wherein the court stated:

“In our opinion, the express warranty relates to [the] obligation to repair . It is not an express warranty that the [good] is free from defects in materials and workmanship . . . Since the express warranty related to repair, there was no breach and Section 17.50(a)(2) is not applicable”.

Since no warranties were created by the Act and our courts have consistently held that an implied warranty of merchantability does not apply to the sale of used goods, we find that no implied warranty of merchantability existed in the present case.

Plaintiff failed to raise a material issue of fact as to a breach of the express warranty to repair and failed to establish that any implied warranties existed, therefore the trial court’s action in granting defendant’s motion for instructed verdict was proper. Accordingly, the judgment of the trial court is affirmed.


author: HUTCHINSON, Justice.

text:
    TIDE PRODUCTS, INC., Relator, v. Honorable Henry BRASWELL et al., Respondents.
    No. 8752.
    Court of Civil Appeals of Texas, Texarkana.
    July 10, 1979.
    Rehearing Denied Aug. 7, 1979.

      Pat F. Beadle, Beadle & Beadle, Clarks-ville, for relator.
    Henry Braswell, District Judge, Jim D. Lovett, Clarksville, for respondents.
   ORIGINAL MANDAMUS PROCEEDING

HUTCHINSON, Justice.

Relator, Tide Products, Inc., by its application for writ of mandamus seeks an order of this Court directing the Honorable Henry Braswell to proceed to judgment in Cause No. 24,448 styled Tide Products, Inc. v. R. L. Williams and Howard Williams, pending in the 102nd Judicial District Court of Red River County. It is the contention of the relator, plaintiff and cross-defendant below, that the jury returned a special issue verdict which is sufficient to support a judgment in its favor and that the rendition of such judgment is a ministerial act which may be compelled by mandamus. It appears from the application that the jury was unable to agree upon answers to all of the submitted special issues and that the court received and ordered filed the incomplete verdict and discharged the jury. Thereafter, relator filed a motion for judgment contending the unanswered issues, if answered, could not form a basis for judgment for the defendants-cross-plaintiffs on their cross-action. The record before this Court does not contain a motion for mistrial but does contain a copy of a letter from Judge Braswell to counsel announcing the granting of a mistrial motion and denying all other pending motions. The entered order declaring a mistrial stated that the jury verdict was incomplete and did not furnish a basis for the entry of a judgment.

Relator’s petition for a writ of mandamus has been responded to by the defendants-cross-plaintiffs.

Article 1824, Tex.Rev.Civ.Stat.Ann., grants this Court the authority by mandamus to compel a district court to proceed to trial and judgment in a cause. In the exercise of this authority this Court is mindful of the admonition set forth in Southwestern Bell Telephone Co. v. Shell, 266 S.W.2d 476 (Tex.Civ.App. Fort Worth 1954, no writ), wherein the court stated:

“While mandamus lies to compel a court to render judgment when the petitioner has an absolute right to such judgment, the petitioner has the burden of showing a clear right to such relief. . . . ”
“The remedy by mandamus is summary, extraordinary, harsh and drastic, and when it is resorted to for the purpose of compelling a court to render a particular judgment when that court thinks no judgment should be rendered, its enforcement is attended by some delicacy. Accordingly, we believe that when there is any reason which could justify the action, of the court in declaring a mistrial, a writ of mandamus requiring him to enter a judgment cannot be issued.”

And too we must consider the limitation upon the exercise of such authority set by the Texas Supreme Court in the decision of Johnson v. Court of Civil Appeals, 162 Tex. 613, 350 S.W.2d 330 (1961). There the court stated that an appellate court could direct a trial court to set aside its order granting a motion for new trial only when the order was wholly void or where the trial court has specified in its written order that the sole ground for the new trial was a conflict in the jury’s answers to the special issues. There is no legal distinction in the application of this rule between the granting of a new trial and declaring a mistrial. Meyer v. State, 372 S.W.2d 764 (Tex.Civ.App. Beaumont 1963, no writ); L. B. Foster Steel Co. v. Moorhead, 382 S.W.2d 280 (Tex.Civ. App. Houston 1964, no writ); Allen v. Long, 408 S.W.2d 342 (Tex.Civ.App. Dallas 1966, writ dism’d).

