text:
    Harold Wayne DICKERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 58859.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 18, 1978.
    Phillip S. Brown, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty. and Richard L. Howell, Asst. Crim. Dist. Atty., Lubbock, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for burglary; the punishment is imprisonment for eleven years.

Appellant was convicted of burglarizing the house belonging to Naomi Martin in Lubbock. Appellant was previously convicted for this offense, but this Court set aside that conviction because the indictment on which the conviction was based showed on its face that the prosecution was barred by limitations. Ex parte Dickerson, 549 S.W.2d 202 (Tex.Cr.App.1977). In the instant case, appellant again contends that the indictment is void because it shows on its face that the prosecution is barred by the statute of limitations. Since we agree with this contention, we will not discuss appellant’s other grounds of error.

The indictment recites that the burglary was committed on or about January 29, 1971. The indictment was presented and filed on June 8, 1977, well after the five-year limitation period applicable to burglary. Art. 12.03, V.A.C.C.P., 1965; Art. 12.01, V.A.C.C.P., effective January 1, 1974. A prosecution commenced after the statute of limitations has run is barred unless facts tolling the statute are pled and proved by the State. Art. 21.02(6), V.A.C.C.P.; Cooper v. State, 527 S.W.2d 563 (Tex.Cr.App. 1975); Jackson v. State, 489 S.W.2d 565 (Tex.Cr.App.1972); Donald v. State, 165 Tex.Cr.R. 252, 306 S.W.2d 360 (1957). In the instant case, the indictment alleges the following facts to show that the statute of limitations was tolled:

“AND THE GRAND JURORS AFORESAID do further present that on or about the 26th day of June, 1974, a complaint was duly filed in Lubbock County, Texas, against the said HAROLD WAYNE DICKERSON, charging him with the offense hereinabove charged in this indictment and that thereafter on the 12th day of February, 1976, the Grand Jury for the County of Lubbock, Texas, returned on indictment against the said HAROLD WAYNE DICKERSON charging him with the offense here-inabove charged in this indictment and thereafter on the 13th day of April, 1977, the indictment was held to be invalid by the Court of Criminal Appeals of the State of Texas . . . ”

The filing of a complaint in justice court does not toll the running of the period of limitations in a felony case. Ex parte Ward, 560 S.W.2d 660 (Tex.Cr.App.1978). Thus, the facts alleged in the indictment are on their face insufficient to show that the statute of limitations was tolled. Although appellant did not plead limitations as a defense in the trial court, the failure of the indictment to allege that the offense was committed at' a time not so remote that the prosecution is barred by limitations is a fundamental defect and may be raised for the first time on appeal. Cooper v. State, supra; Donald v. State, supra.

The judgment is reversed, and the indictment is ordered dismissed.


source: Caselaw Access Project

author: DALLY, Judge.

license: Public Domain

text:
    Luis LOYA, Appellant, v. The STATE of Texas, Appellee.
    No. 59082.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 18, 1978.
    Dick Stengel, El Paso, for appellant.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

DALLY, Judge.

Appellant waived a jury trial and entered a plea of guilty before the court to an information that charged he did “intentionally and knowingly or recklessly carry on and about his person a tire iron; . . . ” The punishment is confinement for 60 days in jail and a $50 fine, probated for one year.

V.T.C.A. Penal Code, Sec. 46.02(a), provides:

“A person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club.”

A tire iron is not a handgun as defined by V.T.C.A. Penal Code, Sec. 46.01(5), or an illegal knife as defined by V.T.C.A. Penal Code, Sec. 46.01(6). It is conceivable, however, that a particular tire iron could be a club as defined by V.T.C.A. Penal Code, Sec. 46.01(1). That statute provides:

“In this chapter:
“(1) ‘Club’ means an instrument that is specially designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with the instrument, and includes but is not limited to the following:
“(A) blackjack;
“(B) nightstick;
“(C) mace;
“(D) tomahawk.”

A tire iron is not specifically listed as a club as are a blackjack, nightstick, mace, and tomahawk. However, if the offense is properly alleged, evidence may be offered that a particular tire iron is “an instrument that is specifically designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with the instrument, . . ”

Neither the information nor the complaint upon which it is based allege that the tire iron in the instant case is a “club” or “an instrument that is specifically designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with the instrument, . .” We conclude that the complaint and information do not allege a violation of Sec. 46.02, supra, which prohibits the unlawful carrying of weapons. Since they do not charge an offense under the law, the complaint and information are fundamentally defective, and the judgment must be reversed and the prosecution ordered dismissed. Compare Ex parte Ashcraft, 565 S.W.2d 926 (Tex.Cr.App.1978).

The judgment is reversed and the prosecution under the instant complaint and information is ordered dismissed.


author: McKAY, Justice.

text:
    WILLIAM SOMMERVILLE & SON, INC., Appellant, v. Leola CARTER et al., Appellees.
    No. 1150.
    Court of Civil Appeals of Texas, Tyler.
    Aug. 31, 1978.
    Rehearing Denied Oct. 19, 1978.

      Mike Hatched, Ramey, Flock, Hutchins, Jeffus, McClendon & Crawford, Tyler, for appellant.
    Charles M. Wilson, III of Carter, Jones, Magee, Rudberg, Moss & Mayes, Dallas, Wynne & Wynne, Wills Point, John Davenport, Asst. Atty. Gen., Austin, for appellees.
   McKAY, Justice.

Appellee Leola Carter, individually and in her representative capacity, brought this suit in the Third Judicial District Court of Henderson County against appellant William Sommerville & Son, Inc., Lloyd Goins, and Doyle Ray Hundley to recover damages for the death of her husband. Appellant, a corporate resident of Dallas County, filed its plea of privilege to be sued in its county of residence. The trial court overruled the plea of privilege and appellant has perfected this appeal.

This case arises out of the death of Find-Ion Carter on February 11, 1976, while working as an employee for the State Highway Department. While directing traffic on the side of the road, Carter was struck by a pickup truck. Said truck had been struck from the rear by a tractor-trailer rig driven by Doyle Hundley. The tractor trailer rig was owned by Lloyd Goins and at the time was carrying railroad crossties owned by William Sommerville & Son, Inc. Appellee alleged that Carter’s death occurred as the result of negligence on the part of Sommerville & Son, Inc., Goins, and Hundley; that Hundley was the agent, servant, or employee of Goins acting in the course and scope of his employment; that Sommerville & Son, Inc., was negligent per se in violating Art. 911b, sec. 16(a), Tex. Rev.Civ.Stat.Ann., and negligent in fact by failing to ascertain that Goins had not been authorized by the Railroad Commission to engage in any hauling activity.

Appellee filed an amended controverting affidavit to the plea of privilege wherein she contended that venue was maintainable in Henderson County, Texas, by virtue of Subdivisions 9a, 23, and 29a of Art. 1995, Tex.Rev.Civ.Stat.Ann. Upon hearing of the cause, the trial court overruled the plea of privilege and Sommerville & Son, Inc., perfected this appeal. No findings of fact or conclusions of law were requested by any party and none were filed.

The general rule of venue is that a defendant must be sued in the county of his domicile. In order to defeat the defendant’s plea of privilege to be sued in the domiciliary county, the burden is on the plaintiff to plead and prove by a preponderance of the competent evidence that the case comes within one of the statutory exceptions. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935); General Motors Corporation v. Courtesy Pontiac, Inc., 538 S.W.2d 3 (Tex.Civ.App. — Tyler 1976, no writ); Ad-mirai Motor Hotel of Texas, Inc. v. Community Inns of America, Inc., 389 S.W.2d 694 (Tex.Civ.App.—Tyler 1965, no writ). Unless the plaintiff clearly discharges his burden of proof, the defendant is entitled to have the case transferred to the county of his domicile. Goodrich v. Superior Oil Company, 150 Tex. 159, 237 S.W.2d 969 (1951); Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825 (1950); Seldon v. Green, 498 S.W.2d 285 (Tex.Civ.App. — Tyler 1973, no writ); Admiral Motor Hotel of Texas, Inc. v. Community Inns of America, Inc., supra.

The venue facts which the plaintiff must allege and prove to defeat a plea of privilege are those stated in the particular exception of Article 1995 applicable to the cause of action as alleged. As noted, the burden is on the plaintiff to establish those venue facts by a preponderance of the competent evidence. Wire Rope Corporation of America, Inc. v. Barner, 446 S.W.2d 361 (Tex.Civ.App.-Tyler 1969, no writ). A pri-ma facie case, alone, is not sufficient. Compton v. Elliott, supra; Lynch v. Millican, 304 S.W.2d 410 (Tex.Civ.App.-Waco 1957, no writ). Venue may not be established by the plaintiff on the basis of mere implication. Burtis v. Butler Bros., supra; Key v. Davis, 554 S.W.2d 60 (Tex.Civ.App. —Amarillo 1977, no writ); Reynolds & Huff v. White, 378 S.W.2d 923 (Tex.Civ. App.-Tyler 1964, no writ).

Appellee contends that venue is properly placed in Henderson County, Texas, under Sub. 9a, Article 1995, Tex.Rev.Civ.Stat.Ann. The facts required to be proven to sustain venue under 9a are (1) that an act or omission of negligence occurred in the county where the suit was filed; (2) that such act or omission was that of the defendant, in person, or that of his servant, agent, or representative acting within the scope of his employment; and (3) that such negligence was a proximate cause of plaintiff’s injuries. Bledsoe v. Yarborough, 422 S.W.2d 222 (Tex.Civ.App. — Tyler 1967, no writ); McDonald, Texas Civil Practice, Vol. 1, sec. 4.17.2, pp. 476 — 480. Appellee alleged that Sommerville & Son, Inc. was negligent per se by aiding or abetting a violation of the Motor Carrier Act, sec. 16(a), Art. 911b, Tex.Rev.Civ.Stat.Ann. (1925), and was negligent in fact by virtue of its failure to know whether Goins was authorized by the Railroad Commission to transport property for hire. Appellee also alleged that Goins and Hundley were agents or employees of appellant and that said agents or employees were negligent on the occasion in question.

