text:
    Victor NOVAK, Appellant, v. Andre DeWIED and A. DeWied Casing Company, Appellees.
    No. 16049.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 1, 1978.
    Rehearing Denied Dec. 6, 1978.

      Earle Cobb, Jr., Cobb, Thurmond, Bain & Clark, San Antonio, for appellant.
    Jack H. Kaufman, John T. Reynolds, Green & Kaufman, Inc., San Antonio, Jerome Janger, Allen, Pasman & Janger, Beverly Hills, Cal., for appellees.
   MURRAY, Justice.

Victor Novak, appellant, brought this suit against Andre DeWied and A. DeWied Casing Company, appellees, for breach of a contract of employment, recovery of vacation pay and attorney’s fees. At the conclusion of a trial to a jury, the court entered judgment on the verdict for appellant as to his claim for attorney’s fees and recovery of vacation pay, but denied recovery under the terms of a written employee-shareholder agreement. From this judgment, appellant prosecutes this appeal.

Appellant prosecutes his appeal without a statement of facts, limiting his grounds of recovery under Rule 377(a), Tex.R.Civ.P., to construction of the agreement between the shareholder-employees. Appellees contend that in the absence of a statement of facts none of the points of error presented by appellant may be considered.

Pursuant to the agreement, which appears in appellant’s pleadings, should appellant’s employment terminate for any reason, the company is obligated to purchase his stock. The nature of the termination sets the price. If appellant is discharged for cause or resigns, he is entitled to receive the price he paid for the stock. If appellant is terminated without cause or retires, he receives the then book value of the stock. By his pleadings, appellant claims he was terminated without cause on April 11,1977; therefore, he was entitled to the book value of his stock. In their answer, appellees made a general denial, claimed that appellant voluntarily resigned, and denied that he was discharged.

The jury found that: (1) appellant did not voluntarily leave his employment; (2) appellees terminated the employment of appellant on April 11, 1977; (3) appellees had good cause for such termination; (4) on April 11, 1977, appellant and appellees entered into an oral agreement but that said oral agreement was mutually repudiated by the parties and appellees requested that appellant return to work; (5) the jury failed to find from a preponderance of the evidence that appellant’s failure to return to work after April 11, 1977, was cause for appellees to terminate appellant’s employment on or about May 11, 1977.

Appellant’s first two points of error are to the effect that the trial court erred in failing to give appellant judgment for the book value of the stock because appellees pleaded that appellant voluntarily resigned and the jury found that appellant did not voluntarily resign.

Without a statement of facts, this Court may look only to the pleadings and findings of the jury to support the judgment rendered. Scott v. Scott, 116 S.W.2d 1163 (Tex.Civ.App.—Amarillo 1938, no writ). Under the specific terms of the agreement, appellant had the burden to obtain favorable jury findings that he did not resign and he was terminated without cause. The general denial pleaded by appellees puts appellant on proof of every fact essential to his case, and issue is joined on all material facts asserted by appellant except those which are required to be denied under oath. Boswell v. Handley, 397 S.W.2d 213 (Tex.1965); Trevino v. American National Ins. Co., 140 Tex. 500, 168 S.W.2d 656 (1943). Under these circumstances, the special denial of appellees that appellant resigned is immaterial.

Appellant’s contention that appellees did not make any attempt to terminate appellant for cause until May 11,1977, is without merit. Appellant argues that the “no” answer of the jury to Question No. 4B establishes this fact. Special Issue 4B provides as follows:

Do you find from a preponderance of the evidence that Novak’s failure to return to work after April 11, 1977, was cause and justification for DeWied Casing Company to terminate Novak’s employment on or about May 11, 1977?
Answer “Yes” or “No”.
We, the jury, answer NO.

The answer to this issue does no more than establish that appellees failed to prove, by a preponderance of the evidence, that appellant’s failure to return to work after April 11, 1977, was cause for termination. Roegelein Provision Co. v. Mayen, 566 S.W.2d 1 (Tex.Civ.App.—San Antonio 1978, writ ref’d n. r. e.). The jury’s having found that appellees had cause to terminate appellant on April 11, 1977, Issue No. 4B becomes immaterial. Appellant’s first two points of error are overruled.

Appellant next complains of the action of the trial court in failing to give him judgment for $80,000 under the agreement in the event termination for cause was shown. This contention is without merit.

Appellant pleaded that the agreement was breached by not paying him the book value of his stock. He did not plead for recovery of the purchase price of the stock; nor did he request issues be submitted to the jury on this theory of recovery; nor was any such request made in his motion for judgment to the trial court. There being no statement of facts in the record, the question raised cannot be reviewed because an examination of such would be necessary in order to rule upon this point. Central Surety & Insurance Corp. v. French, 72 S.W.2d 699 (Tex.Civ.App.—San Antonio 1934, writ dism’d). In the absence of a statement of facts, it is presumed that the evidence supported the judgment of the trial court. Schweizer v. Adcock, 145 Tex. 64, 194 S.W.2d 549 (1946).

Appellant next complains of the action of this Court in refusing his motion for an extension of time for filing a statement of facts. We overrule this point.

Appellant perfected his appeal to this Court pursuant to a statement of the points of error under Rule 377(a) of the Texas Rules of Civil Procedure and stated that these points could be decided without a statement of facts. Appellant’s motion for extension of time to file a statement of facts states that no statement of facts is necessary for this Court to rule upon his points of error. The request is made solely to allow him to add points of error in the event he loses his present appeal. Appellant may not amend the statement of facts in order to bring up new points of error not listed in his Rule 377(a) statement. King v. Cron, 285 S.W.2d 833 (Tex.Civ.App.—San Antonio 1955, writ ref’d n. r. e.), cert. denied, 352 U.S. 843, 77 S.Ct. 67, 1 L.Ed.2d 59 (1956).

The other points raised by appellant have been considered by this court and are without merit.

Appellees, by two cross-points of error, argue that the trial court erred in rendering judgment for plaintiff for cash payments in lieu of accrued vacation time and for attorney’s fees. We disagree.

Appellees’ argument is based on the fact that there is no jury finding that appellant had a contract with the company entitling him to accrued vacation time or to salary in lieu of any accrued vacation. In the absence of a statement of facts, there is a presumption that omitted special issues were established as a matter of law in support of the trial court’s judgment. Livezey v. Putnam Supply Co., 30 S.W.2d 902 (Tex.Civ.App.—Eastland 1930, writ ref’d); T. A. Manning and Sons, Inc. v. Ken-Tex Oil Corp., 418 S.W.2d 324 (Tex.Civ.App.—Austin 1967, writ ref’d n. r. e.). In T. A. Manning and Sons, Inc., a case very similar to the present one, the court said, at page 327:

We cannot agree with appellants here. Rule 279, T.R.C.P. reads, in part, as follows: ‘Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived; * * *.’ Irrespective of the fact that no issue was given or requested upon independent grounds or recovery against appellants Lelia H. Owens and T. A. Manning & Sons, Inc., appellants must show the court that such grounds of recovery, alleged in appellees’ pleadings, were not conclusively established by the evidence. Appellants cannot do this because there is no statement of facts filed herein. Straffus v. Barclay, 147 Tex. 600, 219 S.W.2d 65; Tex.Civ.App., 214 S.W.2d 826 (1948); Continental National Bank of Fort Worth v. Conner, 147 Tex. 218, 214 S.W.2d 928 (1948). While a judgment, in the absence of the evidence upon which it was rendered, will be sustained by presumption, it will never be rendered invalid by presumption. Schweizer v. Adcock, 145 Tex. 64, 194 S.W.2d 549 (1946).

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: COLEMAN, Chief Justice.

license: Public Domain

text:
    Tom ROTELLO et al., Appellants, v. BRAZOS COUNTY WATER CONTROL & IMPROVEMENT DISTRICT NO. 1, Appellee.
    No. 17202.
    Court of Civil Appeals of Texas, Houston (1st. Dist.).
    Nov. 2, 1978.
    See also, Tex.Civ.App., 572 S.W.2d 120.

      Sears & Burns, Robert L. Burns, C. Charles Dippel, Houston, for appellants.
    Karl C. Hoppess and Warren G. King, Houston, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from an order denying an application for a temporary injunction. The appellants, hereinafter referred to as the Rotellos, sought an order enjoining ap-pellee, hereinafter referred to as the Water District, from proceeding under the authority of Article 3268, R.S.1925, to enter upon and take possession of certain land owned by the Rotellos and from excavating and clearing trees and vegetation or making any other use of said land pending final judgment in the condemnation suit.

In November, 1977, the Water District filed a petition for condemnation complaining of Tom Rotello and wife, Lela, and a lienholder, Federal Land Bank of Houston, in the County Court at Law of Brazos County, Texas. On the second day of December, 1977, the Judge of the County Court at Law of Brazos County appointed Special Commissioners. The Special Commissioners signed an order setting a hearing in the condemnation proceedings in the County Courtroom of the County Court House, Bryan, Brazos County, Texas, on January 4, 1978.

On December 8, 1977, the Commissioners signed an instrument entitled “Notice of Hearing For Condemnation”. This instrument was not directed to any specific person. It began “you are hereby notified that on the 4th day of January, 1978, at 10:00 a. m., in the County Commissioners Courtroom in the Civil Courthouse at Bryan, Brazos County, Texas, before the undersigned Special Commissioners — a hearing will be held to assess the damages occasioned by reason of the condemnation by Brazos County Water Control and Improvement District No. One of a right of way and easement in, over, across, on and through that certain tract or parcel of land __ which land is more fully described in the Petition for Condemnation filed _ on the 29th day of November, 1977,

On the date set out in the notice the Commissioners conducted a hearing in the County Commissioners Courtroom at the Brazos County Courthouse. Neither of the Rotellos nor their attorney appeared at the hearing. The Commissioners made an award of damages to the Rotellos and timely objections to the award were filed with the Judge of the County Court at Law of Brazos County. Thereafter an application for a Temporary Injunction was filed in the cause by the Rotellos.

At the hearing on the injunction the Deputy County Clerk of Brazos County was called as a witness. She identified the notice signed by the Commissioners and testified that it was the only notice in her file and that no return was endorsed thereon. She identified citations issued for service on Tom Rotello, Lela Rotello, Robert Burns, and Federal Land Bank. She testified that these were the only citations found in the file. The citation directed to Mr. Burns commanded him to “appear before the Honorable County Court at Law of Brazos County, Texas, at the Court House of said county in Bryan, Texas, in accordance with the notice and Order Setting Date of Hearing filed in said court on the 28th day of November A.D.1977, numbered 234-A on the docket of said court, and styled, Brazos County Water Control and Improvement District No. 1, Plaintiff v. Tom Rotello, et ux, et al, Defendant.

