text:
    Walter CUDDY, Appellant, v. TEXAS DEPARTMENT OF CORRECTIONS et al., Appellees.
    No. B1899.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 28, 1979.
    Rehearing Denied March 21, 1979.
    Alfred W. Ellis, Woodruff & Ellis, Dallas, for appellant.

      John L. Hill, Atty. Gen., Jack Sparks, Robert Bickerstaff, Jr., Asst. Attys. Gen., Austin, for appellees.
    Steve 0. McManus, Kilgore, Cole & McManus, Victoria, W. T. Bennett, Bennett & Keeling, Huntsville, amicus curiae.
   J. CURTISS BROWN, Chief Justice.

Plaintiff’s personal injury suit against the Texas Department of Corrections was dismissed on the pleadings alone pursuant to a plea in abatement based on governmental immunity. The contention on appeal is that this case came within the parameters of permissible recovery allowed by the Texas Tort Claims Act.

Walter Cuddy, (Cuddy or appellant), a prisoner in the Huntsville Division of the Texas Department of Corrections (appellee or TDC), was injured while engaged on a work project clearing certain paths in the Huntsville State Park. The work required the transportation of the prisoners and their tools via a flat-bed trailer attached to a tractor. Appellant’s injuries were sustained when the tractor ran over some tree limbs which twisted up around his legs and pulled him off the trailer. Appellant, alleging negligence, brought this suit against TDC and against the individual guards who were supervising the work at the time of injury. The trial court granted TDC’s plea in abatement and appellant gave notice of appeal. Final judgment was rendered when appellant took a voluntary non-suit against the individual defendants.

The doctrine of sovereign or governmental immunity has a long and complicated history in the United States. See generally, Greenhill & Murtro, Governmental Immunity, 49 Tex.L.Rev. 462 (1971) (hereinafter cited as Greenhill & Murtro); Van Alstyne, Governmental Tort Liability: A Decade of Change, 1966 U.Ill.L.F. 919; Comment, The Governmental Immunity Doctrine in Texas—An Analysis and Some Proposed Changes, 23 Sw.L.J. 341 (1969). Governmental immunity is composed of two legal concepts. The first is that a state cannot be sued in its own courts without its express consent. Hosner v. DeYoung, 1 Tex. 764 (1847). The second concept is that even if a state consents to suit, it is not liable in tort for the actions of state employees. State v. Isbell, 127 Tex. 399, 94 S.W.2d 423 (1936). Hence, if a state consented to a suit against it, the doctrine of respondeat superior was not applicable. Id.; Greenhill & Murtro, supra, at 462.

In addition to shielding the state, the doctrine of governmental immunity extended also to municipalities, but with one distinction. “Governmental” activities were protected, whereas “proprietary” activities were not. Distinctions between proprietary and governmental functions are sometimes difficult to draw, although there have been numerous attempts to do so. Greenhill, Should Governmental Immunity for Torts Be Re-Examined, and, If So, By Whom? 31 Texas B.J. 1036, 1065-66 (1968). In Dancer v. City of Houston, 384 S.W.2d 340 (Tex.Sup.1964), Dancer, a prisoner held by the City of Houston was injured while in transit to a worksite. The supreme court stated that:

it can be said that the City was exercising both proprietary and governmental functions at the time Dancer was injured. Undoubtedly a guard in maintaining custody and control over prisoners is exercising a governmental function. However, one giving direction as to the activities incident to cleaning up the debris in the public park is in essence acting as a supervisor or foreman and in a nongovernmental capacity. . . . Actually Dancer was a workman engaged in removing debris and trash from a city park. The fact that he was also a prisoner . should not absolve the City from the duty of exercising ordinary care to protect him from injury.

However, in Texas the goverznmental/proprietary dichotomy has been held inapplicable to the state. Hodge v. Lower Colorado River Authority, 163 S.W.2d 855 (Tex.Civ.App.-Austin 1942, writ dism’d); Greenhill & Murtro, supra, at 464. As a result, the State of Texas retained the broad shield of immunity from tort actions until 1970 when the Tort Claims Act was passed.

The Tort Claims Act, Tex.Rev.Civ.Stat. Ann. art. 6252-19 (1970), as amended, (Supp.1978), opens with a broad waiver of immunity and consents to suit to the extent of that waiver. But, as a result of concessions and trade-offs, the act is limited by an extensive list of exceptions. Greenhill & Murtro, supra, at 468. In application, the Act is limited to torts arising from the use of publicly owned vehicles, from premise defects, and from the use or condition of property. In addition, section 14(9) of the act provides that the “Act shall not apply to: . . . any claim . . . arising out of the failure to provide, or the method of providing, police or fire protection.” Tex.Rev.Civ.Stat.Ann. art. 6252-19, § 14(9) (1970).

Section 14(9) has been construed to preclude prisoners from suing for personal injuries allegedly resulting from torts committed by guards. Davis v. County of Lubbock, 486 S.W.2d 109 (Tex.Civ.App.-Amarillo 1972, no writ). Likewise in Lloyd v. University of Texas, 524 S.W.2d 958 (Tex.Civ.App.-Beaumont 1975, writ ref’d n. r. e.), section 14(9) was held to provide immunity from suit when a prisoner fell out of the police car en route to jail immediately after arrest for driving while intoxicated. The exclusion has also been held to provide immunity to a city for injuries to a prisoner suffering chemical burns when a fire extinguisher was sprayed into a jail cell to put out a fire in the mattress. Strickland v. City of Denver City, 559 S.W.2d 116 (Tex.Civ.App.-Eastland 1977, no writ history). See also, Salinas v. Flores, 359 F.Supp. 233 (S.D.Tex.1973).

This court has previously considered Davis, Strickland, and Salinas, and while these cases could have been distinguished on the ground that they involved the failure to provide or the method of providing police protection, we rejected their language as overbroad with respect to the parameters of the exclusion under 14(9). Jenkins v. State, 570 S.W.2d 175, 179 (Tex.Civ.App.-Houston [14th Dist.] 1978, no writ history). We held that Section 14(9)

does not shield governmental entities from liability for injuries arising out of their failure to provide, or method for providing, services which are only incidental to, and not integral parts of, the prevention of crime and the apprehension, punishment and rehabilitation of criminals.

Id. We adhere to our reasoning in Jenkins and conclude that the methods and procedures being used by the TDC to clear paths in the Huntsville State Park were incidental at most to police protection. See also, Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex.Sup.1976); Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.Sup.1974). As in Dancer, supra, the state had undertaken to use prisoners as laborers on a work project. In that respect, the guards in effect were supervisors and the prisoners workmen. The TDC is not in a position to claim at this stage of the proceedings that appellant was injured as a result of activities intended to maintain custody or control over his person.

Since the activities alleged to have resulted in injury to the appellant were not a “method” of providing police protection, section 14(9) is not applicable under the alleged facts of this case. We conclude that it was error to grant TDC’s plea in abatement based on governmental immunity, and reverse and remand the case for trial.

Reversed and remanded.


source: Caselaw Access Project

author: COULSON, Justice.

license: Public Domain

text:
    CLAUDE REGIS VARGO ENTERPRISES, INC., et al., Appellants, v. Albert L. BACARISSE, Trustee, et al., Appellees.
    No. 1945.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 28, 1979.
    Rehearing Denied March 21, 1979.

      Stephen J. Cavanaugh, Cavanaugh & Gilmore, Houston, for appellants.

      Jimmy Williamson, Jesse Pierce, Foreman, Dyess, Prewett, Rosenberg & Henderson, Houston, for appellees.
   COULSON, Justice.

This is an appeal from a summary judgment granted in favor of appellees in a suit based on an alleged wrongful foreclosure under a deed of trust. We affirm the judgment of the trial court.

Appellants defaulted in early 1976 on a promissory note payable to defendant Bank of Harris County National Association, secured by the property in question under a deed of trust naming appellee Bacarisse trustee and appellee Bank of Harris County National Association as beneficiary. Appellants notified Bacarisse in January of 1976 that the business located on the property was being shut down and Bacarisse, as trustee, agreed to take possession of the property which appellants abandoned. In March of 1976 appellants ceased making payments on the promissory note. Thereafter, on May 4, 1976, a foreclosure sale was had which was apparently invalid under Tex. Rev.Civ.Stat.Ann. art. 3810 (Supp.1978) because proper notice was not given to all interested parties as required under that statute. In June of 1976 appellants filed their original petition to set aside the trustee’s deed because the sale was invalid. After suit was filed another foreclosure sale was held on August 3, 1976. It is not disputed that the second foreclosure sale complied with all the requirements of Tex. Rev.Civ.Stat.Ann. art. 3810 (Supp.1978), and the terms of the deed of trust. The property was sold to the Bank of Harris County National Association, which subsequently sold the property to appellee Joe D. Havens, Inc. The August 3 public sale was held in the late afternoon to accommodate appellant’s counsel. At 2:20 P.M. on August 3 a Creditors’ Involuntary Petition In Bankruptcy for appellant was filed in the United States District Court for the Southern District of Texas, Houston Division. It is not disputed that the petition for bankruptcy was filed prior in time to the consummation of the foreclosure sale. On October 19, 1976, the cause upon the petition for involuntary bankruptcy was heard by the United States District Court for the Southern District of Texas, Houston Division. That court’s order was entered on November 12, 1976, and states that the defendant in that cause (appellant here) appeared through its attorney and the attorney for the petitioners appeared, but that the petitioners failed to appear. It further recites:

No evidence, as required by the Bankruptcy Act, was presented to support or prove the allegations set forth in the involuntary petition in bankruptcy filed herein.
Upon consideration of the absence of evidence to support an adjudication that CLAUDE REGIS VARGO ENTERPRISES, INC. be declared bankrupt and of the violation of the petitioning creditors of orders of this Court, it is the determination of this Court that the petition be dismissed.

In addition to dismissing the petition for bankruptcy the court ordered that “ALL STAYS ARE ANNULLED”.

On November 18, 1976, appellants filed their “Second Amended Supplemental Petition to set aside two Trustees Deeds” which repeated the allegations as to the May 4 sale and also asserted that the August 3 sale was invalid because it occurred after the filing of the petition for bankruptcy. Appellees filed answers and appellee Bank filed a counterclaim against appellants for the deficiency still due and owing on the note after the second foreclosure sale. Appellants filed a motion for summary judgment which was denied. Appellees subsequently filed a motion for summary judgment which was granted. The trial court severed the defendant bank’s counterclaim for the deficiency from the remainder of the suit and plaintiff brought this appeal from the granting of defendant’s motion for summary judgment.