It is well settled that mandamus will not lie to control judicial or discretionary actions and if it appears that the trial judge acted in a judicial rather than a ministerial capacity in passing upon the motion for judgment, this Court is without authority to disturb that action by way of mandamus. Trevino v. Doughty, 311 S.W.2d 276 (Tex.Civ.App. San Antonio 1958, no writ); Houston Fire & Casualty Ins. Co. v. Ger-hardt, 281 S.W.2d 176 (Tex.Civ.App. San Antonio 1955, no writ); First National Bank v. Chapman, 255 S.W. 807 (Tex.Civ. App. Fort Worth 1923, no writ). A writ of mandamus cannot be used to control or revise the exercise of discretion by the trial courts in the performance of purely judicial as distinguished from ministerial acts. Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648 (Tex.1958). The motion for mistrial here is not before this Court but whether or not it stated a sufficient reason for the ordering of a mistrial is a matter of discretion with the trial court which cannot be controlled or reviewed by mandamus, even though the trial court may have erroneously granted the motion. Hunsinger v. Boyd, 119 Tex. 182, 26 S.W.2d 905 (1930); Stephenson v. Boyer, 479 S.W.2d 355 (Tex.Civ.App. Amarillo 1972, no writ); City of Perryton v. Boyer, 423 S.W.2d 170 (Tex.Civ.App. Amarillo 1968, mand. overr.).

The case here does not present a situation wherein a trial court has refused to act at all. Relator’s and the defendant-cross-plaintiffs’ motions were each considered and acted upon by the court. Mandamus is not available to direct the exercise of judicial discretion in any certain manner. Carnes v. Cunningham, 350 S.W.2d 59 (Tex. Civ.App. El Paso 1961, no writ); McDowell v. Hightower, 111 Tex. 585, 242 S.W. 753 (1922); O Meara v. Moore, 142 Tex. 350, 178 S.W.2d 510 (1944). The trial court upon its consideration of the motions before it had to first determine if the unanswered issue was material and if found to be, to determine whether or not there was evidence to support an affirmative answer thereto. These determinations necessarily involved the exercise of a judicial function as opposed to a ministerial act. Therefore, mandamus cannot issue. Meyer v. State, supra; Chancey v. New Amsterdam Casualty Co., 336 S.W.2d 763 (Tex.Civ.App. Amarillo 1960, writ ref’d n. r. e.); Gulf, C. & S. F. Ry. Co. v. Canty, 115 Tex. 537, 285 S.W. 296 (1926); Cortimeglia v. Davis, 116 Tex. 412, 292 S.W. 875 (1927).

Relator’s application for writ of mandamus is denied.


author: DOYLE, Justice.

text:
    Mike WILSON, Appellant, v. Gloria Tiffany WILLIAMSON, Appellee.
    No. 17448.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 12, 1979.
    Rehearing Denied Aug. 16, 1979.

      Bousquet & Associates, Thomas G. Bous-quet, Houston, for appellant.
    Robert A. Hatcher, Houston, for appellee.
   DOYLE, Justice.

From a judgment awarding Gloria Tiffany Williamson (appellee) $1500 in damages against Mike Wilson (appellant), this appeal has been perfected. We reverse and remand.

Appellee orally contracted with appellant to have her furniture moved, temporarily stored and later transported to her new home. Appellee’s furniture was picked up and placed in storage by Transplan. Checks for this service were made out to Transplan and given to appellant, whom appellee later learned was president of Transplan, Inc.

During the course of the moving and storage, certain items were damaged and others were alleged to be missing. Appel-lee filed the required claim forms with appellant listing damages in the amount of $2683.95 which appellant refused to pay. Appellee filed a verified petition alleging appellant’s negligence and attached to the petition copies of the claim forms showing the cost of repairs and replacements. Trial was to the court, which found for appellee. The record before this court includes the transcript, statement of facts, and findings of fact and conclusions of law.

Although appellant has filed seven points of error, only a consideration of points no. 5 and 7 is necessary for our opinion. By these two points of error appellant contends that the trial court erred in considering exhibit “A” attached to plaintiff’s original petition as evidence when the same was not introduced into evidence and that the trial court also erred in rendering judgment for plaintiff for the sum of $1,500.00 for the reason that the plaintiff wholly failed to adduce any evidence of any monetary amount of damages upon which the court could render a verdict. The trial court’s findings of fact and conclusions of law germane to these points of error are here set forth:

IV.

FACTS: Damage to the stored goods were proved by the testimony of Plaintiff and Plaintiff testified as to the value of the goods.
CONCLUSIONS: The measure of damages for the loss of the goods is the reasonable value to the owner, and the owner may so testify to their value and the loss to her in money.

After a careful examination of facts adduced at the trial of this cause, we can find no legal proof of any monetary amount of damages. The record abounds in testimony as to how appellee estimated — or' to use her words, “Just by guesstimating”— the amount necessary to repair and replace certain items of furniture listed on the claim forms and attached to her petition. Although appellee made frequent reference to the said claim forms constituting Exhibit “A”, which did have monetary amounts opposite listed items alleged to be damaged and missing, these forms were never introduced into evidence. On three occasions during the trial, appellant timely objected to testimony from this exhibit without its introduction, all of which objections were sustained by the court. The burden rested with appellee to prove not only that her goods had been damaged and lost, but the monetary amount of such damage and loss. Brass v. Texarkana & Ft. Smith Ry. Co., 110 Tex. 281, 218 S.W. 1040 (1920, holding approved). In the case before us appellee produced no evidence upon which an inference of the amount of damages could be based. The above conclusion by the trial court correctly states the law as to the measure of damages and how appellee may prove them. Crisp v. Security National Insurance Company, 369 S.W.2d 326 (Tex.1963); Wright v. Gernandt, 559 S.W.2d 864 (Tex.Civ.App.—Corpus Christi 1977, no writ); American Transfer & Storage Co. v. Reichley, 560 S.W.2d 196 (Tex.Civ.App.—Amarillo 1977, ref. n. r. e.).