Appellee also relies upon Subdivision 23 of Art. 1995 to maintain venue in Henderson County. It is appellee’s contention that this cause of action arose, either in whole or in part, in Henderson County. Prior to reaching the question of whether the “cause of action or part thereof” arose, we must first determine whether appellee established by a preponderance of the competent evidence that she did in fact have a cause of action against appellants. Wire Rope Corporation of America, Inc. v. Barner, supra. Unless there is, in fact, a cause of action, there could be no “part thereof” arising anywhere. Admiral Motor Hotel of Texas, Inc. v. Community Inns of America, Inc., supra.

Appellant contends in his third point of error that there is no evidence that Goins or Hundley were agents or employees of appellant. Appellant concedes that the accident happened under circumstances which could raise an inference of negligence on Hundley’s part. In reviewing this “no evidence” point, we may look only to the evidence and reasonable inferences therefrom which are favorable to the judgment of the court below. General Motors Corporation v. Courtesy Pontiac, Inc., supra; Ralston Purina Company v. Wiseman, 467 S.W.2d 669 (Tex.Civ.App.-El Paso 1971, no writ); Calvert, “No Evidence and Insufficient Evidence Points of Error,” 38 Tex.L.Rev. 361, 364 (1960).

An independent contractor has been defined as any person who, in the pursuit of an independent business, undertakes to do a specific piece of work for other persons, using his own means and methods, without submitting himself to their control in respect to all its details. The recognized tests to determine when one is acting in the capacity of independent contractor are (1) the independent nature of his business; (2) his obligation to furnish necessary tools, supplies and materials to perform the job; (3) his right to control the progress of the work except as to final results; (4) the time for which he is employed; (5) the method of payment, whether by the time or by the job. Pitchfork Land and Cattle Company v. King, 162 Tex. 331, 346 S.W.2d 598, 603 (1961); Industrial Indemnity Exchange v. Southard, 138 Tex. 531,160 S.W.2d 905, 907 (1942).

It has also been said that in practically all cases the independent nature of an agreement of employment may be inferred when the party is engaged in a distinct and generally recognized employment and his stipulated remuneration is to be determined by some quantitative standard. Dave Lehr, Inc. v. Brown, 127 Tex. 236, 91 S.W.2d 693 (1936). Quite often, however, right of control of the details of the work is the determinative test of whether one is an employee or an independent contractor. Anchor Casualty Company v. Hartsfield, 390 S.W.2d 469, 471 (Tex.1965); Newspapers, Inc. v. Love, 380 S.W.2d 582 (Tex.1964).

We fail to find any evidence in the record to support a finding that Goins or Hundley were agents, servants or representatives of Sommerville & Son, Inc. Ap-pellee relies on the testimony of Adrian Brashears, Field Superintendent for appellant, as evidence that Goins was the agent or employee. Brashears testified that he hired Goins and that Goins went to sawmills, without any instructions to do so, to pick up crossties for appellant. Goins testified that for income tax purposes he would call Sommerville & Son, Inc. at the end of the year to determine what he had been paid during the past year. Such testimony is not evidence that Goins was an employee or agent of Sommerville & Son, Inc. Specifically, appellee failed to adduce any evidence that Sommerville & Son, Inc., or its employee Brashears, had the right of control of the details of the work. Assuming Hundley’s negligence, appellee failed to meet his burden of proof that Goins or Hundley were servants, agents or representatives thereby maintaining venue in Henderson County under Subdivision 9a, Art. 1995, Tex.Rev.Civ.Stat.

Appellant contends in its point of error two that there is no evidence that appellant procured, aided or abetted a violation of Sec. 16(a) of Art. 911b, Tex.Rev.Civ. Stat.Ann. (1925), Sec. 16(a) provides:

“. . . Every officer, agent, servant or employee of any corporation and every other person who . . . procures, aids or abets in the violation of any provision of this Act . . shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than Twenty-five Dollars ($25.00), nor more than Two Hundred Dollars ($200.00), and the violations occurring on each day shall constitute a separate offense.” [Emphasis added.]

Appellant argues that one alleged to be an aider and abettor (1) must have knowledge of the illegality alleged plus criminal intent to violate; and (2) must actively or affirmatively encourage the principal actor in the violation, as opposed to merely consenting to it. We agree. It is undisputed that Goins failed to possess authority from the Texas Railroad Commission allowing him to transport crossties for hire over the public highways of Texas which failure was a violation of the Motor Carrier Act, Art. 911b, Tex.Rev.Civ.Stat.Ann.

Appellee cites several cases for the proposition that knowledge and intent and encouragement are not required for appellant to be found guilty of negligence per se. See Mason Feed Store v. Starks, 398 S.W.2d 392 (Tex.Civ.App. — Austin 1966, writ dism’d); United States v. Lowther Trucking Co., 229 F.Supp. 812 (N.D.Ala. 1964); United States v. J & J Truck Leasing, Inc., 258 F.Supp. 105 (D. Kansas 1966); United States v. Gunn, 97 F.Supp. 476 (W.D.Ark.1950). The rule announced in Gunn and J & J Truck Leasing that no culpable mental state was required for the violator of the statute involved was not followed by the 9th Circuit in United States v. Hays Roofing and Supply, Inc., 490 F.2d 1190, 1193 (9th Cir. 1974). In Texas any violation of a penal statute requires a culpable mental state. Tex.Penal Code Ann. sec. 6.02. The provision at issue here, sec. 16(a) of Art. 911b, V.T.C.S., is a penal one, and therefore, an intentional, knowing, or reckless mental state is required. With the exception of Mason, we find no decision from a court in this State construing the phrase “procures, aids, or abets” as it appears in sec. 16(a) of Art. 911b. Nevertheless we are constrained not to follow that decision.

In that case, Mason Feed Store executed a grain handler’s agreement with the U.S. Department of Agriculture Commodity Credit Corporation (CCC) under which it was to receive grain from the CCC, store it and issue it on purchase orders. Mason Feed Store had two trucks and a Railroad Commission carrier permit to haul grain and made successive oral agreements to haul the grain from Brownwood to the store in Mason, Texas. Pursuant to one of these hauling agreements, Mason Feed Store made an agreement with Homer Bri-ley, Jr. to haul grain, paying him ten cents per hundred pounds. Neither Homer Briley nor his brother W. J. Briley had a Railroad Commission permit authorizing either of them to carry the grain. Pursuant to his brother’s agreement with Mason Feed Store to haul grain, and under the latter’s agreement with the CCC, W. J. Briley picked up a load of grain and while en route to his destination struck a truck killing the driver of the truck.

The court held that by procuring Homer Briley and through him, W. J. Briley to carry a load of CCC grain from Brownwood to Mason for the Mason Feed Store, neither of whom had a Railroad Commission permit, Mason Feed Store procured, aided and abetted in the violation of Art. 911b, within the meaning of Art. 1690b, V.A.T.S. (now Sec. 16(a), Art. 911b), and therefore was guilty of negligence per se. The court cited Mundy v. Pirie-Slaughter Motor Company, 146 Tex. 314, 206 S.W.2d 587 (1947) as authority for this holding.

Upon consideration of the Supreme Court’s decision in Mundy, we do not believe it to be authority for the court’s holding in Mason. Although the Supreme Court dealt with a different statute and a different set of facts, we do believe the decision is helpful to our disposition of the case at bar.

In Mundy, a minor employee of the defendant Pirie-Slaughter Motor Co. was driving an automobile owned by the defendant and while negligently operating the vehicle injured the plaintiff. However, there was no evidence that the employee was in the course and scope of his employment. The minor employee did not have a driver’s license. In that case, the plaintiff contended that the defendant was negligent in that defendant’s agents permitted the minor employee to take and drive the automobile when they knew or in the exercise of reasonable care should have known that said employee (1) was an incompetent and reckless driver and (2) that he did not have a driver’s license. The statute under which it was alleged that defendant was negligent was Art. 6687b, Sec. 36, V.A.C.S.

Section 36 made it unlawful for any person knowingly to permit a motor vehicle owned by him or under his control to be driven by any person not licensed or otherwise authorized under the statute to operate a motor vehicle. The court stated: “We do not think . . that the mere proof, in the absence of actual knowledge, that the defendant’s agents in the exercise of reasonable care should have known that [the employee] did not have a license would show a violation of the statute.” Mundy v. Pirie-Slaughter Motor Co., supra, 206 S.W.2d at p. 590.

Although Mundy was a negligent entrustment case we believe the Supreme Court’s statement to be applicable to the facts before us. The only proof before us is that Sommerville & Son, Inc. did not know that Goins did not have Railroad Commission authorization, and did not ask if he did. Therefore, we find there was no evidence that defendant procured, aided or abetted a violation of Sec. 16(a), Art. 911b. Accordingly, appellant’s point of error two is sustained.

In its point of error one, appellant contends that appellee failed to prove by a preponderance of the evidence that appellant committed an act of negligence in Henderson County which was the proximate cause of the accident in which Findlon Carter lost his life. We agree.

Appellee alleged that appellant knew, or in the exercise of ordinary care, should have known that Goins was not legally authorized to haul the crossties and that the failure to ascertain Goins’ status was negligence proximately causing the death of Findlon Carter. Appellees rely on Mason Feed Stores and Mundy to support their theory of recovery. Under the facts before us, and upon consideration of the authorities cited to us, we find no basis for imposing such a duty upon Sommerville & Son, Inc.

Art. 911b, Tex.Rev.Civ.Stat.Ann., sec. 6(c), provides that no permit shall “be granted if the Commission shall be of the opinion that the proposed operation of any such . . carrier will impair the efficient public service of any authorized common carrier or common carriers then adequately serving the same territory.” We do not believe that such language imposes a duty upon one hiring a motor carrier to inquire as to whether such carrier has a permit to operate on the highways of this State. Accordingly, we hold that Sommerville & Son, Inc. owed no duty to appellee to inquire as to whether Goins had a Railroad Commission permit. Appellant’s point of error one is sustained.

Thomas v. Reed, 483 S.W.2d 61, 62 (Tex. Civ.App.-Dallas 1972, no writ), McIntire v. Sellers, 311 S.W.2d 886 (Tex.Civ.App. — Austin 1958, writ ref’d n. r. e.), and Spratling v. Butler, 150 Tex. 369, 240 S.W.2d 1016 (1951), cited and relied upon by appellees, are, like Mundy, cases of negligent entrustment of a motor vehicle to another. We believe they are distinguishable from the instant case.

