author: JAMES, Justice.

text:
    WILSON N. JONES MEMORIAL HOSPITAL, Appellant, v. William M. DAVIS, Appellee.
    No. 5680.
    Court of Civil Appeals of Texas, Waco.
    June 9, 1977.
    Rehearing Denied June 30, 1977.
    James E. Henderson, Donald H. Flanary, Jr., Henderson, Bryant & Wolfe, Sherman, for appellant.
    Jack A. Porter, Jr., Munson, Munson & Porter, P. C., Denison, for appellee.
   OPINION

JAMES, Justice.

This is a negligence case. The sole question before us is whether there is any evidence of probative force to support the jury’s findings authorizing exemplary damages. We hold that there is evidence of probative force to support such jury findings and thereby affirm the trial court’s judgment.

Plaintiff-Appellee William M. Davis brought this suit against Defendant-Appellant Wilson N. Jones Memorial Hospital, a Corporation, for actual and exemplary damages for personal injuries sustained by Davis while he (Davis) was a patient in Defendant Hospital. The injuries were sustained as the result of an improper removal of a Foley catheter from Davis’s bladder by an employee of Defendant Hospital.

Trial was to a jury, which found:

(1) On September 21,1973, Leslie C. Loo-man (an employee of Defendant Hospital) failed to use ordinary care in removing or attempting to remove from Plaintiff the Foley catheter in question without first properly deflating the balloon portion.

(2) Which failure was a proximate cause of Plaintiff’s injury and damage.

(3) On said date Looman was unfit to perform the duty of a hospital orderly involving the removal or attempted removal of a Foley catheter from patients such as Plaintiff.

(4) On said date and before the occasion in question, the Defendant Hospital was reckless in the employment and selection of Leslie C. Looman as a hospital orderly to perform, or the entrustment to him of, the duty of removing or attempting the removal of the Foley catheter from patients such as Plaintiff.

In this connection the trial court defined the term “reckless” as “more than momentary thoughtlessness, inadvertence, want of ordinary care, or error of judgment. It means such an entire want of care as to indicate that the act or omission in question was the result of conscious indifference to the rights, welfare, or safety of the persons affected by it.”

(5 and 6) The jury found $17,100.00 actual damages, and

(7) $18,000 exemplary damages.

Based upon and in harmony with the jury verdict, the trial court entered judgment in favor of Plaintiff against Defendant Hospital for $35,100.00 and costs, from which the Defendant appeals insofar as the award of exemplary damages is concerned. We affirm.

Plaintiff Davis entered Defendant Hospital as a patient on September 16,1973, for a transurethral resection of his prostate. This surgical procedure was performed on September 17, 1973 by Dr. Fernando Bus-tos. On September 21, 1973, Leslie C. Loo-man, an orderly employed by the hospital, attempted to remove a Foley catheter from Plaintiff Davis’s bladder without first deflating the bulb which held it in place. Mr. Davis stopped the orderly and instructed him to get a nurse to remove the catheter; whereupon Mrs. Christine Keene, the registered nurse in charge of the floor, was summoned by Looman. Mrs. Keene deflated the bulb and removed the catheter. It was this attempted removal of the catheter from Plaintiffs bladder that occasioned the damage of Plaintiff’s sphincter muscle and brought about the serious personal injuries to Plaintiff which are the subject matter of this suit.

On September 6, 1973, Leslie C. Looman sought employment as an orderly with Defendant Hospital. On that date he completed an employment application which included the listing of references, and was interviewed by Mrs. Elwanda Musser, the hospital’s Associate Director of Nursing. At the completion of the interview Mrs. Musser hired Mr. Looman and told him to report for work on September 10,1973, which Loo-man did.

The normal procedures or hiring policies of the hospital called for the hospital to obtain four (4) employment references and three (3) personal references, and to check at least one employment reference and one personal reference before hiring an applicant. Mrs. Musser hired Looman prior to any reference check, for the reason stated by her that there was a critical need for orderlies, and the filling of such positions was difficult. Subsequent reference checks on Looman were incomplete and unanswered. On his employment application, Looman listed three employment references, which included “Johnson and Johnson” where he stated he was employed as a fork lift operator, and the United States Navy, where he stated he had served as a medical corpsman for eight months.

The only employment reference which the Defendant Hospital followed up was made by the Defendant after Looman was hired. This inquiry was made to Johnson and Johnson, who answered and verified that Looman had worked from June 1973 to September 1973 as a “redress/rework operator.” However, Johnson and Johnson did not answer any of the other questions propounded to them by the hospital, such as why he left the job, his dependability, attitude, job knowledge, and whether they (Johnson and Johnson) would re-employ Looman. The record shows that Johnson and Johnson had an address in Sherman, Texas, which is the same city in which the Defendant Hospital was located. It appears to us that Johnson and Johnson’s failure to answer some of the above critical questions concerning Looman’s job suitability would be enough to put the Hospital on inquiry that a follow-up should be made. However, even though the former employer was there in the same city, no effort was made by the Hospital to find out why the questions were not answered by Johnson and Johnson.

As stated, Looman listed in his employment application as another former employer reference the U.S. Navy where he stated therein that he served as a “corpsman” from October, 1972, until June 1973, some eight months. The Hospital made no attempt to make a reference check with the United States Navy where Looman represented he had received his medical training. One of the Defendant’s witnesses testified that the reason they did not check with the Navy was because they had not had any cooperation with the armed services in the past with reference to employment experience. However, during trial preparation, Plaintiff-Appellee secured a signed authorization from Looman and sent it in to a government records unit accompanied by a request for his naval records, and receive back in the mail Looman’s complete naval record in ten days’ time. Had the Defendant Hospital followed this procedure and made the reference check with the Navy, they would have learned that Mr. Looman had been expelled from the Navy Medical Corps School after only one month’s training, that he had a serious drug problem, and a criminal record. One of the Defendant’s personnel testified that the Hospital would not have hired Mr. Looman as an orderly had they known the facts shown by the Navy records before he was hired by the Hospital, on the basis that he was unfit to serve as an orderly.

Moreover, Mr. Looman listed as personal references on the employment application three people, to wit, a Rev. Glass, a Rev. James, and one Bill Bentley, all of whom were shown to have local telephone numbers, and two of whom, Rev. Glass and Rev. James, were shown to have local street addresses. The only personal reference which the Hospital made any attempt to check upon was that of Rev. James, who made no reply to the inquiry. It seems to us that it would have been an easy matter for the Defendant to have checked out these personal references before hiring Mr. Looman, which was not done by the Defendant.

According to the Hospital’s hiring policies, verification of at least one employment reference and at least one personal reference were supposed to be accomplished pri- or to the applicant’s being hired. Of course, the purpose of a correct implementation of the hiring policy was to enable the Hospital to evaluate the applicant’s experience, qualifications, and character independently of the applicant’s representations, and thereby to prevent the employment of incompetent and unfit employees from committing injurious acts to patients.

Here we have for all practical purposes a complete disregard of, and a complete violation of the stated hiring policies of the Hospital.

Appellant’s five points of error assert there is no evidence to support the jury’s findings in answer to Special Issues No. 4 (wherein the jury found the Hospital to be reckless in hiring Mr. Looman), and No. 7 (wherein the jury awarded $18,000.00 exemplary damages).

The controlling question before us, then, is whether the record contains any evidence of probative value to support the jury’s answers to Special Issues Nos. 4 and 7, concerning the award of exemplary damages. In considering this “no evidence” question, we are required to view the evidence in its most favorable light in support of these jury findings, considering only the evidence and inferences which support the findings and rejecting the evidence and the inferences which are contrary to such findings. Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas Law Review 361.

Our Supreme Court has long adhered to the rule that gross negligence, to be the ground for exemplary damages, should be that “entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.” Missouri Pacific Ry. Co. v. Shuford (1888) 72 Tex. 165, 10 S.W. 408; Atlas Chemical Industries, Inc. v. Anderson (Tex.1975) 524 S.W.2d 681. In the case at bar, the trial court’s definition of “recklessness” is couched in the language used by our Supreme Court to define “gross negligence” in the above cited cases.

More specifically, the rule governing the case at bar is stated as follows:

“Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if . . .

“(b) the agent was unfit and the principal was reckless in employing him, . ..” King v. McGuff (1950) 149 Tex. 432, 234 S.W.2d 403; Fisher v. Carrousel Motor Hotel, Inc. (Tex.1967) 424 S.W.2d 627. Also see Fort Worth Elevators Co. v. Russell (1934) 123 Tex. 128, 70 S.W.2d 397; Phillips Oil Co. v. Linn (5th Cir. 1952) 194 F.2d 903.

In the case at bar, we are of the opinion and hold that there is evidence of probative force in the record to the effect that the Defendant-Appellant Hospital demonstrated an entire want of care as to indicate that the hiring of Mr. Looman was the result of conscious indifference to the rights, welfare and safety of the patients in the hospital. In short, the Hospital was so interested in filling the jobs that they consciously jeopardized the health, welfare, and safety of their patients, which included Plaintiff-Appellee Davis. We therefore overrule Appellant’s points of error and affirm the trial court’s judgment.

AFFIRMED.


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    Robert CLOER, Appellant, v. FORD & CALHOUN GMC TRUCK COMPANY, et al., Appellees.
    No. 1001.
    Court of Civil Appeals of Texas, Tyler.
    June 9, 1977.

      Blake Bailey, Wellborn & Houston, Henderson, for appellant.
    Mike Hatchell, Ramey, Flock, Hutchins, Grainger & Jeff us, Jerry Bain, Loftis, Rowan, Files, Clayton, Bain & Clark, Tyler, for appellees.
   MOORE, Justice.

The opinion heretofore rendered on May 12, 1977, is withdrawn and the following is substituted therefor.

