text:
    VANGUARD EQUITIES, INC., and Testor, Inc., Appellants, v. W. Harold SELLERS, Trustee, Appellee.
    No. 1438.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1979.

      Stanley A. Durak, Salt Lake City, Utah, for appellants.
    Grant Cook and Michael K. Swan, Reynolds, Allan & Cook, Houston, for appellee.
   OPINION

NYE, Chief Justice.

This is a suit to quiet title. W. Harold Sellers, Trustee, owner of the legal title to a certain 1,252 acre tract of land located in Cameron County, Texas, filed suit against Testor, Inc. (Testor), and Vanguard Equities, Inc. (Vanguard), to remove as a cloud on the title to his property, a certain “Assignment of Trust” executed by Vanguard. This Assignment purported to convey to Testor some equitable interest Vanguard allegedly owned in the property. Vanguard did not file an answer or participate in the trial. Testor defended under a general denial. After a trial to the court the judge entered a default judgment as to Vanguard, cancelled the Assignment, thereby quieting the owner’s title as to Vanguard and Te-stor. Testor and Vanguard appealed.

The record discloses that Vanguard was an Illinois corporation formed for the purpose of acquiring property for speculative purposes. Vanguard was incorporated sometime in 1973, by an attorney named Stanley Durka. Durka, Ward Saylor, and Robert D. McNeil served in varying capacities as the officers of Vanguard. The record shows that Durka and Saylor were the primary shareholders of Vanguard. Testor is a Delaware corporation which was also incorporated by Durka sometime in May of 1976, as a closely held family corporation. Neither McNeil nor Saylor were shareholders of Testor.

The land in question is part of an area located in Cameron County which is commonly called Boca Chica Beach. Record title to the property was held by Harold Sellers as Trustee under a warranty deed dated June 11, 1974. The deed, which was introduced into evidence at the trial, did not disclose the identity of the equitable title holders. The Assignment, which allegedly clouded Mr. Sellers’ title, was introduced into evidence. It purports to have been executed by Saylor and Durka, and their respective capacities of President and Secretary of Vanguard. The Assignment (filed in the Deed Records of Cameron County on January 12, 1977) stated:

“WHEREAS, VANGUARD EQUITIES, INC., an Illinois Corporation, presently owns ONE HUNDRED PERCENT (100%) of all beneficial interests in and to that certain Trust Agreement evidenced by Letters dated August 30, 1974, and July 22, 1975, addressed to Stanley A. Durka, Attorney at Law .
******
NOW, THEREFORE, FOR VALUE RECEIVED, said VANGUARD EQUITIES, INC., an Illinois Corporation, pursuant to appropriate authority of and at the direction of said Corporation’s Board of Directors, DOES HEREBY GRANT, SELL, CONVEY, ASSIGN, TRANSFER and DELIVER to TESTOR, INC., a Delaware Corporation, and its assigns, all of its rights in and to said Trust, including all powers of direction with respect thereto and the beneficial interests therein.

Shortly after the Assignment was recorded, Mr. Sellers filed this suit against Vanguard and Testor, alleging that such assignment was a forgery and as such was a cloud on his record title. Sellers prayed for the cancellation of the Assignment and for general relief. Testor filed an “Abstract of Title” in response to Sellers’ demand under Rule 791, T.R.C.P. Prior to the time evidence was presented in the trial court, the trial judge granted a default judgment against Vanguard for its failure to answer or to appear. The trial judge denied Dur-ka’s oral request (made the day the trial commenced) to participate in the trial as an attorney on behalf of Vanguard. At trial, Durka participated as one of the attorneys for Testor, and as a witness.

According to Durka, Vanguard claimed an equitable interest in the property as a consequence of certain letter agreements between “The Sellers Group” (Sellers) and “The Durka Group” (Vanguard), which allegedly set forth some of the terms of a “joint venture” arrangement between the two groups. Sellers’ position at trial was that the purported joint venture, if any had been contemplated, was never consumated, and that he (Sellers) held the property as Trustee for certain other beneficiaries, pursuant to the terms of another trust.

In support of the judgment cancelling the Assignment and quieting Sellers’ title to the land in question, the trial judge filed the following relevant findings of fact: “The document entitled ‘Assignment of Trust,’ dated August 24, 1975, .

was not executed by the parties who are purported to have executed the same. “That the document entitled ‘Assignment of Trust,’ described hereinabove, was the only document offered in evidence which purported to convey any title or interest, equitable or otherwise, in the subject property to Defendant Testor.”

Before addressing the points of error which are before us on appeal, we shall first consider Sellers’ cross-point, which complains that this Court has no jurisdiction to consider an appeal on behalf of Vanguard because Vanguard failed to timely perfect its appeal. We agree.

In this case, the trial court’s judgment was entered on July 18, 1978. Thereafter, on July 28, 1978, a document entitled, “Motion for Correction of Judgment and in the Alternative Motion for New Trial,” was filed on behalf of Testor. This motion was heard and overruled by the trial court by an order entered on September 1, 1978. The cash deposit in lieu of a bond was filed on October 2, 1978, on behalf of both Testor and Vanguard. The sole “Appellant’s Brief” in this appeal was filed on behalf of both Testor and Vanguard.

Rule 356 of the Texas Rules of Civil Procedure requires that the bond for cost on appeal must be filed with the clerk of the trial court within thirty days after rendition of judgment or order overruling a motion for a new trial, or after a motion for a new trial is overruled by an operation of law. The requirement that the bond or deposit be filed within thirty days is mandatory and jurisdictional, Glidden Co. v. Aetna Casualty and Surety Co., 155 Tex. 591, 291 S.W.2d 315 (1956); Governing Board v. Pannill, 561 S.W.2d 517, 520 (Tex.Civ.App.—Texarkana 1977, n. r. e.); Metal Enterprises, Inc. v. Don Love, Inc., 559 S.W.2d 90, 92 (Tex.Civ.App.—Houston (1st Dist.) 1977, no writ); Roth v. Maryland American General Insurance Co., 454 S.W.2d 779 (Tex.Civ.App.—San Antonio 1970, writ ref’d). Where there are several appellants, appellate jurisdiction is acquired only to those appellants who have timely filed an appeal bond, or who timely amend a defective bond. Woods Exploration and Producing Co. v. Arkla Equipment Co., 528 S.W.2d 568 (Tex.Sup.1975); Governing Board v. Pannill, 561 S.W.2d 517, 520 (Tex.Civ.App.—Texarkana 1977, writ ref’d, n. r. e.); Elliott v. San Benito Bank & Trust Co., 137 S.W.2d 1070, 1071 (Tex.Civ.App.—San Antonio 1940, no writ).

We conclude that the cash deposit, which was timely for Appellant Testor, was tardy as to Vanguard. Since Vanguard did not file a motion for a new trial (as did Testor), it was obligated to file a (cash) bond (or deposit in lieu thereof) within thirty days following the entry of the trial court’s judgment on July 18, 1978. This was not done. Vanguard has not attempted to utilize any other method appropriate in situations where an appeal will not lie to question the validity and scope of the trial court’s default judgment. See e.g., Anglo Mexicana de Seguros, S.A. v. Elizondo, 405 S.W.2d 722 (Tex.Civ.App.—Corpus Christi 1966, n. r. e.). We, therefore, conclude that we do not have jurisdiction to consider an appeal on behalf of Vanguard. That portion of this appeal is dismissed.

Our major problem concerning Tester’s appeal is the “shot-gun” method in which it has attempted to attack the trial court’s judgment. This is well illustrated by its prayer in its brief in which at least twelve separate prayers requesting relief are set out, most of which were never at issue in the trial court. For illustration, the request include relief for: 1) a summary judgment against Harold Sellers; 2) Judgment on the Pleading in Court; 3) censor and other appropriate discipline of the plaintiff as a member of the bar, by reason of his misconduct demonstrated by this record; 4) for “remandment (sic) for either additional evidence on specific particular issues or for a new trial”; and so forth. Appellant also contends that “While the nature of Sellers’ ‘trust’ is the principal issue in the case, the record also presents for review several additional issues of importance which may be summarized as follows . . . . (listing of eighteen separate “corollary issues”). The result is that this brief, by an out-of-state attorney, is presented in an almost incomprehensible manner.

Points of error 7, 10, 11, and 12 contain no authorities and present only general arguments. A point of error that is not briefed fails to meet the minimum requirements of Rule 418, Texas Rules of Civil Procedure, and is considered to be waived by the Appellate Court. Crutcher-Rolfs-Cummings, Inc. v. Ballard, 540 S.W.2d 380, 389 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.) cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977); Inman v. Padrezas, 540 S.W.2d 789, 797 (Tex.Civ.App.—Corpus Christi 1976, no writ); City of Wichita Falls v. Harris, 532 S.W.2d 653, 652 (Tex.Civ.App.—Fort Worth 1975, writ ref’d, n. r. e.). It is not up to the appellate courts to brief points of error for the attorneys. Many of the other points of error are argued in such a general manner that we cannot determine, with any degree of certainty, the nature of the complaints, or the relevancy to this appeal. Even though it has long been the policy of this Court to indulge in a liberal construction of the briefing rules and to give every effect possible thereto, the determination of this appeal is most difficult. See our local rules relevant to “Briefs” in Continental Oil Co. v. Dobie, 552 S.W.2d 183, 187 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d, n. r. e.) and Rules 414, 422, Texas Rules of Civil Procedure.

As we understand Appellant’s point of error number six, Testor is complaining that the “Assignment of Trust” in question cannot constitute a cloud on Sellers’ legal title as a matter of law. Testor is apparently contending that, because the Assignment from Vanguard does not claim to represent a legal interest in the land in question, its claim of beneficial interest “affirms, rather than attacks, such legal title as plaintiff holds himself out as possessing.” This contention is without merit.

A cloud on title has been generally defined as a semblance of title, either legal or equitable, which is, in fact, invalid or would be inequitable to enforce. In other words, a cloud on title is an outstanding claim or encumbrance apparently valid, but is in fact, invalid. This Court has previously defined a cloud on title as follows:

“Any deed, contract, judgment or other instrument not void on its face which purports to convey any interest in or makes any charge upon the land of a true owner, the invalidity of which would require proof, is a cloud upon the legal title of the owner.” (Emphasis added.)