Under the provisions of Rule 59, T.R.C.P., appellee was permitted to attach the said exhibit to her pleadings and make reference to it during the trial. However, as pointed out by the court in Mayberry v. First National Bank of Littlefield, 351 S.W.2d 96 (Tex.Civ.App.—Amarillo 1961, no writ), where a mortgage was attached to the petition, referred to during the trial, but not offered in evidence: “It was incumbent upon appellant to offer the alleged mortgage in evidence in order for it to be considered by the trial court.”

As they relate to the value of goods, the above finding of fact is erroneous. Exhibit “A” should not have been considered as evidence by the trial court, absent its admission in evidence. The record before us is void of any other testimony tending to prove the monetary value of the items damaged and lost. Both of these points of error are sustained.

Appellant has requested that this court render judgment for him upon reversal. Having sustained appellant’s contention that there was no evidence of appel-lee’s damages, we are authorized to remand rather than render. Exhibit “A” contained ample evidence upon which the trial court could have based a proper judgment. We think the appellee was erroneously prevented from laying a predicate for the introduction of the exhibit. Under the record before us, we are convinced that the evidence, especially as to the monetary damages, was not fully developed and that a retrial will best serve the interests of justice. Rule 434, T.R.C.P.; Marr v. Craddock, 406 S.W.2d 278 (Tex.Civ.App.—Tyler 1966, no writ).

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

COLEMAN, C. J., and PEDEN, J., also sitting.


author: WARREN, Justice.

text:
    PASADENA INDEPENDENT SCHOOL DISTRICT, Appellants, v. Brenda EMMONS, by Next Friend Mike Emmons, Minor, Appellees.
    No. 17420.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 12, 1979.
    Rehearing Denied Aug. 16, 1979.
    Baskin, Fakes & Stanton, Stanley D. Bas-kin, Pasadena, for appellants.

      Ann Zimmerer, Pasadena, for appellees.
    Before EVANS, WARREN and WALLACE, JJ.
   WARREN, Justice.

This is an appeal by Pasadena Independent School District from an order enjoining it from enforcing a disciplinary order during the pendency of an appeal to the State Commissioner of Education.

Appellee, Mike Emmons, was accused of misconduct, and on November 27, 1978, after an informal hearing, the principal of the school assigned the appellee to the school district’s guidance center for a maximum period of six (6) days. The principal’s decision was appealed to the school district’s assistant superintendent, superintendent, and ultimately to the board of trustees. During the pendency of these intra-district appeals, the district’s administrators made no attempt to enforce the order. On January 18, 1979, the board of trustees affirmed the principal’s decision.

On January 19, 1979, the appellee instituted suit in district court to temporarily restrain and enjoin the enforcement of the disciplinary order during the pendency of an appeal to the commissioner of education.

At the hearing held on the temporary injunction, the attorney for the school district admitted that the district intended to enforce the disciplinary decision.. The attorney for the appellee testified that she had orally given notice of the appeal to the commissioner of education. Documentary evidence was introduced demonstrating that written notice was mailed to and received by the commissioner’s office.

In three points of error, the school district urges that the district court was without jurisdiction to grant the injunction, and that the district court abused its discretion because there was no evidence or, alternatively, insufficient evidence to warrant the issuance of the injunction.

Appellant urges that the appellee, by failing to request a stay order from the commissioner of education, did not exhaust the administrative remedies. Neither the Texas Education Code nor the Administrative Procedure Act expressly authorizes the commissioner of education to issue an injunction or stay order. Appellant has not referred us to any case, and we have not been able to find any case indicating that the commissioner has this extraordinary power.

In Plains Common Consolidated School District No. 1 v. Hayhurst, 122 S.W.2d 322 (Tex.Civ.App.—Amarillo 1958, no writ), it was stated,

The school authorities are powerless to preserve the peace of the community involved and are equally impotent, in many instances, to preserve the status quo of the subject matter of the suit. Resort may, therefore, be had to the courts for such temporary relief as may be justifiable, either for the protection of society or for the preservation of the rights of litigants which might otherwise be destroyed pending a determination on the merits.” at 328.

See also McCollum v. Adams, 110 S.W. 526, 528 (Tex.Civ.App. — San Antonio 1908, no writ).