This is an appeal from a take-nothing judgment entered by a trial court pursuant to defendant’s pleas in bar alleging res judi-cata, collateral estoppel and estoppel by judgment. Plaintiff brought suit against defendant, Ford & Calhoun GMC Truck Company (Dealer) seeking damages for breach of warranty under the Texas Consumer Protection Act, Tex.Bus. & Comm. Code, sec. 17.41 et seq. As grounds for a cause of action, plaintiff alleged that he purchased a truck from the Dealer and in connection therewith, the Dealer made certain representations in the nature of express and implied warranties. The Dealer answered with a general denial and a plea in bar alleging that the plaintiff’s claim was barred by the doctrine of res judicata, collateral estoppel and estoppel by judgment because of a prior judgment entered against the plaintiff by the United States District Court in Cloer v. General Motors Corporation, D.C., 395 F.Supp. 1070 which suit involved the same transaction. The Dealer also filed a third party action over against General Motors Corporation (GM) seeking contribution and indemnity. In response to Dealer’s third party action, GM answered with a general denial, and by a plea in bar alleged that any claims or demands made by the plaintiff which would expose GM to any liability as a result of the Dealer’s third party action for contribution or indemnity, were barred by the doctrine of res judicata because of the aforementioned judgment rendered against plaintiff in the suit in Federal Court. Prior to trial on the merits the trial court rendered a take-nothing judgment against plaintiff reciting that, after considering the motions by Dealer and GM alleging res judicata, collateral estoppel and estoppel by judgment, the court was of the opinion that said motions should be sustained and that “Plaintiff recover and take nothing from Defendants, FORD AND CALHOUN GMC TRUCK COMPANY and GENERAL MOTORS CORPORATION . . . .” From such disposition the plaintiff perfected this appeal. The Dealer did not appeal from the take-nothing judgment rendered in favor of GM on the third party claim.

We affirm.

The record is before us by way of a transcript only. There is no statement of facts and no findings of fact or conclusions of law.

After the appeal had been perfected, the parties filed the following stipulations:

“(a) That the Appellees’ pleas in bar were heard prior to the selection of a jury when this cause was regularly called for trial.
“(b) That the hearing was willingly and voluntarily participated in by counsel for all parties to the action.
“(c) That no objection was voiced by any of the parties to the trial court’s hearing and deciding the pleas in bar prior to selection of the jury.”

By a single point of error the plaintiff contends that the trial court erred in rendering a summary judgment in favor of the Dealer.

At the outset we hasten to point out that although plaintiff refers to the judgment as a summary judgment, this is not a summary judgment proceeding under Rule 166-A of the Texas Rules of Civil Procedure. This is a situation where plaintiffs willingly and voluntarily allowed the trial court to hear and dispose of the defendant’s and cross-defendant’s pleas in bar at a preliminary hearing before the trial court prior to a trial on the merits. Plaintiff, not being satisfied with the trial court’s ruling seeks a reversal on the ground that judgment is not supported by the evidence adduced on the preliminary hearing. Under the record before us, plaintiffs’ position is untenable.

It is a well settled rule that the appellant, as the party complaining on appeal, has the burden to bring forward to a Court of Civil Appeals a record sufficient to disclose the error alleged to have been made by the trial court. Uvalde Const. Co. v. Joiner, 132 Tex. 593, 126 S.W.2d 22, 24 (Tex.Com.App.1939, opinion adopted); Morris v. Burney, 504 S.W.2d 800, 803 (Tex.Civ.App.—Fort Worth 1974, no writ). Every presumption must be indulged in favor of the trial court’s judgment where the record contains no findings and no statement of facts. Commercial Credit Corp. v. Smith, 143 Tex. 612, 187 S.W.2d 363, 365 (1945); Greene v. State, 537 S.W.2d 100, 102 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ); Vaughn v. Gulf Ins. Co., 151 S.W.2d 227, 229 (Tex.Civ.App.—Fort Worth 1941, no writ).

As stated, the entire record in this case consists of nothing more than the transcript and the stipulation of the parties neither of which shed any light on what transpired at the preliminary hearing or the basis on which the trial court sustained the pleas in bar.

Under these circumstances we must presume that the evidence presented in the lower court was sufficient to sustain the judgment.

The judgment of the trial court is affirmed.

McKAY, J., not participating.


author: EVANS, Justice. PEDEN, Justice.

text:
    MARINE INSPECTION SERVICE, INC., Appellant, v. Gerald T. ALEXANDER, Appellee.
    No. 16863.
    Court of Civil Appeals of Texas, First District, Houston.
    June 9, 1977.

      Eikel & Davey, Robert Eikel, Houston, for appellant.
    Turner & White, Tom M. White, Houston, for appellee.
   EVANS, Justice.

This suit was brought by appellee against his former employer, the appellant, to recover two weeks salary in lieu of vacation time which he claimed was due to be paid to him upon termination of his employment. After a jury trial, judgment was rendered in favor of appellee for the stipulated amount of two weeks vacation pay, plus attorney’s fees.

Appellee was employed by appellant from August 22, 1974 until May 8, 1975. In his letter of resignation dated May 7, 1975, appellee stated his understanding that he became entitled to two weeks vacation after a tenure of six months with the company, and that he wished to take his vacation during the period May 19, 1975 through May 31,1975, in which event his resignation would become effective at the end of May. He stated however, that if appellant preferred, it could pay him for his vacation and that his letter in such event would serve as two weeks notice to become effective on May 20, 1975. The appellant responded to this letter with a notation dated May 8, 1975, stating that in view of appellee’s resignation and the understanding of the conditions upon which he was employed, it elected to give notice of termination effective that date. The appellee subsequently filed this suit, contending that he was entitled to two weeks of vacation pay in lieu of vacation time and that appellant had made only partial payment of his vacation pay, leaving a balance due and owing in the sum of $501.00.

The appellee testified that he had an oral agreement with appellant concerning the terms of his employment. He testified that he had been employed by Mr. Worsham, the president of the company, to be trained as a marine chemist. The pertinent portions of his testimony with respect to his understanding of the terms of his employment agreement are set forth below:

“Q. What was your understanding— what was that agreement — what was your understanding of going to work for Marine Inspection Services, Inc.?
A. I was to receive $1250 a month plus expenses, hospitalization and training for the position for about 6 months. I would receive no night duty or weekend duty while I was in training classification. I was to be paid 2-weeks vacation after I had a tenure of 6 months; I would also be given a car after I certified or was certified.”
* * * * * *
“Q. Did you, in fact, go to work under those terms?
A. I did. My employment started August 22, 1974.
Q. Okay. Did you ever, at any time, receive a written memorandum or anything of the nature of which or from Mr. Worsham or from the company as to what your vacation would be?
A. They gave me a couple of bulletins one of which, I think, Bulletin No. 2 says, ‘You will receive two weeks vacation per year after 6 months tenure.’
Q. And, was there any doubt in your mind as to what, after you were with them 6 months, you were entitled to? A. None whatsoever. The secretary put the vacation schedule on the bulletin board and on two occasions she mentioned for me to go ahead and put my vacation up. The meetings started in the early Spring. He mentioned to us that our vacation schedule was put on the board and for us to fill in the weeks that we wanted.”

The appellee stated that he submitted his resignation on May 7, 1975, and that he discussed the matter with Mr. Worsham on May 8, 1975. He testified that he had received the total of $403.20 as compensation after he submitted his resignation and that the balance due him was $501.00. He gave his impression of his May 8 discussion with Mr. Worsham as follows:

“Q. Were you able to discuss with him what was owed, or what you felt was owed?
A. I did when we had the meeting. I told him that I felt that he owed me in good faith what he promised me when I started to work which was 2 weeks vacation. I also mentioned to him that he was aware that I could have taken my 2 weeks vacation and come back at the end of the time period and resign.”

The appellant’s representative, Mr. Wors-ham, testified that when he had employed the appellee, he had informed him that he would be given two weeks a year vacation after he had been with the company for six months. He indicated the company’s position to be that the first six months of the year would not apply in determining the employee’s entitlement to a vacation for a year’s work. However, he further testified that an employee could take a two weeks vacation after being with the company for the six months period, and that if the employee did not finish out a full year’s work, this would result in a loss to the company to the extent that the vacation was unearned.

The trial court submitted one special issue with respect to the appellee’s entitlement to vacation pay, to which the jury responded as follows:

“Special Issue Number 1
Do you find from a preponderance of the evidence that Gerald T. Alexander is entitled to two weeks vacation pay.
Answer: We do.”

On the basis of this finding and the party’s stipulation as to the amount of damages in case the verdict was in favor of the plaintiff, judgment was entered in favor of the appellee for the sum of $501.00, and also for the sum of $500.00, being the amount of attorney's fees found by the jury.

In its first two points of error the appellant attacks the evidence as being legally and factually insufficient to support the trial court’s judgment. It contends that there was no evidence of an agreement on the part of the appellant that the appellee would receive vacation pay in lieu of taking a vacation, and that the jury’s finding to the first special issue was against the great weight and preponderance of the evidence.

The appellant concedes that the appellee could have taken two weeks vacation after he had been with the company for a period of six months had he continued his employment with the company. If the appellee had taken his vacation and then resigned, the company would of course have suffered a loss in the sense that the appellee would not have earned a full year’s vacation pay. However, it is the appellant’s contention that by tendering his resignation, the appel-lee notified the company that he would not remain with the company for a full year, and, therefore, was not entitled to a full two weeks vacation.

There is evidence which would support the appellee’s contention that he was entitled to take a two weeks vacation after he had been in the company’s employment for a period of six months. However, there is no evidence that the company ever agreed that appellee would be entitled to a paid salary in lieu of vacation time. The appel-lee’s testimony to the effect that he was “to be paid two weeks vacation,” considered in the light of his other testimony and evidence in the case, reflects only an understanding on his part that he was entitled to a two weeks paid vacation after he had been with the company for a period of six months.