Best Investment Co. v. Parkhill, 429 S.W.2d 531 (Tex.Civ.App.—Corpus Christi 1968, no writ). See also Fidelity Union Fire Ins. Co. v. First National Bank of Crosbyton, 18 S.W.2d 800 (Tex.Civ.App.—Amarillo 1929, no writ); and 47 Tex.Jur.2d § 6, Quieting Title (1963).

Durka, attorney for Testor and Vanguard, testified that he had drafted the Assignment as attorney for Vanguard and that he and Saylor were acting in their respective capacities as Secretary and President of Vanguard; and that they executed the Assignment on behalf of Vanguard in the presence of Durka’s wife, a notary public who thereafter acknowledged the signatures of the parties to the Assignment. Durka testified that at the time the Assignment was executed, the assignee was then undesignated and that he (Durka) later completed the Assignment by filling in the name of Testor after that corporation had been incorporated. Durka stated that he then ultimately filed the Assignment of record. Saylor, on the other hand, testified that he did not recognize the Assignment; and that he could not identify the signature thereon as being his own. He stated unequivocally that he did not believe the signature on the Assignment was his. The trial judge chose to believe Saylor and not Durka.

Assuming that Vanguard was, in fact, an owner of an equitable interest in the land that Mr. Sellers held as trustee, there is direct testimony and documentary evidence in the record from which the trial judge, as the fact finder, could reasonably conclude that the Assignment would require, (pursuant to the bylaws of Vanguard), two valid signatures of designated officers of the corporation as a prerequisite to the Assignment’s validity. There was other evidence in the record that showed that the signature of Ward Saylor, President, was, in fact, a forgery and was not his genuine signature. The trial judge found that the “Assignment of Trust” had not been executed by the parties who purported to have executed it. This Assignment is the only basis upon which Testor claims any beneficial interest in the land in question. Tester’s rights are only as valid as the instrument under which it purports to derive such beneficial interest. Accordingly, the trial court’s judgment cancelling and setting aside the Assignment as a cloud on Sellers’ title entitles the plaintiff to a judgment as such.

The only other point of error attacking such finding states: “The trial court’s findings of fact, upon which its judgment below is based, are either insufficient as a matter of law or contrary to the evidence.” This point of error (number ten) has not been briefed either. Even if it had been briefed and we were to consider such a point of error to include both “legal sufficiency” and “factual sufficiency” assignments, they would be overruled on the merits anyway. For the law, see Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Finally, Testor attempts to complain that the trial court erroneously set aside any claim that Vanguard (the defaulting defendant) may have had in the property in question. First of all, Testor’s claimed beneficial interest in the land failed in the trial court because of the invalidity of the Assignment. As the record stands before us, however, the trial court’s action in setting aside the purported equitable interest of Vanguard in the land in question is immaterial as to Testor. Even if we were to consider Testor’s contention that the trial court erred when it failed to recognize that Vanguard had an equitable interest in the property, which had been created by certain letter agreements evidencing a purported joint venture between Sellers and Vanguard, such Assignment would be overruled as to Testor. The evidence at most on this issue is conflicting. Since no findings of fact or conclusions of law were requested or filed concerning this phase of the case, it is assumed that the trial court found every fact necessary to sustain the judgment if such factual propositions were raised by the pleadings and evidence. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950). See Bishop v. Bishop, 359 S.W.2d 869 (Tex.Sup.1962); City of Corpus Christi v. Gilley, 458 S.W.2d 124 (Tex.Civ.App.—Corpus Christi 1970, n. r. e.).

We have carefully considered each point of error presented, and find no error in the trial court’s judgment which would warrant a reversal. Rule 434, T.R.C.P.

AFFIRMED.


source: Caselaw Access Project

author: BISSETT, Justice. NYE, Chief Judge,

license: Public Domain

text:
    Robert McVEA, Appellant, v. Billy VERKINS et al., Appellees.
    No. 1447.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1979.

      Ralph Brown and Michael W. Bahan, San Antonio, for appellant.
    Gerald M. Birnberg, Michael A. Maness, Houston, for appellees.
   OPINION

BISSETT, Justice.

This is a suit filed by Robert McVea against Billy Verkins and Melvin Powers on January 3, 1978, to recover damages for an alleged conversion of cattle. It was stipulated that the defendants were entitled to an offset of $9,607.93 against any judgment that might be rendered against them for money previously paid by them to a bank for the benefit of McVea and the bank. Following a jury trial, judgment was rendered on October 2, 1978, that the plaintiff McVea recover nothing against the defendants Verkins and Powers. McVea has appealed. The plaintiff-appellant will be referred to by name, and the defendants-ap-pellees will be referred to as “defendants” or by name.

On November 7, 1977, the date of the alleged conversion, McVea, as lessee, was in possession of a 479 acre tract of land under a written lease with Powers, as lessor. The jury, insofar as the disposition of this appeal is concerned, found that on November 7,1977,80 cows, 30 calves and 2 bulls owned by McVea were on the 479 acres; that there was no conversion of the cattle; that the acts of defendants were not malicious; and that the “fair market value” of the cattle on that date was $17,787.59.

McVea contends that a conversion of the said cattle on November 7, 1977, was established as a matter of law. He attacks the finding relating to “fair market value” with a “no evidence” point, a “factually insufficient evidence” point and “an against the great weight and preponderance of the evidence” point. We, therefore, have read the record in its entirety and dispose of this appeal in accordance with the guidelines set out in Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 359 (1960). We first determine whether there was a conversion as a matter of law.

The defendants contend that there was no conversion as a result of Verkins’ acts on November 7, 1977, because: 1) they had a right to possess the cattle pursuant to a valid agister’s lien under Tex.Rev.Civ.Stat. Ann. art. 5502 (1958); 2) their conduct did not exclude the exercise of any rights by McVea with respect to the cattle; 3) they originally came into possession of the cattle with McVea’s consent; 4) they had a right to possess the cattle pursuant to a valid landlord’s lien on the cattle; 5) Verkins’ action on November 7,1977, was justified in order to secure a reasonable time to investigate the rights of the parties; 6) they were reasonably exercising, in good faith, a distinct legal right to protect timber on the leased premises from imminent destruction by McVea; and, 7) McVea did not demand that they surrender possession of the cattle to him. We do not agree.

A written lease, for grazing purposes only, covering a tract of 479 acres of land in Gonzales County, Texas, effective November 1, 1976, was executed by and between Powers, as lessor, and McVea, as lessee. The lease was for a term of 4 years, commencing November 1, 1976, and provided for a rental of $1,920.00 per year, payable annually in advance. The lease contained the following express covenants:

“5. LESSEE’S COVENANTS: Lessee covenants to Lessor as follows:
(a) That he will well and punctually pay rents as herein required and quietly surrender the premises unto Lessor on the day of expiration hereof in as good condition as the same were when received, reasonable wear and tear being excepted.
(b) That he will use said premises for grazing of livestock only and for no other purpose.
(c) That he will not put improvements or cross fences upon the premises without the prior written consent of Lessor.
(d) That on failure to pay the rent in advance, as aforesaid, or to comply with covenant herein made, Lessor may pursue any of the remedies provided by law and Lessor, his agent or attorney shall have the right and power to enter upon and hold, occupy and take possession of the leased premises. In this connection, it is agreed that Lessor shall have a landlord’s lien upon all personal property of Lessor (sic) placed upon such premises to secure Lessee’s performance hereunder.”

McVea went into possession of the 479 acre tract on or about November 1, 1976, and stocked the pasture with cattle. He paid the first year’s rental contemporaneously with the signing of the lease. He did not pay the advance annual rental on November 1, 1977, when it became due.

On October 16, 1977, Verkins, who was Powers’ “property manager,” learned that wood was being cut on the leased premises. He attempted to contact McVea but was unsuccessful. He did, however, reach “someone” at the McVea residence in response to a telephone call which he made on October 18, 1977. He said that he told that person: “Please tell Mr. McVea to stop the timber cutting.”

A day or so before the day of the alleged conversion of the cattle on November 7, 1977, Verkins was notified that a considerable number of trees had been cut on the leased premises. Verkins then left his office in Houston, Texas, and went to the pasture. On arrival, he said that he found several places where large quantities of freshly-cut wood had been stacked. He concluded that McVea was responsible. He said that it was apparent to him that there would be additional woodcutting and more wood removed from the premises unless something was done. He purchased new locks and chains and installed them on all exterior gates to the pasture. Following the changing of the locks, he proceeded to Gonzales, Texas, and filed a criminal complaint against McVea, which charged the latter with felony theft. Later on during the day, he located McVea at a barbeque stand and engaged him in conversation. According to Verkins, he asked McVea why “he was continuing to cut wood on the property.” He said that McVea told him he “was cutting the wood for barbequing.” Verkins then informed McVea that he had filed a criminal complaint against him earlier in the day. Concerning the leased premises, Verkins told the jury: “I told him not to go on the property ... I would be in contact with him within three days or for him to contact me within three days”; and to “please call me and let’s get this resolved; but, I don’t know what to do about it right now without legal counsel.” Concerning the cattle, Verkins testified that he told McVea: “We will notify you about getting your cattle out.” McVea testified that Verkins “told me don’t do anything with the cattle until I had heard from him.”

McVea’s account of the conversation was different. He denied that he ever cut any wood on the leased premises. He testified that Verkins accused him of destroying trees on the property, that Verkins said to him: “Do not go on my premises anymore.” McVea then told the jury: “I offered to pay him his rent. He said: ‘As of this moment, your lease is cancelled and do not go on my premises anymore until I let you know’ . that if I was caught on there, I would be shot.’ ”

At the trial while being cross examined, Verkins denied that McVea offered to pay the past due. rent or that he told McVea that his lease had been terminated. However, the record shows that requests for admissions were served on Verkins on June 2, 1978, and that he made no response thereto. On the opening day of trial (August 14, 1978), the trial judge ordered that the facts inquired about in McVea’s requests for admissions be “deemed admitted as true and correct.” Included in the requests was “admission three,” which requested that Verkins admit or deny that on the date of the alleged conversion “you informed Plaintiff that his lease was terminated.”