Assuming that appellant owed a duty to inquire as to whether Goins had a permit and that the failure to inquire was negligence, we would reach the same result based on appellee’s failure to prove by a preponderance of the evidence that such failure was a proximate cause of Findlon Carter’s death.

In East Texas Theatres, Inc. v. Rutledge, 453 S.W.2d 466 (Tex.1970), the Supreme Court stated, at page 468:

“. . . Just as we said in Baumler v. Hazelwood [162 Tex. 361, 347 S.W.2d 560] and later in Texas & Pacific Railroad Co. v. McCleery, 418 S.W.2d 494 (Tex.Sup. 1967), it is well settled that proximate cause includes two essential elements: (1) there must be cause in fact — a cause which produces an event and without which the event would not have occurred; and (2) foreseeability. See also Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352 (1951). ‘An essential element of the plaintiff’s cause of action for negligence is that there be some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered.’ Prosser, Law of Torts (3rd Ed.) 240-241, ‘Causation’, 41 (1964).”

The court also recognized that cause in fact covers one’s omissions as well as his acts.

The record in this case clearly shows a complete lack of proof that Hund-ley would not have negligently operated Goins’ truck “but for” the failure of Som-merville & Son, Inc. to inquire as to Goins’ status with the Railroad Commission. A finding of proximate cause cannot be sustained unless there is proof of cause in fact and foreseeability. Enloe v. Barfield, 422 S.W.2d 905 (Tex.1967). Neither cause in fact nor foreseeability has been proven by appellee.

In view of our discussion of appellant’s points of error, we hold that appellee failed to prove by a preponderance of the competent evidence the necessary facts under either subdivision 9a or 23 of Art. 1995.

Appellee also contended that venue could be maintained in Henderson County under Subdivision 29a of Art. 1995, which reads as follows:

“29a. Two or more defendants.— Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.”

We believe appellee’s contention is without merit.

The general rule is that where, under the exceptions contained in Article 1995, a suit is properly maintainable against one defendant in a county other than the county of his residence, and the plaintiff therein joins another as defendant and seeks to sustain venue as to him under Section 29a, such other defendant is a necessary party within the meaning of Section 29a if the complete relief to which plaintiff is entitled under the facts of the case as against the defendant properly suable in that county can be obtained only in a suit to which both defendants are parties. Alexander, C. J., in Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774, 775 (1944), citing Pioneer Building & Loan Ass’n v. Gray, 132 Tex. 509, 125 S.W.2d 284 (1939); and Tar-rant v. Walker, 140 Tex. 249, 166 S.W.2d 900 (1942). There was no evidence to establish joint responsibility, and appellee was under the burden of proving that no effectual decree could be rendered between her and Goins and Hundley without joining appellant. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758, 764 (1956); Loop Cold Storage Co. v. South Texas Packers, Inc., 491 S.W.2d 106 (Tex.1973). Appellee failed to carry this burden.

In view of our disposition of appellant’s first three points of error, we need not address the fourth point of error attacking the order overruling its plea of privilege because there was factually insufficient evidence to support a finding of negligence per se or negligence in fact.

The order overruling appellant Sommer-ville & Son, Inc.’s plea of privilege is reversed, and judgment is here rendered sustaining the plea of privilege and ordering the case against it transferred to one of the district courts of Dallas County, ⅝ Texas.


author: COLEMAN, Chief Justice.

text:
    Alberta JONES, Appellant, v. HOUSTON ARISTOCRAT APARTMENTS, LTD., Appellee.
    No. 17054.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 18, 1978.
    Rehearing Denied June 22, 1978.
    David J. Nagle, Houston, for appellant.
    Kain & Reedy, John 0. Kain, Houston, for appellee.
   COLEMAN, Chief Justice.

This is a suit for damages for personal injuries sustained in a fall by the lessee of an apartment in a multiple unit housing project. After a trial to a jury a judgment was entered for the lessor notwithstanding the verdict. The judgment will be reversed.

Alberta Jones and her husband, Joe Jones, rented an apartment in the project known as Aristocrat Apartments from Houston Aristocrat Apartments, Ltd., under a written lease agreement. Del Farris executed the lease agreement as the Assistant Manager of Houston Aristocrat Apartments, Ltd. The lessor has a contract with the Secretary of Housing and Urban Development acting through the Federal Housing Commissioner whereby the Commissioner makes interest reduction payments to afford subsidized housing to the tenants in this project.

Prior to renting the apartment Alberta Jones accompanied by Del Farris inspected the apartment. She discovered a depression in the flooring which Alberta described in her testimony as a “hole in the floor.” She testified that it was large enough for “your foot to fit in” and that Del Farris placed her foot in the depression on that occasion. Plaintiff testified that the hole was about five or six inches long. Arthur Shirley, a maintenance man at the project, testified that the “sink” in the floor was about two or two and a half feet in diameter.

On the 21st day of June 1974 a fire broke out in the electric fan located in the bathroom of the apartment. While Mrs. Jones was running to the telephone to call the fire department she stepped in the hole and broke her foot. This suit resulted.

In response to special issues the jury found that.Del Farris told Alberta Jones the depression in the floor would be repaired by defendant, but that there was no agreement between Del Farris and Alberta Jones that the condition of the floor would be repaired before the lease was signed. The jury found that after February 17,1974 there was an agreement between Del Farris and Alberta Jones that the floor would be repaired by the defendant; that Del Farris had the authority to bind the defendant in connection with the repair of the condition of the floor; that the failure of the defendant to repair the condition of the floor was negligence; that the negligence was a proximate cause of the occurrence in question; that Alberta Jones was not negligent in stepping into the depression in the floor; and that she suffered damage in the amount of $5,500.00.

The lease agreement provided that the tenant would repair damage caused by his act at his own expense. It authorized the landlord to enter the premises for the purpose of making reasonable inspections and repairs. Paragraph 12 reads:

“The TENANT, by the execution of this agreement admits that the dwelling unit described herein has been inspected by him and meets with his approval. The TENANT acknowledges hereby that said premises have been satisfactorily completed, and that the LANDLORD will not be required to repaint, replaster, or otherwise perform any other work, labor, or service which it has already performed for the TENANT. The TENANT admits that the premises are in a tenantable condition, and agrees that at the end of the occupancy hereunder to deliver up and surrender said premises to the LANDLORD in as good condition as when received, reasonable wear and tear excepted.”

The contract also provides “No alteration, addition, or improvements shall be made in or to the premises without the prior consent of the LANDLORD in writing.”

It is well settled that where a landlord retains possession or control of a portion of the leased premises the landlord is charged with the duty of ordinary care in maintaining the portion retained so as not to damage the tenant. Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex.1963); Lang v. Henderson, 215 S.W.2d 585 (Tex.1948). This rule has been applied in a case where a tenant suffered water damage by reason of a leaky roof and stopped up drain pipes. Archibald v. Fidelity Title & Trust Co. 296 S.W. 680 (Tex.Civ.App.—Eastland, 1927, no writ history). The same rule was applied in Denson v. Willcox, 298 S.W. 534 (Tex.Com.App.1927), a case in which a tenant suffered damage by reason of the collapse of a partition wall. There the court said:

“Where a partition wall forms a constituent part of each of two buildings owned by the same landlord, and the buildings are let to different tenants, without contract provisions specifically regulating the possession, control, or repair of the partition wall the possession and control of such wall, for maintenance purposes, remain in the landlord, though a common right of user, as a party wall, passes to the several tenants as an appurtenance to their respective leaseholds. This possession and control by the landlord imposes upon him the duty to exercise ordinary care to maintain the wall in a reasonably safe condition, and he is liable to his tenants for the damage suffered by them in consequence of his failure to perform that duty . . . The obligation of a tenant to keep in repair the demised premises does not extend to property in which he holds appurtenant easement rights, merely, in common with his fellow tenants.”

The Supreme Court of Texas has determined that a cause of action for damages was stated in a case against the Housing Authority of the City of Dallas where a tenant brought suit for damages suffered as the result of a defective gas heater in an apartment leased by him from the Authority. It was there alleged that the Housing Authority had exclusive responsibility for maintenance and repair of the gas heater. A summary judgment in favor of the Authority was granted in the trial court by reason of the provision in the lease insulating the landlord from liability for damages resulting from the condition of the premises. The Supreme Court pointed out that the defendant was a public body organized for the declared purpose of providing safe and sanitary dwelling accommodations for persons of low income and that the situation presented a classic example of unequal bargaining power. The opinion stated that the terms of the contract were dictated by the Authority, and that a prospective tenant had no choice but to accept them if he and his family were to enjoy decent housing accommodations not otherwise available to them. The Court then held that the exculpatory provision was contrary to public policy and void insofar as it purported to affect the authority’s liability in the case under consideration. Crowell v. Housing Authority of City of Dallas, 495 S.W.2d 887 (Tex.Sup.1973).

There is evidence in this case that a defect existed in the flooring of a second story apartment in a multiple housing unit. It is suggested in the evidence that the flooring was a concrete structure which formed the ceiling of the apartment below. There is evidence from which a conclusion could be drawn that the defective condition could not be repaired without damaging the carpeting which covered it. The defective condition of the flooring is quite similar to a defective partition wall.

The lease permits the landlord to enter the premises for the purpose of making repairs and forbids the tenant from making any alteration or improvement in the premises without the prior consent of the landlord. These provisions of the lease grant the landlord effective control of the flooring in the plaintiff’s apartment.

Provisions of a lease whereby the tenant admits that the dwelling unit meets with his approval, has been satisfactorily completed and is in a tenantable condition are contrary to public policy and void insofar as they serve to insulate the landlord from liability for his negligent failure to repair a known dangerous condition. Crowell v. Housing Authority of City of Dallas, supra.

The Supreme Court of Texas has approved the statement of the duty owed by the lessor to a lessee found in §§ 360 and 361 of the Restatement (2d) of Torts. § 360 provides that a possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe. Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.1978). In this case the Supreme Court expressly abolished the no duty concept and determined that premises cases should be tried on simple negligence and contributory negligence issues. In this case the jury failed to find the plaintiff guilty of contributory negligence, but found the defendant guilty of negligence.