In the absence of an express agreement or some statutory basis for the payment of additional compensation, it must be considered that services rendered by an employee during the course of his employment, and which are of a nature similar to his regular duties, are to be compensated by the payment of his regular salary. 53 Am.Jur.2d, Master and Servant, § 76, p. 151. A promise to pay additional compensation may be implied from business usage or custom, if the employment agreement was entered into with reference thereto, and where under attendant circumstances it was the reasonable understanding of both parties that extra compensation would be paid. 53 Am.Jur.2d § 78, p. 153.

In the case at bar, the appellee had worked for the company some 8½ months when he notified the appellant of his intent to terminate. At that time his right to a full two weeks vacation had not accrued, notwithstanding the fact that he might have been permitted to take the two weeks vacation had he elected to do so. Schurr v. Savigny, 85 Mich. 144, 48 N.W. 547 (1891); In re Pringle Engineering & Mfg. Co., 164 F.2d 299 (7th Cir. 1947). Although the jury reasonably could have concluded from the evidence that the parties agreed the appel-lee would be entitled to two weeks vacation after he had been with the company for six months, there is no evidence from which an agreement might be implied that he was entitled to two weeks salary in lieu of vacation time. Lim v. Motor Supply, Ltd., 45 Haw. 111, 364 P.2d 38, 91 A.L.R.2d 1067, 1087 (1961).

In Interstate Hosts, Inc. v. Thompson, 435 S.W.2d 957 (Tex.Civ.App.—Dallas 1968, no writ), plaintiff had been hired as a waitress under a verbal contract of employment. At the time of her employment she had been given an “Employee’s Manual”, containing the following provision:

“On completion of one full year of service as a regular full-time employee, you will be entitled to one week’s vacation with pay at your average straight-time rate over the previous year. After two full years of service as a regular full-time employee, you will receive two weeks’ vacation, and after ten years, three weeks’ vacation with pay at your average straight-time rate over the previous year.”

After the completion of her first year’s employment, the employee was given one extra week’s pay for which she rendered no service. After her second year of employment she was given two weeks pay for which she rendered no service. On the eleventh month of her third year of employment, she was terminated as an employee. The trial court, without a jury, entered judgment for the employee for the amount of her claimed vacation pay and for attorney’s fees. Reversing and rendering the trial court’s judgment, the appellate court stated:

“While the question presented appears to be one of first impression in Texas its resolution seems quite simple. Any vested interest or right acquired concerning vacation pay must be determined from the terms of the contract of employment, either express or implied. There was no written contract of employment. Appel-lee merely applied for a job as a waitress and was employed as such for an indefinite period of time. It is not questioned that either party could terminate the employment at any time. Appellant’s employment policies were set forth fully in the manual which was given to appellee at the time she went to work. These policies are plain and unambiguous concerning paid vacations. Upon completion of one full year of service as a regular full time employee one week’s paid vacation was forthcoming. After two full years of service as a regular full time employee two weeks’ vacation with pay was earned. In the case of appellee both of these contingencies were fulfilled and appellant complied with its obligation. However, it is undisputed that when ap-pellee’s employment was terminated she had not completed the third full year of employment. There is nothing in the contract, either express or implied, which would give appellee a vested interest or right into a pro rata share of the vacation accrued during the third year.
“There is no source of authority justifying appellee’s claim for vacation pay allowance. At the time appellee was separated from service the contract with reference to vacation pay was not executed, but still executory. The identical question was presented to the court in Stetson v. Chicago, Aurora & Elgin Ry. Co., 2 Ill.App.2d 274, 119 N.E.2d 395 (1954) and in denying recovery the court said, in part:
“ * * *, we think that the facts bearing on the period of time worked by plaintiff did not entitle him to two weeks’ vacation pay upon his discharge. He takes the position that by reason of having worked during the year 1950 he ‘earned’ two weeks’ vacation in the year 1951, but did not receive it because his employment was terminated on February 9 of that year. He was admittedly an employee at will, and could therefore be discharged at any time. Obviously at the time of his discharge he would not have performed the year of service for which a vacation would be ‘due’ him in any event.” 435 S.W.2d 957-8.

The appellant’s first two points of error are sustained. Since the appellant’s “no evidence” point relates entirely to and is based upon the assignment of error contained in the motion for new trial, this court may not reverse and render, and may only reverse and remand. Commercial Insurance Co. of Newark, New Jersey v. Puente, 535 S.W.2d 948 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.); French v. Brodsky, 521 S.W.2d 670 (Tex.Civ.App.—Houston [1st] 1975, no writ).

In view of further proceedings, the appellant’s third point of error will also be considered. In this point appellant contends that attorney’s fees were not recoverable under Article 2226, Tex.Rev.Civ.Stat. Ann. because the nature of the claim asserted was not for “services rendered, labor done” . . . within the meaning of the statute. This point is overruled.

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

Judgment rendered and majority and dissenting opinions filed June 9, 1977.

PEDEN, Justice.

I would affirm. From the plaintiff’s testimony that “I was to be paid 2 weeks’ vacation after I had a tenure of 6 months . ”, I believe a fact issue was raised from which the jury was entitled to conclude that the company had agreed to pay him for two weeks’ vacation if he elected not to take it. I do not consider that his other testimony must be construed as varying this version.


author: DUNAGAN, Chief Justice.

text:
    Sylvia FITZPATRICK et vir., Appellants, v. Julius MARLOWE, Jr., M.D., Appellee.
    No. 1014.
    Court of Civil Appeals of Texas, Tyler.
    June 9, 1977.
    Rehearing Denied July 7, 1977.

      John D. Wennermark, San Antonio, for appellants.
    Peter N. Plumb, Allison & Plumb, San Antonio, for appellee.
   DUNAGAN, Chief Justice.

This summary judgment case arose from a medical malpractice suit. This is an appeal from an order granting summary judgment on the ground that plaintiffs’ suit was barred by the two-year statute of limitations. Sylvia Fitzpatrick (hereafter referred to individually as “appellant”), joined by her husband, filed this action to recover for the alleged malpractice of defendant-appellee, Julius Marlowe, in treating her for sinus and other nasal problems. Appellee filed his motion for summary judgment alleging therein that appellant’s suit was barred by the two-year statute of limitations, Art. 5526, Tex.Rev.Civ.Stat. Ann. At the hearing on the motion for summary judgment appellant sought to establish that appellee had fraudulently induced her to postpone taking action on her cause for malpractice. Appellant’s contention was found to be without merit and the motion was granted. Appellants thereafter timely filed this appeal.

Appellants bring forward one point of error asserting that the trial court erred “in not holding that the statute of limitations was tolled by the fraudulent misrepresentations of Defendant until a time within two years before the filing of this suit.” The summary judgment evidence in the present case consists of the depositions of appellant and answers of Dr. Tolbert S. Wilkinson to interrogatories with all his written records in connection with treatment and examination of appellant attached to said answers.

The thrust of appellants’ lawsuit as reflected in their original petition is predicated upon the alleged negligent conduct of appellee-physician, Dr. Julius Marlowe, Jr., his fraudulent concealment thereof and misrepresentation of the true facts, which conduct allegedly occurred during surgery upon the appellant’s nose in January 1972 and March 1973 and in subsequent followup treatment of appellant’s condition during 1972 and through the latter part of 1973. Appellants alleged in their original petition that:

“Defendant, with intent to deceive Plaintiffs and induce them to refrain from bringing an action against him for malpractice, fraudulently concealed] from Plaintiffs his negligent and careless acts in the course of said operations to Plaintiff’s, SYLVIA FITZPATRICK, nose and fraudulently lolled [sic] them into the belief that the condition of her nose was a natural result of the operation and would improve with time and various treatments that he intended to give to Plaintiff, SYLVIA FITZPATRICK. By Defendant’s promises and representations to Plaintiffs that such treatment would repair and correct the condition of her nose, induce Plaintiffs to refrain from consulting with or receiving further treatment from other physicians. Defendant’s false statements and representations were made with intent that Plaintiffs would rely thereon, to protect Defendant from any demand or claim by Plaintiffs for damages within the time allowed by the statute of limitations. In truth and in fact, Defendant knew Plaintiffs, SYLVIA FITZPATRICK, true condition at all times since March 2, 1973, and Plaintiffs believed, relied and acted on Defendant’s false statements and representations concerning such condition. By Defendant’s wrongful conduct and fraudulently concealing from Plaintiffs the nature and extent of Plaintiff’s condition caused by Defendants negligence, Plaintiffs, in the exercise of reasonable diligence, did not discover Defendant’s fraud until February 1975 when she consulted a plastic surgeon and was advised by such surgeon that her condition was the result of Defendant’s negligence and would never improve. . . .”

In determining the matter of rendering or affirming a summary judgment in favor of a party, 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 claim or 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. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970); Harrington v. Young Men’s Christian Ass’n of Houston, 452 S.W.2d 423 (Tex.1970); Rule 166-A(c), T.R.C.P. The burden of proof is upon the party moving for summary judgment and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). The evidence upon such a motion must be viewed in the light most favorable to the party opposing the motion. All conflicts in the evidence are disregarded and the evidence which tends to support the position of the party opposing the motion is accepted as true. Parrott v. Garcia, 436 S.W.2d 897, 899 (Tex.1969). Thus we shall consider the evidence which supports appellants’ cause of action to determine if any genuine fact issue exists.