Upon returning to Houston, Verkins contacted Powers’ lawyer and told him of the events which occurred on November 7,1977. By letter dated November 9, 1977, which was prepared by Powers’ lawyer, Powers notified McVea that he was in breach of the lease in two respects: 1) by cutting timber on the property which constituted an unlawful taking of property; and 2) by failing to timely pay the annual rental of $1,920.00, which was due on November 1, 1977. The letter also stated:

“You are further notified that the Landlord’s Lien upon all personal property as granted in Section V Lessor’s (sic) Covenants is hereby affected and that formal demand is made upon you for the amount of rent past due; and you are further notified that all right, title and interest you have in and to the premises is hereby terminated because of your breach; and you are further notified that any attempt to enter in and upon the property shall be termed trespassing upon said premises.”

McVea received the letter on November 10, 1977.

The only express covenants to be performed by the lessee (McVea) in the lease contract are those which appear in Section V thereof, heretofore copied verbatim. There is no express covenant which prohibited McVea from cutting timber, although there is such an implied covenant when the contract as a whole is examined. While the lease does not contain an express forfeiture clause, the clear implication of the language in V(d) thereof is that the lease will be forfeited upon the “failure to pay the rent” in advance . . . or to comply with any covenant herein made.” It can be argued that such language limits the right to terminate the lease (a forfeiture) to a breach of express covenants. Be that as it may, there is no provision in the lease which permits the lessor, upon breach of covenant by the lessee, to take possession of the lessee’s personal property on the premises. Cf. Harris v. Panhandle & S. F. Ry. Co., 163 S.W.2d 647 (Tex.Civ.App.—El Paso 1942, writ ref’d w. o. m.)

It was said in Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 447 (Tex.Sup.1971):

“ . . .To constitute a conversion, it is not necessary that there be a manual taking of the property in question. The unauthorized and wrongful assumption and exercise of dominion and control over the personal property of another, to the exclusion of or inconsistent with the owner’s rights, is in law a conversion . . ”

Conversion may be direct or constructive; it is concerned with possession, not title; it is complete where a person unlawfully and wrongfully exercises dominion and control over the property of another to the exclusion or defiance of the right of possession of the owner or of the person entitled to the possession of the property involved. 14 Tex.Jur.2d, Conversion, § 1.

As a general rule, a demand for the return of the property and a refusal to do so are required to establish a conversion by a person who lawfully obtained possession of the involved property. Sunray Enterprises, Inc. v. Rosenaur, 335 S.W.2d 670 (Tex.Civ.App.—DAllas 1960, writ ref’d n. r. e.); Rice v. Lambert, 408 S.W.2d 287 (Tex.Civ.App.—Corpus Christi 1966, no writ); Zerr v. Howell et al., 88 S.W.2d 116 (Tex.Civ.App.—San Antonio 1935, no writ). But, a demand and refusal are not necessary where the possession was acquired wrongfully. Hicks Rubber Co., Distributors v. Stacy, 133 S.W.2d 249 (Tex.Civ.App.—Austin 1939, no writ); Cotten v. Heimbecher, 48 S.W.2d 402 (Tex.Civ.App.—Amarillo 1932, no writ). Further, a demand and refusal are not required after the conversion has become complete, or where it is shown that a demand would have been useless. Neyland v. Brammer, 73 S.W.2d 884 (Tex.Civ.App.—Galveston 1934, writ dism’d).

Although an intent to do an act amounting to a conversion of personal property is necessary in order to constitute a conversion, it is the act of conversion itself that gives a right of action, and not the intention to convert. 89 C.J.S. Trover & Conversion § 7. Wrongful intent to convert another’s property is not an essential element of conversion, nor is it material to any issue involved in a suit for conversion except as to the issue of exemplary damages. Powell v. Forest Oil Corporation, 392 S.W.2d 549 (Tex.Civ.App.—Texarkana 1965, no writ); 14 Tex.Jur.2d, Conversion, § 3.

In a conversion suit, it is no defense that the defendant acted in good faith. Ligon v. E. F. Hutton & Company, 428 S.W.2d 434 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.); Fenley v. Ogletree, 277 S.W.2d 135 (Tex.Civ.App.—Beaumont 1955, writ ref’d n. r. e.); Chrysler Credit Corporation v. Malone, 502 S.W.2d 910 (Tex.Civ.App.— Fort Worth 1973, no writ); White-Sellie’s Jewelry Co. v. Goodyear Tire & Rub. Co., 477 S.W.2d 658 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ).

The provisions in a lease giving the lessor the right to re-enter the premises upon default by the lessee, and those giving the lessor a contractual landlord’s lien upon the personal property of the lessee located on the leased premises, without more, do not authorize the lessor to take possession of the lessee’s personal property subject to the lien. In order to enforce a landlord’s lien and to obtain possession of the property subject thereto, absent consent by the lessee, the landlord must foreclose the lien by judicial proceedings, and in no other way. Schwulst v. Neely, 50 S.W. 608 (Tex.Civ.App., 1899, no writ). When the lease is silent with respect to the taking of possession of personal property subject to the landlord’s lien, if the lessor-landlord, without resorting to legal proceedings to foreclose the landlord’s lien, takes possession of the lessee-tenant’s personal property situated on the leased premises without the consent or permission of the tenant-lessee, he is, generally speaking, subject to liability for conversion. 35 Tex.Jur.2d, Landlord and Tenant, §§ 158, 159.

It is a well-established rule at common law that a landlord-lessor cannot terminate the written lease of his tenant-lessee for breach of a covenant in the lease without first making a demand upon the tenant for such performance. It is only where the lease contains an express waiver of demand that the common law rule can be disregarded. Wutke v. Yolton, 71 S.W.2d 549 (Tex.Civ.App.—Beaumont 1934, writ ref’d); Shepherd v. Sorrells, 182 S.W.2d 1009 (Tex.Civ.App.—Eastland 1944, no writ); Gray v. Vogelsang, 236 S.W. 122 (Tex.Civ.App.— Galveston 1921, no writ).

It is quite clear from the record that the taking of possession and control of McVea’s cattle by Verkins on November 7, 1977, cannot be justified on the ground that Powers had a right to possess the cattle pursuant to a valid agister’s lien under the provisions of Tex.Rev.Civ.Stat.Ann. art. 5502 (1958), as asserted by Verkins and Powers. The lease between the parties was not for the furnishing by the defendants of any feed, supplies, services or labor in connection with the care of the cattle placed by McVea on the leased premises. The lease shows conclusively that McVea, as lessee, was given exclusive and absolute control over the cattle operation; therefore, the statutory agister’s lien was not available to Powers, since he, the lessor, was not authorized to (and did not) feed, take care of, or attend the cattle at any time prior to the “locking-out” of McVea on November 7, 1977. Day Ranch Co. v. Hubert & Woodward et al., 32 S.W.2d 252 (Tex.Civ.App.—Austin 1930, writ ref’d); Hindes v. Lock, 259 S.W. 156 (Tex.Comm’n App. 1924, opinion adopted); Caprock Industries, Inc. v. Wood, 549 S.W.2d 430 (Tex.Civ.App.—Amarillo 1977, no writ).

In the case before us in this appeal, though the lease gave Powers (lessor) the right to re-enter and take possession of the leased premises on default of payment of rent, or upon breach of any covenant “made” in the lease, there is no provision therein which waived the demand and notice requirements imposed by law. The legal significance of the absence of a waiver of demand provisions in the lease herein involved is that Powers, the owner of a contractual landlord’s lien, was required to make demand for performance before exercising any right of re-entry, even though a right of re-entry was expressly provided in the lease, and such demand was further required to be made in accordance with the common law. Shepherd v. Sorrells, supra, at page 1012. Since the defendants did not make a formal demand for the payment of past due rent and did not make a formal demand for possession of the land for breach of covenant in accordance with the common law rule, the re-entry and the taking of possession of the 479 acre tract of land was not warranted on the ground that McVea had defaulted in the covenant to pay the rent on the day it became due (November 1, 1977), or because of breach of covenant. The only formal demand for the payment of rent and for possession of the leased premises was made in the aforesaid letter of November 9, 1977. The contractual rights of Powers to cancel or terminate the lease for breach of covenant by McVea is the right to do so in the manner provided by law, and this Court will not, in aid of a cancellation of the lease here involved, imply a waiver of demand and notice.

There is no evidence that McVea consented to the taking of possession of his cattle by Verkins on November 7, 1977, or that he consented to his being “locked-out” of the leased premises on that day. There is no basis for the defendants’ assertion that their conduct on the day in question did not exclude the exercise of any rights by McVea with respect to the cattle. The testimony of McVea to the effect that he would be shot if he was caught on the leased premises and that he was told not to do anything with respect to the cattle until after he had heard from Verkins stands unchallenged. The defendants admitted that Verkins threatened McVea “with criminal trespass if he were to go on the property.” The claim by the defendants that they had a right to possess the cattle on November 7, 1977, “pursuant to a valid landlord’s lien on the cattle” is without merit. The lease, as written, provides for a landlord’s lien upon all personal property of lessor, not upon all personal property of lessee. That fact was ignored by the parties at the trial of this case and all parties tried the case as if the lease provided for a landlord’s lien upon all personal property of the lessee. In view of our disposition of this appeal, it is not necessary that we elaborate further on that matter. The security of a landlord’s lien is one thing and the foreclosing of such a lien by simply taking possession of personal property on the leased premises is something else. The further contention that the act of changing the locks was required in order to secure a reasonable time to investigate the rights of the parties is also without merit. The rights of the parties were fixed by the terms of the lease itself and by the laws of this State. Moreover, an investigation of the legal rights of the parties was completed on November 9,1977, when Powers wrote the above mentioned letter to McVea. That letter speaks for itself.

The defendants, in their brief, say:

“[t]he defendants were merely exercising their legal right to protect their property from imminent destruction by the plaintiff (and concomitantly, therefore they were not acting ‘unlawfully or wrongfully’) by placing new locks on the gate and directing the plaintiff not to enter the property without notifying the defendants.”

There is no evidence in the record that Verkins or Powers, at any time, told McVea not to enter the property “without notifying the defendants.” To the contrary, it is undisputed that Verkins told McVea not to enter the leased premises, and that if he was caught thereon he would be shot. With respect to “notifying,” it is conclusively established that Verkins told McVea that he (Verkins) would notify him (McVea) “within three or four days,” and further told him that “we will notify you about getting your cattle out.” It is established absolutely that McVea did receive further notice in the form of Powers’ letter, dated November 9,1977. That letter, in no uncertain terms, “notified” McVea that he would not be permitted “to enter in and upon the property.” No mention of the cattle was made in the letter, and Verkins did not “notify” McVea of anything concerning the cattle. Under the existing circumstances, McVea was not under any duty to contact the defendants concerning his cattle.