“The nature of Plaintiff’s demand is set out and shown by a true and correct copy of Plaintiff’s Petition accompanying this citation, and made a part thereof. _”.

The citation reflects that it was issued by the clerk of the County Court of Brazos County, Texas. The printed “Sheriff’s Return” on the back of the citation reflects that it was served by delivering to “the within named defendants” Robert L. Burns a copy of the citation with a copy of the petition attached thereto and was signed by J. M. West, Deputy.

The return on the citation issued to Tom Rotello reflects that it was executed by delivery to Mrs. Tom Rotello.

Mr. Burns testified that he received the citation as indicated on the return and that the citation had attached a copy of the original petition and a copy of the notice of setting.

The Rotellos complained that the trial court erred in refusing the temporary injunction because the condemnation proceeding was void and vested no right in the Water District and no jurisdiction in the court.

Article 3264, Tex.Rev.Civ.Stat.Ann., prescribes the procedure by which notice of the Commissioners hearing on damages is to be given the owners of land in a condemnation procedure by a water improvement district. The statute provides:

5. Notice in writing shall be issued by the Commissioners to each of the parties interested, notifying them of the time and place selected for the hearing.
6. The notices shall be served upon the parties _, and may be served by any person competent to testify, by delivering a copy of such notice to the party, his agent or attorney.
9. The person serving notice shall return the original to the Commissioners on or before the day set for the hearing, with his return in writing thereon, stating how and when it was served.
10. When service of notice has been perfected, the Commissioners shall at the time and place appointed or at any other time and place to which the hearing may be adjourned, proceed to hear the parties.”

The record in this case reflects that while a form of a notice in writing was signed by the Commissioners, there was no notice issued by the Commissioners to the parties interested unless it can be said that the citations issued by the County Clerk complied with this requirement.

While the originals of the citations were returned to the County Clerk with a return in writing thereon, no return in writing was endorsed on the notice which was executed by the Commissioners.

The Water District contends that Mr. Burns was the attorney for the Rotellos and that citation was properly served on him as authorized by paragraph 6 of Article 3264, supra. The evidence establishes that Mr. Rotello was not served in person with the citation or any other form of notice prior to the hearing. The delivery of a citation to Mrs. Rotello did not constitute service on her husband. Wilson v. Newton County, 269 S.W. 227 (Tex.Civ.App.—Beaumont 1925, no writ hist.).

There is evidence that Mr. Burns has represented Mr. Rotello in previous condemnation suits involving the same property which were subsequently dismissed. Mr. Burns represents him in litigation in the Federal Courts. Mr. Rotello authorized Mr. Burns prior to the filing of the condemnation statement to negotiate with the Water District for the sale of an easement across the property in question. Mr. Rotello testified that he did not authorize Mr. Burns to accept service of process on his behalf. Mr. Burns testified that the time the citation was delivered to him he was not authorized to accept service and that he was not employed by Mr. Rotello to represent him in any contemplated condemnation matters. Mr. Burns stated that he did not “generally represent” Mr. Rotello. Additionally, Mr. Rotello testified that from the time Mr. Burns began representing him in a case involving the National Environmental Policy Act in 1973 to the present time Mr. Burns has been his attorney and that he was the only attorney he had ever had.

Article 3264, supra, requires that a notice in writing be issued by the Commissioners to each of the “parties interested” and that this notice be served by delivering a copy of such notice to the party, his agent or attorney. We construe the act to authorize service on an agent or attorney who has actual authority to represent the principal in the condemnation proceeding or one who is held out by the party as having such authority. A fact issue as to his authority to represent the Rotellos in this matter is raised by the evidence.

The Rotellos rely on the City of Houston v. Kunze, 153 Tex. 42, 262 S.W.2d 947 (1953), as authority for the proposition that service on Mr. Bums could not be proper notice to Mr. Rotello. This case is distinguishable on its facts. In the City of Houston v. Kunze case the court pointed out that the condemning authority made no proof on the hearing of its motion for temporary injunction that the attorney was the agent or attorney for the condemnee.

The citation served on Mr. Burns does not constitute notice to Mr. Rotello on the Commissioners hearing for other reasons. It is well settled that the proceedings in eminent domain are special in character and that there must be a showing of strict compliance with the law authorizing the taking of property of an owner for public use. At the temporary injunction hearing the burden was on the condemnees to show that notice in proper form was not served on them. Until such á notice has been duly and properly served in accordance with the statute, the court is without jurisdiction. City of Houston v. Kunze, supra; Brinton v. Houston Light & Power Co., 175 S.W.2d 707 (Tex.Civ.App.—Galveston 1943, writ ref. w. o. m.). Walling v. State, 394 S.W.2d 38 (Tex.Civ.App.—Waco 1965, writ ref. n. r. e.).

Mr. Burns testified: I received a citation in August.” He also testified that the citation contained a copy of the “notice of setting that’s on file here, the original.” The citation which was returned to the County Clerk was introduced into evidence. No copy of the order setting the date of hearing was attached to the citation which was returned. The Commissioners’ hearing is not a judicial proceeding and the service of a notice of such a hearing is not within the duty of the sheriff or the constable. The act authorizes service by any person competent to testify. The presumption that the sheriff or constable acted in a regular and lawful manner does not arise. McCormick & Ray, Texas Law of Evidence (2nd Edition) Volume 1, Section 94.

While the notice in writing issued by the Commissioners set out the time and place selected for the hearing, it did not name the parties to whom it was issued. The act contemplates that an original notice shall be issued to each party interested in the land to be condemned. It requires that the original of the notice shall be returned to the Commissioners on or before the date set for hearing with the person serving the notice making a return in writing on the original notice. This was not done.

Mr. Burns did not testify that a person competent to testify delivered a copy of the notice of hearing to him.

No particular form of notice is required. The citation cannot be considered part of a notice since it was issued by the Deputy County Clerk rather than by the Commissioners. It commanded Mr. Burns to appear before the Honorable County Court at Law of Brazos County “in accordance with the notice and Order Setting Date of Hearing” filed in said court on the 28th day of November 1977. The record reflects that the notice of hearing signed by the Commissioners was filed in the County Court on December 8, 1977. The return endorsed on the citation reflects that a copy of the citation “with a true and correct copy of the petition attached thereto” was delivered to Mr. Burns. There is no certification that a copy of the Notice of Hearing was attached to the citation. The language of the citation injects an element of confusion as to where and before whom the hearing will be held.

While we presume in support of the trial court’s order that he found Mr. Burns to be the attorney of Mr. Rotello for the purpose of receiving service and that there is evidence to support such a finding, we hold that the evidence establishes that a notice of the time and place of the hearing was not properly issued to the landowners. Each landowner is required by the statute to be served with a notice of the hearing. The citation served on Mr. Burns was directed to him as a defendant. The record does not reflect that he was served with a notice as the attorney for any particular landowner. While an attorney might be served with notices for each of his clients, separate notices are required by the terms of Article 3264, supra. Actual knowledge of the time and place of the hearing does not eliminate the necessity for personal service. Clayton v. Newton, 524 S.W.2d 368 (Tex.Civ.App.—Ft. Worth 1975, no writ); City of Dallas v. Crawford, 222 S.W. 305 (Tex.Civ.App.—Amarillo 1920, writ dism’d.).

The protection which the law has erected for the benefit of the citizens as against the exercise of the power of condemnation is liberally construed. Condemnation proceedings must be conducted in strict accordance with the statute authorizing the procedure. City of Houston v. Derby, 215 S.W.2d 690 (Tex.Civ.App.—Galveston 1948, writ ref’d); Parks v. City of Waco, 274 S.W. 1006 (Tex.Civ.App.—Waco 1925, no writ).

Rule 108, T.R.C.P., providing the form of notice to be given to a defendant who is a non-resident of the State or is absent from the State and the method of service of such notice provide that the notice “may be served by any disinterested person competent to make oath of the fact” and that a return of service in such cases shall be endorsed on or attached to the original notice and be signed and sworn to by the party making such service. The return on a notice served pursuant to Rule 108, supra, was held fatally defective and insufficient to support a default judgment where the person serving the citation failed to swear in his return that he was a disinterested person competent to make oath of the fact. Scucchi v. Woodruff, 503 S.W.2d 356 (Tex. Civ.App.—Fort Worth 1973, no writ).

If a state statute or rule of court prescribes the method by which notice must be given in a particular instance, and it prescribes the form of the notice that must be given in such instance, then the rule prescribed by the statute or rule for giving notice must be followed with reasonable strictness. Clayton v. Newton, 524 S.W.2d 368 (Tex.Civ.App.—Fort Worth 1975, no writ); Jacksboro National Bank v. Signal Oil & Gas Co., 482 S.W.2d 339 (Tex.Civ.App.—Tyler 1972, no writ); Diamond Chemical Co. v. Sonoco Products Co., 437 S.W.2d 307 (Tex.Civ.App.—Corpus Christi 1968, no writ).

The record before this court established that Tom Rotello was not served with a proper notice of the Commissioners hearing. The Commissioners are not authorized to meet and assess damages before such notice is properly served. Service of notice is a jurisdictional matter. City of Houston v. Kunze, supra.

Where the condemnation proceedings which are pending in the County Court are void for want of power or jurisdiction, such void proceedings may be enjoined. Lone Star Gas Co. v. City of Ft. Worth, 128 Tex. 392, 98 S.W.2d 799 (1936); Haverbekken v. Hale, 109 Tex. 106, 204 S.W. 1162 (1918).

The order is reversed and the cause is remanded to the trial court with directions to enter an order enjoining the Water District from entering upon or taking possession of the land in question owned by the Rotellos and from making any use of said land pending the entry of a final judgment in this cause.


author: BISSETT, Justice.

text:
    TEXAS EMPLOYMENT COMMISSION, Appellant, v. Felipe C. ORTIZ, Appellee.
    No. 1344.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 2, 1978.
    Myra A. McDaniel, Asst. Atty. Gen., Austin, for appellant.
    Pedro P. Garcia, Corpus Christi, for ap-pellee.
   OPINION

BISSETT, Justice.