The primary question for decision in this appeal is whether the filing of the petition for bankruptcy prior to the completion of the August 3 foreclosure sale rendered that sale totally invalid and of no effect. Appellants rely on Rule 601, Rules Bankr.Proc., 11 U.S.C.A. which is titled “Petition as Automatic Stay Against Lien Enforcement” and states, in subsection (a):

The filing of a petition shall operate as a stay of any act or the commencement or continuation of any court proceeding to enforce (1) a lien against property in the custody of the bankruptcy court, or (2) a lien against the property of the bankrupt obtained within 4 months before bankruptcy by attachment, judgment, levy, or other legal or equitable process or proceedings.

Under this subsection an automatic stay of the foreclosure sale in question arose upon the filing of the bankruptcy petition at 2:20 P.M. on August 3,1976. Thus the sale was invalid when it was completed later on the afternoon of that day.

Appellees’ position is that the order of the Bankruptcy Court annulling all stays serves to validate actions, including this foreclosure sale, taken between the filing of the petition for bankruptcy and the dismissal of that petition. We agree. Federal Bankruptcy Rule 601 itself contains provisions relating to relief from stays of proceedings which arise upon the filing of a petition in bankruptcy. Those portions relevant to our decision read as follows:

(b) Duration of Stay. Except as it may be terminated, annulled, or modified by the bankruptcy court under subdivision (c), (d), or (e) of this rule, the stay shall continue until the bankruptcy case is dismissed or closed, .
(c) Relief from Stay. . . . The court may, for cause shown, terminate, annul, modify, or condition such stay.

(emphasis added) Rules Bankr.Proc., Rule 601, 11 U.S.C.A. We note that the rule itself expressly provides for annulment of the stay as well as for its termination, modification, or conditioning. We have been unable to discover any case authority interpreting the word “annulled” as used in Rule 601, but the Advisory Committee’s notes to the rule provides some guidance:

Whether the enforcement of a lien against property in the bankruptcy court’s custody by an act or proceeding after bankruptcy without permission of the bankruptcy court is void has been the subject of conflicting views by the courts and commentators. See 1 Collier ¶ 2.62[1] & [2] (1968). This rule consists with the view that such an act or proceeding is void, but subdivision (c) recognizes that in appropriate cases the court may annul the stay so as to validate action taken during the pendency of the stay.

(emphasis added), Rules Bankr.Proc., Rule 601, 11 U.S.C.A., Advisory Committee’s note. This interpretation is in line with the usual meaning given to the word “annulled”, which is “to abolish or invalidate”. Musician Protective Ass’n, etc. v. Semon, 254 S.W.2d 211, 213 (Tex.Civ.App.-El Paso 1952, writ ref’d); “la. to cause to cease to exist: reduce to nothing: blot out . 2b. to make legally void:” Webster’s 3rd New International Dictionary (1967). We hold that the action of the bankruptcy court in annulling this stay served to invalidate the stay ab initio, thus validating the sale conducted after the automatic stay arose upon the filing of the bankruptcy petition.

Appellants urge that considerations of due process and public policy should prompt this court to hold that the foreclosure sale was void because of the stay and was not validated by the subsequent annulment of that stay. Appellants’ due process rights were not violated. It is undisputed that proper and timely notice of the sale under Tex.Rev.Civ.Stat.Ann. art. 3810 (Supp.1978) was given. Appellants argue that the annulment of the stay should not validate the sale, but should merely return the parties to their respective positions at the time immediately prior to the foreclosure. According to appellants this would require reinstitution of the foreclosure proceedings under article 3810 with notice again to be given to all interested parties at least twenty-one days prior to a new foreclosure sale.

Were we to follow appellants’ reasoning, a foreclosure sale of a debtor’s property could be postponed indefinitely due to the fact that the mere filing of a petition in bankruptcy operates as a stay upon such proceedings, coupled with the requirement that notice of such sale must be given to the debtor in advance of the sale. While we have no reason to impugn appellants’ motives in this case, a debtor who wished to indefinitely forestall the sale of property upon which he had defaulted could persuade his other creditors to file a petition for bankruptcy on the day of the scheduled foreclosure sale, thus automatically invoking a stay and making a subsequent sale void. Under appellants’ theory the bankruptcy court’s subsequent order dismissing the petition for bankruptcy and annulling all stays would not serve to validate the sale, but would only allow the creditor to start over with the same advance notice requirement for a later sale. If the debtor again filed a petition for bankruptcy on the day scheduled for the second sale the entire scenario would have to be repeated. This process could be repeated ad infinitum,ef-fectively blocking an effective foreclosure sale by a secured creditor. If such a process were available to unscrupulous debtors, lenders would become more reluctant to lend money on the basis of a security interest in real property. The public interest would in no way be served by such a result.

We would add that in a proper case, where the petition for bankruptcy is properly pursued by those instituting such petition, the debtor’s rights would be protected, for the automatic stay would not be annulled and therefore a subsequent foreclosure sale would not be validated. In the case before us, however, where the bankruptcy petitioners did not present any evidence or, apparently make any efforts beyond actually filing the petition to prosecute their claims in the bankruptcy court, it seems entirely proper and understandable that the bankruptcy court judge would choose to “annul”, rather than to retain, terminate or otherwise deal with the stay, thus validating the sale.

As we hold that the August 3, sale was validated by the annulment of the stay, appellants had no cause of action against appellees to set aside the trustee’s deed of August 3, 1976, nor any cause of action for trespass against those in possession of the property since that date, nor any basis for obtaining an injunction removing such persons from the property, nor to forestall any further actions relating to the property by appellees. There being no genuine issue of material fact as to the essential elements of appellants’ cause of action, and the question of law being decided in favor of appellees, summary judgment was entirely proper in favor of appellees. Farley v. Prudential Insurance Co., 480 S.W.2d 176, 178 (Tex.Sup.1972).

Appellants’ second point of error asserts that the trial court erred in granting summary judgment on the whole case because there are genuine issues of material fact involved. Appellants’ argument under this point consists of two sentences: “The point has been stipulated to as previously stated. No argument is therefore necessary.” We have reviewed the record before us and find no stipulation of any kind included therein. Appellants’ second point of error is without merit.

Appellants have filed a supplemental brief containing one additional point of error attacking the trial court’s action “in striking and severing plaintiffs’ cause of action filed in their Supplemental Petition”. Appellants attempted to file a pleading designated “Plaintiffs’ Second Supplemental Petition,” on February 15, 1978. Although titled a supplemental petition, the pleading attempts to plead new matters constituting additional claims to those pled in the prior pleadings. Thus it is clearly an amendment, rather than a supplemental petition, under Rule 62, Tex.R.Civ.P. This attempted filing occurred some three weeks after the entry of the trial court’s order granting summary judgment in favor of appellees on January 26, 1978. Rule 63, Tex.R.Civ.P., governs the time when amendments to the pleadings may be made:

Parties may amend their pleadings . provided that any amendment offered for filing within seven days of the date of trial or thereafter . . . shall be filed only after leave of the judge is obtained . . (emphasis added).

A summary judgment proceeding is a trial with respect to the filing of amended pleadings under Rule 63. Mainland Sav. Ass’n v. Wilson, 545 S.W.2d 491, 493 (Tex.Civ.App.-Houston [1st Dist.] 1976, no writ); Bruce v. McAdoo, 531 S.W.2d 354 (Tex.Civ.App.-El Paso 1975, no writ). Nothing in the record before this court shows that appellants ever filed a motion for leave to amend their pleadings or otherwise brought this matter to the attention of the trial court. The point does not present error. Houston v. Moore Investment Co., 559 S.W.2d 850, 853 (Tex.Civ.App.-Houston [1st Dist.] 1977, no writ).

The trial court’s judgment is affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    E. W. CAPLES, et ux., Appellants, v. Phyllis Ann Doolin GOODWIN, Appellee.
    No. B2097.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 28, 1979.
    James S. Kelly, Kelly & Weium, Houston, for appellants.
    Sam J. Meador, Thomas B. Foster, Jr., Ronald G. Fitzgerald, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

Appellants, E. W. Capíes and wife, in their amended motion for additional time to file a statement of facts, have set forth a reasonable explanation of their need for such extension in accordance with rule 21c Tex.R.Civ.P. and that motion is hereby granted.

However, our decision is not to be taken as condoning the conduct of the court reporter who requires full payment of the costs of preparing the statement of facts prior to beginning transcription and who states in affidavit that “[t]his is a policy, as a result of past experience, I rigidly adhere to.” On the contrary, we expressly disapprove of this policy and point out that the rules already require appellants to post bond or cash sufficient to cover all the costs which have accrued in the trial court and the costs of the statement of facts and transcript. Tex.R.Civ.P. 354. Further, both rules 354 and 365 provide for additional bond to be given if it is determined that the original amount was insufficient.

It is our opinion that the rules amply assure the reporter of payment for costs of preparing the statement of facts and that requiring full payment in advance is unwarranted. In this regard, we also direct attention to rules 376b and 376e which outline in detail the duties of reporters and of the trial judge in assuring the timely preparation of the appellate record. Provision is expressly made that “. . each court reporter shall report in writing to the judge on a monthly basis the amount and nature of the business pending in the court reporter’s office.”

Motion granted.


author: PHILLIPS, Chief Justice.

text:
    CINE-MATICS, INC., et al., Appellants, v. The STATE of Texas, Appellee.
    No. 12851.
    Court of Civil Appeals of Texas, Austin.
    Feb. 28, 1979.
    Mike Aranson, Dallas, for appellants.
    John L. Hill, Atty. Gen., Gerald C. Car-ruth, Asst. Atty. Gen., Austin, for appellee.
   PHILLIPS, Chief Justice.

This is an appeal by Cine-Matics, Inc., and three of its officers and directors from a default judgment by which they were held in contempt. By the terms of the judgment Cine-Matics was fined $500 for the contempt and also ordered to pay $60,-000 for having unlawfully transacted business in this state without a certificate of authority. In addition, Cine-Matics was ordered to pay all overdue franchise taxes, penalties and interest.

Cine-Matics is a Georgia corporation. In July, 1974, it was permanently enjoined from conducting business in Texas without being legally incorporated or admitted under proper certificate of authority. Appellant then obtained a certificate of authority, which was subsequently forfeited on March 21, 1977, for nonpayment of franchise taxes.

Appellee alleged in a show cause hearing that appellant corporation had continued to transact business after forfeiture of its certificate of authority, and was, therefore, in violation of the 1974 injunction. Appellants did not appear and were held in contempt and fined the above-mentioned amounts.