The summary judgment evidence shows that in September of 1971 appellant went to appellee for treatment of a sinus condition. Appellee performed surgery on appellant to rectify this condition and to remove a small bump from the bridge of her nose. This was done in January of 1972. After the surgery, appellee told appellant the swelling would go down and the bump, which persisted, would go away. In March of 1973, appellee performed a second operation on appellant’s nose in an effort to correct the rise, which had never subsided. Now, as a result, instead of a bump, appellant’s nose was quite red and depressed in the area where the bump used to be. Appellee again told appellant that this condition would heal. When appellee realized that the dip in appellant’s nose would not heal by itself, he told appellant that he would give her cortisone but that, because she was now pregnant, the cortisone treatment would not begin until the termination of the pregnancy. Appellant’s child was born in February of 1974, but the cortisone treatments were never begun. Appellant was last treated by appellee in November of 1973. About the time the baby was delivered, appellant began to doubt that the dip would heal.

Appellant saw a Dr. Smith, a plastic surgeon, in the latter part of 1974, who advised her that more corrective surgery would be necessary. Appellant saw Dr. Smith only once. Appellant by her deposition testified that even though Dr. Smith recommended additional surgery to correct the condition “he couldn’t guarantee me results because it wasn’t a virgin nose, I had already had surgery done on it twice, it wasn’t like it was a nose that had never been operated on.” The first time she knew she needed corrective surgery was in the latter part of 1974 when Dr. Smith so advised her. In February 1975, appellant saw Dr. Wilkinson who also told her that surgery would be needed because her nose had been “messed up,” and that plastic surgery was needed to correct it. Appellants filed this suit on December 10, 1975.

It was about six months after the first surgery in January 1972 before the swelling subsided to the extent that appellant could see that the bump had not subsided. After the January surgery appellee advised her to put cocoa butter on the affected part of her nose. She did so but to no avail. The bump remained. After the cocoa butter failed to correct the situation, appellee suggested more surgery in which he “would rasp it down.” The appellee did perform the second surgery in March 1973. The first time Mrs. Fitzpatrick looked at her nose after the second surgery she “noticed that it was real red across my nose and it was just a big dip in my nose like he had just taken part of my nose away and then it healed a little bit and he said it would take a while for it to heal.” Appellant, in her deposition, testified that about July 1973 after the swelling was gone “the dip was there and the bump was still on my nose” and “the redness on it”; that after the second surgery she saw appellee about once a month; and that for the first couple of months appellee would check her nose but did not say much until after “the swelling had gone down and the dip and the redness were still there.” Appellant further testified that by that time she was pregnant and that appellee told her he couldn’t do anything because she was pregnant, but that after she had the baby he would give her some cortisone. The baby was born in February of 1974 but the cortisone treatments were never begun. She never saw appellee professionally after the baby was born. She did go to his office for allergy shots which were given by the nurse.

She realized since September 1973 that the dip and redness were there but relied upon appellee’s professional advice that an elapse of time and the use of cocoa butter and cortisone shots would correct the condition. It was not until she visited Dr. Smith in the latter part of 1974 and Dr. Wilkinson in February 1975 that she knew the appel-lee had misrepresented the true facts about her condition caused by his negligence which he was aware of and concealed such facts which induced her to refrain from bringing this cause of action within two years from the time of the surgery performed by the appellee. She was repeatedly told by the appellee that her condition would improve, thereby implying to her that it was not permanent.

The chief question here is: At what time did the statute of limitations begin to run?

A cause of action based upon actionable fraud accrues when the fraud is discovered or by the exercise of reasonable diligence should have been discovered. Gaddis v. Smith, 417 S.W.2d 577, 579 (Tex.1967). The diligence required in discovering fraud depends upon the relative circumstances and the relationship of the parties for purposes of determining when the statute of limitations begins to run. Bush v. Stone, 500 S.W.2d 885, 890 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.); Allison v. Blewett, 348 S.W.2d 182, 184 (Tex.Civ.App.—Austin 1961, writ ref’d n. r. e.). The doctor-patient relationship is one of trust and confidence. Because of this relationship appellant could rely on the alleged statements of the appellee until she came into possession of such facts or knowledge as would put an ordinarily prudent person upon inquiry as to its truth, at which time the statute of limitations would begin to run. Allison v. Blewett, supra.

We think Grady v. Faykus, 530 S.W.2d 151 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.) controls the disposition of this appeal. In Grady, the plaintiff had a visible redness from x-ray radiation apparent from October 1969. Here, appellant could see the results of the surgery on her nose in March 1973. The plaintiff in Grady was examined by another physician in September 1970, eleven months after the results of the radiation became visible, and her treatment by the defendant had terminated. Appellant, here, was treated by ap-pellee until November 1973. She was examined by Dr. Smith in the latter part of 1974, twelve months later. In Grady, it was not until the subsequent visit with another physician that the plaintiff realized the true facts concerning her condition. The court in Grady held that since plaintiff’s original petition, filed in June 1972, was filed within two years after plaintiff claimed she first learned of the cause of her condition in September 1970, the summary judgment in defendant’s favor had to be reversed. Since plaintiff and defendant disagreed on when the plaintiff should have discovered the true facts, the court said a fact issue existed. Because of that fact issue the trial court’s summary judgment was reversed and remanded. In Grady, the court emphasized that the plaintiff, who was no expert in the x-ray field and who relied on the defendant’s statements concerning her condition, could not be expected to know of the legal injury, i. e., excessive radiation.

In the case at bar appellant had no expertise concerning the treatment of her type of injury. She relied on appellee’s statements promising future treatment and improvement. She could not be expected to know that appellee’s acts had created an injury for which she had a cause of action. This was not made known to her until her visit to Dr. Smith in 1974.

Appellee relies solely on Nichols v. Smith, 507 S.W.2d 518 (Tex.1974) in which a patient and her husband brought suit for malpractice against a doctor who allegedly severed her vagus nerve while attempting to repair a hernia. The question there, as here, was whether the two-year statute of limitations applied. Art. 5526, Tex.Rev.Civ. StatAnn. The Nichols case is distinguishable from the case at bar. In Nichols, no fraudulent concealment was found and the court affirmed the summary judgment in favor of defendant because the plaintiff failed to produce any evidence of fraudulent concealment at the summary judgment hearing. The plaintiff relied solely on her pleadings to create a fact issue on this point. The court held that pleadings alone are insufficient to constitute any summary judgment proof. Also the plaintiff in the Nichols ease admitted that she was advised within three months of the operation that the right vagus nerve had been severed. She knew at that time that the doctor was negligent in severing the nerve. Her cause of action, therefore, arose at that time and her suit filed almost four years later was barred by limitations.

Limitations is not deemed applicable on either of two theories: (1) the discovery rule is applicable to negligent treatment (as opposed to negligent diagnosis); Robinson v. Weaver, 550 S.W.2d 18 (Tex.1977) and Grady v. Faykus, supra, and (2) the discovery rule is likewise applicable to the plea or count based upon misrepresentation (a species of fraud). In that regard we deem it contrary to the purpose of the limitation statute here involved to permit a defendant to avail himself of the two-year statute when he has affirmatively misrepresented the true facts, thereby preventing the plaintiff from discovering them and then insisting upon a strict application of the limitation period from the occurrence, the total effect of which he has affirmatively misrepresented.

As to the negligent treatment count, what was necessary for plaintiff to discover was not that her nose had a depression in it and redness, but that the depression and redness were caused by the manner the operation was performed and would not heal. On the misrepresentation and fraudulent concealment counts it was necessary for Mrs. Fitzpatrick to discover the misrepresentation itself. Under the evidence, we deem that whether she should have discovered either of those facts sooner is a fact issue for the trier of fact to determine from the evidence.

For the reasons above stated the trial court’s judgment is reversed and remanded for a trial on its merits.


author: O’QUINN, Justice.

text:
    R. R. ROBINSON, d/b/a Do-Rite Grocery and Market, Appellant, v. Bob BULLOCK, Comptroller of Public Accounts, Appellee.
    No. 12549.
    Court of Civil Appeals of Texas, Austin.
    June 15, 1977.
    Rehearing Denied June 29, 1977.
    Claude R. Wilson, Jr., Hugh Corrigan, IV, Golden, Potts, Boeckman & Wilson, Dallas, for appellant.
    John L. Hill, Atty. Gen., R. L. Lattimore, Asst. Atty. Gen., Austin, for appellee.
   O’QUINN, Justice.

Appellant brought this lawsuit in February of 1976 against the Comptroller of Public Accounts to enjoin the collection of sales taxes in excess of $20,800.00 claimed due the State and the City of Dallas.

As a result of an audit by the Comptroller of appellant’s account books, the Comptroller determined that appellant owed the State and the city certain taxes, plus penalties and interest, on sales of beer for which no taxes had been paid.

At the taxpayer’s request, the Comptroller granted a hearing for redetermination, resulting in some reduction of the assessments. After being denied a rehearing, appellant filed suit within thirty days, relying principally upon provisions of the Administrative Procedure and Texas Register Act for authority to bring suit, without prior payment of the taxes in compliance with Articles 1.05 and 1.06, Title 122A, Taxation-General.

The Comptroller answered the taxpayer’s suit, and filed a cross action for the taxes claimed due the State and the city. Subsequently the Comptroller filed motion for summary judgment on the cross action.

After hearing in April of 1976, the trial court entered judgment in September finding that the court was without jurisdiction to decide the merits of appellant’s cause of action and granting the Comptroller’s motion for summary judgment in the amount of $20,918.96.

We will sustain the trial court’s finding that it was without jurisdiction to entertain appellant’s suit. We will reverse the court’s award of judgment for the taxes, and will remand the cause for further proceedings on the Comptroller’s cross action to collect the taxes.

Appellant Robinson brings two points of error. Under the first point appellant contends that the trial court erred in finding as a matter of law that the court was without jurisdiction to hear and decide the merits of appellant’s suit. Under the second point appellant takes the position that evidence in support of the summary judgment for taxes did not establish as a matter of law that sales of beer are excluded from statutory exemptions from taxes granted as to sales of food. Appellant contends that beer is a food and is by statute exempt from the sales tax.