Appellant cites authority that administrative agencies have implied powers commensurate with their express authorities and duties. See Stauffer v. City of San Antonio, 162 Tex. 13, 344 S.W.2d 158, 160 (Tex.1961). We have not been able to find any Texas case, however, which has held that an administrative officer or agency has an implied power to issue an injunction. For these reasons, we hold that the district court had jurisdiction to entertain the petition for a temporary injunction.

In the instant case, the appellee had the burden of proving: (1) that he had a probable right to appeal, (2) that his right to a meaningful appeal was being threatened and jeopardized by the school district’s actions and (3) that he would probably suffer a substantial and irreparable injury if the injunction did not issue. These requirements have been referred to frequently as a probable right and a probable injury. Granbury Independent School District v. Andrews, 439 S.W.2d 896 (Tex.Civ.App.—Fort Worth 1969, writ ref’d n. r. e.).

In the instant case, the appellee is afforded a right to an administrative appeal by virtue of section 11.13 of the Texas Education Code (Vernon’s 1972). Appellee’s attorney testified that she had perfected the appeal on behalf of her client by giving oral notice to the school board and by sending written notice to the commissioner of education. Appellee’s attorney also introduced a copy of the letter sent to the commissioner of education and a return receipt evidencing delivery to the commissioner’s office. Appellee’s attorney, having personal knowledge of these events, was competent to offer testimony as to these matters. For these reasons, we hold that the appellee established a probable right to appeal. .

The appellee also established that the alleged harm — the enforcement of the order — was imminent. The attorney for the school district admitted that the order was going to be implemented notwithstanding the appeal to the commissioner’s office.

The appellee did not establish, however, that the enforcement of the order would probably constitute a substantial and irreparable injury. Appellant’s first and second points of error are sustained.

Evidence of the nature and purpose of the guidance center as well as the effect of the assignment on the appellee should be considered. Certainly the nature and extent of the adverse effects on the appellee, if any, would have a bearing upon the meaningfulness of the appeal if the enforcement of the order was not enjoined.

Moreover, the trial court should consider the school district’s need to enforce the order notwithstanding the pending appeal. There are many acts of misconduct such as hostility toward other students, serious crime, or continuous disruption of classes which might justify the separation of the student from the general student body notwithstanding the pending appeal. For this reason, there can be no absolute right to a temporary injunction to maintain the status quo pending appeal. In these cases, the right of the alleged offender to prosecute a meaningful appeal must be balanced against the rights and interests of the school administrators, teachers and other students. The court should consider and weigh the legitimate interests and rights of all concerned before intervening in the administration of school affairs. Plains Common Consolidated School District No. 1 v. Hayhurst, 122 S.W.2d 322 (Tex.Civ.App.—Amarillo 1938, no writ).

The judgment of the trial court is reversed and the injunction is dissolved.


author: HUGHES, Justice.

text:
    UNITED STATES FIRE INSURANCE COMPANY, Appellants, v. J. T. WESTERN, et ux., Appellees.
    No. 18102.
    Court of Civil Appeals of Texas, Fort Worth.
    July 12, 1979.
    Rehearing Denied Sept. 13, 1979.

      Harris & Harris and Jack E. Harris, Arlington, for appellant.
    Henry Stollenwerck, Dallas, for appellees.
   OPINION

HUGHES, Justice.

United States Fire Insurance Company (USFICO), has appealed a judgment rendered after a jury verdict which gave J. T. Western and wife a recovery against it on a Texas standard fire insurance policy.

We reverse and render.

The Westerns alleged that Dan Gibson, acting as their insurance agent requested that the Bullett Abshire Agency, a local recording agent of USFICO, renew a fire insurance policy dated March 20, 1974. Ab-shire bound the coverage, delivering a policy of insurance dated March 20, 1975 to Mike Wright who had succeeded Gibson as agent for Westerns. The Westerns alleged Wright took the policy to them and demanded payment and was told by them they wanted the policy and would send the premium. Their building burned and they demanded from USFICO the $22,500.00 face value of the policy.

USFICO alleged that no policy was in force on April 23, 1975, when the building burned stating that the Westerns had rejected its offer to insure the building. There were other defenses pled, including revocation of offer to insure by USFICO communicated directly to Westerns as well as substantial change in the condition of the property (destruction by fire) known to Westerns before any acceptance occurred. None of USFICO’s pleadings were sworn to.

Looking at the facts in the light most favorable to the judgment we note that Abshire issued a binder to renew the Western policy No. R525002 (issued 1974, expiring March 20, 1975). Later, policy No. R632785 was issued by Abshire and a bill for premium was issued requiring payment in thirty days. Such policy was intended as a renewal of No. R525002, and was sent to Wright for delivery.