The trial court erred in entering a judgment notwithstanding the verdict in favor of the defendant. The judgment is reversed and judgment is here rendered that Alberta Jones recover from Houston Aristocrat Apartments, Ltd., Libo, Incorporated, Julian Holt Bowman and National Housing Partners, jointly and severally, the sum of $5,500.00 together with interest at the rate of 9% per annum from August 23,1977, and all costs of court.


author: PEDEN, Justice.

text:
    SIBONEY CORPORATION, Appellant, v. CHICAGO PNEUMATIC TOOL COMPANY, Appellee.
    No. 17089.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 25, 1978.
    Rehearing Denied June 22, 1978.

      Ellis F. Morris, Houston, for appellant.
    Baker & Botts, David P. Cotellesse, Houston, for appellee.
   PEDEN, Justice.

Siboney Corporation appeals from the granting of a deficiency judgment in favor of Chicago Pneumatic Tool Company, the owner and holder of a note. Chicago Pneumatic repossessed the collateral for the note, held a public sale and then brought this action for the deficiency. The jury found that Chicago Pneumatic sent reasonable notice of the sale to Siboney, declined to find that Chicago Pneumatic failed to act in a commercially reasonable manner or that the $100,000 received for the collateral was grossly inadequate but found that the fair market value of the equipment at the time of the sale was $150,000. The court entered judgment on this verdict in favor of Chicago Pneumatic for the amount of the deficiency plus interest and attorney’s fees. Siboney argues on appeal that the notice was insufficient, so the sale was not commercially reasonable as a matter of law, that the sale price was grossly inadequate as a matter of law, that the findings as to commercial reasonableness and as to adequacy of the sale price were not supported by the evidence, and that a remittitur should be ordered. Appellant also claims that the appellee failed to rebut a presumption that the value of the collateral equals the debt. We affirm.

In February, 1969 MoRoCo, Inc., executed a $296,255 note and a chattel mortgage in favor of Compression Fabricators, Inc. for the purchase of 3 Chicago Pneumatic air compressors. Compression Fabricators assigned the note to Chicago Pneumatic, and Siboney assumed the liabilities of Compression Fabricators when it acquired that company in 1969. In December of that year Siboney purchased the air compressors from MoRoCo and assumed the primary obligation on the note. Siboney gave Compression possession of the equipment, and Compression continued to make the payments for a time but stopped in the spring of 1971.

Chicago Pneumatic repossessed the compressors in Las Vegas, Nevada, shipped them to Houston and stored them at the yard of Texas Commercial Industries, Inc., where it conducted a public sale on October 4, 1971. Chicago Pneumatic purchased the compressors on its bid of $100,000, credited the proceeds of the sale to the note, unsuccessfully demanded the deficit and instituted this suit.

Appellant’s first point of error is that the notice of sale given by Chicago Pneumatic to Siboney did not meet the reasonable notification requirements of § 9.504(c) of the Texas Business and Commerce Code, so the sale was not commercially reasonable as a matter of law.

§ 9.504(c) of the Texas Business and Commerce Code states that “. . . reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor.” This is the notice sent by Chicago Pneumatic and received by Siboney:

Notice of Sale
“On October 4, 1971, at 1:00 p. m. at Texas Commercial Industries, Inc., 11601 North Houston-Rosslyn Road, the following described property of Compression, Inc. of Houston, Texas will be exposed to sale at public auction without reserve:
“3 High Chicago Pneumatic Air Compressors, as follows: (1) CP5FE-43 Serial Nos. 80893, 81254, 81256, 82260 and 80851, Caterpillar Engine D398B, Serial No. 75B-848. (2) CP5FE-43, Serial Nos. 80892, 81255, 81258, 82259 and 81006, Caterpillar Engine D398 B Serial No. 75B847. (3) CP-6FE-21 Serial Nos. 81715, 80309 and 81225, Caterpillar Engine D398B Serial No. 66B207. Plus miscellaneous items and equipment including controls used in connection therewith and necessary to make complete units.
“This sale is held to enforce the rights of Chicago Pneumatic Tool Company, New York, New York, as assignee arising under a Security Agreement covering the above-described property, the original parties to which were Moroco, Inc., a Nevada Corporation, debtor and Compression Fabricators, Inc., secured party.
“Terms: All Cash.
CHICAGO PNEUMATIC TOOL COMPANY
Bv: /s/ Rav A. Gipson
Ray A. Gipson, Attorney
3000 One Shell Plaza
Houston, Texas 77002
713-229-1465”

Mr. Gipson testified that omission of the words “Houston, Texas” after the address of Texas Commercial Industries was an oversight. Siboney argues that this notice was insufficient as a matter of law because it failed to show the city in which the sale was to be-held. Whether the acts of a party are reasonable is usually a question of fact. “Reasonable notification” is not defined in the article; we consider that less than a full and complete notice is required. We hold that a fact issue was raised and that the jury was entitled to conclude that the notice was sufficient to inform reasonable business persons of the place of the sale.

The notice was sent to Siboney’s Dallas office. The attorney for the creditor who signed the notice gave a Houston address and phone number, the address of the place of sale was given as 11601 North Houston-Rosslyn Road, the name of the property’s owner was shown to be Compression, Inc. of Houston, Texas, and Siboney did not produce any evidence that its representatives either did not understand or could not deduce the place of the sale from the notice. Siboney’s testimony shows that it merely forwarded the notice to Compression, Inc., a company it had previously owned, and did nothing further. Siboney offered no showing that it was prejudiced by the omission of “Houston, Texas” after the address of Texas Commercial Industries in the notice.

Appellant urges as other points of error:

2. “The jury finding that the sale was commercially reasonable is not supported by the evidence.”
4. “As a matter of law, the sale price of the collateral security was for a grossly inadequate price.”
5. “The jury finding that the sale price was not grossly inadequate is not supported by the evidence and conflicts with the finding of fair market value.”

Among others, the trial court submitted these issues and instructions and received these findings:

Special Issue No. 2
“Do you find from a preponderance of the evidence that Chicago Pneumatic failed to act in a commercially reasonable manner in connection with the public sale of the Equipment?
“ANSWER: ‘We do’ or ‘We do not’.
“ANSWER: We do not.
“INSTRUCTION:
“By ‘commercially reasonable’ is meant a sale so conducted as would have been conducted by an ordinary and prudent businessman operating under the same or similar circumstances. A commercially reasonable sale is a sale in the usual manner for the Equipment in any recognized market therefor or at the current price in such market at the time of the sale or a sale in conformity with reasonable commercial practices among dealers. The fact that a better price could have been obtained at a different time or in a different method from that selected by Chicago Pneumatic is not of itself sufficient to establish that a public sale was not made in a commercially reasonable manner.”
Special Issue No. 3
“Do you find from a preponderance of the evidence that the price of $100,000 for the three compressors at the alleged sale of October 4,1971 was grossly inadequate consideration?
“ANSWER: ‘We do’ or ‘We do not.’
“ANSWER: We do not.
“INSTRUCTION:
“The fact that a better price could have been obtained at a different time or in a different manner from that selected by Chicago Pneumatic is not itself sufficient to establish that the sales price realized was grossly inadequate.
“The term ‘grossly inadequate consideration’ means a consideration so far short of the real value of the property as to shock a correct mind, and thereby raise a presumption that fraud attended the purchase.”

The jury’s answers to these issues are nothing more than a failure or refusal of the jury to find from a preponderance of the evidence that (Issue 2) appellee failed to act in a commercially reasonable manner and (Issue 3) that the sale price was grossly inadequate. The answers mean, in law, that Siboney failed to carry its burden of proving these allegations. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966).

Point of error 4 is a no evidence point. We will consider points 2 and 5 to be great weight points even though the appellant did not use that terminology. See Michol O’Connor’s Evidence Points on Appeal, at 37 Texas Bar Journal 839, 842. A motion for new trial is no longer a prerequisite for appellate review of a great weight point. Rule 324, Texas Rules of Civil Procedure (1978).

In Pruske v. National Bank of Commerce, 533 S.W.2d 931, 937 (Tex.Civ.App.1976, no writ), the San Antonio Court of Civil Appeals reviewed the evidentiary support for a trial court finding that a sale was commercially reasonable. Elements mentioned by the court were (a) a depressed market, (b) notification to the debtor, (c) adequate newspaper publicity of the sale, (d) adequate opportunity for inspection, (e) acceptance of the highest bid, and (f) minimal expenses of the sale.

The units in question were designed and manufactured for drilling by compressed air. The former Houston district manager for Chicago Pneumatic testified that the condition of the air drilling business in 1971 was very low and people had compressor units standing on their lots. The president of Texas Commercial Industries described the condition of the market for air compressors in 1971 as very poor. We have held that the evidence supports the jury finding that Siboney received reasonable notification of the sale. Appellee published a newspaper ad for two days in a Houston daily newspaper and mailed notices to some 19 used equipment companies. An indication that adequate time was provided is shown by the fact that a Mr. Hart with Energy Incorporated of Oklahoma City, who received one of the mailed notices, came to Houston and inspected the equipment. All but two of the companies notified had done business with Texas Commercial, so they were not misled by failure to state in the notice that Texas Commercial was located in Houston. The units were brought to Houston, where the demand for them was said to be greatest.

The public sale was conducted as an auction, but only two bidders, Chicago Pneumatic and Guinn Equipment, participated. The bidding was opened at $50,000 and went up in $5,000 and $2,500 increments until Chicago Pneumatic placed the top bid of $100,000. There is no evidence of the cost of conducting the sale. We hold this evidence sufficient to support the jury’s answer to Issue No. 2.

We also hold that the jury’s failure to find that the consideration was grossly inadequate is not contrary to the great weight of the evidence. The appellee’s witness testified to the absence of demand for' air drilling units. Although the used diesel engines were marketable, most of the demand for compressors is for compressing natural gas, where engines that run on the readily available gas are used instead of diesels. Further, there was testimony that when compressors are transferred from one use to another they usually need to be redesigned and rebuilt because the pressures they are called upon to develop vary a great deal. This is particularly true in compressing gas, the application where the demand is. Witnesses called by the appellee testified to the efforts made to obtain a better price and to their opinion that the one obtained represented the market value of the compressors.