Rule 692 of the Texas Rules of Civil Procedure authorizes an order of contempt where a party has disobeyed an injunction. The “judge may issue a show cause order, directing and requiring such person to appear on such date as may be designated and show cause why he should not be adjudged in contempt of court.” Id. A district court is empowered to punish a contempt by a fine of not more than $500, or by confinement in county jail for up to six months, or both. Tex.Rev.Civ.Stat.Ann. art. 1911a, § 2(a) (Supp.1978).

I.

The principal issue in this case concerns the sufficiency of notice furnished to appellants of the show cause hearing. Notice was served on appellants’ attorney as directed by the court. Service was executed one month prior to the time of the show cause hearing.

In our opinion the imposition of the $60,-000 judgment against Cine-Matics and the liability for franchise taxes, penalties and interest should be considered separate from the contempt order and $500 fine. Each of the assessments listed in the first group was made pursuant to Texas Business Corporation Act Ann. art. 8.18C (1956). The $60,-000 forfeiture represented a total of $5,000 for each of twelve months that Cine-Matics transacted business in Texas without a certificate. Article 8.18C specifically provides that “. . . the Attorney General shall bring suit to recover all amounts due this State under the provisions of this section.” Id.

Article 8.18C requires a new suit be filed to recover these amounts, and, therefore, the relaxed rules of service allowed for a show cause hearing for contempt are not applicable. The permitted methods for service of process in a new suit are found in two different statutes. See Tex.Rev.Civ. Stat.Ann. art. 2031b (1964) and Tex.Bus. Corp.Act Ann. art. 8.10 (1956). Service on the corporation’s attorney would be unlawful unless it were affirmatively shown that the attorney was authorized to accept service for the corporation. See White Motor Co. v. Loden, 373 S.W.2d 863 (Tex.Civ.App.1963, no writ); Texaco, Inc. v. McEwen, 356 S.W.2d 809 (Tex.Civ.App.1962, writ ref’d n. r. e.). No such showing was made in this case. For this reason, the portion of the court’s order which assessed a liability for overdue franchise taxes, penalties and interest, and which ordered a forfeiture of $60,000 is reversed. See also Beverly v. Roberts, 215 S.W. 975 (Tex.Civ.App.1919, no writ).

II.

We turn next to a consideration of the validity of the court’s order of contempt against all appellants and the $500 fine for contempt imposed upon Cine-Matics. Again, the challenge to the court’s judgment is based upon the lack of notice of the show cause hearing.

It is a settled rule that the only method for review of a contempt proceeding is by habeas corpus, and an appeal from an order of contempt is not authorized. E. g., Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890 (1956); Henderson v. Henderson, 300 S.W.2d 189 (Tex. Civ.App.1957, no writ); Tims v. Tims, 204 S.W.2d 995 (Tex.Civ.App.1947, writ refd).

In the present case, none of the appellants was ordered imprisoned and may not, therefore, attack the contempt order by habeas corpus. See Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824 (1960). As a result, appellants are placed in the unfortunate position of being denied the right of appeal and, at the same time, precluded from using the remedy of habeas corpus. For this reason, the long-standing rule forbidding a direct appeal from an order of contempt has been questioned. See Doss v. Doss, 521 S.W.2d 709 (Tex.Civ.App.1975, no writ); Garcia v. Garcia, 469 S.W.2d 920 (Tex.Civ.App.1971, no writ) (concurring opinion).

The Texas Supreme Court has indicated that the traditional rules surrounding review of contempt proceedings might not be followed under certain circumstances. In Deramus v. Thornton, supra, it was stated:

“We are not to be understood as saying, however, that there may not arise conditions involved in contempt matters where the writ of habeas corpus would not be adequate and where mandamus would be the proper remedy.”

Nevertheless, the rule has been adhered to in numerous cases, and the appeals dismissed for want of jurisdiction, even though the appellant was not imprisoned, and, thus, had no remedy. See McCoy v. Fleming, 567 S.W.2d 589 (Tex.Civ.App.1978, no writ); Stephens v. Stephens, 543 S.W.2d 686 (Tex.Civ.App.1976, no writ); Doss v. Doss, supra; Garcia v. Garcia, supra; Grace v. McCrary, 390 S.W.2d 397 (Tex.Civ.App.1965, writ dism’d); Padfield v. McIntosh, 267 S.W.2d 224 (Tex.Civ.App.1954, writ dism’d); Tims v. Tims, supra. It would be inappropriate for this Court to alter such a long-standing rule. This part of the appeal is dismissed for want of jurisdiction.

Consequently, we reverse that portion of the judgment allowing for the forfeiture and liability and render judgment that the State take nothing. • We dismiss that part of the appeal complaining of the contempt judgment and $500 fine.

      . The three officers and directors were held in contempt, but the judgment did not impose any fines on them.


author: MASSEY, Chief Justice.

text:
    E. E. FURR, Appellant, v. L. C. YOUNG, Temporary Administrator of the Estate of Fannie Belle Furr, Deceased, and Adele Furr Robinson, Appellees.
    No. 18098.
    Court of Civil Appeals of Texas, Fort Worth.
    March 1, 1979.

      Prothro & Sellers and Lee Sellers, Wichita Falls, for appellant.
    Jennings, Montgomery, Dies & Turner and Frank L. Jennings, Graham, for L. C. Young, Temp. Admr., Est. of Fannie Belle Furr.
    Jack Connell, Bowie, for Adele Furr Robinson.
   OPINION

MASSEY, Chief Justice.

E. E. and G. F. Furr filed claims against the Estate of their mother, Fannie Belle Furr, deceased, which claims were rejected. They appealed to the District Court of Young County, Texas. There the judgment of the court in Cause No. 17,627 was one which rejected their claims. E. E. Furr appealed; G. F. Furr did not.

We affirm.

The disputes involving members of the Furr family have a long history. In brief: A Young County family was that of Adam Furr and his wife, Fannie Belle, and three children. The children were E. E. and G. F. Furr, and Adele Furr Robinson. Adam Furr died intestate and his widow became community administratrix. A part of the estate was a tract of land of 1,231 acres in Archer County, Texas. Adele, at all material times, contended that while Adam was alive he and his wife had given the Archer County land to her; in any event — promptly after Fannie Belle had qualified as community administratrix of the Adam Furr Estate — she, in that capacity, as well as in her individual capacity as applied to her own community interest, deeded the property to her daughter Adele without consideration. Discovering the fact both E. E. and G. F. Furr evidence their insistence that the Archer County land should be considered as part of the Adam Furr property as to which he had died intestate, that their interest in and to such property, insofar as there had been an estate therein belonging to Adam Furr at time of his death, should be equal to that of their sister Adele. There was not, or in any event there has ceased to be, any contention that as of the time of the deed Fannie Belle Furr’s interest was not correctly conveyed to Adele.

Adele “beat her brothers to the courthouse”. She filed in Archer County her Trespass to Try Title case as applied to the Archer County acres. This was Cause No. 5060 in Archer County. Her brothers filed cross-actions, and impleaded Fannie Belle Furr, their mother. From that time, in 1958, there has been continuous litigation; such continuing after Fannie Belle Furr died in 1964. L. C. Young became Temporary Administrator of the Fannie Belle Furr Estate.

As applied to a portion of the litigation aforementioned see prior opinions of this court relative to appeals from Young County, as follows: Furr v. Furr, 346 S.W.2d 491, (Tex.Civ.App.1961, writ ref’d n. r. e.); Furr v. Furr, 403 S.W.2d 866 (Tex.Civ.App.1966, no writ); Furr v. Furr, 440 S.W.2d 367 (Tex.Civ.App.1969, writ ref’d n. r. e.).

Judgment in Cause No. 17,627 was rendered June 12, 1978 by the District Court of Young County denying E. E. and G. F. Furr recovery; and also denying Adele Furr recovery sought by her in the same case. Therefrom E. E. Furr appealed. It is only the question of his right with which we are concerned on the appeal, though of necessity what is held would likewise have applied to G. F. Furr had he appealed.

E. E. Furr’s claim is barred by limitation. V.A.T.S. Title 91, “Limitations”, 2. “Limitations of Personal Actions”, § 5526, “Actions to be commenced in two years” (1958) provides:

“There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:
“4. Actions for debt where the indebtedness is not evidence by the contract in writing.”

The aforementioned limitation was plead and has application to the claim, its nature being that of a personal action for debt.

Tex.Prob.Code Ann. § 298, “Claims Against Estates of Decedents and Wards”, formerly provided for claims to be presented to an executor or administrator within one year after the original grant of letters testamentary or of administration, which said section of the probate code was amended effective June 15, 1971, changing the— one year — to six months, such § 298, subsections (a) and (c) reading as follows:

“(a) Claims Against Decedent’s Estate Postponed if not Presented in Six Months. All claims for money against a testator or intestate shall be presented to the executor or administrator within six months after the original grant of letters testamentary or of administration; otherwise the payment thereof shall be postponed until the claims which have been presented within six months and allowed by the executor or administrator and approved by the court have been first entirely paid; provided, however, that the failure of the holder of a secured claim to present his claim within said six month period shall not cause his claim to be postponed, but it shall be treated as a claim to be paid in accordance with subsequent provisions of this Code.”
“(c) Claims Barred by Limitation Not to Be Allowed or Approved. No claims against a decedent or ward, or against the estate of either, on which a suit is barred by a general statute of limitation applicable thereto shall be allowed by a personal representative. If allowed by the representative and the court is satisfied that limitation has run, the claim shall be disapproved.” (1955).

Pursuant to the directive of Section 298 in its subdivision (c) L. C. Young, as temporary administrator, was compelled to reject the claims by virtue of their being barred by limitation.

The claims of E. E. Furr and G. F. Furr, as presented and rejected by L. C. Young, were identical with their claims upon which recovery was sought in Cause No. 5060 in Archer County, and in which the Furr matters had earlier declared upon in Cause No. 14,330 in Young County. In Cause No. 14,330, the court denied such claims. There was no appeal from the judgment in Cause No. 5060.

Everything necessary to disposition of this case has been stipulated by the parties. The cause of action has been growing out of the E. E. and G. F. Furr claims against Fannie Belle, and later against the Fannie Belle Furr estate, accrued at the time of the recordation of the deed to the Archer County acres, which for our purposes may be taken as its date, October 20, 1958. (In any event E. E. and G. F. Furr knew of the deed promptly after November 7, 1958 when Cause No. 5060 was filed in Archer County.) In Cause No. 5060, the court’s judgment declared a dismissal of such claims without prejudice. (At a later point we copy the judgment in Cause No. 5060.) Never, at any time, did E. E. Furr and G. F. Furr present their claims to Fannie Belle Furr as the representative of the estate of Adam Furr. Their claims were not presented to the representative of the estate of Fannie Belle Furr until February 21, 1974.