This appeal arises in an unemployment compensation case. On January 26, 1977, the Texas Employment Commission ruled adversely to Felipe C. Ortiz, a claimant before the Commission. The latter appealed to the County Court at Law of Nueces County, Texas. Following a hearing before the court, judgment was rendered which vacated the decision of the Commission and ordered the Commission to hold a hearing on the merits of the claim asserted by Felipe C. Ortiz. The Commission has appealed. We reverse and render.

The controlling question before us is whether the “Appeal Tribunal” of the Commission had jurisdiction to rule on the merits of the claim asserted by Felipe C. Ortiz. We answer that question in the negative.

Tex.Rev.Civ.Stat.Ann. art. 5221b-4(b) (1971), in pertinent part, reads:

******
“Unless the claimant ... to which the copy of the determination is mailed files an appeal from such determination within twelve (12) calendar days after such copy of the determination is mailed to his or its last known address as reflected by the Commission’s records, such determination shall be final for all purposes . . . ”
******

It is contended by the Commission that neither it nor its “Appeal Tribunal” had jurisdiction to hear the appeal of the claim on its merits because the appeal from the “Examiner” to the “Appeal Tribunal” was not filed within the statutory time limitation period.

Ortiz began receiving unemployment insurance checks from the Commission in December, 1975. Payments were made until August 1, 1976. He was mailed a “Notice of Claim Determination” from the Commission’s Insurance Department, the “Examiner” in this case, on August 23,1976, wherein he was advised that he was no longer eligible to receive unemployment insurance benefits, “beginning June 20, 1976.” Ortiz did not appeal from that ruling by the Examiner.

The “Examiner” mailed a “Determination Letter” to Ortiz on September 22, 1976. That fact was admitted by Ortiz. The letter was addressed:

“Felipe C. Ortiz
503 N. Buena Vista
Robstown, Texas 78380.”

That address was the claimant’s last known address as reflected by the Commission’s records. The letter advised Ortiz that he had been overpaid unemployment insurance benefits in the amount of $378.00 as a result of payments made to him before it was determined by the “Examiner” that his ineligibility for benefits commenced June 20, 1976. Demand was made on him for the return of the $378.00 overpayment. Ortiz appealed that ruling on October 7, 1976. The “Appeal Tribunal” affirmed the ruling made by the Examiner and stated in its decision:

“It is here determined that the claimant did not file a timely appeal from the overpayment determination dated September 22, 1976. This Tribunal, therefore, has no jurisdiction to rule on the merits of the case. The determination dated September 22, 1976, will remain in full force and effect.”

Ortiz timely appealed the decision by the “Appeal Tribunal” to the Commission, which affirmed the decision, and, in doing so, stated in its decision:

“The Commission has considered the appeal filed by the claimant from the Appeal Tribunal decision identified above and, after due consideration of the decision and the complete record herein, is of the opinion that the case was properly decided by the Appeal Tribunal .

Unquestionably, the Commission, an administrative body, has the power and authority to determine for itself whether it has jurisdiction of the matter before it. Security State Bank of San Juan, 169 S.W.2d 554 (Tex.Civ.App.—Austin 1943, writ ref’d w. o. m.); 73 C.J.S. Public Administrative Bodies and Procedure § 116.

It is undisputed that the appeal to the ‘'Appeal Tribunal” on October 7, 1976, was filed 15 days after the mailing of the Determination Letter, dated September 22, 1976. This is 3 days beyond the time for such an appeal. The time within which to appeal a ruling made by the “Examiner” to the “Appeal Tribunal” is expressly limited by the statute (Art. 5221b-4(b)) to 12 days. That limitation period comes under the accepted rule that statutory proceedings are strictly governed by the statute of their creation. Texas Employment Commission v. International U. of E., R. & M. Wkrs., 163 Tex. 135, 352 S.W.2d 252 (1961).

It is an established rule of long standing in this State that when a statute requires that an act be done within a certain specified time, that period of time will not be extended unless the statute so provides. Nunn v. New, 148 Tex. 443, 226 S.W.2d 116 (1950). The statute here involved does not contain any provision for the extension of time beyond 12 days for an appeal from the “Examiner’s” decision to the “Appeal Tribunal.”

Apparently, the precise point presented by this appeal has not been determined by any appellate court in Texas. However, there are two cases, hereinafter discussed, which are highly persuasive in our disposition of this appeal.

In the recent case of Maintenance Management, Inc. v. Texas Employment Commission, 557 S.W.2d 561 (Tex.Civ.App.—San Antonio 1977, writ ref’d n. r. e.), the Court held that the 10-day time limits provided by Tex.Rev.Civ.Stat.Ann. art. 5221b-4(b) and art. 5221b-5(c)(2)(B) (1971) are jurisdictional where an employer did not timely file with the Commission his objections to certain claims made by an individual and did not timely protest the notice of a certain chargeback determination.

In Lambeth v. Texas Unemployment Compensation Commission, 362 S.W.2d 205 (Tex.Civ.App.—Waco 1962, writ ref’d), it was held that the 10-day time limit within which to commence an action in a court against the Commission, as provided by Tex.Rev.Civ.Stat.Ann. art. 5221b-4(i) (1971), is jurisdictional.

We believe that both Maintenance Management, Inc., and Lambeth are in point and that the rules announced in those cases should be applied here. In the former case, another paragraph of the identical subdivision (b) of the statute involved in the instant case was involved. In the latter case, subdivision (i) was involved. Both cases hold that the time limits imposed by the particular subsection of the statute, art. 5221b — 4, are jurisdictional. There is no reason why the same decision should not be made in this case. We see no distinction between a time limit for an appeal from a subordinate department of the administrative body to an appeal tribunal within the body, and a time limit for an appeal from the decision by an administrative body to the court.

The 12-day time limitation is jurisdictional. We interpret the statute to mean that an appeal from a decision made by an “Examiner” to the “Appeal Tribunal” must be filed within 12 days from the mailing of the “Examiner’s” decision to the claimant in order to confer jurisdiction on the “Appeal Tribunal” to hear the claim on its merits. Here, it is conceded by Ortiz and established by undisputed evidence that Ortiz, the claimant, did not appeal the ruling by the “Examiner” to the “Appeal Tribunal” within 12 days from the mailing of the “Determination Letter” to him on September 22, 1976. The “Appeal Tribunal” did not have jurisdiction to hear or consider the claimant’s claim on its merits.

The trial court should have dismissed the appeal by Ortiz from the decision rendered by the Commission. There was substantial evidence to support the decision by the Commission that the “Appeal Tribunal” did not have jurisdiction to hear the appeal on its merits.

The judgment of the trial court is REVERSED, and judgment is here RENDERED that the appeal by Ortiz of the decision by the Commission be, and the same is, hereby dismissed, and that Felipe C. Ortiz, plaintiff take nothing by his suit.

REVERSED and RENDERED.


text:
    BLUE CROSS-BLUE SHIELD OF TEXAS, Appellant, v. Leonor Solitaire DAVIDSON, Appellee.
    No. 1339.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 2, 1978.

      Michael G. Mullen, Brown, Maroney, Rose, Baker & Barber, Austin, for appellant.
    Lee Arnett, Brownsville, for appellee.
   OPINION

BISSETT, Justice.

The question presented by this appeal is whether Blue Cross-Blue Shield of Texas, defendant-appellant, who was not present at the trial, is entitled to a reversal of the trial court’s judgment due to its inability to obtain a statement of facts prepared by the court reporter where the defendant did not request the reporter to prepare a question and answer statement of facts at the trial of the case. We answer that question in the affirmative.

Leonor Solitaire Davidson filed suit against Blue Cross-Blue Shield of Texas to collect medical bills allegedly due her on a medical insurance policy issued by the defendant. No jury was requested, and the case proceeded to trial before the court. Neither the defendant Blue Cross-Blue Shield nor its counsel was present at the trial. Judgment was rendered for Leonor Solitaire Davidson in the amount of $439.65 for benefits due under the policy, $750.00 for attorney’s fees, and $52.75 as a penalty, plus costs and interest. Defendant has appealed.

Plaintiff’s original petition was filed on November 7, 1974. Defendant’s attorney, Mr. Sam V. Stone, Jr., filed an original answer on December 2, 1974. Mr. Franklin Ace Pickens, an attorney at law, subsequently assumed the defense of this case, and on July 11, 1975, was notified by plaintiff’s attorney that the case was set for trial on July 29, 1975. Mr. Pickens filed a first amended original answer on behalf of defendant and appeared in court on the day appointed and announced ready for trial. Plaintiff filed a motion for continuance, which was granted.

On August 17,1977, an order was entered which advised all parties that the case had “been placed on the Drop Docket.” A notice thereof was mailed to Mr. Stone, but not to Mr. Pickens. A motion to reinstate was filed on September 6, 1977 by plaintiff’s attorney, and an order to that effect was rendered on the same date. The order further advised the parties that the case was set for trial on November 21, 1977. A copy of the order was mailed to Mr. Stone, but Mr. Pickens was not so notified. On November 23, 1977, plaintiff, with leave of court, filed a supplemental petition. Neither defendant nor Mr. Pickens received a copy thereof, and the record does not show that plaintiff’s counsel mailed a copy of the supplemental petition to Mr. Pickens.

As already noted, defendant’s attorney did not appear when the case was called for trial on November 21, 1977, nor did he appear on November 23, 1977, when the case was actually tried. The judgment recites that the court heard evidence. Defendant filed a motion for new trial, which was overruled.

Defendant, subsequent to the rendition of judgment, requested a statement of facts from the court reporter. The same, however, could not be prepared since a court reporter, not having been requested to attend the trial, was not present at the trial. The record on appeal consists of the transcript, duly prepared by the County Clerk, and a stipulation, signed by counsel for both parties and filed in this Court. The stipulations which affect this appeal read, as follows:

“1. No Court Reporter was present during the trial of this cause.
2. No official Court Reporter has been appointed by the County Court at Law of Cameron County, Texas.
3. Upon request of either party the Judge of the County Court at Law of Cameron County, Texas will appoint a Court Reporter to perform the duties of a Court Reporter at any trial.
4. Neither party requested that a Court Reporter be appointed for the trial of this cause.
5. No exhibits were formally marked or introduced in evidence upon the trial of this cause, but the trial judge took notice of all papers on file in the cause.”