After the collateral was bought at the sale by Chicago Pneumatic, it was later sold to Texas Commercial for the same price, $100,000. That company refabricated it, at some expense, sold it in pieces over a period of eight months, and could obtain only $140,000 for it, a fact suggesting that fraud did not attend the purchase and one that tended to contradict the opinion testimony of appellant’s witness that the value of the used air compressors was from $275,000 to $300,000. Nor did the jury’s conclusion that the fair market value was $150,000 convince it that the sales price was grossly inadequate. It is well known that full market value is seldom obtained at forced sales.

Appellant contends in its third point of error that appellee was not entitled to a deficiency judgment because it failed to rebut the presumption that the value of the collateral was equal to the amount of the debt. That presumption arises only when the secured party fails to comply with the notice requirement. O’Neil v. Mack Trucks, Inc., 533 S.W.2d 832, 837 (Tex.Civ.App. 1975), rev’d on other grounds, 542 S.W.2d 112 (Tex.1976), recalled and reissued, 551 S.W.2d 32 (Tex.1977); United States v. Whitehouse Plastics, 501 F.2d 692 (5th Cir.1974), cert. denied, 421 U.S. 912, 95 S.Ct. 1566, 43 L.Ed.2d 7 (1975). Since the notice question has been resolved in favor of the appellee in our case, that presumption does not arise.

The appellant’s sixth and final point of error is that it should receive a $50,000 remittitur because the jury found a fair market value of the collateral to be $150,-000. The fact that a better price could have been obtained does not render the sale commercially unreasonable. § 9.507(b) of the Texas Business and Commerce Code. The secured party received reasonable notice and the sale was commercially reasonable; appellee is entitled to recover the full amount of the deficiency.

Affirmed.


text:
    EXPO CHEMICAL CO, INC., Appellant, v. Joan BROOKS, Appellee.
    No. 17122.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 25, 1978.
    Rehearing Denied June 22, 1978.

      Gerald E. Hopkins, Houston, for appellant.
    James E. Ross, Houston, for appellee.
   COLEMAN, Chief Justice.

This is a trade secrets case involving a confidential customer list. The trial court refused a temporary injunction.

Joan Brooks, the defendant, was employed by Expo Chemical Co., Inc., the plaintiff, as a commissioned broker, buying and selling bulk and drum chemical products nationwide. While she was employed by another chemical broker she developed a list of some 200 potential customers and a set of product cross-reference cards for use with the customer list. After her employment with this broker terminated, Mr. Elton Dornbusch, president of the plaintiff firm, secured the customer list previously prepared by Joan Brooks and furnished her a copy of the list for use in his business. Mrs. Brooks was required to pay for the cost of copying the list.

During the period of her employment by Expo, Mrs. Brooks expanded the list and added additional information on the sheets with reference to certain firms with which they did business. In addition to the names and addresses of firms that used or sold bulk chemicals the more complete sheets contained the names of key purchasing agents, credit data, preferred or screened or single source customer, and pricing margins or arrangements. Most of this information was gathered by Mrs. Brooks, but Mr. Dornbusch also contributed information. Both Mrs. Brooks and Mr. Dornbusch testified that the list was considered confidential.

Before leaving the employment of Expo Chemical, Mrs. Brooks made copies of the customer list which she took with her together with either a copy or the original product cross-reference file. She secured employment with a firm engaged in buying and selling bulk chemicals and has used the materials which she took with her in actively soliciting business for her new employer.

An employee unless prohibited by contract may, upon termination of his employment, compete with his former employer and may do business with his former employer’s customers, providing such competition is fairly and legally conducted. A former employee may freely use general knowledge, skills, and experience acquired during his employment, but he has a duty not to use or disclose, to the detriment of his former employer, trade secrets and other confidential information acquired in the course of his previous employment. See Annotation, Customer List As Trade Secret-Factors, 28 A.L.R.3d 7.

The Restatement of Torts, Sec. 757, states:

“A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be . a list of customers . . .”

This section of the Restatement was quoted with approval by the Supreme Court of Texas in Hyde Corporation v. Huffines, 158 Tex. 566, 314 S.W.2d 763 (1958).

The owner of a business may protect a trade secret although he has no contract with his employees which prohibits divulging or using the confidential material. Texas Shop Towel v. Haire, 246 S.W.2d 482 (Tex.Civ.App.—San Antonio 1952, no writ).

In the absence of a covenant not to compete, “the law will imply as part of the contract of employment an agreement not to disclose information which the employee receives as an incident of his employment, if the employee knows that his employer desires such information kept secret, or if, under the circumstances, he should have realized that secrecy was desired.” Lamons Metal Gasket Co. v. Traylor, 361 S.W.2d 211, 213 (Tex.Civ.App.—Houston 1962, writ ref’d n. r. e.).

In the area of confidential relationships between employers and employees, the injured party is not required to rely upon an express agreement to hold the trade secret in confidence. The basis for relief in such a case can be the wrongful disregard of a confidential relationship. K & G Oil & Tool Service Co. v. G & G Fishing Tool Service, 158 Tex. 594, 314 S.W.2d 782 (1958).

The Supreme Court of Connecticut cited Section 757 of the Restatement of Torts as a source from which some of the factors to be considered in determining whether given information is a trade secret, including (1) the extent to which the information is known outside the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the employer to guard the secrecy of the information; (4) the value of the information to the employer and to his competitors; (5) the amount of effort or money expended by the employer in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Town and Country House and Homes Service, Inc. v. Evans, 150 Conn. 314, 189 A.2d 390 (1963).

In describing what a customer contact sheet is, Mrs. Brooks testified: “They contain the names of the companies, the addresses, the phone numbers, usually a person, a purchasing agent or sales manager, someone I knew and had spoken to there and on some occasions products they used, which information I got from usually books or from the people themselves, whatever.” She testified that while she did not count the sheets she believed she prepared from 250 to 270 sheets while she was employed at Chellect Corporation, her former employer.

In describing the chemical cross-reference cards she stated: “When I first started in the chemical business, in this business, I had no knowledge of chemicals, so I went to a book called Merk Manual and I picked out certain chemicals with which the companies dealt and did research on them in Merk Manual. And then I researched the supplier of those chemicals through the Chemical Marketing Reporter and some other books of that type and I kept them in a cross file, and sometimes when I would talk to people and they did use this chemical I would jot down the name of the company on the same card.” The cross-reference cards were supplied to her by Mr. Dornbuseh, and she continued to develop them during the two years that she worked for Expo Chemical. While working at Expo Chemical she prepared approximately 250 to 270 new customer contact sheets. These sheets in some instances contained a chronological log of the call history, the products used, quantities purchased, specifications, locations and prices.

Mr. Dornbuseh testified that it would be very difficult to operate as a chemical broker without the customer contact sheets and cross-reference cards. He stated that it would not be easy to replace the cross-reference cards because it would require a long period of time, a matter of years. Much of the information is not readily known although it can be developed but it takes time and effort. He stated that if one spent enough time he could develop the names of many potential customers for each chemical, but that considering the number of chemicals involved it would be almost impossible to do so except by noting actual purchases or sales. He said that 700 of the customer contact sheets were maintained arid serviced by Mrs. Brooks. He testified that he usually got in touch with customers on the road and advised Mrs. Brooks. She would then do the actual purchasing and selling. No one outside of the company had access to the cards. Expo Chemical was a small company, employing Mr. Dornbuseh, Mrs. Brooks, two full-time secretaries and one secretary part time. Mr. Dornbuseh testified that it was necessary that Mrs. Brooks have access to the customer contact sheets and the cross-reference file in order to perform her duties.

Mr. Dornbuseh testified that he had some customers which were “single source” customers. A single source customer is one who normally buys a particular chemical and looks to Expo Chemical alone as a source of his supply. He testified that he thought that Mrs. Brooks had contacted some of his single source customers.

Mr. Honea, who is employed by Prodyne, Inc., Mrs. Brooks’ present employer, testified that he knew Mrs. Brooks brought to her present employment certain cross-reference sheets and cards. He had seen the cross-reference cards on three occasions and knew they were originals because they were handwritten.

The customer lists and the cross-reference cards were considered to be confidential material by the employees using them. The materials have considerable value to Expo Chemical and would have essentially the same value to Prodyne, Inc. The information was developed over a long period of time and represented considerable work. It could not be easily and properly acquired or duplicated by others. While the various pieces of information which make up the customer lists are undoubtedly known to some members of the public, there is nothing in the evidence to indicate that such a customer list together with complete cross-reference cards is available in the industry. The fact that it was developed by Mrs. Brooks is of no consequence. The original list was secured from Prodyne by Mr. Dornbusch and made available to Mrs. Brooks for use in her employment with Expo Chemical. It was updated and enlarged by her in the course of her duties as an employee of Expo Chemical. The work product of the employee becomes an asset of the employer’s business. Empire Steam Laundry v. Lozier, 165 Cal. 95, 130 P. 1180 (1913); Morrison v. Woodbury, 105 Kan. 617, 185 P. 735 (1919).

The trial court erred in refusing to require Mrs. Brooks to return to Expo Chemical all of the copies of the customer contact lists and the originals and all copies of the chemical cross-reference file, and in failing to enjoin her from making use of these materials in competition with Expo Chemical Company, Inc. Crouch v. Swing Machinery Co., 468 S.W.2d 604 (Tex.Civ.App.—San Antonio 1971, no writ); West v. Pennyrich International, Inc., 447 S.W.2d 771 (Tex.Civ.App.—Waco 1969, no writ); Brown v. Fowler, 316 S.W.2d 111 (Tex.Civ.App.—Ft. Worth 1958, writ ref’d n. r. e.).

The plaintiff has also attacked the action of the trial court in refusing to grant a continuance on written motion. The motion was correct in form and contained all the essential elements required by Rule 252, Texas Rules of Civil Procedure. The witness was expected to give testimony which would supply evidence that a certain corporation was a “single source” customer of the plaintiff’s and that Mrs. Brooks had left with him the impression that she was working with Expo Chemical Company when in fact she was not employed by that company at the time. When we consider the facts admitted into evidence at the trial along with the allegations of the plaintiff’s motion for continuance, we conclude that the trial court abused its discretion in overruling the application for continuance. This hearing on the application for temporary injunction was set some fourteen days after the filing of the petition. There was insufficient time to secure a deposition of the witness; the testimony expected to be procured related to a claim for relief which was not otherwise developed in the evidence, and, if believed, might well have supported injunctive relief. Robertson v. Robertson, 291 S.W.2d 452 (Tex.Civ.App.—Amarillo 1956, no writ).