Mrs. Western testified to Mr. Wright’s coming to her door on April 21, 1975, with an insurance policy in his hand, asking for money. She also said she was told by Gibson that Wright would be taking over Gibson’s business. She testified that after the fire she contacted Wright and he told her he had cancelled the policy. Mrs. Western, on cross-examination, said Wright may have told her that the insurance had run out and that he told her if she wanted insurance she was going to have to pay for it. She said she told Wright that she had not discussed it with her husband and they had no chance to talk about it. She said that this was their only conversation before the fire.

We are faced in this case with answers to special issues 7 and 8 which tell us the jury found that Mrs. Western told Wright in effect that she and her husband rejected the insurance policy in question. Further, the jury found that before the fire, Mrs. Western and her husband failed to accept the insurance policy in question.

There is no question that the expired 1974 policy, and the 1975 policy, here in litigation, have noticeable differences. The 1975 policy premium was $163.00. The 1974 policy premium was $275.00. The 1975 policy provides an 80% co-insurance clause not in the 1974 policy. The 1974 policy has endorsements numbers 250 and 29 which the 1975 policy lacks, while the 1975 policy has endorsement number 200 which the 1974 policy does not. Mrs. Western noted the difference in the premium, saying she couldn t understand “because insurance doesn’t go down”. However, by her testimony, she was called by Wright, who told her “we are going to have to do something about the policy”. She told him she would talk to her husband and would probably mail him a check “tomorrow”, to which “He said, yes”. Then she said, “you will get a check tomorrow”.

Wright, who said he was requested by Abshire to contact the Westerns, said he went to see the Westerns to see if they wanted to pay the premium on the 1975 policy and if they wanted the insurance. He testified that Mrs. Western told him that she didn’t believe they wanted it. She did tell him he could call back the next day. He reported calling the next day and having her tell him “that they had discussed it again and they would not want it”. He told her that he had to send it back that day, to which she indicated that he (Mr. Western) might call Wright if Wright still wanted to talk to him. Wright said that Western “never did recall” and the policy was put in the mail in his office to go back to Abshire.

We hold that the jury had ample evidence on which to base its answers to special issues nos. 7 and 8. The jury had the option of believing Mrs. Western or Wright. They chose to believe Wright and we are not at liberty to change their answers.

Therefore, we, sustain point of error number 13 and hold that the 1975 policy submitted to Westerns was at such variance with the 1974 policy that it amounted to a counter offer. The jury findings in special issues 7 and 8 reflect a rejection of a counter offer. Restatement of Contracts § 38 (1932); 13 Tex.Jur.2d Contracts § 36 (1960); Springfield Fire & Marine Ins. Co. v. Hubbs-Johnson M. Co., 42 S.W.2d 248 (Tex. Comm’n App.1931, no writ).

We sustain point of error number 14 holding that the parties cancelled the policy by mutual consent. The proof was sufficient to sustain the jury finding in special issues nos. 7 and 8 that the Westerns rejected the policy and also failed to accept it. Coupled with the evidence of return of the policy to Abshire and its voiding the same, it is manifest that both parties wanted the policy cancelled — a mutual consent situation. Argonaut Southwest Ins. Co. v. Amco Mesh & Wire Co., 472 S.W.2d 843 (Tex.Civ. App.—Dallas 1971, writ ref’d n.r.e.).

We have considered and overrule the other points of error, reverse the judgment of the trial court and render that J. T. Western and his wife take nothing.


author: WARD, Justice.

text:
    EL PASO COUNTY, Texas, et al., Appellants, v. Raymond TELLES, Appellee.
    No. 6828.
    Court of Civil Appeals of Texas, El Paso.
    July 25, 1979.
    Rehearing Denied Aug. 22, 1979.

      George N. Rodriguez, Jr., County Atty., Michael P. Davis, Albert A. Biel, Jr., Asst. County Attys., El Paso, for appellants.
    John G. Gilleland, T. David Hollings-worth, Houston, for appellee.
   OPINION

WARD, Justice.

This case involves the flogging of a very dead horse. On December 21, 1977, the Plaintiff filed suit against the County of El Paso, the members of its Commissioners Court, and the Constable of Precinct One of El Paso to recover his damages due from four years’ loss of salary from that Constable’s office, loss of emoluments of that office, loss of political reputation, mental and physical pain and suffering, exemplary damages and attorney fees. Trial was to the Court, sitting without a jury, and judgment was entered for the Plaintiff for $94,-000.00 against all Defendants, the judgment being as to the individual Defendants, both in their official capacities and as individuals. The controlling issues have previously been disposed of adversely to the Plaintiff’s position in Telles v. Sample, 500 S.W.2d 677 (Tex.Civ.App.—El Paso 1973, writ ref’d n. r. e.). Because of that final judgment, and for the additional obvious errors presented, we reverse and render.