The Supreme Court, in Robinson v. Robinson, 487 S.W.2d 713 (Tex.Sup.1972), stated that if an appealing party exercised due diligence and through no fault of his own was unable to obtain a proper record of the evidence introduced, a new trial may be required where his right to have the case reviewed on appeal can be preserved in no other way. In Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312, 314 (Tex.Civ.App.—Dallas 1975, writ ref’d), it was held:

“If the appellant was not present and was not represented by counsel when the testimony was taken, and later discovers that no record was made, the lack of a record cannot reasonably be deemed waived . . . ”

A year after Morgan Express was decided, the Supreme Court, in Smith v. Smith, 544 S.W.2d 121 (Tex.Sup.1976) reaffirmed the rule enunciated in Robinson.

Here, plaintiff contends that the rules announced in Robinson and in Morgan Express, were, in a manner of speaking, overruled by the Legislature in 1975, when Tex. Rev.Civ.Stat.Ann. art. 2324 (Supp.1978) was amended, effective May 27, 1975. Before the amendment, the statute required an official court reporter to attend “all sessions of the court,” and to take full shorthand notes of all testimony offered. After the effective date of the amendment, it was provided that an official court reporter shall “upon request” attend all sessions of the Court and take full shorthand notes of all testimony offered. Plaintiff argues that this statute changed the prior case law regarding appeals from judgments where appellant is unable to obtain a statement of facts, because that law was based on the mandatory nature of art. 2324. According to plaintiff’s reasoning, now that court reporters attend court sessions only if requested to do so, a defendant must be deemed to have waived any right to a question and answer statement of facts if he failed to timely request a court reporter.

Plaintiff’s contention, argument and reasoning is refuted by the recent Supreme Court decision in Rogers v. Rogers, 561 S.W.2d 172 (Tex.Sup.1978). In that case, a default judgment was rendered in a divorce action where a court reporter was not requested to be present at the trial and a statement of facts was not prepared by the reporter. The Austin Court of Civil Appeals (549 S.W.2d 471 (1977]) held that art. 2324, as amended in 1975, did not impose a duty on the trial court to require a court reporter to attend the trial and record the testimony of the witnesses, absent a request to do so. For that reason, the judgment of the trial court was affirmed, since the court reporter was not requested to take notes of the testimony and did not do so. The Supreme Court, in reversing the decision by the Court of Civil Appeals, said:

“However, the Court of Civil Appeals misapprehends the purport of Smith as it rests upon neither Art. 2324 nor Family Code § 11.14(d). The Smith opinion applies and reaffirms the rule in Robin son v. Robinson, 487 S.W.2d 713 (Tex.1972), that says: ‘. . . if an appellant exercises due diligence and through no fault of his own is unable to obtain a proper record of the evidence introduced, this may require a new trial where his right to have the case reviewed on appeal can be preserved in no other way.’ The facts stated and the previous discussion disclose the conflict of the Court of Civil Appeals decision with Smith and that Mr. Rogers’ right to proper appellate review, due to no fault on his part, can be preserved only by a new trial.”

Plaintiff, however, seeks to distinguish Rogers from the case at bar in that the language used by Justice Chadick in the opinion indicating that the 1975 amendment to art. 2324 did not change existing case law is mere obiter dicta. Her grounds for that position are: first, the Supreme Court’s approval of the Robinson and Morgan Express rules was made solely in the context of determining whether the Supreme Court had appellate jurisdiction over a divorce action; and, second, the amendment to art. 2324 was insignificant to the decision, because Tex.Fam.Code, § 11.14(d) (1975) still required court reporters to attend all suits affecting the parent-child relationship unless such attendance is waived. These reasons are not persuasive.

This Court does not consider any statement made by our Supreme Court in its opinion to be dicta. Moreover, the 1975 amendment to the aforesaid statute did not change the rules laid down in Robinson and in Morgan Express. We read the Supreme Court’s decision in Rogers as plainly holding that a defendant cannot be deemed to have waived the preparation of a question and answer statement of facts by a court reporter where the defendant, through no fault of his own, did not appear at the trial and judgment has been rendered against him. His right to a proper appellate review under those circumstances can be preserved only by a new trial.

This Court, in deciding Garcia v. Kelly, 565 S.W.2d 112 (Tex.Civ.App.—Corpus Christi 1978, no writ), relied upon the holding of our Supreme Court in Rogers. See also Minyard v. Southern Pipe & Supply Co., Inc., 563 S.W.2d 332 (Tex.Civ.App.—Dallas 1978, no writ), where the Court of Civil Appeals held that the 1975 amendment to art. 2324 did not modify the rule set forth in Morgan Express, and expressly stated that its holding is supported by Rogers.

Under the circumstances here presented, we hold that the failure by defendant to request that a court reporter attend the trial and record the testimony of the witnesses, the objections to the admissibility of evidence, the rulings by the court and objections or exceptions thereto, was not due to defendant’s fault or lack of diligence. Since it is unable to obtain a court reporter’s record of the evidence adduced at the trial, a new trial is required; its right to have the case reviewed on appeal can be preserved in no other way.

The judgment of the trial court is REVERSED and the cause is REMANDED for a new trial.


author: MURRAY, Justice.

text:
    Fred M. HORN and wife, Norma Horn, Appellants, v. NATIONWIDE FINANCIAL CORPORATION and Indon Industries, Inc., Appellee.
    No. 16058.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 8, 1978.
    Rehearing Denied Dec. 6, 1978.

      Darby Riley, San Antonio, for appellants.
    Miles H. Appleberry, San Antonio, for appellee.
   OPINION

MURRAY, Justice.

This is an appeal from a summary judgment in an action for statutory penalties under the Texas Consumer Credit Code, Tex.Rev.Civ.Stat.Ann. art. 5069-7.01 et seq. (Vernon 1971). Appellants, Fred M. Horn and wife, Norma S. Horn, brought suit against appellees, Nationwide Financial Corporation and Indon Industries, Inc. Both sides moved for summary judgment. The trial court granted the summary judgment motions of appellees and overruled the summary judgment motion for appellants. The Horns then perfected their appeal to this court.

On February 19, 1975, appellants entered into a retail installment contract with Indon Industries, Inc., hereinafter referred to as Indon, to purchase a new mobile home. At the time of the sale, Indon was a dealer engaged in the business of selling mobile homes to retail buyers in retail installment transactions. Appellants bought the mobile home for purposes other than for resale. On the same day, Indon assigned this contract to Nationwide Financial Corporation, hereinafter referred to as Nationwide, by completing the assignment clause contained on the back of the contract. It is alleged that Nationwide prepared this contract, furnished it to Indon and required them to use it. Subsequently, appellants brought suit alleging that parts of the retail installment contract violated Chapter 7 of the Texas Consumer Credit Code and seeking recovery of statutory penalties under Tex. Rev.Civ.Stat.Ann. art. 5069-8.01 (Vernon 1971).

Appellants’ first point of error presents the question whether paragraph 5 on the reverse side of this retail installment contract violates Art. 5069-7.07(6) of the Consumer Credit Code. This article provides that “No retail installment contract or retail charge agreement shall: ... (6) Provide that the buyer agrees not to assert against the seller or holder of any claim or defense arising out of the sale.” Tex.Rev. Civ.Stat.Ann. art. 5069-7.07(6) (Vernon 1971). Paragraph 5 of the retail installment contract states:

The Seller may assign this Contract and in the event of assignment, the Buyer shall perform all promises herein contained to such assignee as the owner hereof and the Buyer agrees that after such assignment, the Buyer will settle all claims against the Seller directly with it and agrees not to set up any claim which the Buyer may have against the Seller as a defense, set-off, cross-complaint or otherwise to any action for the purchase price or possession of the vehicle brought by the owner hereof. Buyer further agrees to pay reasonable attorney’s fees and court costs in the event this Contract is referred to an attorney not a salaried employee of the holder for collection, (emphasis added)

Appellees contend that the language complained of by appellants has no effect on their rights under the Consumer Credit Code because Art. 5069-7.10 provides that a buyer by agreement cannot waive his rights under Chapter 7 of the Code. Therefore, the language is a nullity and not a violation of the Code. This contention is without merit.

Article 5069-7.07(6) is not a model of clear diction; it appears that the word “of” in the middle of the sentence is surplusage. However, Art. 11 of Texas Revised Civil Statutes, made expressly applicable to the Consumer Credit Code by Art. 5069-50.01, provides that “grammatical errors shall not vitiate a law.” Tex.Rev.Civ.Stat.Ann. art. 11 (Vernon 1969). Consequently, the word “of” should be ignored in order to make the article nonambiguous. Under this construction, Art. 5069-7.07(6) specifically prohibits the inclusion of paragraph 5 in motor vehicle installment sale contracts. No cases have been found interpreting Art. 5069-7.-07(6), but support for this interpretation can be found in the plain meaning of the statute and in a number of legal commentaries. Boyle, Preservation of Claims and Defenses Under the Texas Business and Commerce Code and Under the Texas Consumer Credit Code, 8 St. Mary’s L.J. 678, 688-690 (1977); Snell, Assignee Liability Under the Texas Consumer Credit Code, 8 St. Mary’s L.J. 696, 699, 702 (1977).

Article 5069-8.01 imposes liability on “[a]ny person who violates this Subtitle . by failing to perform any duty specifically imposed on him by any provision of this Subtitle.” The inclusion of paragraph 5 in this retail installment contract is a violation of the duty imposed by Art. 5069-7.07(6) on a seller or holder not to include such a provision in the contract. It must now be determined who is liable for a failure of the form contract to meet the requirements of the Code. We hold that both Indon and its assignee, Nationwide, are liable since both seller and holder have a duty to ensure that the retail installment contract conforms to the statutory requirements of the Consumer Credit Code. Tex. Rev.Civ.Stat.Ann. arts. 5069-7.07(6), 5069-8.01 (Vernon 1971); Southwestern Investment Co. v. Mannix, 557 S.W.2d 755 (Tex.1977); O. R. Mitchell Motors, Inc. v. Bell, 528 S.W.2d 856 (Tex.Civ.App.—San Antonio 1974, writ ref’d n. r. e.).

Under Art. 5069-8.01 appellants are entitled to recover “twice the amount of interest or time price differential” provided for under the contract plus reasonable attorney’s fees. Since the time price differential provided for in the contract is $11,690.17, appellants are entitled to judgment in the sum of $23,380.34. Appellants are also entitled to $3,500 in attorney’s fees since the attorneys stipulated this amount as reasonable in the trial court’s judgment on the motions for summary judgment.