The conduct complained of consists of two separate and distinct acts of Verkins on November 7, 1977. First, he changed the locks on the gates, which deprived McVea of access to his cattle. Second, his order to McVea also deprived the latter of access to his cattle.

Verkins’ acts of November 7, 1977, were deliberate and intentional. The defendants attempt to justify those acts under the rubric of “self-help.” They rely on Yarborough v. State, 66 Tex.Cr.R. 311, 147 S.W. 272 (1912); Vann v. State, 43 Tex.Cr.R. 244, 64 S.W. 243 (1900); Sims v. State, 36 Tex. Cr.R. 154, 36 S.W. 256 (1896); Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943); Hampton v. Sharp, 447 S.W.2d 754 (Tex.Civ.App.—Houston [1st Dist.] 1969, writ ref’d n. r. e.); Redmon v. Caple, 159 S.W.2d 210 (Tex.Civ.App.—Texarkana 1942, writ ref’d w. o. m.); and Ater v. Ellis, 227 S.W. 222 (Tex.Civ.App.—Amarillo 1921, writ dism’d). Those cases are distinguishable from the case at bar in that the “defender” in each case was in possession of the involved property and the threat of destruction was imminent. That is not the case before us in this appeal. Here, the owner-landlord was not in possession of the leased premises, and there was no threat of imminent destruction of the property on November 7, 1977. Harm to the property was already an accomplished fact as a number of trees had already been cut, but, on the day in question no one was cutting any timber. We recognize that there existed a possibility that someone in the future might attempt to remove the timber that had already been cut and might also resume the cutting of wood. However, the threat of such removal and additional cutting did not appear to be imminent under the guise of self-help to the extent that Verkins was entitled, in protecting the timber from further destruction, to deprive McVea of his right to possession of his cattle.

In addition to the testimony already noted, Verkins also testified that McVea, after having admitted to cutting wood “for barbequing,” then “hung his shoulders and said: ‘Mr. Billy, Mr. Billy I am sorry, Mr. Billy.’ ” That attitude, in our opinion, does not suggest that Verkins was suddenly confronted with an imminent destruction of timber by McVea. It is undisputed that on November 7, 1977, persons other than McVea and the defendants had keys to the old locks in the gates. It is also undisputed that Verkins, at the time he changed the locks, had no evidence that McVea was the person who had cut the wood.

Even assuming that Verkins was warranted in concluding that McVea had cut wood on the leased premises, and assuming further that he had reasonable grounds to believe that McVea would continue to do. so unless something was done to stop him, there were ample and speedy lawful means and remedies available without resort to self-help. The defendants made no attempt to stop the timber-cutting by resort to the courts. Instead, Verkins took matters into his own hands and acted as judge, jury and executioner. No emergency existed which warranted such drastic action. This case illustrates the problems caused by too much reflex and too little thought on the part of a landowner’s agent. The act of changing the locks and the act of ordering McVea not to go on the leased premises were distinct acts of dominion wrongfully asserted over McVea’s personal property, and amounted to a conversion of the 80 cows, 30 calves and 2 bulls as a matter of law. Neyland v. Brammer, 73 S.W.2d 884 (Tex.Civ.App.—Galveston 1933, writ dism’d); Lawson v. Townsend, 25 S.W.2d 170 (Tex.Civ.App.—El Paso 1930, writ dism’d); Cox’s Bakeries of N.D., Inc. v. Homart Develop. Corp., 515 S.W.2d 326 (Tex.Civ.App.—Dallas 1974, no writ); Eisemann v. Emmons, 399 S.W.2d 428 (Tex.Civ.App.—Eastland 1966, no writ); Fenberg v. Fenberg, 307 S.W.2d 139 (Tex.Civ.App.—Amarillo 1957, no writ); Harnden v. McKinney, 103 S.W.2d 869 (Tex.Civ.App.—San Antonio 1936, no writ); Kilgore v. De Vault, 82 S.W.2d 1048 (Tex.Civ.App.—Beaumont 1935, no writ); Henderson v. Beggs, 207 S.W. 565 (Tex.Civ.App.—Fort Worth 1918, no writ); Crawford v. Thomason, 53 Tex.Civ.App. 561, 117 S.W. 181 1909, writ ref’d.

Since the taking of possession of McVea’s cattle was wrongful, McVea was not required to demand a return of the cattle before filing suit. Furthermore, the defendants could not have returned all of the cattle, had such a demand been made; this fact was known to all parties long before this suit was filed; therefore, a demand would have been useless. It is undisputed that the defendants were in actual possession and control of all the cattle from and after the changing of the locks until December 1, 1977, when 40 cows and 18 calves were sold by the defendants at public auction. It is further conclusively established that an indeterminate number of McVea’s cattle died between November 7, 1977, and December 1,1977. McVea’s first, second and third points are sustained.

McVea, in this appeal, does not attack the jury’s finding that there were 80 cows, 30 calves and 2 bulls on the leased premises on November 7, 1977, nor does he complain of the jury’s finding that the defendants’ acts of November 7, 1977, were not malicious. The jury found that the value of the cattle “on or about November 7, 1977” was “$17,787.59.” There is some evidence that some of the cows may have had “Bang’s Disease” on November 7,1977. There is also some evidence that the fair market value of a healthy cow was from $225.00 to $350.00 in early November, 1977, while the fair market value of a cow that had “Bang’s Disease” was considerably less. On December 1, 1977, 40 cows were sold by the defendants at an average sale price of $173.09 per head and 18 calves were sold at an average sale price of $100.47 per head. There is no evidence relating to the cattle market quotations on or about November 7, 1977, nor is there any evidence as to the value of McVea’s cattle had they been offered for sale as a “herd” on the date of their conversion.

We believe that there was some evidence to support the jury’s finding that the “fair market value” of the cattle on November 7, 1977, was $17,787.59,” but, after carefully reviewing, considering and weighing all the evidence, we hold that the evidence is factually insufficient to support the finding and that the same is against the great weight and preponderance of the evidence. McVea’s tenth point is overruled, but his eleventh and twelfth points are sustained. Our holdings in this case make it unnecessary for us to consider McVea’s remaining points.

The judgment of the trial court is reversed. Judgment is here rendered that the acts of defendants on November 7,1977, constituted a conversion of McVea's cattle as a matter of law, and the cause as to actual damages which resulted from the conversion of the 80 cows, 30 calves and 2 bulls, is remanded to the trial court for a new trial. See Neyland v. Brammer, supra. The defendants, in any judgment which may be rendered against them following the new trial, are entitled to an offset of $9,607.93.

REVERSED and RENDERED in part; REVERSED and REMANDED in part.

NYE, C. J., dissents.

NYE, Chief Judge,

dissenting.

I respectfully dissent. Viewing the evidence most favorably to the jury’s verdict, I would find that there was not, in fact, a conversion. In Re King’s Estate, 244 S.W.2d 660 (Tex.Sup.1951).


author: NYE, Chief Justice.

text:
    Yolanda SHOCKOME, Appellant, v. Joe HERNANDEZ, Appellee.
    No. 1469.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1979.

      Janene Forster, Corpus Christi, for appellant.
    Charles N. Cartwright, Prichard, Peeler, Cartwright & Hall, Corpus Christi, for ap-pellee.
   OPINION

NYE, Chief Justice.

This is a paternity suit in which the trial court determined that the petitioner, Joe Hernandez, was the natural father of the child. The court thereafter awarded him the managing conservatorship. The natural mother, Yolanda Shockome, appeals.

The record shows that the natural mother decided to take a trip to California in June of 1978. She left the child at the home of Merced and Paula Hernandez, the grandparents of the petitioner father. When the mother returned to Corpus Christi to pick up the child, the grandparents refused to give up the child. The mother then filed an application for writ of habeas corpus on July 3, 1978, the same date that the father filed his original petition for voluntary legitimation of the child.

The trial court consolidated the two proceedings and ordered an investigation by the Department of Human Resources, in which it was to file a social study report concerning the child and his parents. Three months after the mother had filed her original answer to the paternity suit, she filed a motion in the trial court to compel blood tests of the parties. The hearing on this motion was held on October 16, 1978, only three days before the case was set for trial on its merits. The trial court overruled the motion and refused to require the blood tests.

Where a suit has been filed to establish the parent-child relationship and to determine the paternity, a set procedure is established under subchapter A, §§ 13.01— 13.09 of the Family Code. Under this sub-chapter, where the respondent appears in the paternity suit, the trial court shall order the mother, the alleged father, and the child to submit to blood tests. However, no such requirement of blood tests is set out under the provisions of subchapter B, “Voluntary Legitimation.” Here the father of the illegitimate child files a sworn statement of paternity, which must be attached to his petition for legitimation. Once such statement of paternity has been executed as set out in article § 13.22, the statement is prima facie evidence that the child is the child of the person executing the statement and that the person thereafter has an obligation to support the child.

The alleged natural father brought suit under subchapter B for the voluntary legitimation of the subject child. The mother did not consent to the petition. In such a case, the trial court may enter its consent to the legitimation of the child in lieu of the mother’s consent, where the court decrees that such is in the best interest of the child. Sec. 13.21(c).

The appellant mother states in the opening paragraph of her brief that, “The sole purpose on appeal is to determine whether the trial court erred in denying blood tests, in legitimating the child, and in awarding custody of the child to the appellee.” The mother contends that the trial court abused its discretion in this regard. We find that it did not.