The statutory provision (Section 298 of the Probate Code) requiring the presentation of claims for money within six (6) months after the original grant of letters testamentary or of administration provides that, if a claim is not so presented, the payment of it shall be postponed until the claims that have been presented within six (6)months and allowed by the executor or administrator have been first entirely paid. 18 Tex.Jur.2d 357, “Decedents’ Estates”, § 424, “Effect of failure to present within prescribed time — Ordinary money claims” (1960).

The statute does not, however, preclude a creditor from presenting a claim or instituting an action after the prescribed period has elapsed. He may still have the claim allowed and approved, to be paid in due course of administration. If the estate is open long enough, this right remains unimpaired until the general law of limitation bars recovery. 18 Tex.Jur.2d 358 “Decedents’ Estates”, § 425, “(Effect of failure to present within prescribed time) — Secured claims” (1960).

The statute allowing six (6) months for the presentation of claims will not vitiate the effect of the general statute of limitations on actions. Thus, a claim can not be presented after the applicable statute of limitations has run on it, even though less than six (6) months has expired since the issuance of letters. 18 Tex.Jur.2d 357 “Decedents’ Estates”, § 422, “Effect of general statute of limitations” (1960).

The running of the general statute of limitation is not interrupted (tolled) by a proceeding in a suit to establish a claim that has not been properly presented. And, a suit against the heirs does not stop the running of the statute of limitations on a claim that is required to be submitted to the probate court for approval. 18 Tex. Jur.2d 461 “Decedents’ Estates”, § 579, “Tolling of statute of limitations” (1960); Jackson v. Fielder, 15 S.W.2d 557 (Tex.Com.App.1929); Markward v. Murrah, 136 S.W.2d 649 (Tex.Civ.App.—San Antonio 1940, aff’d at 138 Tex. 34, 156 S.W.2d 971 (1941)).

When a claim that has been barred by a general statute of limitations is approved by the court, the judgment of approval may be set aside in a direct proceeding brought for that purpose by showing that the bar of the general statute was complete when the claim was approved and that there existed no fact that suspended the bar of the statute. 18 Tex.Jur.2d 486 “Decedents’ Estates”, § 618, “(Appeal from action approving claim — Grounds for relief) —Claim barred by limitation” (1960).

Accordingly, the claim of E. E. Furr, not having been presented first to the representative of the Adam Furr estate, and second to the representative of the Fannie Belle Furr estate (as required by § 298 of the Probate Code) until 16 years after the cause of action had accrued, is barred by limitations.

Because of the necessity that before any action could be brought to enforce it, the claim would necessarily have to be presented to the representative of the estate and by him rejected, the pendency of the suits, (No. 5060 in Archer County and No. 14,330 in Young County, wherein the claims of E. E. and G. F. Furr were set up otherwise than as prescribed by § 298 of the Probate Code) did not toll the statute of limitations.

Texas statutes of limitations are “statutes of repose”. It is not that E. E. and G. F. Furr were “reposing” too long after the death of Fannie Belle Furr, but that they did so as applied to any claim or action against her either individually or as community administratrix of the estate of Adam Furr before she died, that there be appropriate tests made of the applicability of any particular statute of limitation. It is by these that we deem operative the defenses asserted against the claims. The judgment of the court below is to be affirmed for this reason.

Furthermore, we hold E. E. Furr’s claim is barred by reason of the judgment in Cause No. 5060 in Archer County, Texas. That judgment is res judicata as applied to the claim since it was pleaded in bar.

Before taking notice of the allegations of E. E. and G. F. Furr in such case, we will quote a material part of the judgment in Cause No. 5060, viz:

THEREFORE, it is ORDERED, ADJUDGED AND DECREED that the plaintiff, Adele Furr, do have and recover of and from the defendants, G. F. Furr and E. E. Furr title and possession of, in and to the following described land lying in Archer County, Texas, and known and described as: (here follows the land description of the Archer County acres), and that she be quieted in her title as to all parties hereto and recover her costs of defendants, G. F. Furr and E. E. Furr; it further appearing to the Court that there is now pending in the District Court of Young County, Texas, a suit between the same parties for a settlement and accounting of the estate of Adam Furr as between the parties and the Court is of the opinion that the defendants’ cross-actions and third party actions for money are properly considered in such cases and that this Court is without jurisdiction to consider same; It is therefore ORDERED that the cross-actions and third party actions of the defendants for money are hereby dismissed without prejudice to the defendants to prosecute such claims in the accounting suit above referred to, and that Fannie Belle Furr be therefore dismissed with her costs, and that defendants take nothing as to their cross-action in Trespass to try Title. All other relief not herein expressly given is denied.

We see nothing indicative of any severance out, with accompanying preservation of any issues which had been presented by E. E. and G. F. Furr to their cross-actions and third party actions for money, in particular as applied to claims therefor as against Fannie Belle Furr.

—PLEADINGS IN THE INSTANT CASE—

In the petition of E. E. Furr and G. F. Furr in the case before us alleged as follows:

(a) In paragraph II, they allege that upon the death of their father, Adam Furr, intestate, in the year 1955 each of the plaintiffs inherited an undivided ⅛ interest in the 1231 acres in Archer County.

(b) In paragraph III they allege that following the death of their father, the said Fannie Belle Furr, their mother, qualified as community administratrix in Cause No. 2663 in the County Court of Young County, Texas.

(c) In paragraph IV they allege that on or about July 3, 1958, Fannie Belle Furr, acting both individually and as community administratrix, without consideration of any kind or character conveyed the 1231 acres to Adele Furr.

(d) In paragraph V, they allege that their undivided interest in and to the 1231 acres was and is of the cash market value of $61,550.00, but because of the wrongful act of Fannie Belle Furr in conveying said property, they are entitled to recover of her estate the sum of $61,550.00.

(e) The rest of the original petition contends that they are entitled to (Adele’s) intervenor’s ⅛ interest in the 391.8 acres remaining in the estate to satisfy their claim.

Their supplemental petition in the case is as follows:

(a) In paragraph I, they allege that the claim of intervenor is barred by limitation.

(b) In paragraph II, they allege that the deed executed by Fannie Belle Furr, individually and as community administratrix, to intervenor (Adele) was wholly without consideration.

The claims referred to in plaintiffs’ original and supplemental petitions set out the following allegations:

(a) That Fannie Belle Furr, immediately following her qualification as community administratrix, conveyed the 1231 acres to Adele Furr; that the ownership therein by E. E. and G. F. Furr is, as to each of them, an undivided Ve interest.
(b)That such land had a reasonable cash market value of $150.00 per acre.

—PLEADINGS IN THE ARCHER COUNTY CASE—

Examination of the second amended original answer and cross-action of G. F. Furr and E. E. Furr filed in Cause No. 5060, being Exhibit No. 4 attached to the Stipulation, shows in paragraphs (1) through (10), both inclusive, that the issues made in the trial of that lawsuit attacking the validity of the deed were identical with the issues made in the case at bar in the following particulars:

(a) In paragraph (2), they say that the deed was without consideration of any kind.
(b) In paragraphs (3), (4), (5), and (6), they allege merely that the actions of Fannie Belle Furr in executing the deed were wrongful occasioned by the fact that Fannie Belle Furr was in feeble health; that Fannie Belle Furr lived with intervenor, Adele Furr Robinson, and was dominated and controlled by Adele Furr Robinson, and that said deed was wrongfully made by Fannie Belle Furr under threats, overpersuasion and domination of plaintiff (Adele) to the extent that the deed was not the free and voluntary act of Fannie Belle Furr and that the deed should be set aside.
(c) In paragraph (11), E. É. Furr and G. F. Furr plead alternatively that should the court determine that Fannie Belle Furr had power to execute the deed, then it was in violation of their property rights and their interest was of the value of $50,000.00 and more, and that the intervenor and Fannie Belle Furr were liable to them in that amount.
(d) In their prayer, they request that the deed be set aside, cancelled and voided, or in the alternative, that they have judgment for the value of their interest.

—AND: BACK TO PLEADINGS IN THE INSTANT CASE—

In the case at bar, plaintiffs seek to establish their claim by reason of two things which had been pleaded:

(1) Want of consideration in the deed;
(2) Wrongful acts on the part of Fannie Belle Furr.

In Cause No. 5060, in the Archer County case, these two identical issues, between the same identical parties, were raised seeking to defeat the validity of the deed.

Res judicata is the doctrine that a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery or defense cannot be disputed in a subsequent suit between the same parties involving the same issues. 34 Tex.Jur.2d 487 “Judgments”, § 450 “(Res Judicata) — In general” (1962).

It has been stated that with regard to questions of law, such as the legal effect of a deed being to pass the title to land, that such a holding, as a matter of law, becomes res judicata of all issues in all subsequent litigation between the same parties on the same subject matter. 34 Tex.Jur.2d 499 “Judgments”, § 454 “Application to questions of law and fact” (1962).

In treating of res judicata, the result of a case falling within its meaning is a bar under the doctrine to the bringing of a subsequent suit wherein there is involved identity of persons, identity of issues, and the like. 34 Tex.Jur.2d 546 “Judgments”, § 492 “(Judgment as Bar) — In general; Identities required” (1962).

The suit was filed by Adele Furr against E. E. Furr and G. F. Furr in Cause No. 5060 in Archer County in trespass to try title based upon the deed from her mother, individually and as community survivor, to Adele Furr, and the validity of this deed was attacked upon the grounds of:

(1) Want of consideration;
(2) Wrongful acts; — and—

these issues being identical to and the only issues raised in the case at bar, the finding of the trial court in Archer County that said deed was valid and subsisting (having become final) resolved, once and for all, the question of whether or not the act of executing the deed was wrongful. These identical issues having been necessarily adjudicated, the judgment in Cause No. 5060 is res judicata and, as a matter of law, a bar to any recovery sought by the identical parties in a subsequent action based upon the same issues.

In deeding the Archer County acres to her daughter Adele, Fannie Belle Furr must be deemed to have competently deprived her sons of any right to make claim against her in behalf of the Adam Furr estate, though the fact that she did make the deed might have been in fraud of her sons’ right to have the value of what was given away charged against her to the benefit of the Adam Furr estate — (and, by and through the rights in and to that estate, chargeable against her to the benefit of her sons who were entitled to share in that estate). This statement is proper to be made because of the finality of the judgment of the District Court of Archer County, Texas, in Cause No. 5060. Fidelity Union Ins. Co. v. Hutchins, 134 Tex. 268, 133 S.W.2d 105 (1939); Leatherwood v. Arnold, 66 Tex. 414, 1 S.W. 173 (1886); Huppman v. Schmidt, 65 Tex. 583 (1886).