The trial court’s judgment granting ap-pellees’ motions for summary judgment and denying appellants’ motion for summary judgment is reversed, and judgment is hereby rendered that appellants recover from appellees the amount of $23,380.34, plus $3,500 in attorney’s fees. Indon’s third party petition seeking indemnity and contribution from Nationwide is severed from this cause and remanded to the trial court for determination.

      . All references to statutory articles are to the Texas Consumer Credit Code unless otherwise specified.


text:
    TOM BENSON COMPANY, INC., Appellant, v. Sharon L. ERVINE, Appellee.
    No. 16062.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 8, 1978.
    Rehearing Denied Dec. 6, 1978.
    Larry J. Benson, Martin A. Gewertz, San Antonio, for appellant.
    William H. Ervine, Sonora, for appellee.
   MURRAY, Justice.

Sharon L. Ervine, appellee, sued Tom Benson Company, Inc., appellant, and co-defendant, General Motors Corporation, for an alleged violation of the Texas Deceptive Trade Practices Act. In October of 1976, appellee purchased a new 1977 Delta 88 Oldsmobile automobile from Tom Benson for the agreed price of $8,606. During the purchase, appellee says it was represented to her that the car contained a 350 rocket Olds engine. It is undisputed that this car contained a new 350 Chevrolet engine and appellee alleges that this was a violation of Tex.Bus. & Com.Code Ann. § 17.46(b)(1) & (7) (Vernon Supp.1978). Appellee alleges that this Oldsmobile with a Chevrolet engine is worthless; therefore, her damages are $8,606, plus treble damages and reasonable attorney’s fees.

General Motors Corporation timely filed an answer. An interlocutory default judgment was entered against appellant on November 3, 1977. This interlocutory default judgment became final on December 9, 1977, when the trial court granted appel-lee’s motion for nonsuit of co-defendant, General Motors Corporation. Appellant thereafter timely filed a motion for new trial and an amended motion for new trial which was overruled by operation of law. Appellant has timely perfected his appeal to this court.

The appellee contends that this court does not have jurisdiction of this appeal because the amended motion for new trial filed by appellant on January 9, 1978, was in fact a third motion for new trial; therefore, the appeal was not timely filed. This contention is based on the fact that on November 14,1977, appellant filed a motion with the trial court requesting that the interlocutory default judgment be set aside which was heard by the trial court on December 8, 1977. It is clear from the record that after the trial court overruled this motion the appellee then took a nonsuit as to General Motors Corporation. When ap-pellee took a nonsuit as to General Motors there was no motion for new trial pending; as a result, the motion for new trial filed by appellant on December 9, 1977, is clearly authorized by Rules 329b and 324 of the Texas Rules of Civil Procedure. A motion to set aside an interlocutory judgment is not necessarily inappropriate and does not deprive the appellant of filing a motion for new trial after the judgment becomes final. We hold that appellant has timely perfected its appeal because the time for perfecting began to run from the overruling of the amended motion for new trial on January 9, 1978.

Appellant contends that the trial court abused its discretion in failing to grant appellant’s motion for new trial. We agree.

The rule applicable to motions for new trial which seek to set aside a default judgment entered on failure of a defendant to file an answer is stated in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939) as follows:

A default judgment should be set aside and a new trial ordered in any case in which the failure of defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.

133 S.W.2d at 126. This rule was reaffirmed by the Supreme Court in Ivy v. Carre11, 407 S.W.2d 212 (Tex.1966).

On December 8,1977„evidence was heard by the trial court on defendant’s motion to set aside the default judgment. At this hearing, it was stipulated by appellee that appellant’s failure to file an answer was not intentional or the result of conscious indifference but was due to an accident or a mistake. Therefore, under Craddock and Ivy, appellant should have been granted a new trial if he set up a meritorious defense at the December 8 hearing. The court in Ivy stated,

The rule of Craddock does not require proof of a meritorious defense in the accepted sense to entitle one to a new trial after default; the motion should be granted if it ‘sets up a meritorious defense.’ . . . The only relief which a defaulting defendant may secure by filing a motion for new trial is a setting aside of the default judgment. The case then pends on the trial court’s docket for trial on its merits.

Ivy v. Carrell, 407 S.W.2d at 214.

Article 17.50(a) of the Deceptive Trade Practices Act requires that in order for appellee to maintain an action he must be “adversely affected” by “the use or employment . . . of an act or practice declared to be unlawful by Section 17.46.” Tex.Bus. & Com.Code Ann. § 17.50(a) (Vernon Supp.1978). Appellant’s motion states that the appellee has suffered no damages because this automobile with either a Chevrolet engine or an Oldsmobile engine has the same reasonable market value. This allegation is supported by the affidavit of Mr. Joseph Lee Martin, new and used car sales manager for appellant, and also by evidence received at the hearing on December 8.

Tested by the rules in Ivy and Craddock, we hold that the appellant discharged his burden of showing a meritorious defense and that the trial judge abused his discretion in overruling the motion for new trial.

The judgment of the trial court is reversed and remanded.


author: McDONALD, Chief Justice.

text:
    Edith A. SALLEE, Appellant, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee.
    No. 5882.
    Court of Civil Appeals of Texas, Waco.
    Nov. 9, 1978.
    Michael A. Robertson, Thorne, Thorne & Robertson, Inc., Grand Prairie, for appellant.
    Winston L. Borum, Gordon H. Rowe, Jr., Gardere, Porter & DeHay, Dallas, for appel-lee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Sallee from a take-nothing judgment in a workmen’s compensation case.

Edith Sallee was an employee of K-Mart and Texas Employers was the insurance carrier. Mrs. Sallee alleged that on April 10, 1976 while she was carrying a full pail of water to water plants in the garden section of the store she was injured in her lower back; that she worked for approximately 30 minutes after the injury and then left the store for the day; that when she reached home the pain increased and she went to Dr. Segovia on April 12, 1976, who diagnosed her condition as “aggravation of acute back problem”; that Dr. Segovia prescribed bed rest at home and then admitted her to the hospital on April 20, where she remained until May 3; her diagnosis at that time was acute lumbo sacral strain; that she suffered severe back pain from April 10 to May 3, which prevented her from doing any work; that she still suffers from disabling pain but has found employment; that if any previous injury or condition was in any way involved in causing her incapacity and disability, that such injury or condition was aggravated and made worse by the injury of April 10, 1976, which injury is a producing cause of her incapacity.

Trial was to a jury which answered Issue 1 as follows:

“Issue 1. Did plaintiff Edith A. Sallee receive an injury on or about April 10,1976?
“Answer: No”.

The trial court instructed the that “injury means damage or harm to the physical structure of the body * * * or the incitement acceleration or aggravation of any disease, infirmity or condition, previously or subsequently existing, by reason of such damage or harm.”

Other issues submitted were conditioned on an affirmative answer to Issue 1 and were not answered. The trial court rendered judgment on the verdict that plaintiff take nothing.

Plaintiff appeals on 2 points contending:
The answer of the jury to Issue 1 is against the great weight and preponderance of the evidence so as to be manifestly unjust.

We must weigh all the evidence in the case in determining this contention. In re King’s Estate, Tex., 244 S.W.2d 660.

Plaintiff testified that on the evening of Saturday April 10,1976, she was instructed by her supervisor at K-Mart to water the plants in the patio department; she was told to use a plastic pail about 18 inches high which she had to carry half way across the store; she held the pail with both hands in front of her about waist high because it did not have a handle; while carrying the water plaintiff felt a terrific pull in her lower back and could hardly straighten up; it was a very bad burning sensation; the store closed shortly and plaintiff went home and went to bed; she called her doctor, Dr. Segovia, who told her to come in Monday morning; Dr. Segovia had treated her for a back injury she received in May 1975; Dr. Segovia prescribed pain pills, told her not to do anything, and put her in the hospital the following Thursday; where she was put in traction, given therapy and sedated heavily for over two weeks; after her release from the hospital she continued to see Dr. Segovia; he later released her to try to find work; that prior to her April 10, 1976, injury she suffered a vertebra fracture, was treated by Dr. Segovia but was finally released without restriction to seek work; she had no limitation on her ability to work when released by Dr. Segovia prior to going to work at K-Mart; today she can barely get through the day, can’t lift and is limited in what she can do; has a lot of pain in her back; she now works at a Senior Citizens Home; where she does no lifting or stooping; she is getting better, but hurts much of the time; she hurt her back the first time on May 1, 1975, while working as a nurses’ aide at a nursing home while lifting a man from his chair; after this injury she went to the hospital; where she was treated by Dr. Segovia; Dr. Segovia released her around the first of January before she went to work at K-Mart in April; January 1976 was the last time she had seen Dr. Segovia until after her injury at K-Mart; her back hurt between January and April 1976, but not like it did after she was hurt at K-Mart; between January and April 1976 she was not treated by any doctors; when she got the job at K-Mart she did not tell them she had a back problem or had an injury the year before; the doctor had released her to go back to work and there was no need in bringing it up; she had worked at K-Mart a week when she was injured; she hurt her back in the same place it had been hurt before; she had no pain for about 3 months before her injury at K-Mart; the injury occurred about 9:30; she got off work at 10:00; she told no one at K-Mart about having injured her back that night, but reported her injury to K-Mart the following Monday.

Carl Sallee, plaintiff’s husband, testified plaintiff prior to her injury at K-Mart had some pain, but was beginning to get back to a normal routine; that when she came home the night of April 10 she was crying and hurting; that he called the doctor and got her in to see him Monday; that she was hospitalized on Thursday and she stayed two weeks.

Mrs. O’Neal, personnel officer at K-Mart, testified plaintiff’s application for employment listed no handicaps or health problems; that the first time she heard plaintiff had an accident was some two weeks after April 10th.

Mrs. Rowan, apartment manager where plaintiff lives testified she came by plaintiff’s apartment after she got home on April 10th and found her crying; observed a knot on her back; that she was laying down; and was really sick.

Mrs. Kaplan, supervisor at the Nursing Home plaintiff works at now, testified she employed plaintiff as a nurses’ aide; that plaintiff had not said anything to her about any kind of back problem or any kind of disability from doing work; that her work is on the heavy side; that plaintiff has not complained to her of any physical problem; that she is an excellent employee; that she first learned of plaintiff’s back problem when she said she had to be off to go to court in the instant case; that plaintiff lifts patients, containers of bath water; that her job is physically demanding.