Where voluntary legitimation is sought and all of the prerequisites of the statute have been met except for the consent of the natural mother, the requirement to submit to blood tests is discretionary. The record of the hearing on the motion to compel blood tests was not requested or transcribed for the appellant mother. Since the appellant mother has not brought forward a record of the hearing on the motion in this appeal, there is nothing upon which we can find from the evidence and arguments presented whether, as a matter of fact, the trial court abused its discretion as of the time he ruled. Anderson v. Tall Timbers Corporation, 162 Tex. 450, 347 S.W.2d 592 (1961). For instance, the trial court could have decided that such tests would have been a time-consuming procedure, requiring the appointment of two or more experts qualified to examine the blood types, and that such action would cause an undue delay of the trial of the case on its merits. It would seem to us that the appellant mother (who, at the time of trial, had temporary custody of the child) could have obtained the same information concerning the blood types by other discovery procedures. At the time of the hearing on the motion, for instance, she was in possession of the child, knew her own blood type (or could have determined the type), and could have by discovery methods determined the blood type of the appellee father prior to the trial on its merits. We do not find from the record of the trial on the merits that the mother’s attorney even asked the appel-lee father the question, “What is your blood type?” All of the parties agree that the blood tests do not prove paternity; only the non-paternity, where the father’s blood type, when compared to the mother’s blood type, makes it biologically impossible to produce a child with the particular blood type of the alleged offspring.

There is ample evidence in the record to support the conclusion that the ap-pellee father is actually the natural father of the child. This is in addition to the statute (sec. 13.23) which makes “the statement of paternity” prima facie evidence that the child is the child of the person executing the statement. Reviewing all of this evidence from the record of the trial on the merits, and considering the presumptions which can be made (including those where there is no record of the hearing on the motion for us to review), we hold that the appellant mother did not show that the trial court abused its discretion in overruling the motion to compel the blood tests. See: Lutheran Social Service, Inc. v. Meyers, 460 S.W.2d 887 (Tex.Sup. 1970).

The trial court found that the best interests of the child would be served by consenting to the voluntary paternity and by awarding the managing conservatorship to the father. The appellant mother’s other points of error concern no evidence, insufficient evidence, and against the great weight and preponderance of the evidence concerning the trial court’s findings. Using the guidelines set forth in the time-honored opinion of In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951) and Calvert’s article, “No Evidence” and “Insufficient Evidence”, 38 Texas L.Rev. 359 (1960), we review all of the evidence in the record.

This record shows that the child was born January 23, 1975, in Corpus Christi. The appellant mother was living with the appel-lee father at the time the child was born. She admitted in her deposition that she started living with the appellee father in May of 1974, nine months before the birth of the child. She stated that from November of 1973 until the child was born, January 23, 1975, that she had lived with only two men, one of which was the appellee. She lived with the other man prior to the time she started living with the appellee father. She admitted that she had filed a sworn application for welfare benefits in which she named the appellee as the natural father of the child. The record further shows that she filed a sworn application for food stamps, naming the appellee as the natural father of the child. The appellee father testified that when they started living together the appellant mother was not pregnant, and that all the time they had lived together, she had never stated to him that the child was not his natural son. On one occasion the appellant mother sent a photograph of the child to the appellee father with the following hand-written message on its back: “Your son, Joe Juarique. Two years and ten months, and Mark, seven months. With love always. Hi, daddy.” On another occasion when the appellant mother brought the child to the home of the grandparents, she returned one week later and stated to the appellee father, “Here is your son. He is exactly like you and I don’t want him anymore. You can have him.” The social study report that was filed with the trial court contains expert evidence that would indicate that the best interests of the child would be served by giving the custody of the minor child to the appellee father.

Although the record does contain some conflicting testimony, we believe and so find that the evidence amply supports the trial court’s decision to award the managing conservatorship to the appellee father, that such evidence is not against the great weight and preponderance of all of the credible evidence.

Our Supreme Court, in discussing a situation somewhat similar to the case before us, recognized that the trial judge:

“. . . has an opportunity to observe and evaluate the personalities of the contending claimants, to weigh the credibility of their testimony, to assess the physical, mental, moral and emotional needs of the child, and to adjudge from personal observation which of the claimants can best meet the needs of the child. His judgment should be reversed only when it appears from the record as a whole that he has abused the discretion entrusted to him.” Herrera v. Herrera, 409 S.W.2d 395 (Sup.Ct.1966).

We find no abuse of the able trial judge’s discretion in this case. Bennett v. Northcutt, 544 S.W.2d 703 (Tex.Civ.App.—Dallas 1976, no writ). AH of the appellant’s points of error have been considered and are overruled. The judgment of the trial court is affirmed.


text:
    In the Matter of I. A., Appellant, v. The STATE of Texas, Appellee.
    No. 1503.
    Court of Civil Appeals of Texas, Corpus Christi
    Aug. 30, 1979.
    Rodolfo R. Munoz, Kingsville, for appellant.
    George J. Filley, III, Kingsville, for ap-pellee.
   OPINION

NYE, Chief Justice.

Appellant, I. A., seeks a reversal of a judgment of the Juvenile Court of Kleberg County declaring him to be a delinquent and committing him to the custody of the Texas Youth Council. The adjudication of delinquency is based upon jury findings that appellant engaged in delinquent conduct by committing the felony offense of burglary.

On August 14, 1978, Perry’s Variety Store in Kingsville was burglarized. Almost one month later, Kleberg County Probation Officer, Mario Salazer, acting upon information he had received pursuant to the police investigation, took I. A. into custody. After informing the juvenile’s mother of his whereabouts, Salazar drove I. A. to the Kingsville police station for questioning, arriving at 9:00 a. m. Shortly thereafter, Sergeant Vidal, a police officer, began to question the suspect. Captain Gomez testified that sometime thereafter he was informed that I. A. wanted Captain Gomez to conduct the interrogation. Gomez then took I. A. into his office at approximately 9:40 a. m. where he gave the “Miranda warnings” before commencing his interrogation. Gomez testified in substance that I. A. wanted to make a statement, and that he (Gomez) typed the statement as he and the juvenile talked. After I. A. had been at the police station for about three hours, Justice of the Peace, Keith Bray, was summoned to the police station shortly before noon to give the statutory warnings required by Section 51.09(b) of the Texas Family Code. I. A. remained at the police station until sometime between 1:00 and 1:30 p. m. when he was then taken alone to the magistrate’s office where he signed the typed statement in the presence of Judge Bray. He was subsequently formally charged with intentionally entering a building, not then open to the public, with the intent to commit theft in violation of Section 30.02 of the Texas Penal Code (1974).

On November 14, 1978, an adjudication hearing was held before a jury. During the hearing, I. A.’s written statement was entered into evidence. During the course of the hearing the jury heard the testimony of: 1) the investigative police officers; 2) the Justice of the Peace, Bray; 3) the juvenile who originated the burglary; and 4) I. A., himself. At the conclusion of the hearing the jury found that the juvenile had engaged in delinquent conduct. The juvenile court conducted a disposition hearing and then entered an order committing appellant to the Texas Youth Council until he reaches the age of eighteen.

Approximately one and a half months before the adjudication hearing, I. A.’s attorney filed a request to have a court reporter present to record all of the proceedings to be held in the cause. An official court reporter, however, was not present during the various hearings. Instead, all of the court proceedings (from voir dire through the disposition proceedings) were recorded on cassette tapes. The record before us includes: 1) a transcript which includes all of the pleadings and the exhibits which were introduced into evidence, including I. A.’s written statement; 2) a partial statement of facts which was transcribed from the tape recordings; and 3) cassette tapes which are the actual tape recordings made of the entire case. Rule 380, T.R.C.P., insures an indigent appellant the right to obtain a free statement of facts. While the rule requires the official court reporter to prepare a narrative statement of facts, we have previously noted that no reporter was present. Nevertheless, the County Judge ordered the tapes to be transcribed by county personnel.

Although the transcribed statement of facts contains most of the pertinent testimony, we find there is at least one substantial gap, obviously caused by temporary recording problems. Virtually all of the testimony of two crucial witnesses, the appellant, and the juvenile who originally burglarized the store, has been transcribed with notations that the answers of these particular witnesses were inaudible for the most part. For instance the typewritten record states in part:

“Q. What happened?
A. ([I. A.] answers this question. I (typist) cannot understand what he is saying. He is not speaking loud enough.).”

We have listened to the tapes from which the statement of facts was transcribed and, even with high amplification, we are also unable to hear any of the testimony of these two juveniles which we deem to be crucial testimony. The testimony of the adult witnesses, for the most part, was sufficiently loud that most of their testimony was recorded and transcribed, even though several gaps with “inaudible notations” are apparent in the testimony of the adults as well.

The appellant’s points of error require us to examine the entire record. Although the parties agreed (with our prior approval), that the tape recordings could be sent to this Court along with the typewritten record for review, the appellant did not agree that the typed record as such was complete or accurate. Usually the appellant raises points of error (as here), that require a full and complete statement of facts of the adjudication proceedings for proper appellate review. We have held many times that an appellant is entitled to a complete statement of facts (where requested) and without one, his case must be reversed and remanded. See Ramon v. Chavira, 586 S.W.2d 594 (Tex.Civ.App.—Corpus Christi 1979), and authorities cited therein.

Notwithstanding the above, we believe that electronic recording devices will and should play an important role in courtroom proceedings in the future. Nothing could be more accurate where proper recordings were made. We specifically note that current rules expressly authorize non-stenographic recording of depositions to be introduced into evidence during trials when certain notice requirements have been met. See Rule 215c, T.R.C.P. This Court has specifically discussed the difficulties for litigants and the court system caused by the lack of an alternative means to preserve trial testimony and has suggested the use of proper recording equipment as a back-up system to alleviate such difficulties. See Southwestern Bell Telephone v. Thomas, 535 S.W.2d 686 (Tex.Civ.App.—Corpus Christi 1976), rev’d on other grounds, 554 S.W.2d 692 (Tex.Sup.1977). In small rural counties particularly, testimony in cases such as these could be preserved for transcription and appeal by the proper use of good tape recording equipment and with adequate supervision. By agreement of the parties, transcription of that portion of the record needed on appeal could be typed and authenticated at a tremendous savings (overall) of manpower, time and money. In like cases the parties should designate for transcription only such specified portions of the recordings that are pertinent to the appeal. See Rules 375, 377(a), (b), (e) and 378, T.R.C.P.

The appellant has raised some serious objections to the validity of the procedure that was used to obtain I. A.’s written confession. See Tex.Family Code, § 51.-09(b) (Supp.1979). We are unable to resolve these and other questions because of the lack of audible testimony concerning the issues before the trial court.

REVERSED AND REMANDED.