Fannie Belle Furr, having qualified as community administratrix, at most conveyed the Archer County acres by a deed which was not void, but merely voidable (assumed so to be for the purpose of discussion), and, by reason of the finality of the judgment in the District Court of Archer County in Cause No. 5060 must be deemed not to be avoidable. In view of the finality of the judgment in said cause despite the attack made upon the propriety of the deed to Adele Furr, there was extinguished not only the right of E. E. and G. F. Furr to reach the property conveyed, but likewise any right to reach the consideration given therefor — of which there was none; — and, since there was no consideration, extinguished any right to charge the want thereof against Fannie Belle Furr, either individually or as the community administratrix, for the benefit of either of them as estate heirs.

The time has long since passed and limitation became operative as applied to any appropriate complaint of the judgment in Cause No. 5060 by the District Court of Archer County, Texas, and the finality of judgment in that case must be held to have necessarily disposed of all matters related thereto as well as to the efficacy of the deed to Adele Furr to pass the complete title of the Archer County acres, and, furthermore, the force of said judgment was operative so that it became res judicata as applied to the complaint desired to be made by E. E. and G. F. Furr in the trial court, and made here on the appeal by E. E. Furr.

The judgment is affirmed.


author: SPURLOCK, Justice.

text:
    EVERMAN CORPORATION, Appellant, v. HAWS & GARRETT GENERAL CONTRACTORS, INC., Appellee.
    No. 18134.
    Court of Civil Appeals of Texas, Fort Worth.
    March 1, 1979.
    Rehearing Denied March 29, 1979.

      Shank, Irwin, Conant, Williamson & Gre-velle, Thompson, Coe, Cousins & Irons, and Michael R. Knox, Dallas, for appellant.
    Cantey, Hanger, Gooch, Munn & Collins and S. G. Johndroe, III, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

Owner of a tower crane appeals from a judgment that it take nothing against a general contractor which was allegedly negligent in repairing and remodeling the crane. The owner alleges the trial court erred in disregarding favorable answers to three special issues because there is evidence to support them.

We reverse and remand.

Everman Corporation is in the business of manufacturing concrete products used in the construction of parking garages, schools, and commercial buildings. It owns a 100 foot tower crane which it operates at its plant to load pre-stressed concrete beams onto trucks for delivery. In 1973 the crane overturned. Everman wanted the crane repaired and remodeled to be able to lift more weight. It employed Kirk, Voich & Gist, a structural engineering firm, to provide specifications and drawings for the work. It engaged Haws & Garrett General Contractors, Inc., to do the work. Everman often engaged Haws & Garrett and as usual, there was no written contract containing their agreement. The exact details and nature of the agreement between Everman and Haws & Garrett are disputed. Ever-man claims Haws & Garrett agreed to supervise the repair, remodeling and erection of the crane. Haws & Garrett claims it only agreed to furnish some material and labor, particularly the services of Clyde Marquis. Marquis had been employed by Everman before he worked for Haws & Garrett and had operated the crane. Earl Haley, Everman’s president, and Charles Haws, one of Haws & Garrett’s principals, believed Marquis’ experience would be helpful in working on the crane. Haws & Garrett claims it merely loaned him to Ever-man to work on the crane.

The crane was repaired, remodeled and erected. It was in operation four or five months when it collapsed again in March 1975. It was not lifting anything when it collapsed. In addition to the damage to the crane, which has never been repaired, there was damage to some concrete products when the crane fell on them. Everman brought this action against Haws & Garrett alleging that it was liable for Marquis’ negligence under respondeat superior and that it was liable for its own failure to use ordinary care in supervising the work on the crane. In answering special issues the jury found that Marquis was negligent in cutting some notches in the crane’s tension ring during erection and that this was a proximate cause of the damages found. However, the jury found that Marquis was a borrowed employee of Everman while working on the crane.

Everman admits that this finding bars recovery for Marquis’ negligence, however, it claims the trial court erred in failing to render judgment for it against Haws & Garrett based on the jury’s findings that Marquis was negligent because there is no evidence or insufficient evidence supporting the jury’s finding that Marquis was a borrowed employee of Everman during the occurrence in question. More correctly stated, Everman claims that the jury’s finding of borrowed employee is against the great weight and preponderance of the evidence. However, its poirt is an “insufficient evidence” point, as stated in its brief, in the sense that it asserts the insufficiency of the evidence to support the finding of borrowed employee when the great preponderance of the evidence supports its non-existence. Calvert, “No Evidence” and “Insufficient Evidence Points of Error, 38 Tex.L.Rev. 361 (1960).

Supporting its contention Everman cites Producers Chemical Company v. McKay, 366 S.W.2d 220 (Tex.1963). There the supreme court states that where no contract expressly provides for the right of control of the details of the work of an employee by either of two employers, the right of control must be determined by the inferences drawn from facts such as the nature of the project, nature of the work performed by the employee, the length of the special employment, type of machinery used, and acts representing an exercise of control.

Applying this standard to the evidence in this case, we find that Haley testified that Cecil Smith, Everman’s engineer and vice-president, had the authority to direct and control the restoration of the crane. Haley stated that it was a usual practice for Haws & Garrett to furnish Everman with workers and that when workers were furnished, Haley expected them to be under his direct control and supervision in performing the job they were asked to do. Further, Haley testified that if there had been a difference of opinion between Marquis and Smith over how a certain thing should be done, Marquis would be expected to follow Smith’s direction and if Marquis would not follow it, he would have been removed.

We believe this evidence supports the jury’s finding of borrowed employee. We find that this along with other evidence in the record is sufficient to sustain the finding. Therefore, the trial court did not err in failing to render judgment against Haws & Garrett based on the negligence of Marquis. Everman’s points of error on this contention are overruled.

The jury also found that Haws & Garrett agreed to supervise the repair, erection and strengthening of the crane; that it failed to exercise ordinary care in its supervision; and that this was a proximate cause of- the crane’s fall. We note that the special issue on whether Marquis was a Haws & Garrett employee or a borrowed employee of Everman at the time in question was submitted disjunctively. It is our opinion that the better practice of submitting this issue would have been to inquire only whether Marquis was a Haws & Garrett employee while properly placing the burden of proof on Everman. Whether he was a borrowed servant in this context is merely inferential rebuttal and should not have been separately, or disjunctively submitted. The jury should have been informed of the borrowed servant doctrine by instruction. The problem is that if the special issue inquiring whether Haws & Garrett had agreed to supervise the work is construed to inquire whether Marquis had the duty to supervise on Haws & Garrett’s behalf, an affirmative finding could conflict with the finding that Marquis was a borrowed employee of Everman because such a finding would mean that Everman had the right to control and supervise Marquis’ work. One of the reasons for handling inferential rebuttals by instruction is to avoid such conflicts. Tex.R.Civ.P. 277. Also see Comment in 1 State Bar of Texas, Texas Pattern Jury Charges § 4.07 (1973 Supp.).

After the jury reached its verdict, Haws & Garrett moved for the trial court to disregard the answers to special issues nos. 7-9. These were the issues which inquired whether Haws & Garrett had agreed to supervise the work, failed to use due care, and proximate cause. The trial court granted the motion and disregarded these issues, all of which were answered favorably to Everman. Everman claims this was error because the answers were supported by the evidence. We agree.

Tex.R.Civ.P. 301 authorizes the trial court to disregard special issue jury findings which have no support in the evidence. The trial court found in its judgment that there was no evidence supporting the findings it disregarded. It is improper to do this if the record discloses any evidence of probative value which, with inferences which may be properly drawn therefrom, will reasonably support the same. Morsch v. Metzger, 520 S.W.2d 564 (Tex. Civ.App.—Corpus Christi 1975, writ ref’d n.r.e.). It is improper even if the answers are against the great weight and preponderance of the evidence. Interstate Circuit, Inc. v. Pine Forest Country Club, 409 S.W.2d 922 (Tex.Civ.App.—Houston 1966, writ ref’d n.r.e.). In reviewing whether there is any evidence supporting the verdict, we must view the record in the light most favorably to the verdict, and we consider only evidence of probative value which, with the inferences that may be properly drawn therefrom, supports the verdict. Short v. Potts, 473 S.W.2d 338 (Tex.Civ.App. — Tyler 1971, no writ). We do not consider evidence which does not support or which contradicts the verdict.0

Special issue no. 7 is as follows:

“Do you find from a preponderance of the evidence that Haws & Garrett General Contractors, Inc., agreed with Ever-man Corporation to supervise the repair, erection and strengthening of the crane after its first fall?
“Answer ‘We do’ or ‘We do not’.
“Answer: ‘We do’.”

The record reflects that Haley testified that W. 0. Neaves is the general superintendent for Haws & Garrett. Invoices, substantiating the bills submitted by Haws & Garrett and paid by Everman, reflect that Everman was billed for 26.5 regular hours and 6 overtime hours of Neaves’ work. Haley also testified that Neaves received a higher hourly wage rate because of his supervisory status. He also indicated that Everman had paid these bills. Marquis testified that Neaves was his superior and that Neaves and Haws would come out to check the progress from time to time. Further, he testified that another Haws & Garrett supervisor, Jim Jones, came out to look at the crane. He stated that he did not know whether Jones inspected the crane or not. We believe that the jury could properly infer that Haws & Garrett had agreed to supervise the work on the crane by the presence of supervisory personnel at the job site, and from the fact that Everman was billed for Neaves’ time at a supervisor’s rate.

Smith testified that he did not supervise the Haws & Garrett employees working on the crane to the extent of what they did or the way they did their work. He characterized the status of Everman as the customer in the case. He noted that Haws & Garrett are general contractors and Everman is a specialist in the manufacture of concrete products. He recalled that in the past whenever Everman needed anything constructed it got Haws & Garrett to help. It is our opinion that this evidence raises an inference that Everman needed the supervision of Haws & Garrett, which along with other evidence, is probative of whether any such agreement existed.

When Haws & Garrett cross-examined Smith, he was asked to agree that Everman didn’t really hire Haws & Garrett to repair the crane but merely got the services of Marquis. Smith stated he thought Ever-man had hired Haws & Garrett. This could raise the inference that when one is hired to do a job, the agreement to supervise the work is implicit in accepting the job.

We believe that taken together with the inferences therefrom, the evidence above supports the jury’s finding that Haws & Garrett agreed to supervise the work on the crane. Therefore, the trial court erred in disregarding the jury’s answer to special issue no. 7.