Ms. Dunn, Administrator of the Nursing Home where plaintiff is presently employed, testified plaintiff’s application for employment lists no back problems or other ailments; that the application form specifically asks about back problems to which plaintiff answered “None”; that plaintiff was an excellent employee.

Dr. Segovia testified he was a physician, MD, orthopedic surgeon; that he saw plaintiff in May 1975 and diagnosed a compression fracture of the first lumbar; that thereafter he released her to go to work; that he saw her on April 12, 1976; and diagnosed “aggravation of acute back problems; hospitalized her for two weeks; that her charges were $1267; that she was hospitalized for the May 1975 illness; that he saw her in follow-up exams on May 22, June 27, July 18, August 7, August 26 and September 25, of 1975; that she continued to complain of pain in her back”, that she was readmitted to the hospital on September 27,1975 for further treatment; that he examined her on November 13, and December 4,1975, and on January 8, and 20, 1976, and that she continued to complain of back pain; that he explained to her she would have to live with some soreness in her back from her May 1975 injury; that on April 1, 1976 she visited his office in connection with her prior back injury and complained of pain and some burning in her lower back; that he prescribed medication on April 1, 1976, and made an appointment for her to return for treatment on April 15, 1976; that from May 1975 to April 1, 1976 plaintiff failed to respond to treatment as well as he would expect; that her permanent disability from the May 1975 back fracture was 5%; that he saw plaintiff on April 12, 1976; that she was ambulatory; that he noted she had reaggravated her back problem at K-Mart the day prior, that such notation was based on what plaintiff told him and on his examination; that plaintiff told him on April 12,1976 she had low back pain; that he X-rayed her back; that the new X-rays did not reveal a new fracture or dislocation; that upon her hospitalization thereafter “had no objective findings” and her only subjective complaint was low back pain; that he had seen plaintiff on June 17, and July 8, 1976 and that he prescribed no medication and that she had normal straight leg raising and normal range of motion in her back; that the aggravation plaintiff reported on April 12, 1976 did not increase her disability over what it was after the May 1975 back injury; that she had a 5% permanent disability after April 12, 1976, and that such 5% disability is solely related to her back fracture of May 1975; that he dismissed plaintiff from treatment on July 8,1976; that in his April 12, 1976 examination of plaintiff he made no objective findings.

The evidence here is conflicting and the jury could well and properly have answered Issue 1 in the affirmative, but they did not.

Plaintiff denied seeing the doctor for some 3 months prior to April 10,1976, when in fact she had seen him several times including on April 1, and had an appointment to see him on April 15, 1976. There is evidence she was having back pain during this entire period. There were no witnesses to her injury, and she did not report it until the following Monday morning. She failed to note back problems on her applications for employment at K-Mart and elsewhere.

In such state of the record we cannot say the jury’s answer to Issue 1 was so contrary to the great weight of the evidence as to be manifestly unjust. In re King’s Estate, supra; Mayfield v. Employers Reinsurance Corp., (Tex.Civ.App. Tyler) NRE, 539 S.W.2d 398; Reed v. Aetna Casualty & Surety Co., (Tex.Civ.App. Beaumont) NRE, 535 S.W.2d 377.

Plaintiff’s points and contentions are overruled.

AFFIRMED.


author: JAMES, Justice.

text:
    FORD MOTOR COMPANY, Appellant, v. Eva STEAD et al., Appellees.
    No. 5926.
    Court of Civil Appeals of Texas, Waco.
    Nov. 9, 1978.

      Noley R. Bice, Jr., Haley, Fulbright, Win-niford, Bice & Davis, Waco, Maurice Walton, Walton & Walton, Granbury, for appellant.
    W. V. Dunnam, Jr., Dunnam, Dunnam & Dunnam, Waco, for appellees.
   OPINION

JAMES, Justice.

This is a venue case. Plaintiff-Appellees Eva Stead, James Stead, William Stead and Sally Perkins et vir. A. C. Perkins, being the heirs at law of Burdett Edward Stead, deceased, joined by the Temporary Administrator of the Estate of said deceased, brought this suit against Defendant-Appellant Ford Motor Company, a foreign corporation with a permit to do business in Texas, which cause was in the nature of a products liability suit coupled with allegations of negligence on Defendant-Appellant’s part. Specifically, Plaintiff-Appel-lees alleged that Defendant-Appellant Ford Motor Company manufactured a van which had been operated by the deceased, Burdett Edward Stead, in such a manner that carbon monoxide was permitted to enter into the interior of the van; and as a result of this defect the deceased suffered carbon monoxide poisoning which resulted in his death.

Defendant-Appellant filed its plea of privilege to be sued in Dallas County, Texas, the county of its legal residence in Texas; whereupon Plaintiff-Appellees controverted said plea of privilege under Sections 23 (private corporations) and 27 (foreign corporations) of Article 1995, Vernon's Texas Civil Statutes. The trial court after two hearings overruled Defendant-Appellant’s plea of privilege, from which order it appeals upon five points of error which may be summarized as follows: (1) the trial court erred in permitting Eva Stead, the widow of deceased, to testify concerning the physical condition of the deceased prior to his death, and as to her observations of the deceased, upon the ground that such testimony was in violation of Article 3716, Vernon’s Texas Civil Statutes, commonly called the Dead-Man Statute; (2) there was no evidence, and insufficient evidence to establish an exception to exclusive venue under Section 23, Article 1995; and (3) there was no evidence and insufficient evidence to establish an exception to exclusive venue under Section 27, Article 1995.

Section 23, Article 1995 in its pertinent parts provides:

“Suits against a private corporation . may be brought in the county in which . the cause of action or part thereof arose;

Section 27, Article 1995 in its pertinent parts provides:

“Foreign corporations, private or public, . not incorporated by the laws of this State, and doing business in this State, may be sued in any county where the cause of action or a part thereof accrued, . . .”

Prior to his death on March 3, 1969, the deceased had been employed by Retirement, Inc., the company which operated Francis Hospital in Waco, Texas. Said deceased’s employment included the driving and use of the delivery van in question. Deceased’s employer purchased the Ford van (which was manufactured by Defendant) for deceased’s use in August, 1968, whereupon deceased began driving and operating said van that same month. Mrs. Eva Stead, deceased’s widow, testified that shortly after deceased started operating the van he began to act “kind of dopey and kind of drowsy”; that he complained to her that his stomach bothered him and that he had headaches and dizzy spells. She said he never exhibited any of these symptoms or made any of these complaints prior to the time he started driving the van.

On September 23,1968, the deceased was placed in the hospital in Waco by Dr. Richard Fadal, M.D. About a week before he was admitted to the hospital, deceased had travelled from Waco to Longview, Texas, in the van. The widow testified that when deceased returned from this trip, he was “dizzy, sick, nauseated, his stomach was hurting him and he would be vomiting, and that he had diarrhea.” It was because of these symptoms that he was admitted to the hospital. At stated, he died March 3, 1969. The deceased’s daughter, Sally Perkins, having offered into evidence a written disclaimer of any interest and right to recover against Ford Motor Company for the death or injury to her father, testified substantially the same as her mother concerning the deceased’s complaints and condition prior to the death. The testimony of Mrs. Perkins was therefore competent and did not violate the Dead-Man Statute.

G. O. Urbantke, a man who had spent some forty years in the automotive service business, testified that his examination of the van in the early part of 1969 revealed that the exhaust pipe on the van was positioned in such a manner that the exhaust which was emitted struck the inside portion of the bumper, so that the exhaust fumes were deflected back toward the rear doors of the van; that a crack at the back of the van permitted the exhaust fumes to be thrust inside of the van; that this defect was one which was built into the van at the time it was manufactured; that the van could not be operated without carbon monoxide fumes going from said exhaust into the van; that if the exhaust had been constructed properly, the fumes would have passed under the rear bumper instead of into the rear bumper and thence into the interior of the van.

We revert to Appellant’s first point, to wit, that the trial court erred in permitting the deceased’s widow, Mrs. Eva Stead, to testify as to the physical condition of the deceased prior to his death, and as to her observations of the deceased on the ground that such testimony violated Article 3716, the Dead-Man Statute. Assuming without deciding that the widow’s testimony violated the Dead-Man Statute, such error if any was harmless under Rule 434, Texas Rules of Civil Procedure, because said widow’s testimony was merely cumulative of and substantially the same testimony given by Mrs. Sally Perkins, deceased’s daughter, whose testimony did not violate the Dead-Man Statute. Mrs. Perkins, having made a written disclaimer of any interest in the claim against Ford Motor Company growing out of the injuries to and death of her father, was competent to testify.

To come within the statutory prohibition of the Dead-Man Statute a witness must have or claim some actual interest in the subject matter of the suit pertaining to the estate of the deceased which may be affected by the judgment rendered. Disclaimer and divestiture of that interest ordinarily destroys the disqualification of the witness as a “party” under Article 3716; and it is immaterial that the primary purpose of the disclaimer was to remove that disability. Ragsdale v. Ragsdale (Tex.1944) 142 Tex. 476, 179 S.W.2d 291; Monger v. Monger (Waco CA 1965 Tex.Civ.) 390 S.W.2d 815, NRE. Appellant’s first point of error is overruled.

Appellant’s remaining points of error center around this argument: that Plaintiff-Appellees have failed to prove all of the elements of their cause of action insofar as their wrongful death claim is concerned in that they have failed to prove the cause of the deceased’s death. We sustain this contention.

There were two hearings before the trial court on the venue question, the first being held on May 3, 1973, and the second over four years later, to wit, on August 12, 1977. At the first hearing Mrs. Eva Stead (the widow) and G. 0. Urbantke testified. At the conclusion of the first hearing, Plaintiff’s counsel rested “subject to Dr. Padal’s testimony being completed by deposition”; whereupon Defendant’s attorney told the court that after “we find out what Dr. Fadal is going to say, we may have some evidence, but that’s the agreement of the parties we have at this time.” At this point, the court said, “All right, then we will adjourn this hearing at this time, until we receive the deposition of Dr. Fadal, and possibly other witnesses, called by the Defendant.”

Dr. Fadal’s deposition was completed on June 25, 1973, a little over a month after the first hearing, and was filed in the District Clerk’s office on July 5, 1973; however, neither at the second hearing nor at any other time was it ever offered into evidence or made a part of the statement of facts.

Dr. Fadal’s testimony showed that in his opinion from treating the deceased, the cause of death was toxic hepatitis of the liver brought about by the deceased’s “inhalation of combustion products of gasoline, hydro-carbon exposure.” Without Dr. Fa-dal’s testimony, the Plaintiffs failed to prove the cause of death.

