author: CLAYTON, Justice.

text:
    Charles O. LANE, Appellant, v. JEFFERSON COUNTY CHILD WELFARE UNIT, Appellee.
    No. 8065.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 23, 1978.
    Rehearing Denied March 16, 1978.

      Richard A. Dawson, Rosharon, for appellant.
    Paul N. Buchanan, Asst. Dist. Atty., Beaumont, for appellee.
   CLAYTON, Justice.

Charles 0. Lane appeals from a judgment in favor of Jefferson County Child Welfare Unit, appellee, in which the parent-child relationship between appellant and his child, Charles Steven Lane, was terminated under the provisions of Tex. Family Code Ann. § 15.02(1)(E) (Supp.1978). Judgment of termination was based on a jury verdict which found that appellant had “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child” and that such termination “would be in the best interest of the child.” Appellant bases his appeal upon the grounds that there is no evidence and insufficient evidence to support the jury findings. Appellant also urges the unconstitutionality of the statutory provisions under which this action was instituted.

The mother of the child testified she and appellant were married in 1970, and the child involved herein was born in 1973; at times during her pregnancy appellant would become violent and would strike and beat her and inflict bodily injury on her; during her eighth month of pregnancy appellant beat her and raped her leaving bruises upon her body; after the child was born appellant would not “straighten up” and continued to do the same things again, striking and beating her in the presence of the child. At one time appellant came to. her mother’s home, started a fight, knocked her down, beat up her mother, jerked the phone out of the wall and “tore the place up almost hitting the child when he threw a fan across the room.” On April 29, 1974, only a few days prior to the institution of this proceeding, while she was living with her mother, appellant “came to her mother’s home and threw some bricks or rocks through the window shattering glass in all directions and that the child, Steven, was asleep in the bedroom nearby and that everyone came very close to being cut by the flying glass,” and appellant knew of the presence of the child. On June 5, 1974, while the child was in her custody appellant came to the house, “tussled with [her] out in the yard where the child was playing, and grabbed up the child and ran off with him.” She testified, without objection, that it would be in the best interest of the child that all the father’s paternal rights be terminated.

The testimony further shows that the mother of the child and appellant had an unhappy marriage, moved from place to place and had several separations. She was at the time of the trial living at a commune called Cenikor Foundation in Houston, and she had lived there for approximately eight months (during this time the petitioner had temporary custody of the child); and that such foundation was a drug rehabilitation center. She stated that she had given up her child voluntarily to the Jefferson County Welfare Unit on several occasions. On February 17, 1975, appellant was arrested for the felony offense of robbery. He was convicted on July 31, 1975, and his punishment was assessed at forty years’ confinement in the Texas Department of Corrections. Since the trial below, this conviction was affirmed, and he is now in prison serving such sentence.

Several case workers for the petitioner testified as to the history of their relationship with the child and his mother and appellant. Each witness, after detailing his efforts in attempting to assist the parents and the child, testified that it would be in the best interest of the child that the parental rights of the appellant be terminated.

On June 17, 1975, petitioner took its final possession of the child and, amending its petition, sought the termination of appellant’s parental relationship. The record is not clear on this point, but it seems to be apparent that the original proceeding was filed May 2, 1974, seeking temporary custody of the child.

Appellant urges that any conduct engaged in by appellant which endangers the child, must have been committed in the presence of the child and directed toward the child.

We agree that the provision of the statute authorizing the termination of the parental relationship if the court finds the parent has “engaged in conduct . which endangers the physical or emotional well-being of the child” requires that such conduct must have been committed in the presence of the child, but we do not agree that such conduct must be directed toward the child. Many violent acts could be committed in the child’s presence, but not directed toward the child, in such a manner as to actually endanger the child’s physical well-being. To hold that the acts must be directed toward the child is to read something into the statute which the legislature did not so provide. Neither do we hold as urged by appellant, the child must actually suffer injuries before the parental relationship could be terminated. The statute provides the conduct must be such as to endanger the physical well-being of the child. We believe this language specifically omits the necessity of proving actual injury prior to parental relationship termination.

Appellant cites Hendricks v. Curry, 401 S.W.2d 796 (Tex.1966), as holding that parental rights may not be based solely on conditions which have existed in the distant past but no longer exist. That case involved an abandonment, .and the court held that such abandonment must be in existence at the time of the hearing and adjudication. However, in our case, the evidence shows appellant guilty of committing acts of violence in the presence of the child on several occasions, and that such acts were of a nature to endanger the physical well-being of the child, and that such acts were committed during a period of time up to and including the time immediately prior, and subsequent, to the time petitioner was actually given temporary custody of the child.

We are of the opinion there is in the record some evidence of probative value to raise a fact issue for the jury’s determination and that such evidence is factually sufficient to support the jury’s verdict.

We find there is no merit to appellant’s attack upon the constitutionality of Tex. Family Code Ann. § 15.02(1)(E) (Supp. 1978). See D_F_v. The State of Texas, 525 S.W.2d 933, 941 (Tex.Civ.App. — Houston [1st Dist.] 1975, no writ).

The judgment of the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: DIES, Chief Justice.

license: Public Domain

text:
    TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. Lucille BURRELL, Appellee.
    No. 8009.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 23, 1978.
    Rehearing Denied March 30, 1978.
    Kenzey D. Hallmark, Lufkin, for appellant.

      Gilbert T. Adams, Jr., Beaumont, for ap-pellee.
   DIES, Chief Justice.

This is a workmen’s compensation case wherein Lucille Burrell, plaintiff below, recovered death benefits for the death of her husband, Robert E. Burrell, against Texas Employers’ Insurance Association (T.E.I. A.), defendant below, and from which the latter brings this appeal.

Defendant urges in its first two points that the jury’s finding that the deceased, Robert E. Burrell, was an employee of his son, Robert C. Burrell, at the time of receiving his fatal injury is supported by no or insufficient evidence.

In passing on a “no evidence” point we consider only the evidence and inferences therefrom which support the verdict and disregard all evidences and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). An “insufficient evidence” point directs us to all the evidence, and we remand for a new trial only if the evidence is factually insufficient to support the finding of a vital fact. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

In our Texas Compensation Act “employee” is defined as “every person in the service of another under any contract of hire, express or implied, oral or written . ..” Tex.Rev.Civ.Stat.Ann. art. 8309 § 1 (1967).

One who assumes a service in Texas of his own free will without any express or implied promise of remuneration is a “volunteer” and not an “employee.” Nobles v. Texas Indemnity Ins. Co., 24 S.W.2d 367 (Tex.Com.App.1930).

“The courts of Texas have uniformly recognized that remuneration is a necessary element in a contract of hire, in construing our Workmen’s Compensation Act, Vernon’s Ann.Civ.St. art. 8309, § 1, which defines ‘employe’ to include ‘every person in the service of another under any contract of hire, expressed or implied, oral or written.’ ” (citing authorities) State v. Kenyon, Inc., 153 S.W.2d 195, 197 (Tex. Civ.App. — Austin 1941, writ ref’d).

In Associated Employers Lloyds v. Gibson, 245 S.W.2d 738, 739 (Tex.Civ.App.— Eastland 1951, writ dism’d), the injured plaintiff testified to Cherry (the superintendent), “I could fix that if you want me to.” Cherry replied, “O.K.” The court said the record revealed the injured plaintiff’s hope of reward for the proffered work was that the superintendent (Cherry) would give him a part-time job. Citing Nobles, supra, the court held this was insufficient to establish that plaintiff was an “employee” under the Act, and that remuneration is a necessary element in a contract of hire under the Act. The Nobles case, supra, has been cited by our Texas Supreme Court with approval. See Shell Oil Co. v. Reinhart, 375 S.W.2d 717, 719 (Tex.1964).

In Travelers Insurance Co. v. Gilliland, 459 S.W.2d 500 (Tex.Civ.App. — El Paso 1970, no writ), the court refused to approve a definition of employee where “agreement” was used rather than “contract of hire” saying, “Under the definition given in this case, a volunteer working without remuneration could be found to be an employee; yet our courts have uniformly held that remuneration is a necessary element in a contract of hire under our Workmen’s Compensation Act.” (at 502)

The deceased, Robert E. Burrell, age 58, worked forty hours a week for Atlantic Richfield Co. (Arco) in Silsbee, and had for a number of years. His son, Robert C. Burrell, was a logging contractor with Hart Stud Mill. The son had several employees, and it is undisputed these employees were covered under a policy of Workmen’s Compensation issued by defendant, T.E.I.A.

For several years, it has been the practice of the deceased on his time off from Arco to work with the son and his son’s employees in the woods. It is undisputed the father worked alongside the other employees. We have evidence this amounted to two or three days a week. He received no pay, but we have testimony the purpose was to have a job with his son waiting for him when he retired in four years. We also have evidence that the father took his directions from the son just as the other employees did, and that the son supplied gasoline, parts, and tires to the father. We believe this is some evidence of an employee relationship under the authorities above cited and overrule the “no evidence” point.

When we consider the entire record under the authority earlier herein, in addition to the fact the father worked without any agreement for compensation whatsoever, we find he (the father) could work, or not, when he desired; the son did not usually know his father was coming to the woods until the father showed up; the father did not have to work to earn a job with the son on retirement. The son would have provided him with one anyway; the son did not consider his father an “employee”; the father acquired no interest in his son’s business because of the work, and his widow (plaintiff) did not regard her son as owing her anything.

Under these circumstances, we believe the evidence is factually insufficient to establish that the father was the employee of the son, as that term has been construed by the cases above cited.

We realize that remanding this case may accomplish nothing. However, the appellate court’s duty to remand is absolute where there is some evidence, but it is insufficient to support the finding. Logue v. Southern Kansas Ry. Co. of Texas, 106 Tex. 445, 167 S.W. 805 (1914).

REVERSED and REMANDED.