Because of the errors to which attention has been called the case must be reversed. The plaintiff has prayed for injunctive relief in addition to the return of the materials discussed. Since the facts may be more fully developed on a retrial we express no opinion as to the extent of the relief to which the plaintiff may show himself entitled.

The judgment is reversed and the cause is remanded.


text:
    CITY OF HOUSTON, Appellant, v. Dan M. MOODY et al., Appellees.
    No. 17115.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    June 8, 1978.
    Rehearing Denied Sept. 21, 1978.
    Robert M. Collie, Jr., City Atty., James L. Dougherty, Jr., Asst. City. Atty., Houston, for appellant.

      Wood, Campbell, Moody & Gibbs, Robin C. Gibbs, Debora D. Ratliff, Houston, for appellees.
   PEDEN, Justice.

The City of Houston appeals from a judgment rendered in favor of Dan M. Moody, Jere M. Locke, Howard Tellepsen, First City National Bank as trustee for Kathryn Locke and the John Locke Master Trust, and Lakewood Heights Corporations of Houston No. 1 and No. 2 for debts incurred by Harris County Water Control and Improvement District No. 73 before it was annexed by the City late in 1972. The trial court found that the District was legally and equitably bound to repay the indebtedness and that the City succeeded to this liability upon annexation. The City argues on appeal that the promissory notes evidencing the debts should not have been admitted into evidence because authority for their execution was not shown, that appellees did not prove compliance with Article 7880-32a, Vernon’s Texas Civil Statutes (now § 51.371-§ 51.375 of the Texas Water Code), that appellees neither pleaded nor proved that the incurring of the debt was approved by the voters and supported by a tax levy as required by Article XVI, § 59(c) of the Texas Constitution, that the debt was barred by limitations, that there was no evidence that money was advanced, and that no equitable remedies should be allowed because it is impossible to restore the status quo. Appellees’ only crosspoint is that the court erred in denying their plea for attorney’s fees as provided in the notes. We affirm the trial court’s judgment.

Appellees brought this suit to recover debts originally incurred by the District between 1963 and 1968. The individual plaintiffs were investors in the plaintiff companies that were formed to develop Lakewood Heights addition, and they owned a waterworks that served it. The District was formed to provide a sewer system, and the voters in the District approved the issuance of $1,000,000 of the District’s bonds for that purpose. In 1959, before selling any of these bonds, the District entered into a written agreement with Dan M. Moody that Moody or his associates would, from time to time, advance such funds as were necessary to supplement the District’s incomes so that it could meet its operating expenses and obligations under its order to issue the bonds. The District agreed that at the time of each advance its board would give Moody notes evidencing the advances and would declare existing emergencies as provided by Article 7880-32a, V.T.C.S. Repayment would be made when extra funds became available from regular operations. The District’s board authorized execution of the contract.

Ten renewal notes were admitted into evidence, each payable to one of the plaintiffs and dated either September 9, 1970 or May 1, 1971. Mr. Moody was unable to locate one renewal note, but an affidavit stating its terms was admitted in evidence. Also admitted was a copy of the minutes of the July 12,1967 board of directors meeting reciting that the District had previously borrowed money from the appellees and that the notes and accrued interest were past due. The board voted to ratify one note executed on September 26,1966 and to renew the others effective July 1, 1967. The District disbursed pro rata to the plaintiffs only $1500 of the debt.

Plaintiffs’ trial pleading sought relief based on the notes themselves or, in the alternative, on subsequent adoption and ratification, estoppel, or implied contract. The trial court, sitting without a jury, found for the plaintiffs on all of the theories they advanced.

The City contends in its first point of error that the promissory notes should not have been admitted into evidence because there was no showing that the District’s board of directors authorized Mr. Binnion, its president, to sign the notes. He signed them “Harris County Water Control and Improvement District No. 73 by Roger L. Binnion, President.” The City does not deny that Mr. Binnion was the president and, therefore, an agent of the District.

We overrule this point. “The law presumes that officers of municipal corporations act within the limits of their authority; that they act in good faith; and that they act in the best interests of the municipality they represent.” Kimbrough v. Walling, 371 S.W.2d 691, 692 (Tex.1963). This presumption has been applied to actions of county commissioners’ courts. Bexar County v. Hatley, 136 Tex. 354, 150 S.W.2d 980, 987 (1941); Rains v. Mercantile National Bank, 144 Tex. 466, 191 S.W.2d 850, 852 (1946). Improvement districts are political subdivisions of the state, “performing governmental functions, and standing upon the same footing as counties and other political subdivisions established by law.” Willacy County Water Control and Improvement Dist. No. 1 v. Abendroth, 142 Tex. 320, 177 S.W.2d 936, 937 (1944). The presumption that public officers have performed their duties in a regular and lawful manner places on the opposing party the burden of producing evidence to the contrary. 1 McCormick & Ray, Texas Law of Evidence, 118, § 94 (1956). Appellant presented no evidence to prove the president’s lack of authority to sign the notes for the District.

Even if the appellees had the burden of showing evidence of Mr. Binnion’s authority, it “may be established by either direct testimony or by circumstances, such as the relation of the parties and their conduct concerning the transaction in controversy.” Johnson v. Texas Gulf Coast Corp., 359 S.W.2d 91, 94 (Tex.Civ.App.1962, no writ). The 1959 contract, the minutes of the July 12, 1967 board meeting, and the testimony of Mr. Moody concerning prior transactions, and continued reference to the debts in the audits and financial statements of the District are all evidence of Mr. Binnion’s authority to bind the District.

Points 2 and 3 allege error in the trial court’s conclusion that the borrowing was in compliance with Article 7880-32a, V.T.C.S., because there was no evidence that the board declared an existing emergency and the one-year term of the notes exceeded the maximum term authorized by the statute. In the absence of evidence to the contrary, the court will presume that a public official performed his duty according to the law, and the burden is on appellant to affirmatively show a lack of compliance. See Fausett v. King, 470 S.W.2d 770, 773 (Tex.Civ.App.1971, no writ); White v. Calaway, 282 S.W. 642, 643 (Tex.Civ.App.1926, writ ref’d). Appellant failed to prove that the board did not declare an existing emergency. Even without the presumption, there is some evidence that the board declared an emergency existed prior to the borrowings. The 1959 contract stated that the District would borrow when an emergency arose and referred to Article 7880-32a. Mr. Moody testified that when money was loaned the president of the District and its attorney would say that it had a real emergency and that it needed the funds.

Appellant argues that Article 7880-32a required that the borrowing be limited to 6 months or not beyond the following April 1. That statute clearly applied such maturity dates only to debts secured by a pledge of taxes levied or a pledge of preliminary or construction bonds. The directors in the instant action did not choose to secure the loans, so the time limitations are inapplicable.

Appellant’s points 4, 5 and 6 assert that the court erred in enforcing an indebtedness that was neither approved by the voters nor supported by a tax levy as required by Article XVI, § 59(c) of the Texas Constitution. That subsection, however, applies to indebtedness of the District that is serviced by a tax. “Bonds payable only out of revenues, and that can never become a charge otherwise against the district, do not constitute an indebtedness within the meaning of Subsection (c).” Lower Colorado River Authority v. McCraw, 125 Tex. 268, 83 S.W.2d 629, 633 (1935).

“The objection that the proposed bonds had not been authorized by a vote of the taxpaying voters of the district is untenable. The bonds are not payable out of money to be raised by taxation levied by the district itself as a governmental agency. As we held in the Lower Colorado River Authority case, a vote of the qualified property taxpaying voters of this district is not necessary to the validity of these bonds. These bonds can never be serviced by a tax on the properties of the district as such. They, therefore, do not constitute indebtedness within the meaning of subdivision (c), section 59, of article 16 of our Constitution. In other words, these bonds can never become a claim against any tax funds of this district.” Brazos River Conservation and Reclamation District v. McCraw, 126 Tex. 506, 91 S.W.2d 665, 672 (1936).

Accord, Texas National Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627, 635 (1939); cf. Brown County Water Improvement Dist. No. 1 v. Austin Mill & Grain Co., 135 Tex. 140, 138 S.W.2d 523, 525 (1940). The 1959 contract between Moody and the District provides only that the lender will be reimbursed “when and as the District accumulates funds not needed for operating expenses and not needed to meet the debt service requirements of the bond order, and such reimbursement shall not be due until such extra funds are available.”

Under Article 7880-32a, directors of water control and improvement districts were given the option of borrowing funds for an emergency with or without security. If secured, the legislature required short repayment periods. The debt in question was unsecured and does not come under the tax levy and vote requirements of Article XVI, § 59(c).

In Nueces County Fresh Water Supply Dist. No. 1 v. Texas State Bank & Trust Co., 67 S.W.2d 427, 428 (Tex.Civ.App.1933, writ dism.), the water district executed a note to pay off á pressing debt and to supply a deficiency in the sinking fund, then defended on the ground that the debt had not been voted on by the people of the district. The San Antonio Court of Civil Appeals held that the note was not given to create a new debt; it was merely evidence of a debt already due that the supervisors were striving to meet.

Appellant’s points 7 and 8 assert that appellees’ alternative claims based on equitable theories of estoppel, ratification, implied contract, unjust enrichment and restitution are barred by Article 5526, V.T. C.S., as actions where the indebtedness is not evidenced by a contract in writing. The debt in the case at bar is evidenced by the written renewal notes issued on September 9, 1970 and May 1, 1971, and due one year from those dates. The suit was filed on May 3, 1974. A written acknowledgment of a previous debt supports an action on a promise to pay. Article 5539, V.T.C.S. Such acknowledgment is independent of, but made in consideration for, the previous debt. This new promise is governed by the four-year statute of limitations. Siegel v. McGavock Drilling Co., 530 S.W.2d 894, 896 (Tex.Civ.App.1975, writ ref. n. r. e.); Payne v. Miller, 229 S.W.2d 857 (Tex.Civ.App.1950, writ ref.). The trial court’s judgment in favor of the plaintiffs was founded on legal as well as equitable bases.