Special issue no. 8 is as follows:

“Do you find from a preponderance of the evidence that Haws & Garrett General Contractors, Inc., acting by and through its employees, failed to exercise ordinary care to supervise such repair, erection and strengthening of said crane?
“Answer ‘We do’ or ‘We do not’.
“Answer: ‘We do’.”

Kenneth Garrett, one of the principals of Haws & Garrett and a civil engineer, testified directly that from time to time he would send out his employees to Everman to assist Everman to do a particular job and that he would not supervise them while they were on an Everman job. There is ample other evidence in the record that Haws & Garrett failed to supervise the work on the crane. This is sufficient to support the jury’s answer to special issue no. 8. The trial court erred in disregarding it.

Special issue no. 9 is as follows:

“Do you find from a preponderance of the evidence that such failure, if any, was a proximate cause of the fall of said crane on March 13, 1975?
“Answer ‘We do’ or ‘We do not’.
“Answer: ‘We do’.”

Don Kirk, a licensed structural engineer with Kirk, Voich & Gist testified that he had prepared the designs for the necessary repairs on the crane so as to increase its capacity. He testified that in his opinion the cutting of the notches in the crane’s tension ring had impaired its structural integrity. The notches had introduced some stress concentrations which caused cracks at the notches and eventually ruptured the member. He stated that his design called for a full section channel and did not specify notches. He also testified that he would not have permitted the notches to be cut had he known about them. He was never consulted about the notches and stated that if proper supervision had been given, they would not have been cut. He also indicated that it would have been possible to restore some of the strength lost by the notching by reinforcing the area through welding some plates on it. We are of the opinion the evidence supports the jury’s answer to this issue and the trial court improperly disregarded it.

Haws & Garrett by a cross-point of error contends that, even if there is some evidence supporting the findings disregarded by the trial court, the evidence is insufficient to support them. For the reasons stated above, Haws & Garrett’s cross-point really contends that these findings are against the great weight and preponderance of the evidence. We agree and sustain this cross-point. The effect of the cross-point is that we must remand this case for a new trial. If Haws & Garrett had not perfected this cross-point, rendition of a judgment for Everman would have been proper. Jackson v. Ewton, 411 S.W.2d 715 (Tex.1967).

Because we must remand this case for a new trial appellee’s other cross-points need not be discussed except to note that one of its cross-points of error asserts that the trial court erred in submitting a special issue because there is insufficient evidence to support it. As a general rule such points of error cannot be sustained. For discussion, see 1 State Bar of Texas, Texas Pattern Jury Charges at 24 (1969); Strauss v. LaMark, 366 S.W.2d 555 (Tex.1963). The trial court can properly submit an issue where there is any evidence more than a scintilla, which is probative in supporting the submission.

We have carefully considered the record in this case along with each point of error and cross-point of error presented in complaint of the trial court’s judgment. Although not all points are discussed, each point has been severally considered and each not specifically ruled upon above is overruled. It is our opinion that there is reversible error in that the trial court improperly disregarded the jury’s answers to special issues favorable to the appellant. Because we have sustained appellee’s cross-point of error complaining that the findings disregarded are against the great weight and preponderance of the evidence, we reverse and remand this case for a new trial.

So ordered.


author: WALLACE, Justice.

text:
    COASTAL INDUSTRIAL WATER AUTHORITY, Appellant, v. CELANESE CORPORATION OF AMERICA, Appellee.
    No. 17290.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 1, 1979.
    Rehearing Denied March 29, 1979.

      Fred R. Spence, Asst. City Atty., Houston, for appellant.
    Winters, Deaton, Briggs & Britton, Alfred L. Deaton, III, Houston, for appel-lee.
   WALLACE, Justice.

This is an appeal from an order of dismissal of plaintiff’s statement in a proceeding to condemn a permanent water-line easement.

After appellee timely filed objections to the commissioners’ award it withdrew the amount of the award. Appellant then constructed an underground water line along the easement. Prior to trial, the court sustained special exceptions to the plaintiff’s statement and, upon appellant’s refusal to amend, dismissed plaintiff’s petition.

Appellant’s points 1 through 13 complain of the trial court’s dismissal order, contending that the greatest possible easement was sought, and that the required amendment would constitute only promissory statements, legal conclusions, and evidentiary pleadings, and force plaintiff to speculate as to future events.

The easement sought to be condemned by appellant is' described in plaintiff’s state-rnent, hereinafter referred to as the original petition, as follows:

“. . .A permanent water line easement in, on, upon, along, under, over and across the following described tract or parcel of land”,

There follows a metes and bounds description of a 7.72 acre tract approximately 2900 feet long and 115 feet wide. Appellee’s exceptions to the above description complained that same did not set out:

1. “The specific rights and use of said easement by plaintiff.”
2. “The specific rights and use of said easement remaining in defendant.”

Appellee filed nine other exceptions setting out in detail the specific rights and uses of the easement which appellee contends should be specifically pled.

Upon filing of objections to the commissioners’ award, the jurisdiction of the county court is established. Pearson v. State, 159 Tex. 66, 315 S.W.2d 935 (1958), and plaintiff’s statement becomes the equivalent of an original petition. Curfman v. State, 240 S.W.2d 482 (Tex.Civ.App.—Dallas 1951, writ ref’d n. r. e.). The purpose of the petition is to describe the nature and extent of the easement required. Texas Power & Light Co. v. Lovinggood, 389 S.W.2d 712 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.). The interest in land taken must be definite and clear. Cole v. Texas Power & Light Co., 306 S.W.2d 762 (Tex.Civ.App.—Dallas 1957, rev’d on other grounds, 158 Tex. 495, 313 S.W.2d 524). The description of the extent and use of the easement as set out in the petition serves the following purposes: 1. as notice to the opposing party of the basis of damages to which he may be entitled; 2. as a basis for admission of evidence as to damages; and 3. for use by the trial court in instructing the jury.

Appellant contends that they are seeking the greatest possible easement and, therefore, all matters set out in appellee’s exceptions are evidentiary matters which, if pled by appellant, would become a limitation on their easement.

We find that when tested by special exceptions, appellant’s description of the interest taken in appellee’s land is not distinct and clear; “. . .a permanent water line easement . . .” does not distinctly specify the interest sought. Appellant should plead in such sufficient detail so as to distinctly specify the purpose for which he is taking the land. Foster, et al. v. Chicago, R.I. & T. Ry. Co., 10 Tex.Civ.App. 476, 31 S.W. 529 (C.C.A.1895, no writ). The trial court must look to the facts of each particular case in determining the specificity required of the pleadings. We find that the trial court did not abuse its discretion in sustaining defendant’s first special exception.

The landowner has all rights in and to the subject property not inconsistent with the reasonable enjoyment of the easement by condemnor. Texas-Louisiana Power Co. v. Webster, 127 Tex. 126, 91 S.W.2d 302 (1936); Aycock v. Houston Lighting & Power Co., 175 S.W.2d 710 (Tex.Civ.App.—Galveston 1943, writ ref’d w. o. m.). Therefore, there is no necessity for the specific rights of the landowner to be set out in the petition.

Appellant’s point 14 alleges error by the trial court in failing to enter a judgment based on the commissioners’ award because appellee withdrew the funds from the registry of the court. The withdrawal of funds merely prevented the condemnee from contesting the right to take. It did not deprive appellee of a trial on the extent of his damages. State v. Jackson, 388 S.W.2d 924 (Sup.Ct.1965).

Appellant’s point 15 contends that dismissal of their petition also dismissed appellee’s objections to the commissioners’ award and thus revoked the jurisdiction of the trial court to take any action other than to enter a judgment based on the award. Once either party files objection to the commissioners’ award, jurisdiction of the county court attaches, and the commissioners’ award is no longer of any force and effect. There is no longer an award upon which a judgment can be based. The case is treated as any other case on the court’s docket, subject to special procedures for trial set out by statutes and case law.

The order of the trial court is affirmed.


text:
    Julian BERGER et al., Appellants, v. William BERGER, Appellee.
    No. 17300.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 1, 1979.
    Rehearing Denied March 29, 1979.

      Prosperi & Huggins, Wm. 0. Huggins, III, Houston, for appellants.
    Karl C. Hoppess, Houston, Coulter Hop-pess, Bryan, for appellee.
   WALLACE, Justice.

This is an appeal from a summary judgment for defendant in the trial court. Also assigned as error is the order of the trial court in dismissing Julian Berger as next friend of Mike Berger and dismissing Mike Berger as plaintiff.

Appellants and appellee are all children of Mike Berger. They will be referred to as they were in the trial court. Julian Berger, John Berger and Cecilia Berger Yargo were plaintiffs and William Berger was defendant.

On August 28, 1971, Mike Berger conveyed to William Berger 137½ acres of land in Grimes County, Texas. Consideration was $10.00 and love and affection. On February 1, 1977, Plaintiffs individually and Julian Berger, as next friend of Mike Berger, filed suit in this Cause No. 22,542, to set aside the conveyance alleging, fraud, undue influence, no consideration and a constructive trust in favor of the plaintiffs. Mike Berger and William Berger filed separate answers and motions to dismiss. On March 29, 1977, Julian Berger filed an application for guardianship of Mike Berger in the County Court of Grimes County. This cause was transferred to the District Court under Cause No. 22,582. On July 5, 1977, the trial court heard Mike Berger’s motion to dismiss. After hearing the evidence of both parties the court entered an order dismissing Julian Berger, as next friend of Mike Berger, and also dismissing Mike Berger as a plaintiff, specifically finding that Mike Berger was competent and did not need a next friend. On September 21, 1977, the guardianship matter, Cause No. 22,582, was heard on its merits before a jury, and Mike Berger was found to be competent. On April 2,1978 the trial court heard defendants’ motion for summary judgment and granted same.

Plaintiffs assign two points of error, the first as to the granting of the summary judgment and the second as to the granting of the Motion to dismiss. We will consider the order to dismiss first.

Plaintiff cites errors as follows: “ . . . the record shows that Mike Berger needed to be represented in this case by a next friend.” It is not clear to us just what plaintiffs intended by this point or error, but due to our liberal pleading rules we will treat this as a challenge to the legal sufficiency of the evidence.