The venue facts under Subdivisions 23 and 27 as applicable to the case at bar are: (1) that Defendant is a corporation; (2) that Plaintiffs have a cause of action against the Defendant; (3) that such cause of action or a part thereof arose in McLennan County. See Van Waters and Rogers, Inc. v. Kilstrom (Waco CA 1970 Tex.Civ.) 456 S.W.2d 570, no writ, involving Subdivisions 23 and 27; also see Stone Fort National Bank of Nacogdoches v. Forbess (1936) 126 Tex. 568, 91 S.W.2d 674, (Subdivision 23); Socony Mobil Co., Inc. v. Southwestern Bell Telephone Co. (Corpus Christi CA 1974 Tex.Civ.) 518 S.W.2d 257, syls. 23 and 24, no writ (Subdivision 23).

The elements of a cause of action for products liability has been stated by our Supreme Court in the following language:

“A manufacturer who places in commerce a product rendered dangerous to life or limb by reason of some defect is strictly liable in tort to one who sustains injury because of the defective condition.” Darryl v. Ford Motor Co. (Tex.1969) 440 S.W.2d 630, 633. Also see McKisson v. Sales Affiliates, Inc. (Tex.1967) 416 S.W.2d 787.

As stated, without Dr. Fadal’s deposition being included in the statement of facts, there is no competent evidence in the record to show deceased’s cause of death. Having found error in the trial court’s judgment we reverse and remand the cause in the interest of justice so that the record may be fully developed. Buchanan v. Jean (1943) 141 Tex. 401, 172 S.W.2d 688; Morrow v. Shotwell (Tex.1972) 477 S.W.2d 538; Kandy, Inc. v. Presslor (Waco CA 1977 Tex.Civ.) 556 S.W.2d 99, NRE. Indeed, where the record is manifestly not fully developed, it is our duty to reverse and remand. Jackson v. Hall (1948) 147 Tex. 245, 214 S.W.2d 458.

REVERSED AND REMANDED.


author: SPURLOCK, Justice.

text:
    Thomas Minton MABEN, Appellant, v. Judy E. MABEN, Appellee.
    No. 18020.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 9, 1978.

      Robert A. Sewell, Fort Worth, for appellant.
    Herrick & Waltrip and Bill Waltrip, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

This is a divorce action. The husband claims the trial court abused its discretion in awarding the wife their residence and in ordering him to pay an allegedly excessive amount of child support.

We find no abuse of discretion and affirm.

The case is before us on an agreed statement of facts. Thomas and Judy Maben were married in 1962 and have a daughter, Carolyn, who was 15 when the divorce was granted. She is now 16. Maben’s salary is in excess of $30,000.00 per year. Mrs. Ma-ben is a homemaker. She has a separate property interest, worth about $22,000.00, in a business entity. This interest has produced income in excess of $4,125.00 per year since 1969. Community funds in excess of $11,000.00 have been used to pay taxes on this income since 1969. Maben is employed by a family business owned by himself, his father and his brother. He has five shares of the family business as his separate property. His shares are worth about $500.00 and produce no income.

The community estate consists mainly of the parties’ home and its furnishings. The value of the home is between $70,000.00 and $80,000.00. The value of the furnishings is in excess of $20,000.00. Mrs. Maben used $14,000.00 of her separate funds for a down payment on the home. About $34,000.00 of community funds have been used in making mortgage payments which include taxes, insurance, interest and principal. The record is silent as to the amount of the monthly payment which has been applied to the reduction of the amount of principal owed.

The trial court granted Mrs. Maben’s petition for divorce and appointed her managing conservator of Carolyn. In dividing the property, the court awarded Mrs. Maben her separate property, the residence, most of its furnishings, an automobile, and her personal effects. Maben received his shares of his family’s business, the remainder of the furnishings, and his personal effects. Maben was also awarded a promissory note in the sum of $10,000.00 secured by a deed of trust lien on the home. This lien was a second lien to a deed of trust in the sum of $28,000.00, representing a portion of the purchase price of the home. The $10,000.00 note is due in 1982. Maben was ordered to pay $600.00 per month child support until Carolyn is 18 years of age, or until further court order.

Maben appeals only from the property division and order for child support. The trial court made, in part, the following findings of fact and conclusions of law.

FINDINGS OF FACT
“5. That there is a great disparity of earning capacity between petitioner and respondent; that is, Petitioner has little, if any, earning capacity and Respondent has the capacity to earn in excess of $30,000 annually.
“6. That in excess of $14,000 worth of Petitioner’s separate property went into the purchase price of the home, lot and furnishings of the home occupied by the parties at the time of this divorce.
“7. That Respondent is part owner of . . . a family business owned primarily by his father, along with Respondent and his brother and that such position is secure for the future and (sic) a going business.
“8. That the division of property and the adjustments of various community obligations as pronounced by this Court in its judgment is fair, just and equitable.
CONCLUSIONS OF LAW
“3. That the division of property and the adjustments of equities and obligations as contained in this Court's judgment is fair, just and equitable.”

The parties agree the law governing this case is well settled. They recognize a trial court has wide discretion in dividing property and awarding support, and a clear abuse of discretion must be shown for a reviewing court to reverse the trial court’s judgment. Further, the judgment of the trial court is presumed to be just and right.

By his first two points of error Maben claims the trial court abused its discretion in the manner in which it divided the property.

The basis for his complaint is that the property awarded to Mrs. Maben has a net worth between $53,000.00 and $68,000.00 after deducting the liabilities thereon, including the $10,000.00 promissory note to Ma-ben and the $28,000.00 first mortgage lien. The property awarded to Maben after deducting the liabilities he was ordered to pay is worth $4,500.00. He claims this disparity in value is unjust, especially in view of the fact that this was a no fault divorce. We do not agree.

Maben realizes the trial court does not have to divide the property equally even though no fault was shown. There is the finding of fact that a wide disparity of earning capacity exists between the parties. Although there is evidence in the record that Mrs. Maben has significant earnings from her interest in a business, Maben does not challenge the finding of disparity of earning capacity by proper point of error. It is well settled that where a finding of fact is unchallenged, a reviewing court is bound by the fact as found. Kroger Company v. Warren, 420 S.W.2d 218 (Tex.Civ. App.—Houston [1st Dist.] 1967, no writ).

Since Mrs. Maben has little, if any, earning capacity, the trial court was within its discretion to award the residence and most of its furnishings to her so she and Carolyn would have a place in which to live. Ordering the sale of a residence is never favored, especially when there is disparity of earning capacity and children in- j volved. We do not consider it inequitable j for Maben to receive a promissory note for ' $10,000.00 secured by a second lien on the ; residence as his share of the equity therein. ' Therefore, his first two points of error are overruled.

Next, Maben complains of the failure of the court to reimburse him for community funds allegedly expended to maintain Mrs. Maben’s separate business interest. Maben claims community funds were used to pay income taxes on earnings from her separate property. Earnings from Mrs. Maben’s business interest are community property, the same as Maben’s salary. She was not employed but had earnings from a separate business. His earnings were greatly in excess of hers because his salary is in excess of $30,000.00. His real complaint is that he had to take part of his salary and pay income tax on the earnings from her separate property, although the community funds were used by both of them. He contends that by his paying the income tax out of his salary, his earnings have enhanced the value of her separate property. There is no finding of fact or conclusion of law which indicates the court failed to consider that community funds were expended to pay taxes on the wife’s separate property in making its property division or that Maben as a matter of law was not entitled to any reimbursement. Therefore, no abuse of discretion has been shown. Maben’s third point of error is overruled.

Maben’s final complaint is that the amount of child support ordered is excessive. He asserts because no particularized need of Carolyn was shown which required $600.00 per month, the trial court abused its discretion is ordering this amount. We find no abuse.

It is well settled that the factors to be considered in determining the proper amount for child support are: the needs and best interest of the child, the parties’ previous standard of living, and the financial capabilities of the spouse ordered to pay the support. Financial capability is to be considered in light of all other liabilities the spouse has and without regard to the financial condition of the other spouse.

While a reasonable person could conclude that $600.00 per month for one child is high, we cannot hold that a clear abuse of discretion has been shown. A case decided under similar facts is Goren v. Goren, 531 S.W.2d 897 (Tex.Civ.App.—Houston [1st Dist.] writ dism’d). There a support award of $500.00 per month for a 2½ year old boy was held not be an abuse of discretion where the spouse paying the support earned $32,000.00 per year. Here Carolyn is now 16 and can be expected to require more support than a much younger child. The record as a whole, including the judgment and oral argument on submission, shows Carolyn is attending a private school and that tuition is being paid. We take judicial notice of the costs of clothing, lunches, transportation and housing for a child of Carolyn’s age and previous standard of living. It is also noted that child support payments will continue for less than two years. Therefore, Maben’s fourth point of error is overruled.

All points of error asserted in complaint of the trial court’s judgment in this cause have been severally considered and each is overruled. The judgment of the trial court is affirmed.


author: NYE, Chief Justice.

text:
    Tereso ROCHA, Appellant, v. Policarpio CAMPOS, Appellee.
    No. 1345.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 9, 1978.

      David Hashmall, Hereford, for appellant.
    A. C. Garcia, Pharr, for appellee.
   OPINION

NYE, Chief Justice.

This case involves a dispute over a strip of land between adjacent landowners. It was pled and tried in the court below as an action in the nature of a trespass to try title suit. Defendant answered with a not guilty plea and specifically pled the 10-year statute of limitations. Trial was to the court without the intervention of a jury. Judgment was entered in favor of the plaintiff granting title to and possession of the strip of land in question. The defendant appeals from this adverse judgment.

Plaintiff Policarpio Campos sued Tereso Rocha seeking to recover a strip of land located on the west side of his property which was in the possession of the defendant. Plaintiff’s original petition alleged, in essence, that: 1) plaintiff is the owner in fee simple of Lots 25,26, 27 and 28 of Block 6, Colonial Plaza Subdivision in Donna, Hi-dalgo County, Texas; 2) that defendant is the sole owner of the tract of land (Lots 23 and 24) west of and adjacent to plaintiff’s land; 3) that a dispute concerning the true location of the boundary line existed between plaintiff and defendant; 4) that plaintiff believed the correct boundary line to be as specified by a survey attached to the petition; and 5) that the land in dispute is out of plaintiff’s possession and had been in the possession of the defendant since February 3,1944. In accordance with these allegations, plaintiff prayed for the delivery of possession of the strip of land and for determination by the trial court of the true location of the boundary line.