Appellant argues under the first point that compliance with Section 19(a) and (b) of Article 6252-13a (Administrative Procedure and Texas Register Act, effective January 1,1976) renders it unnecessary for the taxpayer to comply with Articles 1.05 and 1.06, Title 122A, Taxation-General, by paying the taxes before filing suit.

The administrative procedure provisions appellant relies on provide:

“(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this Act. This section is cumulative of other means of redress provided by statute.

“(b) Proceedings for review are instituted by filing a petition within 30 days after the decision complained of is final and ap-pealable. Unless otherwise provided by statute:

“(1) the petition is filed in a District Court of Travis County . . .” Sec. 19(a)(b)(l), Art. 6252-13a.

It is appellant’s position that the Administrative Procedure Act repealed Articles 1.05 and 1.06 by implication under Section 22 by repealing all “laws and parts of laws in conflict with this Act . . .” We find appellant’s contention without merit and overrule the point of error.

By Articles 1.05 and 1.06 (and the predecessor statutes, Articles 7057b and 7047j, V.A.C.S.) the Legislature provided a special method to enable taxpayers who question validity of a tax to bring suit against the State in an effort to recover taxes paid under protest. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 713 (1945); Bullock v. Electro-Science Investors, Inc., 533 S.W.2d 892, 894 (Tex.Civ.App. Austin 1976, no writ). These statutes created a right not existing at common law and prescribed a remedy to enforce the right; therefore the courts may act only in the manner provided by the statutes which created the right. Union Central Life Insurance Co. v. Mann, 138 Tex. 242, 158 S.W.2d 477, 481 (1941); Bullock v. Electro-Science Investors, Inc., supra.

To avail himself of the right granted under Articles 1.05 and 1.06, the taxpayer must comply with the statutes by making a written protest, setting out fully and in detail each and every ground or reason why it is contended that the demand for taxes is unlawful or unauthorized. The reasoning behind these statutory requirements, compliance with which are necessary prerequisites to bringing suit, have been considered and explained by the courts. This Court in 1976 reviewed the statutes and case law in this connection in Nu-Way Oil Company v. Bullock, 546 S.W.2d 336, 340 (Tex.Civ.App. Austin 1976, no writ).

The argument that Section 19 of the Administrative Procedure Act repeals by implication the substantive rights and córrela-tive procedural remedies granted by Articles 1.05 and 1.06 fails to take into account settled law to the contrary.

Section 22 of the Administrative Procedure Act includes a specific repeal expressly specifying Article 6252-13 (Acts 1961, 57th Leg., p. 581, ch. 274, as amended 1962), but the remaining portion of the section is general only, declaring all “laws and parts of laws in conflict with this Act” repealed. A general repealing clause is subject to the same rules of interpretation as other enactments, and the intent of the Legislature must prevail over the literal construction. First National Bank of Giddings v. Lee County Cotton Oil Co., 274 S.W. 127 (Tex.Com.App.1925, holding approved); Ex parte Coleman, 157 Tex.Cr.R. 37, 245 S.W.2d 712 (1951); Miller v. Calvert, 418 S.W.2d 869, 872 (Tex.Civ.App. Austin 1967, no writ).

Unless there is a repugnancy between the prior law and the later Act, a court may not find that the later Act repeals the prior statute. Gaddis v. Terrell, 101 Tex. 574, 110 S.W. 429 (1908); Miller v. Calvert, supra. We find no real or substantial repugnancy between Article 1.05, which grants the taxpayer a substantive right and a remedial mode of questioning validity of a tax statute, and the later general procedural route provided by Section 19 of Article 6252-13a to effect appeal from an adverse ruling of a State agency.

The repealing clause of the Administrative Procedure Act, except for the specific repeal of the earlier Article 6252-13 (which provided for the making of administrative rules and regulations by State agencies) did not contain any language expressly repealing the provisions of Article 1.05, but was only a general repealing clause. For the Administrative Procedure Act to repeal provisions of Article 1.05 (and Article 1.06), it is necessary to indulge in repeal by implication, which is not favored. The two laws should be construed in such manner as to allow both to stand. Townsend v. Terrell, 118 Tex. 463, 16 S.W.2d 1063 (Tex.Com.App. 1929, opinion adopted); Miller v. Calvert, supra.

Since appellant, as a taxpayer seeking to question validity of the statute under which the Comptroller made the assessment, failed to comply with requirements of Article 1.05 and pay the tax before filing suit, the trial court correctly concluded that the court was without jurisdiction to hear and decide the merits of appellant’s suit. We affirm this action by the trial court and direct that Robinson’s suit be dismissed.

We now consider disposition of the Comptroller’s cross action to collect the taxes claimed due by Robinson. As noted earlier, on the Comptroller’s motion for summary judgment the trial court awarded judgment for the taxes, penalties and interest pleaded by the Comptroller. In this action, we conclude that the trial court erred because the summary judgment proof did not support the pleadings.

The Comptroller attached to the pleadings in cross action a certificate, dated March 5, 1976, certifying delinquency due the State in the amount of $16,441.31 and a delinquency due the City of Dallas for $4,477.65. In the motion for summary judgment, the Comptroller alleged, “A certificate of the State Comptroller supporting Defendant’s [Comptroller’s] cross action accompanies the same as an exhibit.” The record does not disclose an affidavit purporting to make proof of the tax claim, nor does the Comptroller’s tax certificate appear in any manner except as an exhibit attached to the pleadings of the cross action.

In an action for collection of taxes, a certificate by the Comptroller certifying the tax delinquency, when placed in evidence, constitutes prima facie proof of the tax delinquency, and a presumption of correctness is accorded the certificate. Articles 20.09(E) and (G)(1), Title 122A, Taxation-General; Smith v. State, 418 S.W.2d 893 (Tex.Civ.App. Austin 1967, no writ); Baker v. Bullock, 529 S.W.2d 279 (Tex.Civ.App. Austin 1975, writ ref’d n. r. e.). The judgment of the trial court recites that “Defendant [the Comptroller] is entitled to a full recovery of his tax claims against Plaintiff [Robinson], as evidenced by the Comptroller’s certificate attached to said cross action as an exhibit.’’ (Emphasis added).

The record does not disclose that the Comptroller’s certificate was attached to the motion for summary judgment, nor does the motion attempt to incorporate the certificate by reference. No affidavit, with certificate attached, was filed in support of the motion for summary judgment. No facts pleaded in behalf of the Comptroller’s claim, either in the cross action or motion for judgment, are sworn to.

In 1962 the Supreme Court considered a suit on sworn account in which the supporting document was attached to pleadings, and an affidavit in support of motion for summary judgment referred to the document. No objection was made that the document was not attached either to the affidavit or the motion for judgment, and the point was made for the first time on appeal. The Supreme Court held that exceptions to the deficiencies should have been made in the trial court, but could not be raised for the first time on appeal. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.1962).

In 1973 the Supreme Court approved its earlier holding in a case decided in 1971 and held that the trial court erred in granting a motion for summary judgment because “The factual statements to support the motion for summary judgment are in the pleadings, not in a sworn motion or affidavit in support of the motion.” Texas National Corporation v. United Systems International, Inc., 493 S.W.2d 738, 741 (Tex.1973), in which it was said “The granting of the motion, therefore, falls under the rules announced in Hidalgo v. Surety Savings & Loan [462 S.W.2d 540 (Tex.1971)] ...”

In both Texas National and Hidalgo the Supreme Court pointed out desirability of following the wording of Rule 166-A(e). It is clear that matters sworn to in the pleadings are not summary judgment proof. In the case now on appeal the pleadings were not sworn to, neither the cross action nor the motion for summary judgment, and the certificate of the Comptroller was attached to the pleadings, not to the motion; nor did the motion attempt to incorporate the certificate, although it stated the certificate was attached to the cross action.

Unless the case is one properly to be decided on the pleadings, a motion for summary judgment should be supported by its own summary judgment proof as set out in Rule 166-A, and not by reference to the pleadings. Supporting proof “should be attached to the motion or an affidavit, not to the pleadings.” Texas National, supra; Hidalgo, supra.

In Texas National and in Hidalgo the supporting document was the promissory note. By analogy, the supporting document in this case is the Comptroller’s certificate, which should be attached to the motion or an affidavit, not to the pleadings, to make proof necessary to support the motion for summary judgment. We conclude that under the principles announced by the Supreme Court in these two recent cases, the Comptroller failed to make the proof required to support the motion for summary judgment.

The judgment of the trial court with respect to the summary judgment granted on the Comptroller’s motion is reversed, and the cause, as to the cross action, is remanded for further proceedings. The action of the trial court declining to consider the taxpayer’s suit for want of jurisdiction is affirmed, and the suit by appellant against the Comptroller is dismissed.

      . Appellant taxpayer is R. R. Robinson, doing business as Do-Rite Grocery and Market in the city of Dallas, Dallas County, Texas; appellee is Bob Bullock, Comptroller of Public Accounts of the State of Texas.


author: PRESLAR, Chief Justice.

text:
    Hubert TRIAL, d/b/a Old Fort Trading Post, Appellant, v. Don McCOY, Appellee.
    No. 6595.
    Court of Civil Appeals of Texas, El Paso.
    June 15, 1977.
    Rehearing Denied July 12, 1977.

      Lonnie W. Duke, San Antonio, for appellant.
    Schwartz & Earp, Larry H. Schwartz, David R. McClure, El Paso, for appellee.
   OPINION

PRESLAR, Chief Justice.