      The Texas Act does not recognize an employee by “appointment.” See Lawson v. Lawson, 415 S.W.2d 313 (Mo.Civ.App.1967).


text:
    LONE STAR MACHINERY CORPORATION, Appellant, v. Leonard R. FRANKEL et al., Appellees.
    No. 8058.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 23, 1978.
    Rehearing Denied April 6, 1978.

      Richard F. Bergner, Henry J. Novak, Jr., Houston, for appellant.
    Ralph Balasco, Alister B. Mahon, Charles R. Gregg, Houston, for appellees.
   CLAYTON, Justice.

Plaintiff below, Lone Star Machinery Corporation, brought this suit against defendants for fraud in the sale of real estate under Tex. Bus. & Comm. Code Ann. § 27.01 (1968). Plaintiff sought to recover the difference in the value as represented and the actual value of the house as delivered. The defendants below were Mr. and Mrs. Leonard R. Frankel (the sellers); Ellen English, d/b/a Ellen English & Co., Realtors, and Eunice Turner (real estate sales agent). After plaintiff had presented its evidence, the trial court granted an instructed verdict, and plaintiff has appealed to this court.

The evidence shows that on April 17, 1972, the Frankels executed an exclusive listing agreement with Ellen English & Co. for the sale of their home. The listing agent was Mrs. Bock, a real estate agent for Ellen English & Co. Mrs. Bock prepared a “listing sheet” or brochure containing data about the house. It is undisputed that this listing sheet contained numerous misrepresentations about various features of the house, including that:

1. The house was constructed of white stone (was actually brick);
2. The floor of one room was made of marble (was actually terrazo);
3. The fireplace was constructed of twenty-four karat gold anodized aluminum (was not twenty-four karat);
4. The walnut screening in the morning room was hand-carved (was not hand-carved);
5. The ceiling was 16 feet (was actually 13.6 feet);
6. Portions of the kitchen had white leather walls (was actually simulated leather);
7. The house had two 66-gallon water heaters (were actually two 50-gallon or one 50- and one 40-gallon);
8. The house had two 10-ton air conditioners (were actually two 8-ton);
9. The house had 7,180 square feet of living area (was actually only 4,970 square feet in the main house).

Mrs. Bock, a witness for the plaintiff, testified she received this information from Mrs. Frankel, although Mrs. Frankel denied this.

Mr. Roberts, the sole shareholder of plaintiff corporation, living in California at the time, desired to purchase a home in Houston and contacted Turner of English & Co. On the afternoon of January 8, Turner escorted Roberts to the Frankel home, where Mrs. Frankel showed him the house. After a short visit, he returned to the real estate office and asked for some literature about the house. At this time the “listing sheet” was presented to him. It was this “listing sheet” containing the misrepresentations upon which Roberts claimed he relied, which is the basis for Roberts’ cause of action.

Plaintiff’s only point of error is: “The trial court erred in rendering an instructed verdict in favor of appellees for the reason that there is ample evidence in the record in support of the allegations of appellant’s first amended petition.”

Since this is an appeal from an instructed verdict against plaintiff, “we must accept as true the evidence in the record supporting plaintiffs’ allegations . Constant v. Howe, 436 S.W.2d 115, 116 (Tex.1968). “If the evidence presented is of such a conclusive character that reasonable minds could not differ as to its effect and only one conclusion may reasonably be drawn from it, only then does the question become one .of law, thereby justifying the granting of an instructed verdict.” Campbell v. Booth, 526 S.W.2d 167, 169 (Tex.Civ.App.—Dallas 1975, writ ref’d n. r. e.).

Roberts testified that he relied upon the “listing sheet,” but we are of the opinion that all of the evidence given by Roberts himself clearly shows that such reliance is convincingly negated by his own acts and statements. As stated in Griffin v. Superior Insurance Company, 161 Tex. 195, 338 S.W.2d 415, 418 (1960): “Citing from Stanolind Oil & Gas Co. v. State, 1940, 136 Tex. 5, 133 S.W.2d 767, mod. 136 Tex. 26, 145 S.W.2d 569(1), 570:

“ ‘The authorities hold that where a litigant admits positive and definite facts, which if true would defeat his right to recover or conclusively show his liability, and such statements or admissions are not subsequently modified or explained by him so as to show that he was mistaken, although testifying in good faith, he is conclusively bound by such admissions and cannot successfully complain if the court directs a verdict against him.’ ”

See Kimmell v. Tipton, 142 S.W.2d 421, 429 (Tex.Civ.App. — Eastland 1940, no writ), and eases cited therein. Based upon this rule we hold that the following evidence, which we must necessarily give in lengthy detail, falls within the scope of the rule announced in Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898), and Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 755 (Tex.1970), to the effect that when the evidence offered to prove a vital fact, i. e., Roberts’ statement that he relied upon the “listing sheet,” is so weak, when compared with his own actions and admissions, as to do no more than create a mere surmise or suspicion of its existence, such evidence is in legal effect no evidence, and it will not support a verdict or judgment.

The evidence shows that on Roberts’ first visit to the home, he was shown and went into every major room of the house except the daughter’s bedroom. Upon this tour Mrs. Frankel, the owner, pointed out to Roberts many of the details of the home. She showed him “the carved screen that she said she had made in California. . . . ” He admits he had the opportunity to and did observe the fireplace. This first visit consumed approximately an hour and a half.

Roberts’ second visit to the Frankel home occurred that same evening for approximately three and a half hours. During this time he was able to and did observe the fireplace, the walnut screen, and the floors. On the morning of the next day, the earnest money contract was signed. Before leaving for California, Roberts requested and was furnished a set of plans and specifications on the home so that he could take them back to California to show “my wife and children the house.” Between the time the earnest money contract was signed and the day the closing took place (from January 9 to February 23), Roberts made two more visits to the Frankel home. On these visits Roberts, his wife, and children walked through the house, and his wife “visually” looked at the home.

Roberts had a fifth visit to the home prior to the closing date. He personally requested an opportunity to be shown “how the house operated electrically, mechanically, air conditionalized, where the fuses were and water was to turn on the sprinkler system and shut off the water and things of that nature.” During this visit, Mr. Frankel met with him and showed him the hot water heaters, the pool equipment, the air conditioning units, and the fuse box. He testified that he made an examination of these items. Mrs. Frankel testified that Roberts “got down on his knees and looked at” the hot water heaters. Roberts acknowledged that “no one at any time ever made any effort in any way whatsoever to prevent . . . [him] from making an inspection of anything in that house.”

We must determine if the inspections and information gathered by Roberts come within the rule as enunciated in M. L. Mayfield Petroleum Corporation v. Kelly, 450 S.W.2d 104, 110 (Tex.Civ.App. — Tyler 1970, writ ref’d n. r. e.), wherein the court states:

“We believe there is a further reason that the judgment was properly rendered for defendants and that is because of the authorities which hold that no purchaser who relies on his own investigation may successfully assert that he relied upon representations made to him by his vendor. If a purchaser makes a personal investigation which is free and unhampered and the conditions are such that he must obtain the information he desires, he is presumed to rely upon his own investigation rather than on representations made to him by his vendor. 174 A.L.R., page 1037, Sec. 8; Marcus v. Kinabrew, 438 S.W.2d 431 (Tex.Civ.App., Tyler, 1969, n. w. h.); Whitsel v. Hoover et a 1, 120 S.W.2d 930 (Tex.Civ.App., Amarillo, 1938, writ dism.); Spark v. Lasater, 234 S.W. 717 (Tex.Civ.App., San Antonio, 1921, n. w. h.).”

Roberts was not a complete stranger to the building or construction trade. He had acted as his own general contractor in building a home in California, directed the remodeling of a warehouse and office building for a company with which he was associated, and worked as a trader of equipment for over twenty-seven years. In connection with building his own home, he had sent out requests for bids from subcontractors, received their proposals, and supervised the work of the subcontractors. He personally selected the materials to go into the house. The completed home had “eight thousand and some square feet under roof and approximately five thousand or more which was living area.” The home sold for $300,-000. We believe Roberts’ experience is significant with reference to his possession and reading of the plans and specifications of the Frankel home. After he received the plans and specifications, he returned to California taking them with him. At his home he “opened them up and showed them” to his family. In examining them they “went through them, page by page.”

One sheet of the plans clearly and very definitely shows sixteen areas of the exteri- or walk being marked as “brick.” The north elevation shows three areas as being brick, two areas being glass, and one area being concrete block screen. The other elevations show the exterior walls as being of brick, glass, or “board on board.” There is no area of the exterior walls being shown as “stone.” In addition to these facts, Roberts also testified he looked at the exterior walls and “maybe ran my hand on it.” The plans very clearly showed the ceilings as being 13.6 feet high, and not 16 feet, as shown in the “listing sheet.” He further testified the plans showed that they were drawn on a “quarter-inch scale,” and he could have calculated the size of the rooms from the plans even if the rooms lacked dimensions on the plans. He further admitted that the plan “does pretty much show the living area in the main house.” Roberts testified that Mrs. Frankel told him the plans “were not complete and they were not accurate because many changes were made.” Mrs. Frankel testified the plans “are complete” and that “you will find on those plans everything in the house that is on those plans.” The only change which had been made was to “flip the wing over whereby the master bedroom was on the patio overlooking the pool. . . . ”

Roberts further testified that he had decided to purchase the house at a figure that was interesting to him prior to the time the “listing sheet” was given him. The following testimony is pertinent:

“Q. And the point is that you had decided that you wanted to buy that house at that figure, and you had never even known of the existence of any brochure . . . ?
“A. For a $225,000.00 price I did not see the brochure. That came out later.
“Q. . . . [Y]ou didn’t even dream of the existence of any brochure or anything like that until later . . ?
“A. Yes.
“Q. . . . [Y]ou did not rely on anything that anybody had shown you. You relied upon your own visual personal inspection when you decided that you wanted to buy this house, isn’t that true . . . ?
“A. My visual inspection had part to do with it, but I didn’t make a firm offer even . . . ”

Based upon his personal inspection of the home as outlined above, and the facts coming to his knowledge upon examining the plans and specifications, we are of the opinion this case falls squarely within the rules stated in the Mayfield Petroleum case, supra. The plans and specifications clearly showed that the representations in the “listing sheet” were clearly false as to the square footage of the house, the height of the ceilings, and the materials used in the exterior walls. The plans were so clear as to these items, it would certainly put Roberts on sufficient notice of such discrepancy between the plans and the “listing sheet” as to create a duty upon him to make further inquiry as to these items. Probably the most illuminating bit of evidence came out in Roberts’ deposition, the following portion being in the record:

“ ‘Q. Do you consider you were capable enough to buy property based upon your visual inspection of the property?
‘A. It was my money and I can spend it any way I like.
‘Q. Is that a “yes” answer?
‘A. I was willing to roll the dice.’
Q. Was that your testimony?
A. Yes, it was.”