      . According to the statement, another juvenile had already broken into Perry’s through the air conditioning unit on the roof. This juvenile later came to get I. A. and another friend to return with him to Perry’s for the purpose of removing more merchandise from the store. All three juveniles then returned to the store and, while I. A. and his friend waited outside on the roof watching for policemen, the juvenile who had originally broken into Perry’s re-entered the store and started throwing additional merchandise out to them. The statement indicated that neither I. A. nor his friend “touched any of the stuff’ and that the original juvenile took all of the merchandise and hid it at a relative’s home.


author: PER CURIAM.

text:
    Jacquelyn Elizabeth TALLEY, Appellant, v. Lawrence Erbin TALLEY, Appellee.
    No. 1569.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1979.
    Nathaniel G. Rhodes, Corpus Christi, for appellant.
    Mark H. Giles, Giles, Adams & Pate, Corpus Christi, for appellee.
   OPINION

PER CURIAM.

Appellant attempted to perfect her appeal by timely filing an affidavit in lieu of cost bond pursuant to Rule 355, T.R.C.P. Appellee contested within seven days. No hearing was held nor ruling made within 30 days of judgment. On the 32nd day following judgment, a hearing was held concerning the affidavit and contest. Four days later the trial judge signed an order sustaining the objection and quashing the pauper’s affidavit. A regular bond was ultimately filed 42 days following judgment.

Appellee filed a motion to dismiss the cause for want of jurisdiction. Appellant filed a brief alleging five points of error, the first of which complains the trial court erred in not granting her leave to appeal the case as a pauper. In her argument under this point, appellant contends that the trial court abused its discretion in sustaining appellee’s objection to the pauper’s affidavit.

The jurisdictional issue concerns whether appellant’s attempted perfection of appeal was effective. See Rule 363, T.R.C.P. In his motion, appellee contends that the appeal was not perfected because the appeal bond was not filed within 30 days of the judgment, as required by Rule 356, T.R.C.P.

It is well settled that delay in ruling on an affidavit in lieu of bond does not operate to extend the time for filing the appeal bond. King v. Payne, 156 Tex. 105, 292 S.W.2d 331, 334-35 (Tex.Sup.1956); DeMiller v. Yzaguirre, 143 S.W.2d 425 (Tex.Civ.App.—El Paso 1940, writ ref’d); Wells v. Wells, 566 S.W.2d 124 (Tex.Civ.App.—Houston [14th Dist.] 1978, no writ). In this case, the bond was filed after the expiration of 30 days following judgment and therefore was ineffective to perfect the appeal. King v. Payne, supra; Glidden Company v. Aetna Casualty and Surety Company, 155 Tex. 591, 291 S.W.2d 315 (Tex.Sup.1956). We therefore have no jurisdiction of the appeal unless the appeal was perfected without the bond.

The facts in this case are very similar to those in King v. Payne, supra. There, the hearing on the contest to the pauper’s oath was held after the expiration of 30 days, the contest was sustained, and an appeal bond was subsequently filed. The Supreme Court, after noting that the late bond was ineffective to perfect the appeal, observed that the order sustaining the contest would ordinarily foreclose the appellant’s right to have the appeal record filed in the Court of Civil Appeals in the absence of a timely-filed appeal bond. The issue was not foreclosed, however, where the appellant contended that the trial judge abused his discretion in sustaining the contest. Under these circumstances, the court reviewed the evidence in light of the standard for abuse of discretion as articulated in Pinchback v. Hockless, 164 S.W.2d 19 (Tex.Com.App.1942). Where abuse of discretion issue is raised, as herein, the review does not end with an examination of the applicable time limits, but encompasses a review of the evidence concerning the appellant’s ability to pay or secure the costs of appeal. King v. Payne, supra; McCartney v. Mead, 541 S.W.2d 202 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ); Williams v. Maynard, 515 S.W.2d 9 (Tex.Civ.App.—Austin, 1974, writ dism’d).

In the case before us, the transcript as well as a transcription of the hearing on the pauper’s oath contest has been filed. Appellant’s brief raises the issue of abuse of discretion. We therefore evaluate the evidence to determine whether the order sustaining the contest was an abuse of discretion.

Two witnesses testified at the hearing. No other evidence was offered. The first witness was Lawrence Talley, appellee herein. His testimony concerns only his failure to implement various terms of the property division and his failure to make payments as ordered in the divorce decree. The second witness was appellant’s attorney who testified concerning funds within his knowledge which were available to appellant, the debts to be paid from these monies, and that appellee had not yet paid appellant’s attorneys fees as ordered in the divorce decree.

We find that appellant failed to carry her burden to prove her inability to pay the costs of appeal or give security therefor. The mere indebtedness without any testimony as to her total assets, sources of income, or ability to borrow is insufficient. Indeed, the record indicates that appellant is entitled to proceeds from the eventual sale of the parties’ former home, to payment of her attorneys fees, and to other property awarded in the divorce decree. We cannot conclude from the record as a whole that appellant is unable to pay the costs or a part thereof, or give security therefor, if she really wanted to and made a good-faith effort to do so. King v. Payne, supra; Pinchback v. Hockless, supra; McCartney v. Mead, supra; Williams v. Maynard, supra; Tubbs v. Coker, 401 S.W.2d 272 (Tex.Civ.App.—Houston 1966, no writ); Burleson v. Rawlins, 174 S.W.2d 979 (Tex.Civ.App.—Dallas 1943, no writ); Rule 355(d). We note that the appellant did in fact file an appeal bond, late as it was.

Because of our holding that the trial court did not abuse his discretion in sustaining the contest to the pauper’s oath and because the regular appeal bond was filed late, the appeal was not perfected. We hold that we do not have jurisdiction and the appeal must be dismissed.

The transcript contains numerous documents included by the District Clerk at the request of appellee which are not related to the limited appeal filed by appellant under the provisions of Rule 353. Costs of the appeal are adjudged one-half against appellant and one-half against appellee.

APPEAL DISMISSED.


author: COUNTISS, Justice.

text:
    CAVINESS PACKING COMPANY, INC. and Ed Barrett, Appellants, v. R. H. “Bob” CORBETT and D. F. Allen, Appellees.
    No. 9008.
    Court of Civil Appeals of Texas, Amarillo.
    Aug. 31, 1979.
    Rehearing Denied Oct. 3, 1979.

      Witherspoon, Aikin & Langley, Earnest L. Langley, Hereford, Tex., for appellants.
    Hunter & Blackwell, William A. Hunter, Dalhart, Charles D. Alsup, Clayton, N. M., for appellees.
   COUNTISS, Justice.

Caviness Packing Company, Inc. and Ed Barrett appeal an adverse judgment denying them recovery against R. H. “Bob” Cor-bett and D. F. Allen for an alleged breach of a written contract for the sale of cattle. The question before the court is whether parol evidence which Caviness and Barrett tendered to support their interpretation of the contract was admissible. The trial court excluded from jury consideration a substantial amount of the evidence Caviness and Barrett tendered, and when they rested, instructed a verdict in favor of Cor-bett and Allen. We affirm the judgment of the trial court.

The W S Ranch, located near Vermejo Park, New Mexico, is a 480,000 acre ranch devoted primarily to the raising of cattle and to the granting of hunting and fishing concessions. In recent years the ranch has maintained a herd of several thousand commercial cows of predominantly Hereford breed, with some Charoláis and Charoláis crossbreeds. The ranch contracts the steer calves in the spring of the year for delivery to the buyer in the fall.

Caviness had purchased the steer calf crop from the ranch for several years and, in the spring of 1976, did so again, contracting to pay the ranch $50 per hundred weight for the calves based on their weight at the time of fall delivery. Caviness then entered into an agreement with Barrett, whereby Barrett acquired a one-half interest in the calves.

Shortly after Caviness had contracted for the cattle, Corbett contacted Pete Caviness, president of the appellant company, and entered into discussions concerning the purchase of the calves from Caviness and Barrett. Those discussions culminated in a written contract signed by Corbett, Allen and Caviness’ Vice-President, Brent Caviness. That contract is the foundation for this suit, and the portions pertinent to the case read as follows:

LIVESTOCK CONTRACT
THIS CONTRACT made this 26 day of May 1976, by and between CAVINESS PACKING CO INC of HEREFORD TX. hereinafter known as SELLER, and BOB CORBETT & FRANK ALLEN of_ hereinafter known as BUYER, covers the sale of the following described livestock, for the consideration of the sum of $35,-000.00, part payment the receipt of which is hereby acknowledged by the SELLER, balance of purchase price to be paid upon completion of contract.

These STEERS are now located on VERMEJO PARK and are to remain on SAME until delivered. Delivery to be made on or before THRU OCT. 1976 at the buyer’s option at VERMEJO PARK F. O. B. ears TRUCKS, and to be weighed as follows: GATHERED EARLY A.M. SHRINK 3% * * *.

Subsequently, in September of 1976, Cor-bett received information that the calves had already reached a weight of three hundred pounds and would be considerably heavier by the delivery date. Discussions between Corbett and Pete Caviness ensued, and those discussions culminated with Cor-bett’s advice to Caviness that Corbett and Allen would not take delivery of the cattle because by the time of delivery, they would be much heavier than specified in the contract.

Caviness and Barrett subsequently took delivery of the calves from the ranch in early November, disposed of them at a price less than that agreed to by Corbett and Allen and brought this suit for the difference. When Caviness and Barrett took delivery, the average weight of the calves was 424 pounds.

In the trial court the parties agreed that the contract price was $52 per hundred weight, not 52 cents per hundred weight as stated in the contract. Also, evidence introduced by Caviness and Barrett without objection established that the phrase “weigh approximately 300# to 325#” meant that the cattle would weigh approximately 300 to 325 pounds at the time of delivery. A determination of the legal effect of that phrase in the contract will resolve the question before the court. Caviness and Barrett bring forward several points of error, all supportive of their basic contention that the weight provision is essentially immaterial. The thrust of their argument is that they contracted to buy from the ranch, and Cor-bett and Allen contracted to buy from them, all of the 1976 spring steer calf crop produced by the ranch regardless of size, weight or actual number; i. e., a purchase of the lot, not a purchase of individual cattle. Evidence in support of Caviness’ and Barrett’s theory was excluded by the trial court on the ground that it tended to vary or contradict the terms of the contract.