The evidence shows that Lot 24 (defendant’s lot) and Lot 25 (claimed by plaintiff) share a common previously recognized boundary marked by a hurricane fence. The evidence showed that the plaintiff’s father erected the fence sometime prior to 1943. The disputed property concerns a diagonal strip of land west of the fence ranging from six feet in width on the south to 7.4 feet in width between on the north. The defendant is in possession of this particular strip of land. Plaintiff testified that his father gave him a deed to Lots 25 through 28 in 1969. In 1973, plaintiff asked one Tom Stovall to survey the property. The survey indicated that the fence did not form the true boundary line between plaintiff and defendant’s lots.

Findings of fact and conclusions of law were neither requested nor filed. The defendant did bring forward a statement of facts. Therefore, it must be presumed, if possible, that the trial judge found facts necessary to sustain the judgment, provided such facts were raised by the pleadings and have support in the evidence. Bishop v. Bishop, 359 S.W.2d 869 (Tex.Sup.1962); Texas Const. Associates, Inc. v. Balli, 558 S.W.2d 513 (Tex.Civ.App.—Corpus Christi 1977, no writ); Oxford Development Co. v. Eppes, 422 S.W.2d 583 (Tex.Civ.App.—Corpus Christi 1967, no writ). In considering the sufficiency of the evidence in support of the presumed findings, we must construe the evidence in the light most favorable to the judgment and disregard all evidence and inferences to the contrary. Texas Const. Associates, Inc. v. Balli, 558 S.W.2d 513 (Tex.Civ.App. — Corpus Christi 1977, no writ).

The plaintiff did not file a brief nor did he appear for oral argument. Rule 419, Texas Rules of Civil Procedure, vests this Court with considerable discretion in accepting unchallenged statements made by the appellant as to the facts and the record. See Pyronauts, Inc. v. Associated Fire Extinguisher Co., 549 S.W.2d 460 (Tex.Civ.App.—Fort Worth 1977, no writ); In Re Salinas, 530 S.W.2d 633 (Tex.Civ.App.—Corpus Christi 1975, no writ); Greene v. Anders, 473 S.W.2d 622 (Tex.Civ.App.— Waco 1971, writ ref’d n. r. e.); Whatley v. Whatley, 493 S.W.2d 299 (Tex.Civ.App.—Dallas 1973, no writ). Here, the defendant brings forward points of error concerning the legal and factual sufficiency of the evidence as well as questions of law.

In point of error five, the defendant contends that the trial court erred in awarding judgment for plaintiff because the record is devoid of any evidence that plaintiff has title to the disputed property. Our threshold problem under this point of error is to determine the scope of plaintiff’s burden of proof.

Although plaintiff’s pleadings were general, the allegations of the petition follow the form and the manner required by the Texas Rules of Civil Procedure in stating a cause of action for trespass to try title. See Rule 783, Texas Rules of Civil Procedure. In general, the action of trespass to try title suit is in its nature a suit to recover the possession of land unlawfully withheld from the owner and to which he has the right of immediate possession. Hays v. Texas & Pac. Ry. Co., 62 Tex. 397 (1884); 2 Tex.Jur.2d, Trespass to Try Title, §§ 2, 6 (1964). In trespass to try title cases, the plaintiff must recover upon the strength of his own title and not the weakness of the defendant’s title. Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226 (1961); Kauffman v. Shellworth, 64 Tex. 179 (1885).

The action of trespass to try title embraces all character of litigation that affects the title to real estate. Disputes as to boundaries may also be determined in trespass to try title suits. See: Stanolind Oil & Gas Co. v. State, 136 Tex. 5, 133 S.W.2d 767, 770 (1939) and authorities cited therein. There is a distinction between trespass to try title cases and suits in the nature of trespass to try title in which the only issue in dispute is that of a proper boundary. In the latter case, it is unnecessary for the plaintiff to prove his superior title in the same manner as he would be required to do in ordinary actions of trespass to try title, (i. e., a superior title or title from the sovereignty of the soil or from a common source). Brown v. Eubank, 378 S.W.2d 707, 711 (Tex.Civ.App.—Tyler 1964, writ ref’d n. r. e.); Lee v. Grupe, 223 S.W.2d 548 (Tex.Civ.App.—Texarkana 1949, no writ); Harris v. Kiber, 178 S.W. 673 (Tex.Civ.App.—Galveston 1915, dism’d w. o. j.); Wardlow v. Harmon, 45 S.W. 828 (Tex.Civ.App.1898, no writ).

The only evidence plaintiff offered to prove that he was the fee owner of the disputed land was his own testimony that the land had been given to him by his father. The plaintiff identified a deed which he testified his father had delivered to him. However, the deed was not entered or read into evidence. An interest in real property, as a general rule, can only be established by a valid written instrument and not by parol evidence. City of Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 712, 717 (1956); F L R Corp. v. Blodgett, 541 S.W.2d 209, 213 (Tex.Civ.App.—El Paso 1976, writ ref’d n. r. e.); Southwest Bank & Trust Co. v. Executive Sportsman Assoc., 477 S.W.2d 920, 924 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.); Southern Pine Lumber Co. v. Hart, 329 S.W.2d 511, 515 (Tex.Civ.App.—Fort Worth 1959), reversed on other grounds, 161 Tex. 357, 340 S.W.2d 775 (1960). A person who does not have ownership rights cannot prevail in a boundary line dispute with the true owner of the adjoining property. Farrow v. Sims, 311 S.W.2d 473, 478 (Tex.Civ.App.—Dallas 1957, writ ref’d n. r. e.); Rubiolo v. Lytle, 370 S.W.2d 202 (Tex.Civ.App.—San Antonio 1963, writ ref’d n. r. e.); Cf. Kishi v. Humble Oil & Refining Co., 298 F. 218 (5th Cir.1924), cert. dism’d, 268 U.S. 708, 45 S.Ct. 514, 69 L.Ed. 1169 (1925). In such a case, a trespass to try title action must be brought by one who claims a present legal right to possession of the disputed land together with such title in him as would render the possession by the defendant unlawful. See: City of Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 712 (1956); Hays v. Texas & Pac. Ry. Co., 62 Tex. 397 (1884); Hooper v. Hall, 30 Tex. 154 (1867); Birmingham v. Griffin, 42 Tex. 147 (1875). The plaintiff in this instance failed to introduce any competent evidence of his interest in the land he claimed to support the trial court’s judgment awarding him title and possession to the land in question.

This brings us to defendant’s contentions that the trial court erred in entering judgment in favor of the plaintiff because defendant established his title to the disputed strip of land in question through adverse possession and that there was no evidence to the contrary. We agree.

In response to plaintiff’s suit, defendant Rocha specially pled title based on the ten year statute of limitations. Tex. Rev.Civ.Stat.Ann. art 5510 (1958). Rocha had the burden to prove the statutory requirements by a preponderance of the evidence in order to prevail on his adverse possession claim. Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781, 787 (1954); Holstein v. Adams, 72 Tex. 485, 10 S.W. 560 (1889); Champion Paper & Fibre Company v. Wooding, 321 S.W.2d 127 (Tex.Civ.App.—Waco 1959, writ ref’d n. r. e.). Under the ten year statute, it is incumbent upon a claimant to show affirmatively: 1) possession of the land; 2) cultivation, use, or enjoyment thereof; 3) an adverse or hostile claim; 4) an inclusive dominion over the property and appropriation of it for his own use and benefit; and 5) for the statutory period. Tex.Rev.Civ.Stat.Ann. art. 5510 (1958); see 2 Tex.Jur.2d, Adverse Possession, § 222 p. 367-68 (1959), and authorities cited therein.

Plaintiff Campos admitted in his pleadings that defendant Rocha had been in possession of the disputed strip of land since 1944. The defendant testified that he moved onto Lot 23 in 1943; that he purchased Lot 24 in 1956 and that in 1961 he built his home which was centered on both lots. He further testified that the fence in question was located where it is now at the time he purchased Lot 23 in 1944, and that at the time he purchased Lot 24, his grantor identified stakes which were located on the fence line in question as being the boundary line separating his Lot 24 from plaintiff’s Lot 25. From the time he entered Lot 24, the defendant openly used all of the property up to the fence line by planting trees, flowers and grass and by using a substantial part of the area for a driveway.

The plaintiff testified that he had grown up on the property he claimed (Lots 25-28) and had lived there to the present time except for a short duration when he moved to California in 1954. He admitted on cross-examination that the fence was in its present location at the time he moved to California in 1954. He also testified that when he acquired the property from his father in 1969, he was aware of defendant’s use of the property near the fence.

Article 5515 defines adverse possession as “an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.” “Claim of right” within the meaning of this statute means that the entry of the claimant must be with the intent to claim the land as his own, to hold it for himself and such must continue to be the nature of his possession. Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781, 787 (1954); Houston Oil Co. v. Jones, 109 Tex. 89, 198 S.W. 290 (1917). Claim of right must be manifested by declaration or by open or visible act. If there is no verbal assertion of claim to the land brought to the knowledge of the landowner, the adverse possession must be so open and notorious and manifested by such open or visible act or acts that knowledge on the part of the landowner will be presumed. Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781 (1954).

Here, the defendant entered Lot 24 with the intent to claim the entire lot as his own up to the fence line. This intent continued until the present suit was filed. His intention to own or hold the disputed land for himself was manifested by his open and visible acts which showed such a purpose. In this case, not only was defendant’s possession under the claim of right, visible and notorious, but also plaintiff’s testimony indicates that he was aware of such adverse use of the land in question by the defendant.

The evidence clearly demonstrates that defendant made out a prima facie case of his title to the land in question under the ten year statute. At that point, the burden of persuasion shifted to plaintiff to show that defendant’s holding was in subordination to his claim. Clayton v. Humble Oil & Refining Co., 291 S.W. 597 (Tex.Civ.App.—Beaumont 1927, writ dism’d w. o. j.). This the plaintiff failed to do.

We conclude that the trial court erred in entering judgment awarding title to and possession of the disputed land in question to the plaintiff. Accordingly, the judgment of the trial court is reversed and judgment is here rendered awarding title to and possession of the strip of land in question to defendant Rocha. Such strip is identified by the survey which is a part of the record.

REVERSED AND RENDERED.