The three major or material items involved in the “listing sheet” would be the size of the home, the ceiling heights, and the materials of the exterior walls. The falsity of the representations were made known to Roberts. It is true that this knowledge was obtained after the earnest money contract was signed. However, Roberts admitted that “Frankel told me that if I got back out to California for some reason I couldn’t complete the transaction, we would try to break it as gentlemen.”

It is not necessary that all the representations made in the “listing sheet” were false. The fact that Roberts knew of the falsity of the representations in any material particular is sufficient to defeat his recovery. It is held in Allen v. Lasseter, 35 S.W.2d 753, 757 (Tex.Civ.App. — Waco 1931, writ ref’d) that “The right to set aside a contract . on the ground that the same was induced by false representations is defeated if the party claiming to have relied thereon knew that such representations were false in any material particular. It is not necessary that he should have known that the representations were wholly false, or the exact extent of their falsity, [citing cases]”

Under the authorities and the facts of this case, we are of the opinion Roberts’ knowledge of the falsity of the material representations was sufficient to show that he did not rely on the “listing sheet.” The trial court properly granted the instructed verdict against plaintiff, and the judgment of the trial court is affirmed.

AFFIRMED.


author: KEITH, Justice.

text:
    Cynthia FILLYAW, Appellant, v. CITY OF BEAUMONT, Appellee.
    No. 8082.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 23, 1978.
    Rehearing Denied March 16, 1978.

      John H. Seale, Jasper, for appellant.
    Daniel V. Flatten, Beaumont, for appel-lee.
   KEITH, Justice.

Plaintiff below appeals from a take nothing judgment entered in her suit under the Workers’ Compensation Act for injuries received in the course of her employment as a water meter reader for the defendant. The defendant is self-insured as provided in Tex.Rev.Civ.Stat.Ann. art. 8309h, § 2(a) (1978).

On the morning of October 29, 1975, plaintiff was reading meters when she saw a snake on a meter box. She was startled and jumped back, landing on her feet. She testified that she twisted her back and felt pain immediately but continued working the remainder of the day. She did not complain of the incident when she checked out that day; and, as a matter of fact, her supervisor, Mr. Greathouse, testified that he asked her how she was doing and she replied that “she was doing fine.” However, the next day she did report the incident and Greathouse sent her to the office and she was sent to a physician for examination and treatment.

After missing five days from her work, plaintiff returned and worked at her same job. She testified that she worked for about a week but Greathouse testified that she worked only one day, telling him that her husband did not want her to work anymore. In early January, 1976, some ten weeks after the snake incident, plaintiff was examined by an orthopedist and x-ray examination of her spine revealed no objective findings indicating disability but did reveal a congenital anomaly.

Plaintiff secured employment for several months in a department store and testified that she complained to her supervisor in the store of having back pains, but such complaint was denied by the supervisor. She did not tell the store personnel that she was quitting because of inability to perform her work or because of the pain.

In October and November of 1976, plaintiff worked at a sausage plant; and, while she testified on direct examination that she quit because her back was hurting, she admitted on cross-examination that she did not give that reason to her employer.

Dr. Bessell, the orthopedist, examined her again in September and October of 1976, and testified that he could find no objective symptoms substantiating plaintiff’s complaints. He suggested that she see her family physician for an examination. She went to Dr. Thomas, who had treated her earlier for various female problems, and whom she had seen on two occasions after the snake incident without mention of the twisting of her back. This snake incident was related first to Dr. Thomas when he examined her in September, 1976. On direct examination, Dr. Thomas testified that she had muscle spasm and limitation in her back; that his tests ruled out female and urinary problems as the cause of the symptoms he observed. On cross-examination, however, he admitted that he never did make any objective findings “and . couldn’t see other than what the patient complained of.”

In response to requests for admissions served upon it, defendant admitted that plaintiff was injured accidentally on or about October 29, 1975, while working in the course of her employment with defendant. It was also established that she received approximately $1,400 in compensation benefits from the defendant.

The jury returned a negative answer to Special Issue Number One, and all other issues being conditioned upon an affirmative answer to such issue, no other issues were answered. The issue read:

“Do you find from a preponderance of the evidence that Cynthia Fillyaw sustained an accidental injury in the course of her employment for the City of Beaumont on or about October 29,1975, which was a producing cause of some incapacity?”

To which the jury answered, “We do not.”

It being undisputed that the plaintiff did receive an accidental injury — by reason of defendant’s admissions — the multifarious issue submitted a single disputed fact: producing cause of some incapacity.

Plaintiff’s single point of error asserts that the answer to such issue is so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. After a review of the evidence under the applicable standards [e. g., Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965)], we disagree and affirm the judgment of the trial court for the reasons now to be stated.

It is trite learning, but true, as stated in Pacific Indemnity Co. v. Arline, 213 S.W.2d 691, 698 (Tex.Civ.App. — Beaumont 1948, writ dism’d by agr.):

“An employee’s proven injury must, of course, be a legal cause of his proven disability if the disability is to be compen-sable under the Workmen’s Compensation Law, and if this matter of causation is a fact issue, as is true here, it must be submitted to the jury for their determination.”

The definition found in the charge, which comes to us without objection, is taken from 2 State Bar of Texas, Texas Pattern Jury Charges, § 22.01, at 61 (1970), wherein the burden of proof is placed properly upon the claimant.

The evidence upon producing cause was conflicting and was based upon the subjective complaints by the plaintiff of pain and conflicting opinion evidence from the physicians. In Lyles v. Texas Employers’ Insurance Association, 365 S.W.2d 819, 824 (Tex. Civ.App. — Texarkana 1963, writ ref’d n. r. e.), which cited and followed Arline, supra, it was held:

“Resolving the conflicts and sifting the facts and opinions was a jury function and the submission to the jury was proper.”

As this court said in Horn v. Atchison, Topeka and Santa Fe Railway Co., 519 S.W.2d 894, 896-897 (Tex.Civ.App. — Beaumont 1975, writ ref’d n. r. e.):

“The accident in question was, in the parlance of the trade, a ‘blind’ accident since only plaintiff was in position to testify as to its occurrence, how it happened, and its effect upon his body. He was an interested party and it is the general rule that the testimony of an interested party does no more than raise an issue for determination by the trier of the facts, [citations omitted]”

It has long been the rule in this state that opinion testimony is but eviden-tiary and is never binding upon the trier of the facts and it may be disregarded by the jury. See the authorities cited by Justice Steakley in Broussard v. Moon, 431 S.W.2d 534, 537 (Tex.1968).

Thus, under the rules set out above, while plaintiff raised a jury issue as to producing cause, such was not established as a matter of law and the jury had the right and privilege of disbelieving all or any part of the testimony supporting such necessary element of her claim.

Plaintiff mentions the fact that the defendant paid her a substantial sum of money in compensation benefits but does not argue — as indeed she cannot so argue— that this constituted probative evidence of the necessary fact that her reported injury was the producing cause of her claimed incapacity. Hartford Accident and Indemnity Company v. Hale, 400 S.W.2d 310, 313 (Tex.1966).

Finally, relying upon Dupree v. Blackmon, 481 S.W.2d 216 (Tex.Civ.App. — Beaumont 1972, writ ref’d n. r. e.), and the cases cited therein, plaintiff contends that she is entitled to a reversal and that we should disapprove “of a jury’s action in simply disregarding and ignoring the evidence as to consequences resulting from an injury.” Plaintiff does not correctly read Dupree. There, unquestionably, plaintiff sustained an injury which entitled him to damages and the evidence was based upon objective symptoms.

Here, plaintiff’s claims to relief are predicated upon subjective symptoms. Indeed, the distinction is pointed out in the concurring opinion in Dupree, 481 S.W.2d at 220-221. See also Comstock v. Ramirez, 520 S.W.2d 475, 477-478 (Tex.Civ.App. — El Paso 1975, no writ). Indeed, as stated in C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966), “Properly interpreted, the answer is nothing more than a failure or refusal by the jury to find from a preponderance of the evidence that” plaintiff’s alleged injury was a producing cause of incapacity under the Act. She simply failed to carry her burden of proving such fact.

The judgment of the trial court is affirmed.

AFFIRMED.


author: PER CURIAM.

text:
    H. L. McRAE COMPANY, Appellant, v. HOOKER CONSTRUCTION COMPANY, Appellee.
    No. 15797.
    Court of Civil Appeals of Texas, Austin.
    March 8, 1978.
    Billy D. Hullum, Barron & Hullum, Wills Point, for appellant.
    Stephen R. Fontaine, Sleeper, Williams, Johnston, Helm & Estes, Waco, for appel-lee.
   PER CURIAM.

H. L. McRae Company, appellant, has filed a motion for extension of time for filing the transcript in its appeal from the judgment of the county court at law of Bell County.