The question presented by this appeal is whether Tex.Bus. & Comm.Code Ann. Sec. 17.50, known as the Deceptive Trade Practices — Consumer Protection Act, permits the award of treble damages and attorney’s fees to one who is a merchant. A second question involves the proof necessary to show a breach of warranty of title.

Appellee bought an antique pistol from Appellant for $1,000.00 and brought this action for breach of warranty of title when the gun was taken from Appellee by police officers as being a stolen gun and was returned to a third party. The trial Court granted Appellee’s motion for summary judgment awarding treble damages and attorney’s fees. We affirm on the issue of liability and reverse on the issue of damages.

Appellee sought recovery for breach of warranty of title under Tex.Bus. & Comm. Code Ann. Sec. 2.312, which conforms to Section 2-312 qf the Uniform Commercial Code promulgated by the American Law Institute in the National Conference of Commissioners on Uniform State Laws. The Section provides that, in a contract of sale, there is a warranty by the seller that the title conveyed shall be good and its transfer rightful, and that the goods shall be delivered free from any security interest or encumbrance of which the buyer at the time of contracting has no knowledge. The question here presented is whether there has been a breach of the warranty of title, and the answer to that question is dependent on whether there must be proof that the gun was stolen, or may the breach of warranty be established by the fact that there was a disturbance of quiet possession in Appellee.

The summary judgment evidence that the gun was stolen cannot be considered since it was hearsay. That leaves the evidence to be that the gun was taken from Appellee’s possession by police officers on their information that it was stolen property, and it was never returned to Ap-pellee. Appellee notified Appellant of the loss and Appellant subsequently refused to refund Appellee’s money. If there is a duty to prove that the gun was stolen for breach of warranty of title, then Appellee’s failure to do so would require a reversal of the summary judgment. We are of the opinion, however, that the proof made was sufficient under Section 2.312. The official comment to that Section provides:

“The warranty of quiet possession is abolished. Disturbance of quiet possession, although not mentioned specifically, is one way, among many, in which the breach of the warranty of title may be established.”

Cases from other jurisdictions have found breach of warranty of title in the loss of the buyer’s property where it was impounded by law enforcement officials. American Container Corp. v. Hanley Trucking Corp., 111 N.J.Super. 322, 268 A.2d 313 (1970); Ricklefs v. Clemens, 216 Kan. 128, 531 P.2d 94 (1975); John St. Auto Wrecking v. Motors Insurance Corporation, 56 Misc.2d 232, 288 N.Y.S.2d 281 (1968); Spillane v. Liberty Mutual Insurance Co., 65 Misc.2d 290, 317 N.Y.S.2d 203 (1970), affirmed, 68 Misc.2d 783, 327 N.Y.S.2d 701 (1971). In American Container, the property was possessed by the police for ninety days and afterwards was returned to a third party. Such is the substance of the proof before us, and we think it sufficient to show that there was a breach of the warranty of title. The trial Court properly found that Appellee was entitled to recover under Tex.Bus. & Comm. Code Ann. Sec. 2.312, and that would entitle him to his actual damages — loss of the purchase price. However, the award of treble damages presents a different question.

The trial Court awarded treble damages, costs of Court and attorney’s fees as provided by Tex.Bus. & Comm.Code Ann. Sec. 17.50. Appellant, by appropriate points of error, questions Appellee’s right to recover under that Section in that he was not a “consumer” within the meaning of the act. We are of the opinion that a fact question exists as to Appellee’s consumer status. Section 17.50 is entitled “Relief for Consumers.” Paragraph (b) provides:

“(b) In a suit filed under this section, each consumer who prevails may obtain:
“(1) three times the amount of actual damages plus court costs and attorneys’ fees reasonable in relation to the amount of work expended * * *

Two Texas cases have held that the cause of action conferred by Section 17.50 is restricted to the class of claimants defined as “consumers” within the meaning of Section 17.45(4) of the Act. Russell v. Hartford Casualty Insurance Company, 548 S.W.2d 737 (Tex.Civ.App.—Austin 1977, no writ); Bourland v. State, 528 S.W.2d 350 (Tex.Civ.App.— Austin 1975, writ ref’d n. r. e.). At the time this cause arose and was tried, Section 17.45 under definitions provided:

“(4) ‘Consumer’ means an individual, partnership, or corporation who seeks or acquires by purchase or lease, any goods or services.
“(5) ‘Merchant’ means a party to a consumer transaction other than a consumer.”

Clearly, then, one who is a merchant cannot be a consumer under the Act. There is ample evidence to raise a fact question as to whether or not Appellant was a merchant as defined in Tex.Bus. & Comm.Code Ann. Sec. 2.104. His testimony was that he has been buying, selling, and collecting guns for some twenty-five years, and that he was once a dealer. In fact, the gun in question was being exhibited at a gun show and offered for sale by him at the time it was taken from his possession by the police.

Appellee’s consumer status goes to the damage award portion of the judgment, and it is only in the award of damages that the judgment is erroneous. Rule 166-A, Tex.R.Civ.P., provides that a summary judgment may be rendered on the issue of liability alone, although there is a genuine issue as to the amount of damages. This is an appropriate case for such action. We affirm the liability portion of the judgment that Appellee is entitled to recover his damages from Appellant. Because of the fact question presented as above discussed, we reverse that portion of the judgment awarding treble damages and attorney’s fees, and remand the cause to the trial Court for determination of the question of the amount of damages in a trial on the merits. We affirm in part and reverse and remand in part.


author: WARD, Justice. PRESLAR, Chief Justice,

text:
    FURR’S, INC., Appellant, v. Martha LEYVA, Appellee.
    No. 6597.
    Court of Civil Appeals of Texas, El Paso.
    June 15, 1977.
    Rehearing Denied July 6, 1977.
    Kemp, Smith, White, Duncan, & Hammond, Joe Lea, Jr., E. Link Beck, El Paso, for appellant.
    Law Offices of Allen Moore, Allen Moore, J. Roderick Price, Michael Owensby, Odessa, for appellee.
   OPINION

WARD, Justice.

This is a venue case arising after a store customer suffered personal injuries when she fell because of some oil and glass on the floor of the Defendant’s store. The Plaintiff’s controverting plea sought to retain venue in El Paso County under Subdivisions 9a and 23 of Article 1995, Tex.Rev.Civ.Stat. Ann. After a non-jury hearing, the trial Court denied the Defendant’s plea and we reverse and remand with instructions.

Only the testimony of the Plaintiff, Martha Leyva, was before the Court. While she was shopping at the Defendant’s store in El Paso, she was looking at items on the shelves and she suddenly and unexpectedly slipped and fell to the floor. She testified that she neither felt nor noticed anything on the floor and she was immediately assisted to her feet by an employee whom she identified as possibly a sacker. She and the store employee looked down and noticed that her toe was bleeding, and the employee then went back to inspect where she had fallen. The employee made the following statement to her:

“ * * * that someone had broken a bottle on the floor; * * * that the floor was sort of oily; * * * and that somebody had tried to clean it up but there was some glass left on the floor.”

She did not see or describe the place on the floor, she did not see anybody cleaning up the aisle, and she did not see anybody with a mop or a bucket before the accident occurred. The subsequent testimony concerned the injuries she sustained and the medical treatment involved.

The parties agree with the rule that to establish the negligence of the store owner, the Plaintiff must show one of the following: that the Defendant put the object on the floor; that the Defendant knew that the object was on the floor and wilfully or negligently failed to remove it; or that it had been on the floor for such a period of time that it would have been discovered and removed by the Defendant in the exercise of ordinary care. Whitfield v. Furr’s, Inc., 502 S.W.2d 897 (Tex.Civ.App.—El Paso 1973, no writ). The Plaintiff relies on the last two alternatives that the Defendant knew that the liquid and glass were on the floor and negligently failed to remove all of it, or had constructive knowledge of the presence of the substance. She argues that the legitimate and proper inference from the evidence was that from the very nature of a broken bottle of oil, only a store employee would pick up the broken bottle, and he would be the only one who would even attempt to wipe up the mess. She compares these facts with the water case where it was testified that the water on the floor appeared dirty and to have been swept through with a broom. There, the circumstantial evidence and the inferences arising were held to lead to the more probable conclusion that it was an employee with a broom who had attempted the clean up. H.E.B. Food Stores v. Slaughter, 484 S.W.2d 794 (Tex.Civ.App.—Corpus Christi 1972, writ dism’d).

Without any more before the Court than is in evidence in our case, it is just as reasonable to infer that shortly before the arrival of the Plaintiff, some embarrassed customer dropped a small bottle of oil, which did not shatter, and the customer then hurriedly picked it up and disposed of it on a nearby shelf but left some glass and oil on the floor.

One inference arising is just as reasonable and probable as the other. “ ‘However, a court or jury may not be left to speculate. * * * If there is no direct evidence as to the existence of an ultimate fact and the proven circumstances are consistent with either of two theories and there is nothing to show that one rather than the other probably is correct, then neither is proven.’ ” Cambridge Mutual Fire Insurance Company v. Shoemake, 403 S.W.2d 858 (Tex.Civ.App.—Dallas 1966, no writ). The fact that the foreign substance is on the floor is not sufficient to warrant the inference that the storekeeper had placed or left it there, or knew of its presence, or that it had been there a sufficient length of time to enable the storekeeper to discover and remove it. The Plaintiff has failed to discharge her burden imposed upon her by the filing of the plea of privilege. Foodway, Inc. v. Lopez, 480 S.W.2d 227 (Tex.Civ.App.El Paso 1972, no writ).

The necessary element of the Plaintiff’s cause of action being absent, the proof fails to sustain venue under either Subdivision 9a or 23 of the Statute. Whitfield v. Furr’s, Inc., supra at 899. The Defendant’s first two points of error are sustained. We reverse the judgment of the trial Court and remand with instructions to transfer this cause to Lubbock County as prayed for in Defendant’s plea of privilege.