The use of parol evidence in connection with the interpretation of a written contract is governed by a series of well-settled rules that are easy to recite but often difficult to apply. The fundamental principle, generally called the Parol Evidence Rule, states that the establishment of the existence of a writing intended as a completed memorial of a legal transaction denies efficacy to any prior or contemporary expressions of the parties relating to the same subject matter as that to which the written memorial relates. 2 C. McCormick & R. Ray, Texas Evidence § 1601 (2d ed. 1956). As stated in Paxton v. Spencer, 503 S.W.2d 637, 642-643 (Tex.Civ.App.—Corpus Christi 1973, no writ):

[Pjrior negotiations of parties to a written contract, complete in itself and unambiguous, are merged in the writing, in the absence of evidence to show fraud, accident or mistake in their omission from the written contract. In that case, extrinsic evidence, parol or otherwise, will not be received in evidence, if its effect is to vary, add to, or contradict the terms of the written instrument. In particular, the extrinsic evidence rule ordinarily requires the exclusion of parol evidence of prior negotiations, representations, or statements that would add to, vary, or contradict the term of written contracts that are clear on their face. See 23 Tex. Jur.2d, Evidence, § 342, pp. 500-504, and the cases there cited. In the absence of fraud, accident or mistake, the intent of the parties to a written instrument that is clear and unambiguous on its face must ordinarily be ascertained from the instrument alone without the aid of extrinsic evidence. Anderson & Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 136 S.W.2d 800 (1940); Cutrer v. Cutrer, 334 S.W.2d 599 (Tex.Civ.App.—San Antonio 1960, aff’d. 162 Tex. 166, 345 S.W.2d 513).

It is also well settled that, absent an ambiguity, construction of a written instrument is a question of law for the court. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex.1968).

The various rules applicable to the field of law under consideration are set out in detail with extensive citation of authority in Ross & Sensibaugh v. McLelland, 262 S.W.2d 205, 208-209 (Tex.Civ.App.—Fort Worth 1953, writ ref’d n. r. e.). In addition to the principles already stated, it is important to remember that parol evidence is not admissible to show that the terms of the contract do not agree with the previous understanding of the parties. Additionally, and of importance in this case, even when the contract is ambiguous, and parol evidence is therefore admissible to explain the ambiguity, such evidence is not competent to vary the terms of the contract or contradict the legal effect of its unambiguous provisions. Ross & Sensibaugh v. McLelland, supra.

Application of the foregoing rules to the contract before the court demonstrates the correctness of the trial court’s rulings. The portions of the contract pertinent to this controversy are partially unambiguous, partially ambiguous and partially erroneous.

The unambiguous portion states that Caviness is selling to Corbett and Allen 1750 Hereford & Charcross steers which are branded W S.

The term “weigh approximately 300# to 325#” is ambiguous, but undisputed evidence introduced by Caviness and Barrett without objection explained that the term meant the animals were to weigh 300 to 325 pounds at delivery.

The term .52/CWT is patently erroneous and the parties mutually agreed that the price was 52 cents a pound or $52 per hundred weight.

Thus, with ambiguities clarified and errors corrected, Caviness contracted to sell and Corbett and Allen contracted to buy 1750 Hereford and Charcross steers, weighing approximately 300 to 325 pounds at delivery, branded W S, for a price of $52 per hundred weight. We regard each provision as an operative part of the contract, and we cannot enforce part of the contract and ignore the balance. Corbett and Allen correctly anticipated Caviness’ and Barrett’s inability to deliver the steers at a weight of approximately 300 to 325 pounds, and were justified in refusing to accept delivery. The size of the animal was specified in the contract, and the weight provision is an essential part of the contract.

It is important to remember the role extrinsic evidence plays in the contract before us. As stated above, extrinsic evidence is inadmissible if it adds to, contradicts or varies the terms that are unambiguous. Competent extrinsic evidence is admissible to establish the meaning of the ambiguous weight provision and to correct the erroneous price provision. Once the correct terms are established, however, the meaning of the those terms is a question of law for the court and it is, therefore, not proper to receive additional extrinsic evidence for the sole purpose of eliminating one of the terms.

Caviness and Barrett seek to eliminate the weight provision from the contract by advancing the interpretative rules applied to contracts for sale of a specific lot or group identified by reference to independent circumstances, as exemplified by Brawley v. United States, 96 U.S. 168, 171-172, 24 L.Ed. 622 (1877) and Armstrong v. Willoughby, 251 S.W. 346 (Tex.Civ.App.—Austin 1923, writ dism’d). An examination of the cases supporting Caviness’ and Barrett’s theory, however, reveals that specific language in each of the contracts in the cases cited by Caviness and Barrett made reference to a sale by lot or group and tied operative portions of the contract to some other outside reference point. In those cases, parol evidence was correctly admitted to establish the facts needed in order to interpret the clause in question. The contract we are presented with simply does not contain the language required to bring it within the rule of the cases advanced. The undisputed evidence in this case illustrates the critical importance of the language used. Caviness contracted with the W S Ranch to purchase its 1976 steer crop at $50 per hundred weight. That was a purchase by lot or group of the kind illustrated by the cases advanced, and Caviness was obligated to take the 1976 steer crop, regardless of weight or number, at the agreed price. Had Caviness and Barrett made the same kind of agreement with Corbett and Allen, the cases they rely on would be applicable, necessitating a contrary holding. Our concern is with the contract before us, however, and the evidence tendered by Caviness and Barrett in the trial court has no purpose other than to change the contract that was signed by eliminating one of its terms, i. e., the weight provision.

The evidence was properly excluded by the trial court.

The judgment of the trial court is affirmed.

      . After the contract in question was negotiated, cattle prices declined substantially, and the contract price with Corbett and Allen was 15 percent to 20 percent higher than the market price when the calves were ultimately received by Caviness and Barrett.

      . Doubtless this litigation would never have arisen if Caviness had intended to sell a 424 pound for $2.20.

      . The use of the term “approximately” in specifying the weights gives some latitude in that the animals could weigh slightly more or less than 300 to 325 pounds, but a difference of 100 pounds in a steer of the size in question exceeds the permissible ambient of the approximation. See Norton v. Menard Lumber Company, 523 S.W.2d 791, 793 (Tex.Civ.App.—San Antonio 1975, no writ); Johnsrud v. Lind, 219 N.W.2d 181, 189-190 (N.D.1974).


author: STOREY, Justice.

text:
    Lou Jean Cawthon McCARTY, Appellant, v. Vivian Diann Cawthon LOFTICE, Individually and as next friend for Lori Ann Cawthon, a minor and Opal Jane Cawthon Wright, Appellee.
    No. 20003.
    Court of Civil Appeals of Texas, Dallas.
    Aug. 31, 1979.

      James E. Fordham, Jr., Dallas, for appellant.
    James A. Frazier, McKinney, for appel-lee.
    Before GUITTARD, C. J., and CARVER and STOREY, JJ.
   STOREY, Justice.

This is an appeal from an order overruling defendant’s plea of privilege to be sued in Dallas County, Texas, and placing venue in Collin County, Texas. The issue is whether this suit is an attempt to revise probate proceedings under Tex.Rev.Civ. Stat.Ann. art. 1995, subdivision 18 (Vernon 1964). We conclude that subdivision 18 does not control, and venue was properly retained in Collin County. Affirmed.

Plaintiffs are surviving children of M. D. Cawthon, deceased, and defendant is the surviving spouse. Plaintiffs sued defendant in Collin County for conversion of property of the decedent’s estate which was held and claimed by defendant by virtue of an order of a probate court of Dallas County. In its order closing administration of the estate and discharging the administratrix, the probate court provided that the property in question passed to defendant under the terms of the decedent’s will. The record fails to show, however, that the will was ever admitted to probate. Defendant is a resident of Collin County, but nevertheless contends that because plaintiff’s suit is one to revise the order of the probate court, venue is proper in Dallas County where the probate proceedings were had. Plaintiff, on the other hand, urges that subdivision 18 does not apply, and venue therefore lies in defendant’s county of residence.

Article 1995, subdivision 18 provides: “Revision of probate. — Suits to revise proceedings of the county court in matters of probate must be brought in the district court of the county in which such proceedings were had.” Defendant argues that because this provision is mandatory, rather than permissive, venue is conclusively established in Dallas County. We cannot agree. The character of the case with respect to application of the venue statute must be determined by the facts alleged in plaintiff’s petition, the rights asserted thereunder and the relief prayed for. Dowden v. Cannon, 480 S.W.2d 822, 824 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ dism’d); Hooser v. Forbes, 33 S.W.2d 550, 551 (Tex.Civ.App.—Waco 1930, no writ).

Plaintiff’s petition contains no allegation that this is a suit to revise probate court proceedings. Instead, plaintiffs allege that defendant converted to her own use and benefit all of the personal property in which decedent had an interest at the time of his death. Although the statement of facts reveals some evidence of plaintiffs’ attempt to collaterally attack the order of the probate court, this is not the test. The allegations of the petition are controlling, and it declares upon a cause of action for conversion, not upon one for revision of the proceedings of a Dallas County probate court.

Our holding is limited to the question of whether venue is proper under subdivision 18 of article 1995, and we do not rule on the effect of the Dallas County Probate Court’s order on plaintiff’s cause of action for conversion. We affirm the trial court’s order overruling defendant’s plea of privilege.

Affirmed.


author: AKIN, Justice.

text:
    Albert H. MOORE, Jr., Appellant, v. Royce WHITE and Sharon White, Appellees.
    No. 20141.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 18, 1979.
    Warwick H. Jenkins, Jenkins & Jenkins, Waxahachie, for appellant.
    Mark M. Greenberg, Dallas, for appellees.
    Before AKIN, STOREY and CARVER, JJ.
   AKIN, Justice.

This is an appeal from an order overruling a plea of privilege. Plaintiffs filed suit in Dallas County alleging violations of the Texas Deceptive Trade Practices Act. Defendant, a resident of Ellis County, filed a plea of privilege and plaintiffs controverted it, relying on the venue exception contained in the act. Tex.Bus. & Com.Code Ann. § 17.56 (Vernon Supp.1978-1979). The trial court overruled defendant’s plea of privilege. Plaintiffs contend they may establish that defendant has done business in Dallas County merely by evidence that defendant sold one house in Dallas County. We disagree and hold that evidence that defendant engaged in a single transaction in Dallas County, without more, is “no evidence” that defendant “has done business” in Dallas County. Accordingly, we reverse the order of the trial court and render judgment sustaining the plea of privilege.