In its motion, appellant recites that default judgment was entered against it on November 28,1977. The court overruled its motion for new trial on December 21, 1977. Appellant filed its cost bond on January 26, 1978.

Texas R.Civ.P. 356 requires that the cost bond be filed with the clerk within thirty days after rendition of judgment or order overruling motion for new trial. Compliance with Rule 356 is mandatory and jurisdictional. Washington v. Golden State Mutual Life Ins. Co., 405 S.W.2d 856 (Tex.Civ.App.1966, writ ref’d).

Because appellant’s cost bond was filed more than thirty days after its motion for new trial was overruled, this Court is without jurisdiction to entertain the appeal, and the Clerk will be ordered not to file the transcript.

Dismissed for Want of Jurisdiction.


author: O’QUINN, Justice.

text:
    Clarence R. LINDSEY, Appellant, v. Velma Maxine LINDSEY, Appellee.
    No. 12647.
    Court of Civil Appeals of Texas, Austin.
    March 8, 1978.

      Dale E. Muller, Austin, for appellant.
    Rip Collins, Kuhn, Collins & Rash, Austin, for appellee.
   O’QUINN, Justice.

Clarence R. Lindsey, respondent below, brings this appeal from judgment of the trial court ordering sale of certain property in a divorce proceeding and ordering payment of $60,000 to Velma Maxine Lindsey, petitioner below, out of the proceeds from sale of the property. Appellant makes no complaint “about the decree of divorce or division of the other community property.”

The trial court found “that Petitioner invested $60,000.00 of her separate property into the property . . [ordered sold].” The court directed “ . . . that upon the sale of the property . . . Petitioner is to receive $60,000.00.” Appellant relies upon nine points of error, directed in the main at division of property. We will overrule all points of error and affirm judgment of the trial court.

Appellant contends that reimbursement for contributed separate property was improperly awarded because the pleadings did not support the judgment and no pleadings supported testimony introduced as to separate property.

In her petition for divorce appellee alleged that “During the marriage, certain community property has been accumulated by the parties. Petitioner believes the parties will be able to enter into an agreement respecting the property of the parties. If so, the agreement will be presented for approval by the Court.”

In asking grant of a temporary restraining order, petitioner included restraint of respondent from “Selling, transferring, assigning, mortgaging, encumbering or in any manner alienating any of the parties; [sic] property, whether personalty or realty, separate or community . . . ” (Emphasis supplied).

Petitioner prayed for divorce, change of name, restraining order, and “for general relief.”

Division of property in a divorce action is made pursuant to authority of Section 3.63 of the Texas Family Code, which provides that “ . . . the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” The earliest forebear of this statute was Section 5 of an Act “Concerning Divorce and Alimony,” enacted by Congress of the Republic of Texas in 1841. 2 Gammel, Laws of Texas 483, 484, Sec. 4 (1841). The provisions found in the present law have remained essentially unchanged since 1841 and have been construed by many Texas courts.

With respect to pleadings under the statute, the rule is settled that the trial court has authority to construe the pleadings more liberally than in other civil cases. Fain v. Fain, 6 S.W.2d 403, 406 (Tex.Civ. App. Galveston 1928, writ dism’d); Bagby v. Bagby, 186 S.W.2d 702, 704-5 (Tex.Civ. App. Amarillo 1945, no writ), and cases cited by those courts.

Article 3.63 is mandatory in its provisions, and the trial court is required to decree a division of the property. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21, 23 (1923); Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299, 302-3 (1960); Ex Parte Scott, 133 Tex. 1, 123 S.W.2d 306, 313 (1939). In making division of the property under the statute, the trial court is not required to make an equal division, and the court is “ . . . controlled by what the facts may lead him to believe is just and right.” Ex Parte Scott, supra; Waggener v. Waggener, 460 S.W.2d 251, 253 (Tex.Civ.App. Dallas 1970, no writ); Baize v. Baize, 460 S.W.2d 255, 256 (Tex.Civ.App. Eastland 1970, no writ); Zaruba v. Zaruba, 498 S.W.2d 695, 698-99 (Tex.Civ.App. Corpus Christi 1973, writ dism’d); Schreiner v. Schreiner, 502 S.W.2d 840, 846 (Tex.Civ.App. San Antonio 1973, writ dism’d).

We conclude that petitioner’s allegations were sufficient to support introduction of evidence as to the character and nature of all property of the estate, both community and separate, and under the pleadings the trial court was required to partition the property. The record does not show that respondent below excepted to pleadings of the petition, which adequately brought to the attention of the court both community and separate property. The discretion lodged in the court authorized the court to hear evidence relating to all property of the estate. Zamba v. Zamba, supra; Cox v. Cox, 439 S.W.2d 862, 865 (Tex.Civ.App. San Antonio 1969, no writ).

Appellant complains that it was error to award reimbursement for separate property contributed because the separate was so commingled with community as to lose its separate identity; and, further, that division of the property was so disproportionate as to be improper.

A presumption is established by Article 5.02, Texas Family Code, that property possessed by either spouse during or upon dissolution of the marriage is regarded as community property. The presumption is rebuttable, with the burden on the one asserting a claim as to separate property to prove the contrary of the presumption by the satisfactory evidence. The burden is not discharged and the presumption prevails if the separate and community property have been so commingled as to defy resegregation and identification. Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex.Sup.1965).

At the trial, Mrs. Lindsey was able to show the court the exact amount of her separate funds, all of which she acquired from her former husband, of a prior marriage, by way of property settlement. In 1973 she received $26,439.79 and in 1974 such separate funds amounted to $31,425.16. Subsequently other sums were received by Mrs. Lindsey from dividends and additional payments from the settlement. All such funds were deposited in a joint bank account, full records of which were before the trial court.

All investments in real estate by the Lindseys, Mrs. Lindsey testified, came solely from the account consisting of her separate funds. The investment sums were accounted for from records in the same manner the deposits were shown to the court. Thus appellee met the burden of tracing her separate property as it was received and as it was invested in community realty. The separate funds did not lose their identity, although separate and community property were commingled, since the trial court was able from the evidence to determine accurately the interest of each estate. Edsall v. Edsall, 240 S.W.2d 424 (Tex.Civ.App. Eastland 1951, no writ); In Matter of Marriage of Tandy, 532 S.W.2d 714, 717 (Tex.Civ.App. Amarillo 1976, no writ); Baize v. Baize, supra.

Under provisions of Section 3.63 of the Family Code, the trial court is not required to divide property of a marriage equally between the spouses in a judgment of divorce. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950). Broad discretion is vested in the trial court in effecting division of the property, and that discretion will not be disturbed on appeal unless it be shown that the court abused its discretion. Bell v. Bell, 513 S.W.2d 20 (Tex.Sup.1974); Dickson v. Dickson, 544 S.W.2d 200 (Tex.Civ.App. Austin 1976, writ dism’d w. o. j.). After the requirements of tracing have been met, as in this case, the trial court does not abuse its discretion in awarding one spouse a share reflecting the amount of separate property brought into the marriage. Edsall v. Edsall, supra. When both community and separate funds have been applied to the purchase price of land, the land so acquired is in part community and in part separate property, in so far as division of the property is concerned in a suit for divorce. Baize v. Baize, supra.

Appellant’s points attacking award of reimbursement to appellee and complaining of disproportionate division of the estate are overruled.

Appellant urges error in allowing appel-lee to file a trial amendment setting out more fully her claims of separate property. The record shows that although filed, subsequent to trial but prior to final judgment, the amendment was not acted on by the court, so not granted.

Further complaint is made by appellant that the trial court refused to grant a continuance which appellant filed subsequent to trial but before entry of final judgment. This claim of error was not preserved in motion for new trial under Rule 325, Texas Rules of Civil Procedure. It is considered that appellant acquiesced in the court’s refusal to grant a continuance. International Security Life Insurance Co. v. Harris, 461 S.W.2d 222 (Tex.Civ.App. Amarillo 1970, writ dism’d).

Under two points appellant urges error in admission of parol evidence concerning purchases of real estate and income accruing from separate property, on ground of violating the best evidence rule. The deeds, promissory note, and other documentary proof appellant insists should have been offered in evidence did not form the foundation of the cause of action or defense against the action, and admission of parol evidence as to payments, transactions, income received, and other matters relating to tracing of the separate property did not contravene the best evidence rule, which in this case was inapplicable. Freeman v. Commercial Union Assurance Co., 317 S.W.2d 563 (Tex.Civ.App. Texarkana 1958, writ ref’d n. r. e.); 2 McCormick and Ray, Texas Law of Evidence, sec. 1567 (2d ed. 1956). The best evidence rule is administrative, and the trial court’s action in exercise of its discretion should not be disturbed except upon showing of grave abuse. McCormick and Ray, supra. Appellant’s points seeking to invoke the best evidence rule are overruled.

The final point brought by appellant is directed at action of the trial court in granting appellee change of her name to Velma Maxine McDonald. Appellant complains that, although specially pleaded, no evidence was offered to support change of name in the judgment.

This point is overruled under authority of Section 32.24, Family Code, vesting in the trial court discretion to change the name of either party specially praying for the change in a divorce action:

“On final disposition of a suit for divorce . the court, in its discretion, may enter a decree changing the name of either party specially praying for the change.” (Emphasis added).

We find no showing that the trial judge abused the discretion accorded the court by the statute.

The judgment of the trial court is affirmed.


author: RAY, Justice.

text:
    Dr. M. James BROOKS, Jr., et al., Appellants, v. M. Carl JONES, Appellee.
    No. 8510.
    Court of Civil Appeals of Texas, Texarkana.
    March 14, 1978.
    Rehearing Denied April 11, 1978.

      John M. Smith, Roberts, Harbour, Smith, Harris, French & Ritter, Longview, Doyle Curry, Jones, Jones & Baldwin, Marshall, for appellants.
    L. F. Burke, Longview, J. R. Cornelius, The Cornelius Law Firm, Jefferson, G. Brockett Irwin, Longview, for appellee.
   RAY, Justice.