This suit arose when on December 27, 1972, the Commissioners Court of El Paso voted to abolish the eight existing Justice of the Peace and Constable Precincts effective December 31, 1972, and to create six new precincts effective January 1, 1973. In the process, the Plaintiff lost his job. The facts were discussed in the previous Telles case as well as in Moore v. El Paso Commissioners Court, 567 S.W.2d 15 (Tex.Civ.App.—El Paso 1978, writ ref’d n. r. e.). In the Telles case, the present Plaintiff sued for his salary and emoluments of office, although there the suit was in the form of a mandamus action to compel the proper County officials to pay his salary and emoluments of office as Constable of Precinct One of El Paso. Relief was denied and that judgment is final. The Defendants’ plea of res judicata in the present case should have been honored by the trial Court. Benson v. Wanda Petroleum Company, 468 S.W.2d 361 (Tex.1971). Their Point of Error No. Three is sustained. Since we have previously held that the action taken by the Commissioners Court of El Paso County was authorized by law, the Defendants’ Point No. One raising that proposition is likewise sustained.

Within a space of five pages of the statement of facts, Telles testified as to his damages. He stated that, while acting as Constable of Precinct One and receiving a County salary, he served legal notices, notices to vacate, and other service duties for private persons and attorneys, and that he charged a personal fee for those services. He didn’t remember what the amount of those fees were. His petition alleged that for these “fees of office” he was entitled to $16,000.00. Based on this testimony, the trial Court awarded the Plaintiff the sum of $19,200.00.

Telles further testified that, after his job as Constable was abolished by the Commissioners Court Order of December 27, 1972, in 1974 he ran for the office of County Clerk and lost that election. His petition alleged that he was entitled to receive the sum of $500,000.00 for “loss of political reputation.” Based on the above quoted testimony, the trial Court awarded the Plaintiff the sum of $5,000.00 for “loss of political reputation.” Telles also testified that after the loss of his job he had to “regroup himself.” It “altered his plans.” He had some worries and loss of sleep. But mostly he was “hurt personally” and “his family suffered a lot.” It caused him embarrassment and he “employed attorneys” and he spent time “talking to people and trying to correct the situation,” and it certainly caused him to worry mentally. He retained attorneys in the present case and he agreed to pay them a “reasonable attorney’s fee.” Based on the quoted testimony, the trial Court awarded the Plaintiff the sum of $10,000.00 for mental pain and suffering, $16,000.00 for exemplary damages, and $10,000.00 for attorney fees.

Since we have sustained Points One and Three, the case is disposed of in favor of the Defendants. If we were to reach the balance of the points, we would sustain those points attacking the judgment because of the statute of limitation and we would further sustain those no evidence and insufficiency of the evidence points attacking the exemplary damages and attorney fees.

The judgment of the trial Court is reversed and it is here rendered that the Plaintiff take nothing by his suit.


author: RALEIGH BROWN, Justice.

text:
    GULF OIL CORPORATION, Appellant, v. Doyle Wayne SENKIRIK et ux., Appellees.
    No. 5341.
    Court of Civil Appeals of Texas, Eastland.
    July 26, 1979.
    Rehearing Denied Aug. 30, 1979.

      R. Temple Dickson, Moore, Dickson, Roberts & Hall, Inc., Sweetwater, for appellant.
    Tom F. Webb, Max Parker, Webb, Stokes & Sparks, San Angelo, for appellees.
   RALEIGH BROWN, Justice.

This is a venue case. Doyle Wayne Sen-kirik and Phyllis Senkirik, parents of Doyle Wayne Senkirik, Jr., sued Gulf Oil Corporation and Grady Thompson, who sold Gulf Products in Brown County, asserting negligence and strict liability, seeking recovery of damages for the death of their son as a result of a fatal burning received in Brown County. Grady Thompson was dismissed from the lawsuit. Gulf Oil Corporation, a foreign corporation with its principal place of business in Houston, filed a plea of privilege which was controverted by plaintiffs, asserting Subdivisions 23 and 27, Tex.Rev. Civ.Stat.Ann. art. 1995. The plea of privilege was overruled. Gulf Oil Corporation appeals. We affirm.

Grady Thompson obtained diesel fuel from Gulf and stored it in a tank at his bulk plant. He delivered fuel from there to his customers in a compartmentalized truck owned and operated by him and his employees. Diesel was delivered to the Senkirik tank on January 18, 1977, and a few days later, Doyle, Jr., while fueling his father’s truck, struck a lighter, which caused an explosion. Doyle, Jr. died as a result of the .burns received in such explosion.

The evidence shows that the Gulf diesel in the Thompson tank was uncontaminated and the diesel in the Senkirik tank was contaminated, having' a lower flash point than diesel should have. Thompson had had possession and control of the fuel for several days prior to the delivery to Senki-rik.

It was established that Gulf Oil Corporation was a foreign corporation authorized to do business in Texas with its principal Texas office in Houston.