PRESLAR, Chief Justice,

dissenting.

I respectfully dissent and would affirm the judgment of the trial Court.

The writer is of the opinion that there is some support in the evidence for the trial Court’s presumed finding of negligence; under such circumstances, the appellate Court must affirm.

In the absence of findings of fact and conclusions of law, it is assumed on appeal that the Court found every fact necessary to sustain the judgment, if such factual propositions were raised by the pleadings and supported by the evidence, Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950), and the judgment will be affirmed on any legal theory that finds support in the evidence, Bishop v. Bishop, 359 S.W.2d 359 (Tex.1962).

The evidence is that where the Appellee fell, someone had broken a bottle on the floor, that the floor was sort of oily, and that somebody had tried to clean it up but there was some glass left on the floor. We have, then, the dangerous condition of the oily floor with glass and the presumed finding of the Court that it had been on the floor a sufficient amount of time that, in the exercise of diligence, Appellant should have known that it was there. That makes out a cause of action for negligence and supports the Court’s judgment. H.E.B. Food Stores v. Slaughter, cited by the majority, so holds and the majority opinion is in conflict with it. There, water on the floor was “dirt streaked as if someone had swept through the water. We believe that a proper inference can be based upon this evidence that the defendant knew the water was on the floor or that it had been there long enough so that the defendant should have known about it.” Later in the opinion, the Court said:

“On the basis of all the foregoing we believe that there was circumstantial evidence in the record to the effect that the wet condition of the floor was known to at least the one employee who attempted to sweep up the water.”

Here, the evidence is direct, not a matter of inference, that “somebody had tried to clean it up.” That raises a very logical inference, which the trial Court presumably found, that such cleaning up would be attempted by the store owner or employees whose job and duty it was to clean the store.

The real point and purpose of this dissent is not the strength or weakness of the evidence above discussed, but rather the review of it by this Court. This Court is not here making an original determination of the ultimate facts from the evidence; the trial Court has done that; we are reviewing those findings. It matters not that we might have reached a different conclusion, and we are not at liberty to substitute our findings for those of the trial Court. These well established rules govern the review of this case so that I conclude that under the record, this Court must affirm the judgment.

In James v. Drye, 159 Tex. 321, 320 S.W.2d 319 at 323 (1959), the Supreme Court stated the rule:

“On appeal from an order overruling a plea of privilege every reasonable intendment must be resolved in favor of the trial court’s judgment * * *
This case has been followed and cited in so many cases that an entire column of the citator is filled by them.

Our Supreme Court in the Renfro Drug case, supra 235 S.W.2d at 613, said:

“ * * * In seeking to determine whether there, is any evidence to support the judgment and the implied findings of fact incident thereto ‘it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature’ * * *

I would affirm the judgment of the trial Court overruling the plea of privilege.


author: J. CURTISS BROWN, Chief Justice.

text:
    Dr. C. W. HAMMOND, Jr., Appellant, v. The TRAVELERS INDEMNITY COMPANY, Appellee.
    No. 1640.
    Court of Civil Appeals of Texas, 14th District.
    June 15, 1977.
    Rehearing Denied July 6, 1977.
    C. Andrew Wooley, Butler, Binion, Rice, Cook & Knapp, Houston, for appellant.
    Walter T. Weathers, Jr., Sewell, Junell & Riggs, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

This suit arises out of an indemnity agreement made to secure an alcoholic beverage surety bond.

In February 1972, the Travelers Indemnity Company (Travelers or appellee) issued a surety bond in the amount of $5,000 on behalf of “O.D.’s Inc.” under the Texas Liquor Control Act. This bond was secured by an indemnity agreement entered into by appellee as indemnitee and the three owners of “O.D.’s” as indemnitors Jim O’Donnell (O’Donnell), Joyce Webb Rayburn (Rayburn) and Dr. C. W. Hammond, Jr. (appellant or Dr. Hammond). In June 1972, at the request of O’Donnell and the Texas Alcoholic Beverage Commission, the bond was increased by a corrective rider from $5,000 to $7,500 to secure the State against anticipated tax liability. In October of that year, the bond was again increased to $8,049.95. In February 1973, the Commission demanded payment of an $8,049.95 delinquent tax charge under the bond. As surety, appellee paid the amount and, in turn, requested indemnification from O’Donnell, Rayburn and appellant pursuant to their written agreement. After the parties refused to pay, suit was filed to recover the $8,049.95 on a sworn account and, alternatively for breach of contract. Appellant answered denying liability under the indemnification agreement stating that the corrective riders increasing the amount of the bond were issued without his knowledge or consent. Both parties filed motions for summary judgment, and the court granted appellee’s motion against appellant for the $8,049.95 plus interest. The judgment also recited that appellee’s claim for attorney’s fees and legal expenses would be severed into a different cause.

The question on appeal is whether the express terms of the indemnity agreement allowed for increases in the surety bond without notice to or consent by appellant. The pertinent language in the agreement provides:

Should the Travelers Indemnity Company, (hereinafter called the Company) execute or procure the execution of the suretyship hereinbefore applied for, or other suretyship in lieu thereof or in connection therewith, the Indemnitors do, in consideration thereof, jointly and severally and for each other undertake and agree:
* * * * * *
and do hereby further bind themselves . to indemnify and save the Company harmless, and on demand to pay any and all claims, demands, loss and damages of every nature and kind, as well as all legal and other costs, counsel fees and expenses which the Company shall at any time sustain, directly or indirectly, by reason or in consequence of such surety-ship, or any renewal, extension, modification or continuation thereof, or Consent of Surety or additional suretyship, whether before or after legal proceedings by or against the Company, and whether with or without notice thereof to the Indemni-tors. [Emphasis added.]

We feel that this language is clear and unambiguous, and expresses an intent of the parties that appellant, as indemnitor, was obligated to indemnify appellee for any claims or demands on the suretyship issued by appellee “or other suretyship in lieu thereof or in connection therewith . ..” This language alone contemplates the riders issued to increase the amount of the original surety. However, the provisions further state that appellant will indemnify ap-pellee for all claims resulting from “such suretyship, or any renewal, extension, modification or continuation thereof, or Consent of Surety or additional suretyship . ..” [Emphasis added.] There can be no doubt that the terms “modification” or “additional suretyship” refer to increases in the amount of the surety bond. Appellee would have us apply the rules of strict construction favoring the indemnitor in interpreting these provisions and the recitals of the agreement. The intent of the parties being clear, however, we need only look to the ordinary rules of construction applicable to contracts in general. See Ohio Oil Co. v. Smith, 365 S.W.2d 621 (Tex.Sup.1963); Mitchell’s, Inc. v. Friedman, 157 Tex. 424, 303 S.W.2d 775 (1957); Gardner v. Smith, 168 S.W.2d 278 (Tex.Civ.App.-Beaumont 1942, no writ); 42 C.J.S. Indemnity § 8 (1944).

We also consider this language broad enough in scope to clearly allow for the recovery of attorney’s fees expended in enforcing the indemnity agreement. Appellant agreed to indemnify appellee for “all legal and other costs, counsel fees and expenses which the Company shall at any time sustain, directly or indirectly, by reason or in consequence of such suretyship ..” It is evident that the intent of the parties was to provide for indemnification against all legal expenses incurred not only involving enforcement of the surety bond but also of the indemnity agreement. See W. R. Grimshaw Co. v. Martin Wright Elec. Co., 283 F.Supp. 628 (W.D.Tex.1968), rev’d on other grounds, 419 F.2d 1381 (5th Cir. 1969), cert. denied, 397 U.S. 1022, 90 S.Ct. 1263, 25 L.Ed.2d 532 (1970).

All other points of error being considered the judgment of the trial court is affirmed.

Affirmed.


author: COULSON, Justice.

text:
    Norma Zane BIGGS, Appellant, v. William D. BIGGS, Appellee.
    No. 1626.
    Court of Civil Appeals of Texas, 14th District.
    June 15, 1977.
    Rehearing Denied July 6, 1977.

      William J. Rohrbach, Jr., James J. Hip-pard, Sr., Sullins & Johnston, Houston, for appellant.
    T. Turner Pope, III, Houston, for appel-lee.
   COULSON, Justice.

Norma Zane Biggs appeals from a summary judgment rendered against her in a suit in the nature of an equitable bill of review brought against her former husband, William D. Biggs, to set aside the community property division in a divorce judgment. We affirm.

On December 15, 1975, a decree of divorce terminated the five year marriage of Norma and William Biggs. Mrs. Biggs did not appear in court, but signed a waiver of citation in which she acknowledged receiving a copy of the original petition for divorce filed by Mr. Biggs. Incorporated in the trial court’s judgment was an agreement incident to divorce executed by Mr. and Mrs. Biggs. The agreement specifically provided that the parties intended to effect only a partition of the community estate, and that each party disclaimed any interest in the separate property of the other spouse.

The instant litigation was commenced by Mrs. Biggs on July 7, 1976, in a suit in the nature of an equitable bill of review. Mrs. Biggs alleged that Mr. Biggs had engaged in a deliberate scheme of extrinsic fraud and deceit, whereby she was kept from knowing the true nature and extent of their community estate, was induced not to appear in court and seek an equitable share of the total community estate, which allegedly would have been at least $200,000.00 more than she received, and that she was led to believe, by continued physical and verbal expressions of love and affection, that her husband would abandon his suit for divorce and reconcile their marriage.

Mr. Biggs’s answer consisted of a general denial, a plea of estoppel by reason of Mrs. Biggs having accepted the benefits of the property disposition incorporated in the divorce judgment, a plea of estoppel by lach-es, an assertion that the alleged fraud, if any, was intrinsic instead of extrinsic, and an allegation that if Mrs. Biggs were prevented from a proper presentation of her case, she contributed to such prevention by her own negligence.