This case concerns public and private easements by prescription. Appellants (plaintiffs), Dr. M. James Brooks, Jr. and Dr. Jesse M. Brooks, doing business as Brooks Oil Company, a partnership, brought suit against appellee (defendant), M. Carl Jones, for the purpose of establishing a public easement over an East-West roadway and a private easement over a North-South roadway. The jury found that appellants had acquired a private easement over the North-South road by adverse possession for more than ten years and further found that the East-West road was a public road.

The trial court disregarded the findings of the jury relative to the North-South road as not being supported by the evidence, and entered a judgment that the Brookses had not established a prescriptive easement to the North-South road and that the East-West road was a public road. Both appellants and appellee have perfected their appeals.

The Brookses acquired a 30.57 acre tract of land in Marion County on September 15, 1958, from Mahlon Walters, an attorney. At that time Gulf Oil Corporation owned most of the land on the North, West, and South sides of the tract purchased by the Brookses. The East side of the Brookses’ property was bordered by Caddo Lake. On April 27, 1960, M. Carl Jones bought the land surrounding the Brookses’ tract. The East-West road begins at the end of F.M. Road 727 and is on lands owned by M. Carl Jones. The road leads in an Easterly direction from the end of F.M. Road 727 to a cabin owned by Jones on the East side of the Texas-Louisiana border. Prior to reaching the Texas-Louisiana border, a North-South road intersecting the East-West road leads north across the Jones land into the Brookses land.

In 1961, Jones, desiring to improve his property, notified the Brookses by letter dated May 31st, that he was locking the gate on the East-West roadway and sent Dr. James Brooks a key. Jones informed the Brookses that he wanted to keep poachers off his land and that he was going to place a gate at the entrance of the East-West roadway and was going to fence the rest of his property; and, that he wanted the Brookses to have a key. The Brookses notified Jones that they did not desire a key and that if Jones wanted to put up a gate, they would work out a double lock arrangement. The double lock arrangement persisted until 1972 when Jones locked the Brookses out of the East-West roadway and the North-South roadway ostensibly for the reason that the Brookses would not pay a part of the maintenance cost of the roads.

The evidence is undisputed that the Brookses and M. Carl Jones used both roads together. It is also clear that the Brookses had not established a private prescriptive easement to the North-South road before Jones acquired the property on which the North-South roadway is located. The prevailing rule in Texas relative to acquiring a private easement by prescription is as follows:

“To establish an easement by prescription over the land of another, it must be shown that the use was open, notorious, hostile, adverse, uninterrupted, exclusive and continuous for a period of more than 10 years. A failure to prove any one of the essential elements is fatal. Mere user alone will not create an easement. Moreover, the use of the way is permissive and not adverse, as a matter of law, if the way is also used by the owner of the land, along with the adverse user. . . . ” Rust v. Engledow, 368 S.W.2d 635, 638 (Tex.Civ.App. Waco 1963, writ ref’d n.r. e.).

Since both the Brookses and Jones used the North-South road, its use was permissive and not adverse as a matter of law.

In 1972, the Brookses brought suit to enjoin Jones from locking them out of the access to their land. A temporary injunction was denied. When the case was to be heard on the merits, Jones interposed a plea of res judicata which was overruled. An appeal was taken from the order overruling the plea of res judicata, but the appeal was dismissed because this court could not determine from the record presented to us whethér the order appealed from was a final judgment. Jones v. Brooks, 531 S.W.2d 221 (Tex.Civ.App. Texarkana 1975, writ ref’d n.r.e.). When the case was finally heard on its merits, Jones again interposed his plea of res judicata, asserting that the issue of whether or not the Brookses had acquired a prescriptive easement to the North-South road, and whether the East-West road was a public road, had already been determined by the trial court at the injunction hearing. We agree.

The injunction hearing was held by one judge and the trial on the merits was before a different judge. At the trial on the merits the record made at the injunction hearing was introduced to support the plea of res judicata presented by Jones. The record made at the injunction proceedings revealed a full development of the issues of the prescriptive easements. In Judge Morris Rolston’s letter to the attorneys after the hearing on the injunction, he stated that the Brookses had failed to prove any easement by prescription because they had not proved exclusive use of the roadways. Judge Rolston stated

“. . .It appears to be the law of this State that the use of the way is permissive and not adverse, as a matter of law, if the way is also used by the owner of the land, along with the adverse user—

Judge Rolston subsequently signed an order in October, 1972, denying the request of the Brookses for an injunction. No appeal was taken by the Brookses from that order. Jones has preserved through the trial court and into this Court his plea of res judicata.

While the primary purpose of a judgment granting a temporary injunction is to maintain the status quo of the parties pending a hearing on the merits, it happens that issues of fact and law must be determined in such preliminary hearing. If these issues go to the foundation and existence of the cause of action in the main case, then the judgment in the injunction proceeding becomes final as to such essential issues. International Longshoremen v. Galveston Maritime Ass’n., 358 S.W.2d 607, 613 (Tex.Civ.App. Houston 1962, no writ). This is an exception to the general rule that an interlocutory order will not support a plea of res judicata, and the exception only applies where the parties chose to turn the hearing on the application for temporary injunction into a hearing on the merits by their presentation of extrinsic evidence and the full development of the factual issues. Furr’s, Inc. v. United Specialty Advertising Company, 385 S.W.2d 456, 458 (Tex.Civ.App. El Paso 1964, writ ref’d n.r.e.), cert. denied, 382 U.S. 824, 86 S.Ct. 59, 15 L.Ed.2d 71 (1965); Wilson v. Abilene Independent School District, 204 S.W.2d 407, 410 (Tex.Civ.App. Eastland 1947, writ ref’d n.r.e.).

In the present case, the statement of facts from the hearing oh the temporary injunction shows that the Brookses attempted to develop the same testimony there as that later adduced at the trial on the merits. While the testimony at the trial on the merits was more voluminous, there were no significant differences between the testimony adduced at the injunction proceedings and that elicited at the trial on the merits. At both hearings the Brookses contended that easements had been acquired over the East-West road and the North-South road and that Jones had wrongly deprived them of the use of such easements and further, that Jones should be enjoined from further depriving them of access to their tract of land. There, were no collateral or ancillary issues. Wilson v. Abilene Independent School District, supra. The pleadings in the hearing on the merits were substantially the same as those used in the hearing on the temporary injunction. All these facts make it apparent that Judge Rolston was called upon to decide the ultimate issues in the case at the injunction hearing and that once decided, further adjudication should have been barred. Wilson v. Abilene Independent School District, supra at 410.

The trial court should have sustained the plea of res judicata and dismissed the Brookses action because it was barred by a previous adverse judgment involving the same issues when Judge Rolston denied the temporary injunction on October 16, 1972.

The undisputed evidence shows that the East-West road and the North-South road were used contemporaneously by both the Brookses and M. Carl Jones. In both public and private easement cases, contemporaneous use of the way by the owner, renders use by others as permissive and not adverse as a matter of law. O’Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878 (1960); Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622 (1950); Rust v. Engledow, 368 S.W.2d 635 (Tex.Civ.App. Waco 1963, writ ref’d n.r. e.). It is our opinion that O’Connor v. Gragg supra, supercedes and overrules any language to the contrary found in Schultz v. Shatto, 150 Tex. 130, 237 S.W.2d 609 (1951); Fowler v. Matthews, 204 S.W.2d 80 (Tex.Civ.App. Austin 1947, no writ); and, Foster v. Patton, 104 S.W.2d 944 (Tex.Civ.App. Austin 1937, writ dism’d).

There was no evidence introduced to establish that the general public was claiming the East-West road exclusively or adversely to the owners of the land on which the roadway was located. There was testimony to the effect that the road had been traveled by the public for many years, but that naked circumstance is not sufficient. Ladies Benev. Society v. Magnolia Cemetery Co., 288 S.W. 812 (Tex.Com.App.1926, judgmt adopted).

Under the circumstances of this case, it was improper for the trial court, once it had concluded that appellants had not acquired a private easement to the North-South road, to proceed to declare the East-West roadway to be public. The East-West road begins on Jones’ property and ends on Jones’ land; it is completely surrounded by Jones’ land and is used as access only by Mr. Jones, his tenant and the Brookses. Since the Brookses did not acquire an easement to the North-South roadway, there was no reason to declare the East-West roadway a public road. There would be no reason for the public to use the East-West roadway other than to trespass upon the Jones’ land. Huffman v. Alexander, 276 S.W. 959, 960 (Tex.Civ.App. Waco 1925, no writ).

There is yet another reason why appellants are not entitled to have the East-West road declared a public road. Ordinarily, only the State or one of its subdivisions may bring a suit for the removal of an obstruction of a street or public roadway. A private individual who has been specially injured by an obstruction and is interested in preventing its continuance may, on a proper showing, maintain a suit in equity to compel the removal of the obstruction. The complainant must show that he has sustained, by reason of the obstruction, a peculiar or special injury different from that suffered by the public generally. If the injury is common to the public, and not special to an individual, redress in the nature of abatement of the encroachment must be secured in behalf of the public through a proper representative. The elements of a cause of action by a private citizen seeking recovery of damages or seeking a mandatory order for the removal of the obstruction, are as follows: (1) that the acts of the defendant constitute a nuisance in law; and, (2) that the damage to the plaintiff is something more than the damage suffered by all who use the road; and, (3) that the thoroughfare is in fact a public way. See 28 Tex.Jur.2d, Highways and Streets, Sections 193, 196, 198 and 199.

Once the trial court had determined that the Brookses had not acquired an easement to the North-South roadway, it became the court’s duty then to decide if the Brookses had a justiciable interest in the East-West roadway. Since the East-West roadway begins on Jones’ land and ends on Jones’ land we have concluded that the appellants failed to allege and prove the necessary elements to enjoin Jones from maintaining his locked gate at the entrance to the roadway.