In order to maintain suit against a foreign corporation authorized to do business in Texas in a certain county, plaintiff must prove either that the corporation had an agent or representative in that county at or after the date of filing suit or that the cause of action or a part thereof arose in that county. O. M. Franklin Serum Company v. C. A. Hoover & Son, 410 S.W.2d 272 (Tex.Civ.App.—Amarillo 1966), writ ref’d n. r. e. per curiam, 418 S.W.2d 482 (Tex.1967): 1 McDonald, Texas Civil Practice § 4.30.4.

Gulf argues that there is no evidence that the diesel fuel was contaminated when it was delivered to Thompson. Gulf contends, in the absence of such evidence, Sen-kirik has not proved a cause of action under the doctrine of strict liability.

The court in Pittsburg Coca-Cola Bottling Works of Pittsburg v. Ponder, 443 S.W.2d 546 (Tex.1969) said:

The prime requirement for imposing liability on a seller under the rule of strict liability is proof by the plaintiff that he was injured because of a defective condition in the product when it left the hands of the particular seller. Jack Roach-Bissonet, Inc. v. Puskar, 417 S.W.2d 262, at 278 (Tex.Sup.1967). . .

Gulf contends that the evidence is clear any contamination of the fuel resulted after Gulf lost possession and control of it. Therefore, there is no basis for a finding of a cause of action based on strict liability and since there is no evidence of negligence, venue cannot be sustained under Subdivision 27, Tex.Rev.Civ.Stat.Ann. art. 1995 unless Gulf is shown to have had an agent or representative in Brown County at the time suit was filed.

It was stipulated that the contracts representing the relationship between Gulf and Thompson were the same as those between Gulf and Thompson’s successor. Those contracts provided in part: “Consignor’s stock shall remain the property of consignor until sold in the regular course of business.”

At the time Gulf delivered fuel to the distributor’s bulk plant, the fuel stocks were not sold to the distributor; title to same never passed. When the distributor received an order for such fuel, he prepared a Gulf letterhead delivery ticket; delivered the fuel; collected the money from the purchaser; and deposited the money in a separate bank account under Gulf’s name. Such proof supports a finding that Thompson was Gulf’s agent at the time of the occurrence.

No findings of fact or conclusions of law were requested or filed by the trial court and, therefore, the judgment should be affirmed if it can be upheld on any legal theory that finds support in the evidence. Lassiter v. Bliss, 559 S.W.2d 353 (Tex.1977); Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962).

Although the court made certain findings at the conclusion of the evidence, as stated by the court in White v. White, 519 S.W.2d 689 (Tex.Civ.App.—San Antonio 1975, no writ):

The oral pronouncements of the trial judge made during the trial cannot be accepted as substitutes for the written findings of fact and conclusions of law authorized by Rule 296, Texas Rules of Civil Procedure (1967); Gasperson v. Madill National Bank, 455 S.W.2d 381 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n. r. e.); Murray v. Murray, 350 S.W.2d 593 (Tex.Civ.App.—Dallas 1961, no writ).

The evidence established that the diesel fuel was not contaminated after being delivered to Senkirik by Thompson. It was Gulf’s property until delivered and sold to Senkirik by Gulf’s agent Thompson. The diesel fuel was, therefore, sold directly from Gulf to Senkirik and was contaminated at the time it was sold. Senkirik, therefore, made out a cause of action of strict liability in tort. McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967). The trial court correctly overruled Gulf’s plea of privilege.

We have considered and overrule all of Gulf Oil Corporation’s points of error. The judgment is affirmed.

      . Subdivision 27 provides:
      Foreign corporations. — Foreign corporations, private or public, joint stock companies or associations, not incorporated by the laws of this State, and doing business within this State, may be sued in any county where the cause of action or a part thereof accrued, or in any county where such company may have an agency or representative, or in the county in which the principal office of such company may be situated; or, when the defendant corporation has no agent or representative in this State, then in the county where the plaintiffs or either of them, reside.


author: McDONALD, Chief Justice.

text:
    Curtis Phillip CEDOTAL, Appellant, v. Lois Lynn Wolk CEDOTAL, Appellee.
    No. 6041.
    Court of Civil Appeals of Texas, Waco.
    July 26, 1979.

      Gary J. Coker, Jr., Waco, for appellant.
    Q. Z. Valentine, Waco, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by Appellant Curtis Phillip Cedotal (petitioner in the trial court) from judgment in a divorce case.

Appellant sued Appellee Lois Lynn Wolk Cedotal for a divorce. Appellee cross petitioned on divorce, managing conservator-ship of the parties’ two minor children, and property adjudication.

Trial was before the court, which decreed the parties a divorce; appointed Appellee managing conservator of the two children; awarded all of the real estate to Appellee; required Appellee to pay some $81,000 in community debts; awarded Appellant personal property and an automobile clear of debt; and required Appellant to pay $125 per month in child support.