Appellants’ ninth point of error is that there was no evidence to support the trial court’s finding that certain sums of money were advanced to the District. Mr. Moody testified that the series of notes and dates appearing on page 2 of the plaintiffs’ second amended petition was a list of the original notes that were executed over the period of time during which the original advances were made and that they were the various advances made by the plaintiff stockholders of the two Lakewood Heights corporations and by the corporations. Ap-pellees then offered their second amended petition into evidence. Copies of the notes were attached as exhibits, and the trial judge overruled the City’s objection.

Even if the evidence on the amounts originally advanced had been legally insufficient to support the finding, the trial court’s findings on the renewal notes will support the judgment. Having determined that the renewal notes represented the original debt plus interest, the trial court could grant both legal and equitable relief sought by the plaintiffs.

Appellant’s final point contests the court’s finding that the City has an equitable obligation to make restitution to appel-lees because it is now impossible to restore the status quo. Appellant cites Coon v. Schoeneman, 476 S.W.2d 439, 441 (Tex.Civ.App.1972, writ ref., n. r. e.) for the rule on restitution:

“Restitution is the amount which would put plaintiff in as good a position as he would have been in if no contract had been made. It restores to plaintiff the value of what he parted with in performing the contract.”

If appellant makes restitution for the amount owed to the plaintiffs on the debt, the plaintiffs will be restored to the positions they were in before they made the loans.

Appellees’ only cross-point of error is that the trial court erred in denying them a 10% attorney’s fee upon default as provided in the promissory notes. Directors of a water district cannot bind the district to pay an attorney’s fee provided in a note; that would constitute an increase in the original obligation. Western Metal Mfg. Co. v. Cameron County Water Improvement Dist. No. 8, 105 S.W.2d 700, 705 (Tex.Civ. App.1937, writ dism.).

The judgment of the trial court is affirmed.


author: OSBORN, Justice.

text:
    Ben LOVE, Appellant, v. Sam OLGUIN et al., Appellees.
    No. 6741.
    Court of Civil Appeals of Texas, El Paso.
    Aug. 2, 1978.
    Rehearing Denied Sept. 6, 1978.

      Stubbeman, McRae, Sealy, Laughlin & Browder, W. B. Browder, Jr., Rodney W. Satterwhite, Wm. F. Sanderson, Jr., Midland, for appellant.
    Hart Johnson, Fort Stockton, for appel-lees.
    Braeewell & Patterson, J. Woodwin Jones, Houston, for J. P. Bryan.
   OPINION

OSBORN, Justice.

This is an appeal from a judgment in favor of the Appellees, Sam Olguin, Jack Pope and Arthur Cavness, permanently enjoining the Appellant, Ben Love, from locking any gate upon a certain roadway in Brewster County and from interfering with the Appellees’ use of the roadway as a public road. We affirm.

The road in question, which is identified in the record as the “Park Road,” proceeds in a westerly direction in the Big Bend National Park off of U.S. Highway 385 and crosses ranches which, at the time of trial, were owned by Ben Love, Houston Harte, who is not a party to this suit, Sam Olguin and apparently Jack Pope. Ben Love acquired his property in 1962, and sometime thereafter locked the gate where the road leaves the Big Bend National Park for a period of time without any incident. In 1976, he became concerned about the number of strangers traveling on the road across his ranch and again locked the gate. The combination of the lock was provided to the Appellees in this case, along with a couple of other ranchers who used this road. Thereafter, the Appellant submitted a road license agreement to the Appellees under which they were to have a revocable right to use the road upon the terms provided for in the agreement. While one of the other ranchers in the area signed the agreement, the Appellees refused. In the spring of 1977, Mr. Love changed the combination on the lock and refused entry to those who had not signed the license agreement. This suit resulted. The Appellees, as Plaintiffs in the trial Court, contended that the road was a public road which could not be closed to the public because of an implied dedication; also, that the road was opened to them as a matter of right by public or private prescriptive use; and, also, that they had the right to use the roadway because it was a way of necessity. Trial was to the Court which found for the Appellees on all three theories of law.

MOTION TO DISMISS

Since this appeal has been perfected, the Appellee Sam Olguin has sold his property to J. P. Bryan, Jr. and wife, and Mr. Olguin and his tenant, Arthur Cavness, have transferred and assigned all of their rights and interest in the lawsuit to Mr. Bryan, who has advised the Court that he does not desire to assert any right to the roadway. The Appellant has filed a motion to dismiss the case asserting that the remaining Ap-pellee, Jack Pope, has no legal standing to question the character of the roadway or to challenge its closing by Mr. Love. The trial Court’s judgment declares that the road is a public road, and permanently and perpetually enjoins the Appellant from locking any gate upon said road and from doing anything that will in any way prevent the Appellees and their heirs, assigns, and tenants from using the road for all lawful purposes. Basically, the Appellant contends that this road does not cross the Pope ranch and that Jack Pope has not suffered damage other than that suffered by all who might use the road. Of course, the contention is made throughout the case that it is not a public road. Most of the cases relied upon by the Appellant involve the closing of city streets, and those cases are not applicable because they are controlled by the provisions of Article 4646a, Tex.Rev.Civ.Stat. Ann. That Statute has no application in this case.

Even so, we conclude that the evidence does establish damage or injury to Jack Pope other than that sustained by the general public. The trial Court found this is a public road and it gives access to the west part of the Pope ranch. In addition, Exhibit A reflects that the road actually crosses the Pope ranch at one place giving direct access to that property. On cross-examination, Jack Pope testified that a survey might reflect that the road was not on his property but said that he thought the map showed the road the way it is. We conclude that this is sufficient with the trial Court’s findings to establish a justiciable interest in the road in question. There was no necessity that this right be asserted by the County as a party to the suit. Parr v. Merritt, 532 S.W.2d 154 (Tex.Civ.App.—Fort Worth 1976, writ ref’d n. r. e.). In addition, it should be noted that this issue raising the standing of Jack Pope in this case has been raised for the first time on appeal and presents a new theory which was not presented to the trial Court. Normally, appellate Courts do not permit new issues to be raised for the first time on appeal. Thomas v. Morrison, 537 S.W.2d 274 (Tex.Civ.App.—El Paso 1976, writ ref’d n. r. e.); Trice Production Company v. Dutton Drilling Company, 333 S.W.2d 607 (Tex.Civ.App. —Houston 1960, writ ref’d n. r. e.). The motion to dismiss is denied.

CASE ON THE MERITS

The evidence establishes that Jack Pope has owned a ranch south of Marathon on both sides of Highway 385 since the 1940’s, and he has occasionally used the “Park Road” since 1948. This road gives access to the west part of the ranch which is separated from the rest of the ranch by a mountain range which makes normal access impossible. He testified that he regards this roadway as a public road. Entrance can also be obtained from the north, but that road is not maintained by the County and, because of the terrain through a canyon, often becomes inaccessible after rains in the area. At best, it is generally traveled by vehicles with a four-wheel drive. A former county commissioner said the Park Road has been used by the public since the 1930’s, and that during his tenure as a commissioner from 1951 to 1963 it was maintained by the County. Carl Porter, a rancher in the area, and his wife testified that they use the road to take their children to school in Marathon, and that it has been maintained by the County for many years. He said access was not limited to area ranchers and that the Border Patrol used this road on occasions.

Testimony was also offered to show that cattle trucks could not get over the north road through the canyons. The County Judge of Brewster County testified that Park Road was maintained by the County for inhabitants in the area and that it had been open to the public, but he also said it was maintained for the ranchers’ use and not the general public. Arthur Cavness, a ranch tenant, said a person could travel to the back part of the ranch land in about fifteen minutes over the Park Road, but that it would take two and a half hours to reach the ranch by the north road through the canyon.

EASEMENT BY PRESCRIPTION

The trial Court filed extensive findings of fact and conclusions of law. The first three points attack the legal and factual sufficiency of the evidence to support a finding of fact that the Park Road was constructed in 1930. Although there is no direct evidence on actual construction, there was evidence that the road had been used since the early 1930’s. That evidence is sufficient to support the trial Court’s finding, and Points of Error Nos. 1, 2 and 3 are overruled.

The next group of points, 4 through 22, complain of the findings and conclusions by the trial Court which resulted in a right of prescriptive use of the Park Road. It is well settled that a public right of way by prescription can be established only by showing an uninterrupted use by the public under an adverse claim of right. O’Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878 (1960). It is necessary to show that the use of the roadway by the general public was open, hostile, adverse, uninterrupted, exclusive and continuous for a period of more than ten years. Hudson v. Gaines, 501 S.W.2d 734 (Tex.Civ.App.—Corpus Christi 1973, no writ). The permissive use of a roadway over the land of another contemporaneously with the owner’s use of the same roadway is not adverse. O’Connor v. Gragg, supra. And the use of the road is only permissive and not adverse, as a matter of law, if the roadway is also used by the owner of the land along with those who claim an easement by prescription. Gill v. Pringle, 224 S.W.2d 525 (Tex.Civ.App.—Waco 1949, writ ref’d). In this case, Ben Love testified that he used the road to feed cattle in his pasture. There is no proof about the use by his predecessor in title.

In Johnson v. Faulk, 470 S.W.2d 144 (Tex.Civ.App.—Tyler 1971, no writ), the Court noted that the burden of proof as to the existence of an easement is upon the one making such claim, and that each and every element of the claim must be established by a preponderance of the evidence. In that case, the roadway had been in existence for more than 56 years, but the Court, in denying that there was a private or public easement, noted that the plaintiff and the predecessor in title used the road for the same purposes as the defendants and their predecessors in title, which was to get to their property from the public road. The Court said: “There is no evidence showing that the plaintiff ever claimed a right to use the roadway to the exclusion of the defendants nor is there any evidence that the public generally ever used the roadway or asserted any right or claim to the exclusion of the defendants.” The same may be said for the record in this case. We sustain Points of Error Nos. 4, 5, 8, 11, 14, 17, and 20, and hold that the evidence does not establish an easement either by private or public prescription.

WAY OF NECESSITY

Appellant’s Points of Error Nos. 23 through 35 make attack upon the trial Court’s findings and conclusions which result in the holding that the Park Road was a “way of necessity” to the western part of the Pope ranch. The evidence is sufficient to support the trial Court’s findings that the north road through the canyon is so narrow that a cattle truck cannot make an entry through it. There is no doubt that the road becomes impassible following rains which cause considerable wash in the canyon. And, undoubtedly, the Park Road is far better and quicker access to the main public road in the area, which is Highway 385. But that is not the only issue in considering a way of necessity.

In Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622 (1950), the Court noted that where a vendor retains a tract of land which is surrounded partly by the tract conveyed and partly by the lands of a stranger, there is an implied reservation of a right of way by necessity over the land conveyed where the grantor has no other way out. The Court said before the way of necessity can be established, it must be shown: “(1) that there was a unity of ownership of the alleged dominant and servient estates; (2) that the roadway is a necessity, not a mere convenience; and (3) that the necessity existed at the time of severance of the two estates.” Also see Estate of Waggoner v. Gleghorn, 378 S.W.2d 47 (Tex.1964); Duff v. Matthews, 158 Tex. 333, 311 S.W.2d 637 (1958). In this case, there is no proof of the first or third elements, and it is unnecessary to consider the proof as to the other element. We sustain Appellant’s Points of Error Nos. 23 and 33 and hold that the evidence does not establish a way of necessity.

DEDICATION

The Appellant’s last group of points attack the trial Court’s findings of fact and conclusions of law that there has been an implied dedication of the Park Road for public use. These points must be overruled. Tom Yarbro testified that the road had been used by the public since the early 1930’s. He said it was used by anyone who wanted to go into that area. He was a county commissioner from 1951 to 1963 and was familiar with the fact that the County maintained the road and the County put in cattle guards where some fences cross the road. Jack Pope testified that he had used the road since 1948. Mr. and Mrs. Potter had used the road for about fifteen years and knew that it was maintained by Brewster County. He said its use was not restricted to the ranchers in the area. The County Judge testified that the County maintained the road which was open to the public. In fact, it was substantial use by the public which caused Mr. Love to lock the gate, resulting in this suit.

One of the leading cases in Texas on implied dedication of a roadway is Owens v. Hockett, 151 Tex. 503, 251 S.W.2d 957 (1952). In that opinion, Justice Smith writing for the Court said:

“Our courts recognize the doctrine that a dedication of land to public use need not be shown by deed, nor by public use for any particular length of time. It is sufficient if the record shows unequivocal acts or declarations of the landowner, dedicating same to public use, and where others act on the faith of such dedication, the landowner will be estopped to deny the dedication, or to make any future use of the property inconsistent with any purpose for which the land was dedicated. Common-law dedications, such as the one here involved, are subdivided into two classes, express and implied. ‘In both it is necessary that there should be an appropriation of land by the owner to public use, in the one case by some express manifestation of his purpose to devote the land to the public use, in the other by some act or course of conduct from which the law will imply such an intent.’ Elliott, Roads and Streets (2d Ed.) p. 121; 26 C.J.S. Dedication Sec. 13, p. 65; Oswald v. Grenet, 22 Tex. 94; Wolf v. Brass, 72 Tex. 133, 12 S.W. 159; Evans v. Scott, 37 Tex.Civ.App. 373, 83 S.W. 874; Tribble v. Dallas Ry. & Terminal Co., Tex.Civ.App., 13 S.W.2d 933, writ refused.”

In affirming the trial Court’s entry of an injunction to keep the road in question open, the Court made note of the fact that for many years the road had been used by the petitioners and the general public, and that it had been maintained by the use of County equipment, just as in this case.

Seven years later, in another opinion by Justice Smith, the Court reached the same result on the issue of dedication. O’Connor v. Gragg, supra. In that case, the Court held that a presumption of acquiescence is raised when the origin of the user by the public and the ownership of the land at that time are shrouded in obscurity, and no evidence exists to show the intention of the owner in allowing the use. To the same effect is the opinion in Compton v. Thacker, 474 S.W.2d 570 (Tex.Civ.App.—Dallas 1971, writ ref’d n. r. e.). In our case, the use began more than 45 years ago and continued up to the time of the lockout in 1977.

Although this roadway was in a rather isolated area and was never heavily traveled, that does not alter the conclusion that it was a public road, and the trier of the facts was entitled to infer the fact of an intention to dedicate from the long continued use by the public and the apparent acquiescence of the owner. Dowlen v. Klapper, 381 S.W.2d 123 (Tex.Civ.App.—Amarillo 1964, no writ). We overrule Points of Error Nos. 36 through 48, and sustain the trial Court’s determination that the Appellees and the general public are entitled to use the Park Road by reason of an implied dedication.

The judgment of the trial Court is affirmed.

ON MOTION FOR REHEARING

Appellant continues to urge his Motion to Dismiss. He still contends the “Park Road” does not cross and does not give actual access to the Pope Ranch. He strongly urges that Jack Pope does not contend otherwise. Certainly Jack Pope recognized that without a survey the road’s exact location on the various sections could not be known. Nevertheless, Exhibit “A” does show the road crossing the Pope Ranch at one place and that is some evidence of its location. But the issue is really moot since the standing of Jack Pope as a party may not be raised for the first time on appeal.

The Appellant is correct in asserting that Tom Yarbro testified that the County put in cattle guards on the “North Road” and not the “Park Road,” and we correct our original opinion in this regard. The fact remains that the County did maintain the “Park Road.”

The Appellant’s Motion for Rehearing is overruled.


author: AKIN, Justice.

text:
    Robert O. AKERS and Katie Akers, Appellants, v. CITY OF GRAND PRAIRIE, Appellee.
    No. 19664.
    Court of Civil Appeals of Texas, Dallas.
    Aug. 11, 1978.

      Scott W. Hudson, Dallas, for appellants.
    R. Clayton Hutchins, City Atty., Grand Prairie, for appellee.
   AKIN, Justice.

Appellants have filed a motion to extend the time within which to file their brief. Appellee has responded to this motion with a motion to dismiss the appeal because appellants’ brief was not filed within the time required by Texas Rules of Civil Procedure rule 414 and because rule 415 provides for dismissal of an appeal unless good cause is shown by an appellant for failing to timely file his brief. Because the question of whether we dismiss the appeal under rule 415 is discretionary, rather than mandatory, and because appellee will in no way be prejudiced by granting an extension to appellants, we exercise our discretion under rule 415 and overrule appellee’s motion to dismiss the appeal. We also grant appellants’ motion for an extension of time to file their brief until July 24,1978, and order it be filed.

Appellants admit that the delay in filing their briefs resulted from their misreading of the rules. In this respect, appellants calculated the time for filing their brief in this court from the last date permitted for filing their transcript, rather than from the date that the transcript was actually filed. The transcript was actually filed on May 19, although it was not required by the rules to be filed until June 24. Since rule 414 requires the appellant’s brief to be filed within thirty days after the filing of the transcript, appellants’ brief was due on June 19, not thirty days from June 24, which was the last day allowed for filing the transcript. On July 5, appellants filed their motion requesting us to extend the time for filing their brief, asserting that this miscalculation was not discovered until July 3 and that appellants’ counsel’s secretary, who was unaware of the miscalculation, is absent from work, thus rendering it impossible for the brief to be typed and filed before July 24, which is the date that the brief would have been due had the transcript been filed on the last date permitted by the rules.

Appellee argues that appellants’ lack of familiarity with rule 414 which specifies the time for filing appellant’s brief is not “good cause” for failing to comply with the rule nor is the lack of stenographic help a sufficient excuse citing Assembly of God Church of Tahoka v. Bradley, 196 S.W.2d 696, 697 (Tex.Civ.App.—Amarillo 1946, no writ); Lee v. Owen, 404 S.W.2d 84 (Tex.Civ.App.—San Antonio 1966, no writ); Continental Oil Company v. Dobie, 552 S.W.2d 183 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.). We agree with appellee that no good cause has been shown, but we decline to dismiss the appeal. Although rule 414 states that “upon good cause shown, the Court of Civil Appeals may grant either or both parties further time for filing their respective briefs,” we do not regard the exercise of our discretion in permitting the time to be extended to be predicated solely upon a strict showing of “good cause”. Indeed, rule 414 must be read in conjunction with rule 415. Hoke v. Poser, 384 S.W.2d 335, 336 (Tex.1964). Rule 415 provides:

When the appellant has failed to file his brief in the time prescribed, the appellate court may dismiss the appeal for want of prosecution, unless good cause is shown for such failure and that appellee has not suffered material injury thereby. The court may, however, decline to dismiss the appeal, whereupon it shall give such direction to the cause as it may deem proper. (Emphasis added)

As we read this rule, a court of civil appeals may dismiss an appeal only if no good cause is shown; however, the court has discretion to refuse to dismiss an appeal. Hoke v. Poser, supra. Thus, the language “unless good cause is shown” merely establishes the standard determining when the court may dismiss an appeal.

The supreme court in Hoke v. Poser, 384 S.W.2d 335, 336 (Tex.1964), rejected an argument similar to that advanced here by appellee. In that case, the court of civil appeals had overruled a motion to strike appellant’s brief and to dismiss the appeal on the ground that no good cause had been shown for a late filing of an appellant’s brief. In rejecting this argument, the supreme court stated:

Impliedly Rule 414 standing alone would hardly vest in the Court of Civil Appeals any discretion to allow the filing of the appellant’s brief more than thirty days after the filing of the statement of facts except upon a showing of good cause. But the two rules must be read together. Rule 415 authorizes the Court of Civil Appeals to dismiss the appeal for want of prosecution when appellant has failed to file his brief in the time prescribed in Rule 414, unless good cause to excuse that failure is shown and the opposing party has not suffered material injury thereby. However, the last sentence in Rule 415, by its very clear and unambiguous terms, confers a broad discretion upon the court to decline to dismiss the appeal in any event. (Emphasis added)

The supreme court went on to hold that the Houston Court of Civil Appeals was not required as a matter of law to dismiss the appeal for want of prosecution where no good cause was alleged by appellant for the late filing of appellant’s brief.

In our view, and in keeping with the objective and spirit of the Rules of Civil Procedure, this discretion granted by rule 415 should be exercised judiciously. The practice in this court is to set cases for submission and oral argument in the order in which the cases are filed, without waiting until appellant’s brief is filed. Normally, a short delay in filing appellant’s brief does not delay the submission or reduce the time for filing appellee’s brief. Our clerk has advised us that no such delay will result in this ease. Consequently, we fail to perceive how appellee could be prejudiced. Accordingly, appellants’ motion for an extension of time to file their brief is granted and appellee’s motion to dismiss the appeal is denied.