The disposition of this case would ordinarily be that the judgment of the trial court would be affirmed as to its disposition of the case related to the North-South roadway and a reversal of that part of the judgment declaring the East-West roadway to be a public road with a rendition by this Court that the Brookses take nothing as to the East-West road. However, since we have concluded that the trial court should have sustained the plea of res judicata, it is our duty to enter the judgment which the trial court should have rendered, that being, the dismissal of appellants’ cause of action. It is accordingly ORDERED that appellants’ cause of action be in all things dismissed. Tex.R.Civ.P. 434.

CORNELIUS, C. J., not participating.


author: J. CURTISS BROWN, Chief Justice.

text:
    Robert J. ADAM, Appellant-Appellee, v. Nancy Lucretia Harrison HARRIS et al., Appellees-Appellants.
    No. 1758.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 15, 1978.
    Rehearings Denied April 5, 1978.

      Lennon Wright, J. Richard Cheney, Mac Gann, Miller, Gann & Perdue, Houston, for appellant-appellee.
    George M. Bishop, Mary W. Clark, Houston, for appellees-appellants.
   J. CURTISS BROWN, Chief Justice.

This is an appeal by both sides from a judgment rendered in favor of trust beneficiaries on one of several claims made by them against their trustee and his brother. We affirm.

J. V. Harrison, owner of controlling interest in the J. V. Harrison Trucklines, Inc., established a testamentary trust of that property for the benefit of his daughters, Nancy Lucretia Harrison Harris and Sunny Sue Harrison. This trust took effect upon Mr. Harrison’s death in December 1966 and, by its terms, it terminated as to each daughter upon her thirtieth birthday (October 7, 1973 for Nancy Lucretia and May 5, 1975 for Sunny Sue). Robert J. Adam was appointed trustee for the trust.

In December 1970, as a result of what was characterized by the beneficiaries as, and found by the jury to be, undue influence and fraud, Robert Adam persuaded the Harrison sisters to sign an instrument purportedly creating a trust of their truck-line stock with themselves as beneficiaries and Robert Adam and his brother, Terry J. Adam, as trustees. This trust was to take effect on May 5, 1975, the day the testamentary trust completely terminated. In February 1975 each of the women wrote Robert Adam a letter revoking the second trust and demanding that they be given the stock certificates and other property then being held by him for them. The Adams did not comply with this demand and, instead, filed a declaratory judgment action seeking a determination of their rights and duties under the second trust. The Harrison sisters answered this action and counterclaimed for conversion and breaches of trust. Following a jury trial, judgment was entered against Robert Adam in favor of Nancy Lucretia Harrison Harris for $5,000.00 in actual damages for conversion and in favor of Sunny Sue Harrison for $25,750.00 in actual and punitive damages for conversion. Additionally, Adam was ordered to return to the Harrisons $750.00 he was permitted to set aside from the trust assets for legal fees when he was ordered to deposit those assets into the registry of the court in connection with his declaratory judgment action. No judgment was entered against Terry Adam.

In his appeal from the judgment, Robert Adam initially complains that the trial court’s charge failed to instruct the jury on the measure of damages for conversion and that the jurys findings on those damages should not have been followed. Undoubtedly the trial court should have instructed the jury on the measure of damages to be applied. Under Rule of Civil Procedure 279, however, a party complaining of the omission of an explanatory instruction or definition must have tendered a correctly worded instruction or definition and requested its submission; a simple objection, as was relied on here, is insufficient. Lyles v. Texas Employers’ Insurance Association, 405 S.W.2d 725 (Tex.Civ.App.— Waco 1966, writ ref’d n. r. e.). Adam has waived this point.

In any event, our review of the evidence in this case convinces us that judgment was properly entered on the jury’s findings on actual damages for conversion. The jury had evidence from which it could determine the value of the stock in the truckline, and from that it could calculate the damages which should be awarded for its wrongful detention. When, as here, plaintiffs request the return of converted property they may recover money damages for the loss of use of the property during the period of its detention, which in the absence of another measure being shown, is the legal interest on the value of the property. Davidson v. Oberthier, 93 S.W. 478 (Tex.Civ.App., 1906, no writ). The jury’s findings on damages comport with this rule. Since we conclude that these findings are supported by the evidence, any error which may exist in the wording of the special issues is harmless and does not lead to reversal.

Adam next urges that he did not convert the Harrisons’ property since he promptly applied to a court for a declaratory judgment on whether he should return the property, arguing that this action shields him from liability by negating an element of the tort. This argument stems from a misconception of conversion. Conversion is the wrongful exercise of dominion and control over another’s personal property, to the exclusion of or inconsistent with the rights of the owner; the innocent or good faith exercise of that dominion is no defense. E. g., Chrysler Credit Corporation v. Malone, 502 S.W.2d 910, 914 (Tex.Civ. App. — Fort Worth 1973, no writ). Application to a court for guidance in determining whether property should be returned, while it may show good intentions, does not defeat a suit for conversion.

Similarly, we do not believe that Adam, as a trustee, was under a duty to retain possession of the trust property until relieved of responsibility for it by a court, an argument also advanced to establish that conversion did not occur. The first, testamentary, trust was terminated as to Nancy Lucretia Harrison when she requested her property and Sunny Sue requested she be given hers when that trust ended as to her. The second trust, being in effect the promise to make a gift in the future (the beneficial interest to themselves and the legal interest to the Adams), was unenforceable. Restatement (Second) of Trusts § 26, Comment b (1959). Since the relationships created by the first agreement had expired and those anticipated by the second never existed, they cannot have constituted a bar to a suit for conversion.

Further, we find no merit in Adam’s argument that the judgment against him for conversion constitutes a collateral attack on matters decided under the declaratory judgment action. The court order relied on by Adam for this argument merely recites that the inter vi-vos trust “was terminated”; it does not, as Adam urges, include a finding that the trust terminated on the date the order was signed. This order does not preclude an action for conversion and is, instead, consistent with it.

In a related point, Adam argues that requiring him to return the $750.00 he was permitted to segregate from the trust funds when they were deposited with the court is an impermissible collateral attack on the earlier order. We do not agree. Permission to retain control of that money was not an award of it.

In his final points of error Adam attacks the award of $20,000.00 in exemplary damages granted Sunny Sue Harrison for the wilful conversion of her property. Chief among these points is the assertion that the trial court erroneously ignored a jury finding that the conversion of the stock was done in good faith, a finding which would preclude an award of exemplary damages. We find no error since the issue on “good faith conversion” was an inferential rebuttal issue relative to the one submitted directly on exemplary damages. Under Rule 277 inferential rebuttal issues are not to be submitted; instructions and definitions are to be used instead. Counsel for the Harrisons made an adequate objection and in such a situation we believe that the trial court properly disregarded the jury’s answer.

Adam’s other points go to the failure of the court’s charge to delineate the type of wrongdoing which justifies the award of exemplary damages and an attack by factual and legal sufficiency of the evidence points on the jury’s answer to the exemplary damages issue.

As we have previously noted, error in the failure to give instructions or definitions is waived unless a properly worded instruction or definition is tendered. None was tendered here. Further, from our review of this case we conclude that the award given for exemplary damages is supported by the evidence.

All of Robert Adam’s points of error have been duly considered and all are overruled.

In their appeal from the trial court’s judgment the Harrison sisters, the trust beneficiaries, complain both that the trial court failed to assess exemplary damages against Robert Adam for the fraud and undue influence he practiced in inducing the creation of the second trust and that it erred in refusing to require the Adam brothers to return the profits they made as the result of self-dealing. We are not persuaded by either of these complaints.

It is the Harrisons’ position with respect to the first of their claims that although no actual damages were sustained as a result of the undue influence and fraud the court had the power to award exemplary or punitive damages since the equitable remedy of rescission was sought. They make this claim on the basis of a line of cases holding that in suits for equitable relief, in particular those seeking the imposition of a constructive trust on profits acquired in violation of fiduciary duties, punitive damages may be awarded. We have examined these cases and find that they do not support the proposition urged by the Harrisons. Instead, the rule is that a litigant may recover exemplary damages in actions for equitable relief, but in order to do so, there must be some actual loss or injury to support such recovery. Teas v. Republic National Bank of Dallas, 460 S.W.2d 233, 244 (Tex.Civ.App. — Dallas 1970, writ ref’d n. r. e.).

Further, we find no error in the trial court’s refusal to award damages for self-dealing. It is uncontested that while Robert Adam was a trustee of the testamentary trust and, by virtue of that position, a director of the truckline company, insurance for the company’s trucks was purchased from Adam Gordon Insurance Agency, an agency owned by Robert Adam’s brothers. The Harrisons assert that this is self-dealing in violation of section twelve of the Texas Trust Act, Tex. Rev.Civ.Stat.Ann. art. 7425b-12 (Supp. 1978), and that Robert Adam and all those who knowingly participated in this breach of trust are liable as joint tortfeasors for any profits they may have made. The flaw in this argument, however, is that whatever breach of fiduciary duty Robert Adam committed was in his capacity as director of the truckline corporation and not in his capacity as trustee. Robert Adam did not self-deal with the trust property, the shares in the corporation, but rather with the corporation's property, the monies used to purchase the insurance for the trucks. Section twelve of the Texas Trust Act directs that a “trustee shall not buy or sell any property owned by or belonging to the trust estate . . . from or to . a relative . . . Here, no property either entered or left the trust res; the trustee neither bought nor sold trust property. Under these circumstances we hold that no cause of action for self-dealing lies against anyone on the basis of the beneficiary-trustee relationship.

All points of error brought by Nancy Lucretia Harrison Harris and Sunny Sue Harrison have been duly considered and all are overruled.