Appellant appeals on two points.

Point 1 asserts the trial court erred in characterizing twenty items of real property, and the homestead, as separate property of Appellee, because there is insufficient evidence to support such a finding.

The parties were married in February 1969; lived first in Louisiana; and moved to Waco in 1971. They had two children age 9 and 7 at time of trial. After the parties moved to Waco, Appellant managed rental property (some 40 rent houses) which belonged to Appellee and her brother Jerrel Bruce Wolk. This property was a portion of a trust established and given Appellee and her brother when they were very young. On June 1, 1977 Jerrel Bruce Wolk (brother of Appellee) deeded twenty parcels of real estate (rent houses) to Ap-pellee and Appellant for $10. and other valuable consideration. The property in this deed was a portion of the properties given earlier by Mr. and Mrs. Isadore Wolk, parents of Appellee and her brother, for Appellee’s and her brother’s benefit. And the Appellant himself testified that these rent houses (prior to the June 1, 1977 deed) along with other rent houses were the property of Appellee and her brother. Appellant paid no consideration and no consideration was paid from Appellant’s and Appel-lee’s community funds. The evidence is ample to sustain the finding of the trial court that these items were separate property of Appellee by reason of gift from her parents. The inclusion of Appellant’s name on the deed created an initial presumption the property was community, but under the facts of this case such presumption was totally rebutted. And any title held by Appellant by virtue of the June 1, 1977 deed, under the facts, was held by Appellant in trust for Appellee. Cohrs v. Scott, 161 Tex. 111, 338 S.W.2d 127; Ford v. Simpson, Tex.Civ.App. (Waco) NWH, 568 S.W.2d 468; Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401.

The trial court further found the homestead in Waco was Appellee’s separate property. The first homestead of the parties was in Louisiana and purchased with funds given Appellee by her parents. This house was sold and the proceeds used to purchase a house in Waco. This house was sold and its proceeds together with $15,000. additional money given by Appellee’s parents was used to purchase the homestead found to be Appellee’s separate property and awarded to Appellee. The deed to the homestead was made to Appellee and Appellant. The trial court was authorized to find from the evidence that the homestead was separate property of Appellee. And even if the homestead was community property the trial court was authorized to award it to Appellee, and Appellant testified that it would be only fair and right that this home should be given Appellee.

Point 2 asserts the trial court abused its discretion by awarding Appellee all the property in the “Second Deed” and various personal property along with various debts, and awarding Appellant only those personal property items in his possession.

On June 1, 1977 Isadore Wolk, father of Appellee, in what is referred to as the “Second Deed” conveyed to Appellee and Appellant thirteen tracts of real estate (13 rent houses) for an installment note of $57,-592. payable to Isadore Wolk in monthly installments of $500., and bearing interest at 6%.

The trial court found this property was community property; that $2,615.62 equity vested in Appellant and Appellee; and that $54,976.38 of the note was still unpaid, which was community debt. Appellant and Appellee had utilized the rentals on this property for the approximate year after it was deeded to them to live on and to pay the $500. monthly payments to Appellee’s father. During this period Appellee’s parents helped make improvements on the property and paid the taxes on same in the amount of some $4,000.

The trial court awarded Appellee the furniture in the homestead, which had been paid for by Appellee’s parents; required Appellee to assume payment of the $54,-796.38 balance on the real estate note; and to pay a note made by Appellant to the Central National Bank in an approximate balance due of $28,800; and awarded Appellant personal property and an automobile clear of debt.

Section 3.63 of the Family Code (old Article 4638 VATS) provides that the court shall order the division of the estate of the parties as the court deems just and right having regard for each party and any children born to the marriage.

The evidence shows Appellee has two children to rear; the earning capacity of Appellee will be limited with the two children to rear; the rental revenues of the properties involved will be barely adequate, if adequate, to make payments on the $57,-592. note, maintain the properties, pay taxes and insurance; and Appellee was required to pay the $28,800. additional community debts. The $125. per month child support ordered is low, based on the cost of living and the standard of living to which the children were accustomed.

The trial court is vested with wide discretion in making division of the property of the parties. That discretion will not be disturbed on appeal unless the court has clearly abused its discretion. Bell v. Bell, Tex, 513 S.W.2d 20; Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21; Dorfman v. Dorfman, CCA (Waco) NWH, 457 S.W.2d 91; Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299; McHone v. McHone, Tex.Civ.App. (Waco) Error Dismissed, 449 S.W.2d 488; Renfro v. Renfro, Tex.Civ.App. (Waco) NWH, 497 S.W.2d 807; Carson v. Carson, Tex.Civ.App. (Waco) NWH, 528 S.W.2d 308.

We are unable to say from the record that the trial court abused its discretion.

Appellant’s points are overruled.

AFFIRMED.