In considering this point we must consider only evidence and inferences tending to support the trial court’s finding and ignore all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

The only evidence presented at the hearing to dismiss the next friend was the testimony of Mike Berger. He testified that he knew what the suit was about and who his friends were; that he knew what his legal rights were. “I got enough knowledge and enough sense to take care of my business”; that he knew all the property that he owned; that he maintained an active checking account; and that he had a drivers license. On cross-examination he accurately described his ownership (life estate) size (35 acres) and legal survey of his homestead. He further testified that he knew a lawsuit had been filed to set aside the deed; that he knew what the lawsuit was about; that he did not authorize Julian Berger to bring suit on his behalf; that he knew the lawsuit was about his property; that he was able to identify his signature; that he read papers before he signed them; that the motion to dismiss, “says I signed the papers to Mike Berger”; that the land he lived on was his homestead, that he owns and drives a pickup; that he buys his own groceries, and that he owns and plays a violin.

It is not necessary that one be non compos mentis to be represented by his next friend. It is enough that he is by reason of mental or bodily infirmity incapable of properly caring for his own interest and litigation. McGinnis v. McGinnis, 267 S.W.2d 432 (Tex.Civ.App.—San Antonio 1954, no writ); Lindly v. Lindly, 102 Tex. 135, 113 S.W. 750 (1908). We hold that the finding of the trial court that Mike Berger was competent and did not need a next friend has support in the evidence. (This finding was confirmed some 75 days later by a jury in Cause No. 22,582).

Inasmuch as Mike Berger was competent and did not need a next friend, did the plaintiffs have legal standing to maintain this suit? It is a fundamental rule of law that only the person whose primary legal right has been breached may seek redress for an injury. American National Insurance Company v. Hicks, 35 S.W.2d 128 (Com.App.1931, judgmt. adopted). The right to maintain an action depends upon the existence of what is termed a cause of action, which involves the combination of a right on the part of the plaintiffs and a violation of such right by the defendant. American National Insurance Co. v. Hicks, supra. It is a fundamental principal that no person may maintain an action in court unless it is shown that he has a justiciable interest in the subject matter of the litigation. Hollar v. Jowers, 310 S.W.2d 721 (Tex.Civ.App.—Eastland 1958, writ ref. n. r. e.). The children of a living grantor, merely because they are his children, have no justiciable interest in his property. Since Mike Berger is alive and competent, he is the only person who may bring an action to set aside the conveyance for fraud, undue influence or failure of consideration. This is because he is the only person whose legal right has allegedly been breached.

In the first point of error, plaintiffs complain of the trial court granting the motion for summary judgment, contending that fact issues existed. Since plaintiffs had no standing to complain of fraud, undue influence or failure of consideration, their contentions must succeed, if at all, on their pleading alleging a constructive trust. If there was a constructive trust, then Plaintiffs would have an interest in the land in question.

Defendants’ motion for summary judgment had attached thereto the affidavit of Mike Berger which categorically denied any intention or action on his part to establish a constructive trust. The applicable portion of his affidavit stated: “ . .1 executed said deed for the purpose of conveying fee title to said son William Berger. . That said conveyance to my son, William Berger, was made to him for his ownership and use solely, that I did not convey said property to him as trustee or for him to hold in his name for the benefit of my other children or any other person.” Unless Plaintiffs filed a counter affidavit controverting this evidence, or there was contradictory evidence in the depositions, interrogatories or from other sources, or plaintiffs justified their inability to produce such evidence and sought appropriate relief under Rule 166-A, T.R.C.P., no fact issue remained. Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 (1960). Plaintiffs’ opposition to defendants” motion for summary judgment had attached thereto one affidavit, that of Plaintiff Julian Berger. The parts of that affidavit addressed to the constructive trust aspect of the suit was: “When I first became aware of the deed that my father, Mike Berger, gave to my brother, William Berger, conveying title to the 137½ acres of land in Grimes County, Texas, I questioned Mike Berger and was told by Mike Berger that his intention was for William Berger to “take care of the other children, including Julian Berger.”

Mike Berger was no longer a party plaintiff and had never been a defendant in this cause. His testimony was thus hearsay as to the defendant. Affidavits consisting of mere conclusions of law or fact based on hearsay and which do not affirmatively show that the affiant has personal knowledge of the facts therein stated, are insufficient to prevent the granting of a motion for summary judgment. Spradely v. McCrackin, 505 S.W.2d 955 (Tex.Civ.App.—Tyler 1974, ref. n. r. e.). Proof based on hearsay is not to be considered in determining whether to grant a motion for summary judgment. Box v. Bates, 346 S.W.2d 317 (Tex.1961). Defendants’ motion for summary judgment, together with the attached affidavit, established that they were entitled to judgment. The burden then shifted to plaintiff to produce evidence which would raise a fact issue, or justify their inability to do so. Bingham v. Gibson Products Co., Inc. of Odessa, 464 S.W.2d 713 (Tex.Civ.App.—El Paso 1971, ref. n. r. e.); Wampler v. Bill Sears Super Markets, 452 S.W.2d 526 (Tex.Civ.App.—El Paso 1970, ref. n. r. e.). The only evidence offered by plaintiffs to controvert the affidavit attached to defendants’ motion was clearly hearsay and thus of no probative effect.

The judgment of the trial court is affirmed.-


author: O’QUINN, Justice.

text:
    Bob BULLOCK, Comptroller of Public Accounts, et al., Appellants, v. Carl C. HARDIN, Jr., Appellee.
    No. 12825.
    Court of Civil Appeals of Texas, Austin.
    March 7, 1979.
    Rehearing Denied March 28, 1979.

      John L. Hill, Atty. Gen., Robert W. Gauss, Asst. Atty. Gen., Austin, for appellants.
    Melvin E. Corley, Malcolm L. Quick, Austin, for appellee.
   O’QUINN, Justice.

Carl C. Hardin, Jr., brought this suit in August of 1975 against the Comptroller of Public Accounts and the Attorney General to establish Hardin’s rights to $12,500 as compensation for services performed from late August, 1973, through August of 1975, in implementation of statutes enacted in 1973 requiring registration of dental technicians and laboratories.

Hardin’s claim consists of $6,500 paid him by the Texas State Board of Dental Examiners out of funds in hands of the Board, which upon filing suit Hardin tendered for retention in the registry of the district court, and $6,000 in the Dental Registration Fund in the State Treasury for which the Comptroller declined to issué warrants in Hardin’s favor.

Upon trial before the district court, the court entered judgment awarding Hardin recovery of both sums in the total amount of $12,500. We will affirm the trial court’s judgment.

The Comptroller and the Attorney General have appealed and under three points of error contend (1) that the court was without jurisdiction to hear this case because it is a suit against the State without prior legislative consent; (2) that it was error to allow Hardin recovery in excess of the amount appropriated by the Legislature; and (3) that because the trial court did not timely file findings of fact and conclusions of law, no facts may be presumed to support the judgment. We will overrule all points of error.

The events out of which this lawsuit finally developed began with enactment in 1973 of an amendment to the Texas statutes on dentistry (Chapter 9, Title 71, Rev. Civ.Sts.1925) to require dental technicians and laboratories to register annually and pay certain application fees to the Texas State Board of Dental Examiners (Acts 1973, 63rd Leg., p. 128, ch. 65, sec. 2, effective August 27, 1973; Art. 4551f(6), Vernon’s Anno.Civ.Sts.).

Section 3 of the 1973 Act provided: “The income received from fees authorized by this Act is hereby appropriated to the Texas State Board of Dental Examiners for the fiscal years ending 1974 and 1975 for its expenditure for the implementation of this Act and for the purposes listed in the General Appropriations Bill as passed by the 63rd Legislature.” (Emphasis added) Fees collected by the Texas State Board of Dental Examiners are required to be placed in the State Treasury to the credit of the special fund known as the “Dental Registration Fund,” and expenditures from this fund are on order of the Texas State Board of Dental Examiners on warrants issued by the State Comptroller. (Art. 4551e(7), V.T. C.S.)

The Board improvidently failed to place fees collected from dental technicians and laboratories with the State Treasury, but instead deposited the monies in the Board’s bank account until such time as the State Auditor in 1974 brought this remiss procedure to the Board’s attention, when all funds were promptly transferred to the Treasury.

Meanwhile, beginning shortly after the amended Act became effective late in August of 1973, the Board assigned to Hardin, who had been its part-time Executive Secretary for more than 30 years, additional duties in implementing the registration and collection of fees of technicians and laboratories, upon agreement that Hardin would be paid for such additional work and duties.

In January of 1974 the Board approved monthly salaries for Hardin and one other employee, to be paid from the registration fees being collected, and also approved a lump sum payment to Hardin for work performed from August of 1973 through January of 1974 in the amount of $3,000. Hardin’s salary for the period of February, 1974, through August of 1975 was fixed at $500 per month. Payments to Hardin, prior to the audit of 1974, when funds were moved from the bank to the Treasury, were paid directly from the Board’s bank account. These payments, amounting to $6,500, represent the sum deposited by Hardin later in the registry of the district court when he filed this suit.

After the registration fees were transferred in 1974 from the Board’s bank account to the State Treasury, vouchers in Hardin’s behalf were submitted to the State Comptroller to pay his salary for the additional work done through August of 1975, in the amount of $6,000. Fortified by an opinion from the Attorney General that Hardin was not entitled to any compensation in addition to his salary as part-time executive secretary to the Board, a position specified in the General Appropriation Bill passed by the 63rd Legislature, the Comptroller refused to issue warrants for payment from the Dental Registration Fund in the State Treasury of the vouchers for additional duties Hardin performed in implementing registration of dental technicians and laboratories under the Act of 1973 (Art. 4551f(6)). Upon the Comptroller’s refusal to honor the vouchers and issue warrants for payment of Hardin’s salary, Hardin brought this suit.

The Comptroller and the Attorney General filed a plea to the jurisdiction on the ground that Hardin’s suit was an action against the State without legislative permission to sue. By further answer the defendants pleaded that the suit sought to recover excess compensation made impermissible under provisions of section 44, Article III, of the Texas Constitution; and, in addition, that by his petition Hardin sought to draw money from the State Treasury without prior specific appropriation by the Legislature as required under section 6, Article VIII, of the Constitution.

After trial without a jury, the court denied defendants’ plea to the jurisdiction upon the court’s conclusion that Hardin’s suit “is not a suit against the State for which governmental immunity is provided.” The trial court found (1) that the sums of money paid to and requested by Hardin were not in violation of section 44, Article III, of the Constitution but were expenditures by the Board “for the implementation of this Act” (Art. 4551f(6)) as provided by the Legislature; (2) that these expenditures for implementation were properly appropriated by the Legislature in the same Act requiring registration of dental technicians and laboratories; and (3) that Hardin had performed the services contracted for by the Board, as additional duties “requiring additional time other than those duties required of him as a part-time Executive Secretary.”