The judgment of the trial court is affirmed.

      . Since the testamentary trust had already terminated as to Nancy Lucretia, she demanded immediate return of her property. Sunny Sue demanded she be given hers when the testamentary trust terminated as to her (May 5, 1975).


author: OSBORN, Justice.

text:
    John FLEMING and Kent Kidder, Appellants, v. A. L. HERNDEN, Appellee.
    No. 6716.
    Court of Civil Appeals of Texas, El Paso.
    March 15, 1978.
    Rehearing Denied April 5, 1978.

      Craig L. Austin, San Antonio, for appellants.
    Pepos S. Dounson, San Antonio, for ap-pellee.
   OPINION

OSBORN, Justice.

The Appellants in this case were cited by publication but did not answer. Judgment was entered against them after an answer was filed by an attorney ad litem appointed by the Court. The Appellants then filed an answer and a “Motion to Set Aside Default Judgment or Alternatively, Motion for New Trial” within ten days after the judgment. The motion was overruled, resulting in this appeal. We reverse and remand for a new trial.

In an amended petition, Appellee alleged a motel in San Antonio was conveyed to Russell and Joy Kerns, with a deed of trust lien being retained to secure a promissory note. After a default, the Kerns allegedly pledged their interest in certain realty in Bexar County and Willacy County to Ap-pellee. Subsequently, the Kerns sold the property involved in the pledge to another party, and it was eventually conveyed to Appellants. The judgment in this case set aside these conveyances.

There is no procedure in Texas for a default judgment where citation is by publication. McCarthy v. Jesperson, 527 S.W.2d 825 (Tex.Civ.App. — El Paso 1975, no writ). Nevertheless, we apply general rules applicable to default judgments since the Defendants did not appear and answer. While ordinarily presumptions are made in support of a judgment, including presumptions of due service of citation where the judgment so recites as in this case, no such presumptions are made in a direct attack upon a default judgment. McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965). In a recent article, “Judgments by Default — A Survey of Texas Law,” by Pohl and Kirklin, 31 Sw.L.J. 465 at 470-471 (1977), the authors, in discussing defects in citations, make the following comment:

“No judgment can be entered against a defendant who has not been duly served. Strict rules have been established by the courts for testing the validity of citations to insure that a defendant receives proper notice of any proceeding commenced against him. Thus, regardless of which method of service is utilized, the slightest defect in a citation may be fatal, for Texas courts traditionally have been quick to find errors in a citation sufficient to set aside a default judgment.

The citation by publication occurred in Bexar County and was directed to “John Fleming and Kent Redder.” The citation as published referred to Mr. Kidder as “Kent Redder,” “Kent A. Dedder,” and “Kent A. Redder.” The first point asserts that as to Kent Kidder this citation was defective and could not give notice to the actual defendant being sued, and therefore the judgment based upon such citation is erroneous. The Appellant relies primarily upon the holding in McRee v. Brown, 45 Tex. 503 (1876), where the Court held a judgment by default against Robert McRee could not be sustained on citation by publication to Robert McKee. The Court, in the opinion, noted that where citation is by publication rather than personal service, there is a greater need for the name to be correct.

In Hubner v. Reickhoff, 103 Iowa 368, 72 N.W. 540 (1897), the Supreme Court of Iowa discussed the rule of “idem sonans” in a ease involving the validity of a divorce decree where the defendant had been served by publication. The defendant in the divorce case, Heindrick Keisel, had been served by a notice addressed to Heindrick Keesel. The Court concluded that the rule of “idem sonans” was not applicable and that the service on Mr. Keisel was void where the “i” had been changed to an “e” in his last name, and that a collateral attack could be made upon the divorce decree. Likewise, in our case, we have a citation in which an “i” was changed to an “e” in the last name of the defendant although in our case we have a direct rather than a collateral attack upon the judgment. We believe the citation directed to Kent Redder was defective and the judgment based thereon was erroneous.

Appellee asserts that filing an answer and motion for new trial after the judgment invoked the jurisdiction of the trial court and no complaint may be made about the citation. He relies upon AnaLog, Inc. v. City of Tyler, 520 S.W.2d 819 (Tex.Civ.App. — Tyler 1975, no writ). The opinion in that case makes it clear that after an answer is filed, a party cannot complain of subsequent proceedings on the grounds of a defective citation. Certainly, the Appellants have now become subject to the jurisdiction of the Court, but the pleadings after judgment do not cure all errors which resulted in the initial judgment. Upon remand, the parties will be before the Court without need for further citation.

Since this is a direct attack upon an erroneous judgment as shown by the record, which includes the defective citation, there was no need to show that Appellants were not negligent in suffering the default judgment to be rendered against him, nor were they required to establish a meritorious defense to the alleged cause of action. Pace Sports, Inc. v. Davis Brothers Publishing Co., 514 S.W.2d 247 (Tex.1974); Smith v. Smith, 544 S.W.2d 121 (Tex.1976); Nail v. Gene Biddle Feed Company, 347 S.W.2d 830 (Tex.Civ.App. — Beaumont 1961, no writ). The first point of error is sustained.

The next point asserts error in failing to comply with Rule 116, Tex.R.Civ.P., by not publishing the citation in Willacy County where one of the parcels of land was located.

Rule 116, Tex.R.Civ.P., provides for service of citation by publication and requires that “[i]n all suits which involve the title to land or partition of real estate, such publication shall be made in the county where the land, or a portion thereof, is situated, if there be a newspaper in such county, but if not, then in an adjoining county to the county where the land or a part thereof is situated, where a newspaper is published.”

There is no dispute but that this suit did involve title to land. The record reflects, as shown by the Sheriff’s return, that the citation was published in the Commercial Recorder, a newspaper published in the City of San Antonio, Bexar County, Texas. Insofar as the Judgment purports to affect title to land in Willacy County, there was a failure to comply with Rule 116.

For unknown reasons, the Appellants did not make and bring forward a record from the trial court of the hearing on their motion for new trial. Thus, there is no affirmative showing that a newspaper is not published in Willacy County. But for the sake of argument, if we give Appellee the benefit of the issue and assume there was no such paper at the time publication was made, certainly publication in Bexar County was not in “an adjoining county to the county where the land * * * is situated.”

While we recognize that the citation was valid in Bexar County as to John Fleming, it was not valid as to him insofar as the land in Willacy County is concerned, and we have concluded that in the interest of justice, the entire matter should be remanded for a new trial. Point of Error No. II is sustained.

The next three points complain concerning the appointment and acts of the attorney ad litem. The record reflects the appointment of an attorney for John Fleming and other defendants, and the answer which was filed by such attorney in their behalf. The judgment then recites that another attorney, appointed by the Court, represented Mr. Kidder and Mr. Fleming at the hearing in the case. There is no order relieving the first attorney appointed for Mr. Fleming. Appellants assert the second attorney, who actually appeared at the hearing, is an associate in the practice of law with the Appellee, A. L. Hernden. Again, we are faced with the fact that there is no record from the hearing on the motion which establishes this fact. A letter attached to Appellants’ brief shows on the letterhead such a relationship existed a few months after the judgment was entered. It is inconceivable that the trial court would appoint an attorney ad litem who was associated with the Plaintiff to serve as an attorney for those with an adverse interest. But the Appellee’s brief does not deny the facts asserted by the Appellants. Since there is no record to establish the contention, we may not make such a finding. Point of Error No. V is overruled. The other points become immaterial as the result of our determination of the first two points.

Those parts of the Court’s judgment of April 26, 1977, which purport to set aside and hold for naught conveyances of the Willacy County property to Mr. Fleming and the Bexar County property to Mr. Fleming and Mr. Kidder, are reversed and remanded for a new trial.


author: WARD, Justice.

text:
    Irene V. FORESTIER and Daniel N. Forestier, Appellants, v. SAN ANTONIO SAVINGS ASSOCIATION et al., Appellees.
    No. 6717.
    Court of Civil Appeals of Texas, El Paso.
    March 15, 1978.
    Motions for Rehearing of Appellant Irene V. Forestier and Appellant Daniel N. Forestier Denied April 12, 1978.

      Tuck R. Chapin, Inc., Tuck R. Chapin, San Antonio, for appellants.
    Sawtelle, Goode, Davidson & Troilo, P. C., John W. Goode, Jr., James M. Holbrook, San Antonio, for appellees.
   OPINION

WARD, Justice.

This is a summary judgment case arising from a non-judicial sale of real estate. Irene V. Forestier, one of the owners of the property, sued the noteholder, San Antonio Savings Association, and the Trustee of the deed of trust for damages, alleging wrongful foreclosure. Daniel N. Forestier filed what purports to be a cross-claim against San Antonio Savings Association, seeking damages or to set aside the Trustee’s Sale. The Savings Association filed a counterclaim in trespass to try title against both Forestiers to quiet title and to establish its right to possession of the property. The trial Court then granted the Savings Association’s motion for summary judgment as to the Forestiers’ wrongful foreclosure actions, and further granted the Association’s motion for summary judgment on its counterclaim for title and possession. We affirm.

Some detail of the background is necessary. The promissory note in question was executed in October, 1973, by Daniel N. Forestier and wife, Irene V. Forestier, and was payable to the San Antonio Savings Association in the principal sum of $198,-000.00; the note was payable in monthly installments and was secured by deed of trust to J. Maurice Smith, Trustee, covering property located at 330 Paseo Encinal in the City of Olmos Park in Bexar County. In November, 1975, the Forestiers defaulted in the payment of their monthly payments and the Savings Association threatened foreclosure. Prior to the institution of any foreclosure proceedings, the Forestiers filed suit against the Savings Association in Cause No. 75-CI-15260, alleging usury in the loan transaction. In that proceeding, a counterclaim was filed by the Savings Association for judicial foreclosure of the property. That lawsuit terminated on April 12, 1976, when it was compromised and settled, and an agreed final judgment was signed and entered by the Honorable Judge Peter Michael Curry. All of the parties and their attorneys in open Court executed a compromise and settlement agreement, a full release, and an agreement to postpone foreclosure.