Mr. Biggs filed a motion for summary judgment supported by his affidavit and the affidavit of the comptroller of Garden-Land, Inc., a Texas corporation, of which Mr. Biggs was president and majority stockholder. The affidavits detailed payments made by Mr. Biggs and Garden-Land to Mrs. Biggs pursuant to the agreement incident to divorce. Mr. Biggs swore that Mrs. Biggs was entitled to all of these benefits only by virtue of the property settlement; none of these benefits had been tendered by Mrs. Biggs to him or into the court; he had not by actions or words kept Mrs. Biggs from knowing any facts concerning the property mentioned in the agreement; had not kept her from seeking independent legal counsel before or after the divorce was granted; and he had married his present wife on December 18, 1975 (three days after his divorce from Norma Biggs).

The answer and affidavit filed in opposition to the motion for summary judgment essentially repeated the allegations in appellant’s amended petition and also pointed out that appellant had tendered all benefits she had or would receive under the terms of the property settlement. It should be noted that no tender had been made into the registry of the court or to Mr. Biggs; Mrs. Biggs merely pleaded that she stood “ready and willing to return such amounts to the general hodge podge of the community estate . . .

Being of the opinion that there was no genuine issue as to any material fact and that Mr. Biggs was entitled to judgment as a matter of law, the trial court granted appellee’s motion for summary judgment and entered a take-nothing judgment against Mrs. Biggs on December 13, 1976. Mrs. Biggs appeals from that judgment.

We are faced at the outset with a motion to dismiss the appeal on the grounds that Mrs. Biggs voluntarily accepted the benefits of the judgment which she now attacks. See Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950). We do not believe that a dismissal would be proper under the circumstances. Mrs. Biggs is appealing from a take-nothing judgment rendered against her, not from a judgment from which she has been benefited. However, we do hold that Carle v. Carle provides an adequate basis for affirming the summary judgment rendered against Mrs. Biggs.

As a general rule, a litigant cannot treat a judgment as both right and wrong, and, if he has voluntarily accepted the benefits of a judgment, he cannot afterward prosecute an appeal therefrom. Carle v. Carle, 149 Tex. at 472, 234 S.W.2d at 1004; Manville v. Garrison, 538 S.W.2d 819, 820 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n. r. e.); Trader v. Trader, 531 S.W.2d 189, 190 (Tex.Civ.App.—San Antonio 1975, writ dism’d); Griffin v. Smith, 457 S.W.2d 127, 128 (Tex.Civ.App.—San Antonio 1970, writ ref’d); Richards v. Richards, 430 S.W.2d 18, 20 (Tex.Civ.App.—Tyler 1968, writ ref’d n. r. e.). This rule has been applied to bill of review cases. See, e. g., Swearingen v. Swearingen, 487 S.W.2d 784, 788 (Tex.Civ.App.—San Antonio 1972, writ dism’d); Smith v. Manger, 449 S.W.2d 347, 349 (Tex.Civ.App.—San Antonio 1970, no writ). Cf. Ragsdale v. Ragsdale, 520 S.W.2d 839, 844 (Tex.Civ.App.—Fort Worth 1975, no writ); McFarland v. Reynolds, 513 S.W.2d 620, 625 (Tex.Civ.App.—Corpus Christi 1974, no writ).

Affidavits and exhibits filed in support of the motion for summary judgment establish that Mrs. Biggs has received approximately $36,000.00 from Mr. Biggs and Garden-Land, Inc. under the terms of the property agreement incorporated in the divorce judgment. This figure includes payments for unearned salary, the lease by Garden-Land, Inc. of community real estate, the lease by Garden-Land, Inc. of a Lincoln Continental for Mrs. Biggs’s exclusive use, and cash payments made by Mr. Biggs directly to Mrs. Biggs. More than $11,000.00 in benefits has been paid to Mrs. Biggs since July 7, 1976, when the present suit was instituted. Mrs. Biggs does not dispute that she has voluntarily accepted these benefits. She justifies that acceptance by an assertion that she is entitled to at least $200,000.00 more than she has already accepted.

There is no evidence in the record that Mrs. Biggs was compelled by financial duress to involuntarily accept the benefits of the judgment. See McCartney v. Mead, 541 S.W.2d 202, 205 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ). Uncontradicted deposition testimony discloses that Mrs. Biggs’s separate property includes approximately $50,000.00 in certificates of deposit. Neither is there any evidence that Mrs. Biggs could claim these benefits as a matter of right.

The parties cannot be returned to the status quo existing prior to the divorce. In reliance on the property agreement and divorce judgment, Mr. Biggs has remarried, thus creating a new community estate. He has sold many of the assets of Garden-Land, Inc., which he has always considered to be his separate property, and in which Mrs. Biggs now claims to have a community interest. Relitigating these issues at this time would prejudice the rights of Mr. Biggs.

We hold that a divorce judgment may not be set aside by bill of review where the complainant has voluntarily accepted the benefits of the judgment, under no financial compulsion to do so, continues to voluntarily accept those benefits after the alleged fraud is discovered and bill of review filed, and where the rights of the other spouse would be prejudiced if the judgment were set aside. Therefore, the trial court properly rendered summary judgment against appellant on her bill of review.

We would affirm the summary judgment entered against Mrs. Biggs even if she had not accepted benefits under the divorce judgment. Mrs. Biggs made gross allegations of fraud and deceit on the part of Mr. Biggs and his attorney which prevented her from appearing in court to claim a larger share of the community estate. However, the specific damages alleged to have resulted from this fraud are limited to the following: (1) that Mr. Biggs told Mrs. Biggs that the property settlement agreement would provide for Mrs. Biggs to get their residence and farm free and clear of all liens and indebtedness when, in fact, the agreement provides that she shall be responsible for the monthly mortgage payments; and (2) that Mr. Biggs, with the aid and assistance of his attorney, deliberately failed to include in the property settlement agreement the community estate in Garden-Land, Inc., and in several insurance policies.

A bill of review is an equitable proceeding in which the moving party must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own. Alexander v. Hagedorn, 148 Tex. 565, 568, 226 S.W.2d 996, 998 (1950). Only extrinsic fraud will entitle a complainant to relief by bill of review.' Intrinsic fraud does not furnish a ground for setting aside a judgment in an independent suit brought for that purpose. Alexander v. Hegedorn, 148 Tex. at 574, 226 S.W.2d at 1001. Moreover, the complainant must allege and prove that he exercised due diligence to avail himself of all adequate legal remedies against the former judgment, and that at the time he files the bill of review there remains no such adequate legal remedy still available. French v. Brown, 424 S.W.2d 893, 896 (Tex.Sup.1967); 4 McDONALD, TEXAS CIVIL PRACTICE § 18.27.6 (rev. ed. 1971).

Fraudulent instruments and perjured testimony are species of intrinsic fraud. Alexander v. Hagedorn, 148 Tex. at 574, 226 S.W.2d at 1001. Assuming that the property agreement signed by Mr. and Mrs. Biggs does not reflect the true agreement between the parties, the instrument would be fraudulent, but not subject to attack by bill of review. As written in Bankston v. Bankston, 251 S.W.2d 768, 772 (Tex.Civ.App.—Dallas 1952, mand. overruled):

The fraud at most relates to untruths which misled both plaintiff and counsel into acquiescence and approval of an unjust division of property. If misrepresentations were made and appellant relied thereon, they bore either actually or potentially on the matters at issue in the former trial and thus tantamount to no more than intrinsic fraud.

We hold that the allegation that the property agreement filed in the divorce trial does not conform to the agreement between the parties is no more than an allegation of intrinsic fraud which will not support a bill of review. Lee v. Lee, 509 S.W.2d 922, 926 (Tex.Civ.App.—Beaumont 1974, writ ref’d n. r. e.); Boley v. Boley, 506 S.W.2d 934, 940 (Tex.Civ.App.—Fort Worth 1974, no writ); Raney v. Mack, 504 S.W.2d 527, 533 (Tex.Civ.App.—Texarkana 1973, no writ); Bell v. Bell, 434 S.W.2d 699, 701 (Tex.Civ.App.—Beaumont 1968, writ ref’d n. r. e.); Bankston v. Bankston, 251 S.W.2d 768, 772 (Tex.Civ.App.—Dallas 1952, mand. overruled). Cf. Ragsdale v. Ragsdale, 520 S.W.2d 839, 843 (Tex.Civ.App.—Fort Worth 1975, no writ); McFarland v. Reynolds, 513 S.W.2d 620, 625 (Tex.Civ.App.—Corpus Christi 1974, no writ).

It is well settled that where a divorce decree fails to provide for a division of community property, the husband and wife become tenants in common or joint owners thereof, and the judgment entered in the divorce suit does not preclude either spouse from seeking a partition of the undivided community. Busby v. Busby, 457 S.W.2d 551, 554-55 (Tex.Sup.1970). If community assets were excluded from the property agreement incorporated in the divorce judgment, by fraud or otherwise, Mrs. Biggs can sue to partition those community assets. She may not bring a bill of review until she exhausts her legal remedy of partition.

Further, we fail to see how the alleged acts of Mr. Biggs prevented Mrs. Biggs from seeking a new trial or a direct appeal. His alleged promises of reconciliation fall far short of establishing that Mrs. Biggs was not negligent in allowing the divorce judgment to become final.

Justice will be better served if we restrict the availability of bills of review in divorce cases to only the most egregious circumstances. There must be a finality to judgments. This is especially true in divorce cases where the financial and emotional stakes are high. The gross allegations of fraud made in this case could be made with respect to virtually any divorce judgment which includes a property settlement agreement.

Appellee’s motion to dismiss the appeal is denied. The summary judgment rendered in favor of appellee is affirmed.

Judgment affirmed.