Tex.Bus. & Com.Code Ann. § 17.56 (Vernon Supp.1978-79) provides that, “An action brought which alleges a claim for relief under Section 17.50 of this subchapter may be commenced in the county in which the person against whom the suit is brought resides, has his principal place of business, or has done business.” [Emphasis added] Section 17.56 requires no proof of a cause of action under the Deceptive Trade Practices Act in order to sustain venue. The plaintiff merely has to allege a cause of action under the act. Pettit v. England, 583 S.W.2d 875 (Tex.Civ.App.—Dallas 1979, no writ). No question exists that plaintiffs’ petition alleges a cause of action under Section 17.50 of the Deceptive Trade Practices Act. The only question before us is the sufficiency of the evidence offered at the venue hearing.

Defendant first contends that plaintiffs must introduce their petition into evidence to prove that they have alleged a cause of action under the statute. We disagree. “When the nature of the suit is a venue fact, the petition is the best and sufficient evidence of the ‘principal right asserted and the relief sought for the breach thereof.’ It need not be introduced formally into evidence, for the court will take judicial notice of its contents.” 1 R. McDonald, Texas Civil Practice § 4.55, at 611-612 (rev. 1965). Schwartz Co., Inc. v. Paulsel Lumber Co., 564 S.W.2d 456, 459 (Tex.Civ.App.—Fort Worth 1978, writ dism’d).

We turn now to appellant’s second contention that the plaintiffs’ evidence failed to establish that the defendant “has done business” in Dallas County so as to fall within the ambit of Section 17.56. In the instant case, the plaintiffs testified that their house was located in Dallas County and that they purchased the house from the defendant. They offered no further evidence to show that defendant has done business in Dallas County. Plaintiffs contend this is sufficient to support a finding that defendant has done business in Dallas County. We disagree.

In Texan Meat Co. v. Inness, 308 S.W.2d 956 (Tex.Civ.App.—Dallas 1957, no writ) this court considered the definition of “doing business” in an opinion reversing an order overruling a plea of privilege. The court set forth the definition as, “doing a series of similar acts for the purpose of thereby realizing pecuniary benefit, or otherwise accomplishing an object, or doing a single act or such purpose with the intention of thereby initiating a series of such acts.” Plaintiff has not shown a series of acts by defendant nor has he presented evidence from which it can be inferred that defendant had any intent to perform a series of acts in Dallas County. Plaintiffs’ evidence consists solely of testimony of an isolated transaction in Dallas County. This testimony is “no evidence” that defendant had done business in Dallas County.

Plaintiff relies on Dairyland County Mutual Insurance Company of Texas v. Harrison, 578 S.W.2d 186 (Tex.Civ.App.—Houston [14th Dist.] 1979, no writ) and Compu-Center, Inc. v. Compubill, Inc., 580 S.W.2d 88 (Tex.Civ.App.—Houston [1st Dist.] 1979, no writ). Both of these cases are distinguishable on their facts. In Dairyland, the defendant had taken out an ad in the yellow pages of the Houston phone director. In Compu-Center, there was evidence that the defendants had other clients in Fort Bend County and that they had represented to plaintiff that they were doing business with several doctors in Fort Bend County in order to induce plaintiff to purchase a computer software system. In Compu-Center there was also evidence of a series of transactions by the defendant in the county of suit and in Dairyland, the yellow page ad was an attempt to solicit customers, indicating an intent to engage in a series of transactions in Harris County. No such evidence exists in the case at bar.

The Houston Court of Civil Appeals [1st Dist.] in Compu-Center cited a law review article, Maxwell, Public and Private Rights and Remedies under the Deceptive Trade Practice — Consumer Protection Act, 8 St. Mary’s Law Journal 617, 647 (1977), indicating that the minimum contacts test of the long arm statute, Tex.Rev.Civ.Stat.Ann. art. 2031b (Vernon 1964), may be used to establish venue under Section 17.56. We expressly reject the application of the minimum contacts test of article 2031b to the venue provisions of the Deceptive Trade Practices Act. Instead, the better approach is to look to prior case law defining “doing business” and “has done business.” We see no logical reason to complicate the venue provisions of section 17.56 by engrafting on to it the special definition of that term in article 2031b.

Accordingly, the trial court’s order overruling the defendant’s plea of privilege is reversed and judgment is here rendered transferring this case to Ellis County.

      . The Texas Statute creating the right to be sued in the county of the defendant’s residence specifically provides for venue exceptions contained in other statutes. Tex.Rev.Civ.Stat.Ann. art. 1995(30) (Vernon 1964).


author: MASSEY, Chief Justice.

text:
    Harold COON, d/b/a H.A.R. Company, Appellant, v. PETTIJOHN & PETTIJOHN PLUMBING, INC., Appellee.
    No. 18174.
    Court of Civil Appeals of Texas, Fort Worth.
    Sept. 20, 1979.

      Bishop, Larimore, Lamsens & Brown and Thomas J. Williams, Fort Worth, for appellant.
    Walker, Lively & Clarke and John R. Lively, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

By writ of error an account debtor appeals a default judgment rendered against him in a suit on a sworn account. The debtor complains there is insufficient evidence supporting the judgment because no record was made of the hearing and the itemization of the account was insufficient.

We reverse and remand.

Pettijohn & Pettijohn Plumbing, Inc., hereinafter referred to as Pettijohn, sued Harold Coon, d/b/a H.A.R. Company, hereinafter referred to as Coon, on a sworn account. Coon failed to answer or appear at trial and Pettijohn was granted a default judgment based on it’s pleadings. No statement of facts is available because no record was made of the default judgment hearing.

Coon contends the sworn account is deficient because it was insufficiently itemized. On the sufficiency of evidence, Coon claims since no statement of facts is available, there is no evidence on which the judgment can be based other than the allegedly insufficient sworn account and pleadings. Upon testing these allegations, we find remand to be our proper order.

We address the first point of error. Pettijohn made no allegation of a general contractual debt, and thus was limited by its pleadings to recovery under a sworn account pursuant to Tex.R.Civ.P. 185, “Suit on Sworn Account.” By decisions under that rule it has been held that the person alleging a sworn account must show with reasonable certainty the nature of each item in the account, the date of the transaction and the charge for that transaction or item. Williamsburg Nursing Home, Inc. v. Paramedics, Inc., 460 S.W.2d 168 (Tex.Civ.App.—Houston [1st Dist.] 1970, no writ); Biscamp v. Zeno Carpet Company, 473 S.W.2d 218 (Tex.Civ.App.—Beaumont 1971, no writ).

These requirements are not fully met in this case. The sworn account on which Pettijohn bases its claim does not describe with “reasonable certainty” the nature of various items in the account. A number of itemizations in the statement read as follows:

“3/30/76 Bid 3420.00
“3/30/76 Amount due rough in 1140.00
“4/27/76 Amount due top out 1140.00”

While these terms may have some specialized meaning between the parties or within the plumbing trade, they do not sufficiently identify the nature and the extent of a series of transactions which are the basis of the sworn account. They state neither a charge for material furnished nor labor performed.

Concerning the specificity by which Rule 185 is to be satisfied, courts have refused to uphold a sworn account based only on invoice numbers, date and amount of dollar charge. Wallis v. McGuffey, 392 S.W.2d 802 (Tex.Civ.App.—Dallas 1965, no writ); Nichols v. Murray, 284 S.W. 301 (Tex.Civ.App.—El Paso 1926, no writ).

Even in an instance where a statement of facts had been made, the court refused to guess at the meaning of the entire sworn account where only one of a number of entries in the account appeared to have a clear meaning. Benthall v. Goodwin, 498 S.W.2d 510 (Tex.Civ.App.—El Paso 1973, no writ).

A description of an item as “merchandise” followed by an invoice number relating to that “merchandise” has been held to be insufficient. “[Gjeneral statements contained in affidavits such as ‘merchandise’, followed by listing of invoice numbers, or giving the dates and figures without description of the various items, is insufficient to comply with Rule 185, T.R.C.P.” Wallis v. McGuffey, 392 S.W.2d 802, 804.

Any attempt to attach meaning to “bid”, “amount due rough in” and “amount due top out” is impossible without resorting to conjecture. We conclude that the sworn account on which Pettijohn bases its claim is insufficient to establish its right to recover by Rule 185.

While in the case of a default there is a general presumption that there is evidence to support the judgment, this rule is not applicable under the facts in this case. The rule to be applied here states that where the only evidence in a case was a sworn account and no statement of facts was available, an appellate court cannot assume that the judgment is supported by the evidence if there is insufficiency in the sworn account which is the basis of the plaintiff’s claim. Hassler v. Texas Gypsum Company, Inc., 525 S.W.2d 53 (Tex.Civ.App.—Dallas 1975, no writ); Benthall v. Goodwin, 498 S.W.2d 510.

Texas courts have also held that where a sworn account is insufficient under Tex.R.Civ.P. 185, it will not support a default judgment. U. S. Insulation Sales Corp. v. Jones-Blair Co., 491 S.W.2d 226 (Tex.Civ.App.—Dallas 1973, no writ); Hancock v. O. K. Rental Equipment Company, 441 S.W.2d 995 (Tex.Civ.App.—San Antonio 1969, no writ); Hassler v. Texas Gypsum Co., 525 S.W.2d 53; Big K Furniture Company, Inc. v. Covey Company, 511 S.W.2d 329 (Tex.Civ.App.—Austin 1974, no writ).

Thus, where a sworn account is insufficient to support a default judgment and where no other cause of action is plead, the only remedy is to reverse the default judgment and remand for a new trial. Big K Furniture Company, Inc. v. Covey Company, 511 S.W.2d 329; Benthall v. Goodwin, 498 S.W.2d 510.

•In the case before us there is no evidence, or in any event an insufficiency of evidence, to support the default judgment, and there are no permissible presumptions that there was evidence to support the judgment. The pleadings are not in a condition to support a judgment by default without the aid of evidence. Accordingly, the judgment must be reversed and the case remanded for a new trial.

We do not reach Pettijohn’s second point of error concerning the award of attorney’s fees. As the judgment on which those fees were based is to be reversed, the judgment awarding attorney’s fees must also be reversed. Resolution of the fee issue is to be decided in a new trial.

Reversed and remanded.