Under their first point of error appellants contend that Hardin’s suit is an action against the State without prior consent to sue having been obtained from the Legislature. If the purpose of a suit against officials of the State is to control action of the State, or subject it to liability, the suit is not maintainable without express consent of the Legislature. Griffin v. Hawn, 161 Tex. 422, 341 S.W.2d 151 (1960), and cases there cited; Sheffield v. Briscoe, 550 S.W.2d 160 (Tex.Civ.App. Austin 1977, writ ref’d n. r. e.); Oxford v. Hill, 558 S.W.2d 557 (Tex.Civ.App. Austin 1977, writ ref’d).

But, as in the present case, where the acts of the officials are not lawfully authorized, and therefore not acts of the State, an action against the officials, by one whose rights have been invaded, denied, or violated by such acts and who seeks determination or protection of such rights, is a suit against the officials and not a suit against the State within the rule of immunity of the State from suit. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709 (1945); W. D. Haden Company v. Dodgen, 158 Tex. 74, 308 S.W.2d 838 (1958); Oxford v. Hill, supra.

In contending that this is a suit against the State, appellants rely in the main on provisions of section 44, Article III, of the Constitution. Article III, concerned with the Legislative Department only, provides in section 44:

“The Legislature shall provide by law for the compensation of all officers, servants, agents and public contractors, not provided for in this Constitution, but shall not grant extra compensation to any officer, agent, servant, or public contractors, after such public service shall have been performed or contract entered into, for the performance of same; nor grant, by appropriation or otherwise, any amount of money out of the Treasury of the State, to any individual, on a claim, real or pretended, when the same shall not have been provided for by pre-ex-isting law; nor employ any one in the name of the State, unless authorized by pre-exist-ing law.” (Emphasis added)

The provisions emphasized in section 44 as set out above form the basis for appellants’ argument that Hardin seeks by this suit to recover money this section proscribes. For example, appellants argue that by awarding Hardin a lump sum in January of 1974 the Board granted extra compensation after public services had been performed. Section 44 is concerned only with compensation granted by the Legislature, and in the Act of 1973, which became effective August 27, 1973, the Legislature, as already pointed out, provided that “The income received from the fees authorized by this Act is hereby appropriated to the . Board ... for the fiscal years ending 1974 [August 31, 1974] and 1975 [August 31, 1975] for its expenditures for the implementation of this Act and for the purposes listed in the General Appropriations Bill .” passed also in 1973. (Emphasis added)

Thus it is clear that the Legislature, prior to the period in which Hardin performed any services in implementing the registration Act of 1973, had appropriated to the Board income from the fees to be collected for use in implementing the Act. It will be noted also that in addition to providing for “expenditures for the implementation of this Act,” the Legislature with understandable foresight appropriated income from the fees of the registration Act “for the purposes listed in the General Appropriations Bill” of 1973.

The trial court found that the duties assigned to Hardin, in implementing the newly enacted registration Act of 1973, were in addition to the duties assigned to him by the Board as its part-time executive secretary. The trial court’s finding is supported by the evidence. Appellants make no complaint of this finding of fact, but argue as a general proposition that Hardin, already at work for the Board on a part-time basis, could not be given any additional duties for which he could be legally compensated.

It is undisputed that the work Hardin did, in addition to his duties as the part-time executive secretary, was related solely to implementing registration of dental technicians and laboratories, expenditures for which the Legislature expressly appropriated income from registration fees. The Board in its discretion contracted with Hardin, a part-time employee, to perform the services needed to implement the registration Act, and we find no restriction placed on the Board by the Legislature which would preclude employment of a person already familiar with the administration of statutes pertaining to the dentistry profession.

The Legislature obviously anticipated that with creation in the Act of 1973 of an additional class of persons to be covered by the statutes on dentistry, and providing for new registrations and collection of fees from dental technicians and laboratories, it would be impractical, if not impossible, to specify the number of new employees required to perform the duties of implementing the new legislation. The Legislature delegated to the Board, for the fiscal years ending in 1974 and 1975, responsibility “for the implementation of this Act.” It is observed that this initial period, in which income from the new fees was expressly “appropriated to the Texas Board of Dental Examiners ... for its expenditures for the implementation,” coincides with the two fiscal years of the General Appropriations Bill passed by the same Legislature in 1963. The Legislature also made it clear that the income appropriated from fees to meet expenses of implementing registration of dental technicians and laboratories could also be used “for the purposes listed in the General Appropriations Bill as passed by the 63rd Legislature.” Acts 1973, 63rd Leg., p. 128, eh. 65, sec. 3, p. 130.

We have carefully examined and considered the several arguments and contentions advanced by appellants in support of their points of error. We hold that this suit is not a suit against the State of Texas, for which prior legislative consent must be obtained, but is a suit against officials of the State whose acts were not lawfully authorized in denying Hardin his right to be paid as properly provided by the Legislature. We further hold that under the facts of this case recovery of compensation by Hardin would not be in excess of authorization by the Legislature in violation of section 44, Article III, of the Constitution. The points of error under which appellants make contrary contentions are overruled.

Under their final point of error appellants contend that because the district court was tardy in filing findings of fact and conclusions of law, the judgment of the trial court “may not be supported on appeal by any presumption of finding upon any ground of recovery.” This contention is without merit and the point is overruled. The record discloses that although tardily filed, the findings of fact and conclusions of law were on file prior to filing of the transcript in this Court. Appellants did not request that the findings and conclusions be included in the transcript and have not sought to include the findings and conclusions in a supplemental transcript. Appellants fail to show any harm resulting from late filing below of the findings and conclusions. Star Corporation v. Wolfe, 463 S.W.2d 292 (Tex.Civ.App. Houston (14th) 1971, writ ref’d n. r. e.).

The judgment of the trial court is affirmed.


author: SHANNON, Justice.

text:
    AIR CONDITIONING, INC., Appellant, v. L. E. TRAVIS & SONS, INC., Appellee.
    No. 12893.
    Court of Civil Appeals of Texas, Austin.
    March 7, 1979.

      Richard W. Alexander, Kuhn, Collins & Alexander, Austin, for appellant.
    C. G. House, House, Mercer & House, San Antonio, for appellee.
   SHANNON, Justice.

Appellee L. E. Travis & Sons, Inc. sued appellant Air Conditioning, Inc., in the district court of Travis County for breach of contract, or alternatively, in quantum me-ruit. After trial to a jury, judgment was entered for appellee for $13,958.76. We will reverse the judgment.

B. L. McGee, Inc., was general contractor for construction of the Engineering-Teaching Center at the University of Texas. Appellant had the mechanical contract on that job. A part of the mechanical contract included mechanical painting. Appellee pleaded that appellant through its agent, B. L. McGee, contracted with appellee for it to do all of the mechanical painting on the Engineering-Teaching Center job on a “cost-plus” basis. Alternatively, appellee alleged that it should recover in quantum meruit for the reasonable value of the services rendered, labor performed, and materials furnished.

Appellee commenced painting and billed appellant for labor and materials, care of B. L. McGee. Appellant paid appellee $12,-507.23. Appellant refused to pay appellee’s additional statements for $10,958.76.

Appellee requested no special issues submitting his claim in contract. Appellee’s case in quantum meruit was submitted in the court’s charge by special issue number one which inquired: “What do you find from a preponderance of the evidence was the reasonable value to [appellant] in Austin, Texas, in 1974 of the mechanical painting performed by [appellee]?” The jury answered $23,465.99. The jury responded also that a reasonable attorney’s fee for the preparation and prosecution of appellee’s claim was $3,000.00.

The district court credited appellant for $12,507.23 previously paid appellee and entered judgment in appellee’s favor for $13,-958.76.

Appellant’s first point of error is that there is no evidence to support the jury’s answer that the reasonable value to appellant of appellee’s mechanical painting was $23,465.99. We sustain the point.

A claim in quantum meruit does not proceed upon the contract for the contract price, but proceeds independently of the contract to recover the value of the services rendered or materials furnished. Quantum meruit is based upon the promise implied by law to pay for beneficial services rendered and knowingly accepted. Davidson v. Clearman, 391 S.W.2d 48 (Tex.1965); Ochiltree County v. Hedrick, 366 S.W.2d 866 (Tex.Civ.App.1963, writ ref’d n. r. e.). The measure of recovery in quantum meruit is the reasonable value of services rendered or materials furnished. Colbert v. Dallas Joint Stock Land Bank, 136 Tex. 268, 150 S.W.2d 771 (1941). A judgment predicated upon quantum meruit must be supported by evidence of the reasonable value of labor or services performed and materials furnished. Salmon v. Salmon, 406 S.W.2d 949 (Tex.Civ.App.1966, writ ref’d n. r. e.); Leon Farms Corp. v. Beeman, 240 S.W.2d 433 (Tex.Civ.App.1951, writ ref’d n. r. e.); Pearson v. Laws, 174 S.W.2d 62 (Tex.Civ.App.1943, no writ); Parks v. Kelley, 126 S.W.2d 534 (Tex.Civ.App.1939, no writ).

We have examined the statement of facts to ascertain whether there exists evidence that the reasonable value to appellant of appellee’s mechanical painting was $23,-465.99. In considering a “no evidence” point, the reviewing court must reject all evidence contrary to the jury’s findings and consider only the facts and circumstances which tend to support those findings. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914).

Appellee tried the case and proved up its damages in contract. Appellee, however, failed to prove a contract existed between it and appellant. In support of its claim, ap-pellee introduced into evidence its bills to appellant and its invoices from suppliers for materials used on the job. Appellee also offered into evidence testimony as to the methods and procedures by which it computed its bills to appellant on a cost-plus twenty-five percent contract basis.

The court’s charge submitted appel-lee’s case only in quantum meruit There is no evidence to support the jury’s answer that the reasonable value to appellant of appellee’s mechanical painting was $23,-465.99. The only evidence as to reasonable value of the mechanical painting was contained in the testimony of appellant’s witness, Dewey Nunley. Nunley, appellant’s secretary-treasurer, also served as appellant’s cost estimator. Nunley testified on direct examination that the reasonable value of the mechanical painting on the job was $10,000. Nunley’s testimony is not evidence that the reasonable value of the painting was $23,465.99. There is a complete absence of evidence to support the answer given by the jury. See Great American Insurance Company v. Lang, 416 S.W.2d 541, 549, 550 (Tex.Civ.App.1967, writ ref’d n. r. e.).

It is apparent that appellee tried the case upon the wrong theory, and the case in quantum meruit was not fully developed. We will reverse the judgment and remand the cause for new trial in the interest of justice.