Under the terms of the compromise and settlement agreement, the Savings Association agreed to and did (1) pay the Foresti-ers $125,000.00 in cash; (2) take a nonsuit on its counterclaim for a judicial foreclosure of the property; and (3) postpone its nonjudicial foreclosure sale until January 4, 1977. During the ensuing period of nine months agreed upon, the Forestiers were permitted to retain possession of the property, enjoy all benefits of ownership, and were not required to make any payments on the mortgage loan or pay any taxes or insurance premiums on the property. Further, under the agreement to postpone foreclosure, the Forestiers acknowledged that they had made no payments on the mortgage loan and note to the Savings Association since October, 1975; that the note was in default; that the Savings Association had exercised its option to accelerate the maturity of the note and had declared the entire amount of the note to be due and payable; and that the Savings Association had the legal right to proceed with a trustee’s foreclosure sale of the property. The Forestiers also agreed to the total amount due and owing to the Savings Association at that time, and further agreed to the formula to be used for determining the total amount that would be due and owing on December 1, 1976, and on January 1, 1977. That agreement further provided that the Forestiers would pay the entire amount of the debt to the Savings Association by December 1, 1976, and, if the debt was not paid in full, the Savings Association was given the right to proceed with the January 4, 1977 Trustee’s Sale. The Fores-tiers were also given the right to pay the debt in full during the period from December 1, 1976, to January 1, 1977. The Fores-tiers further agreed not to interfere in any way with the January 4, 1977 Trustee’s Sale, if such sale became necessary, and they agreed to the entry of a permanent injunction against them permanently enjoining them from interfering or attempting to restrain, enjoin, or interfere with the January 4, 1977 Trustee’s Sale. Said permanent injunction was contained in the final judgment entered in that case.

No payments were made by the Foresti-ers on or before December 1, 1976, and the Savings Association requested J. Maurice Smith, the Trustee under the deed of trust, to exercise his powers and to proceed with the foreclosure of the property. The Trustee thereafter posted notice and, on December 13th, a written notice of the proposed Trustee’s Sale to be held January 4, 1977, was sent by certified mail addressed to Mr. and Mrs. Daniel N. Forestier at their residence at 330 Paseo Encinal in San Antonio, that being the most recent address shown in the Savings Association record.

Irene V. Forestier’s first point is that the Trustee’s Sale was voidable and illegally held because no statutory notice of sale was given to the Forestiers as required by Article 3810, Tex.Rev.Civ.Stat.Ann., it being urged that the Statute requires that two separate notices be mailed, one addressed to Mrs. Forestier at 330 Paseo Enci-nal and one addressed to Mr. Forestier at the same address. The summary judgment proof showed that marital difficulties between the Forestiers had arisen and that in November, 1976, Mrs. Forestier had moved from the property. She did not receive the notice, though she concedes that the most recent address shown by the records of the holder of the debt for each debtor was the 330 Paseo Encinal address. It is her argument that the Statute expressly requires that the holder of the debt serve written notice of the proposed sale by certified mail on each debtor obligated to pay such debt, and that two separate envelopes properly certified should have been sent to that address, one to Mr. Forestier and one to Mrs. Forestier. Such an argument under different circumstances was made in Burnett v. Anderson, 543 S.W.2d 15 (Tex.Civ.App.— Dallas 1976, no writ). Mrs. Forestier admitted that she and her husband had received actual notice of the Trustee’s Sale more than twenty-one days preceding the date of the sale, since she had been so advised by her attorney on December 13th, as he too had requested and received a copy of the actual notice. The amended Statute requiring that the written notice of the proposed sale be served by certified mail “on each debtor obligated to pay such debt” was passed in anticipation of further constitutional assaults on the old Statute. While the purpose of the amendment was to protect the debtor, the Statute continued to maintain merely the minimum level of requirements on powers of sale granted by private contract. To that extent, the purposes of the new and the old Statutes were the same. See Armeta v. Nussbaum, 519 S.W.2d 673 at 677 (Tex.Civ.App. — Corpus Christi 1975, writ ref’d n. r. e.). Therefore, since actual notice was given to this Appellant, both in the written agreement to postpone foreclosure and in the written notice given to her attorney who notified her of the contents of the notice, the first point is overruled.

On January 3, 1977, Mrs. Forestier instituted a divorce suit in Cause No. 77-CI-39 in the 73rd Judicial District Court of Bexar County and, on that date, the Honorable James C. Onion, Judge Presiding, signed and entered an order restraining and enjoining San Antonio Savings Association and J. Maurice Smith, Trustee, from conducting the Trustee’s Sale on January 4, 1977. This order was granted at an ex parte hearing without notice; the order did not define the injury nor state why it was irreparable or why the order was granted without notice; and the order further recited that the requirements of bond were dispensed with in accordance with Rule 693a, Tex.R.Civ.P.

Service of the temporary restraining order was then made upon the Savings Association at 10:30 a. m., January 4th. The Association immediately filed a motion to dissolve the temporary restraining order, and their motion was presented to the Honorable Peter Michael Curry who set a hearing thereon at 2:00 p. m. Notice of this hearing was immediately served under Rule 21a, Tex.R.Civ.P., by delivering a copy of the notice to the office of the attorney of record, which was then open for business. At the 2:00 p. m. hearing, Judge Curry, acting pursuant to Rule 680, Tex.R.Civ.P., heard the motion and signed and entered an order dissolving the temporary restraining order. Before 4:00 p. m., the Trustee proceeded to hold the sale and the property was sold to the Savings Association, the only bidder at the sale. After obtaining the temporary restraining order in the divorce case, Mrs. Forestier’s attorney left for Mexico, and neither he nor Mrs. Forestier had actual notice of the 2:00 p. m. hearing on the motion to dissolve.

Mrs. Forestier’s next point is to the effect that the temporary restraining order preventing the sale of her property was illegally dissolved because she had no notice of the hearing on dissolution and was therefore deprived of due process of law. Under the outlined facts, her position comes down to this: Can Mrs. Forestier who was permanently enjoined from “restraining, enjoining or interfering with the foreclosure” and who regardless of that obtained a temporary restraining order which was void on its face, and where her attorney voluntarily left the jurisdiction after obtaining the temporary relief without notice to the Savings Association, thereby deprive the Savings Association of its right to an immediate hearing to determine whether the temporary restraining order was properly granted? Obviously, she cannot and her point is overruled. Every restraining order must set forth the reasons for its issuance. Rule 683, Tex.R.Civ.P. A bond is required of the applicant and the order must state the amount of the bond which must be filed by the applicant. Rule 684, Tex.R.Civ.P. The failure of the trial Court to set out the reasons for the issuance of the temporary restraining order and the failure to fix the amount of the bond, together with the failure of the applicant to file the bond, rendered the order void ab initio. Goodwin v. Goodwin, 456 S.W.2d 885 (Tex.1970); Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303 (1956); Boren v. Bank of the West, 535 S.W.2d 776 (Tex.Civ.App.— Amarillo 1976, no writ). Neither would such an order have supported any judgment for contempt. Lancaster v. Lancaster, supra.

The short notice of hearing ordered by Judge Curry on the motion to dissolve was justified by the facts. Rule 680, Tex.R. Civ.P.; F L R Corporation v. Blodgett, 541 S.W.2d 209 at 215 (Tex.Civ.App. — El Paso 1976, writ ref’d n. r. e.). The attorney obtained the temporary restraining order under the terms of that Rule, and he was charged with notice that the said order might be modified , or dissolved pursuant to that same Rule. Mrs. Forestier’s attorney and agent was properly notified of the dissolution hearing, and that notice was binding on her. The point is overruled.

As we understand the Appellant’s next point, it is to the effect that the Trustee’s Sale and all proceedings thereunder conducted under Article 3810, Tex.Rev.Civ. Stat.Ann., violated the due process provisions of the Federal and State Constitutions. As previously pointed out, notice was given to the Appellant’s agent of the proceedings to dissolve the temporary restraining order. If there was any lack of actual notice to the Appellant, that can be charged to the fault of the Appellant and her own agent. If the Appellant’s present point is an attack on the constitutionality of Article 3810, that attack is likewise overruled. Armeta v. Nussbaum, supra ; see 30 Sw.L.J. 49 (1976).

After Mrs. Forestier was notified by her attorney on December 13,1976, that the Savings Association had posted notice and that foreclosure was imminent, the attorney, acting under Mrs. Forestier’s instructions, wrote to the attorney of the Savings Association a letter dated December 15th in which he stated the following:

“ * * * the Forestiers unconditionally tender to your offices all the lawful amounts due under the Compromise and Settlement Agreement reached between the parties. We do have a dispute with the total arrived at of $246,161.39, about which I will be in contact with you in the very near future. Because we have made an unconditional tender of the sum due, we would expect that you would instruct your trustee not to proceed with the foreclosure sale on January 4, 1977; because if the sale should proceed, we will have no alternative but to restrain the sale, tender the funds that we claim were due into the registry of the Court, and litigate the matter further.”

This alleged tender becomes the subject of Mrs. Forestier’s next point in her claim that the sale was invalid. It was undisputed that no check or funds were ever produced by the attorney or by anyone else from which the payment could be made, nor were any funds ever paid into the registry of the Court by her when she filed her divorce suit and enjoined the Association. It was also undisputed that the Association did not reject any offer of tender. The purported offer of tender made in the letter falls short of the requirements of a valid tender, there being no unconditional offer to pay the specific sum due on the debt and no production of funds or their equivalent. Baucum v. Great American Insurance Company of New York, 370 S.W.2d 863 (Tex.1963). The point is overruled.

Mrs. Forestier’s next point is to the effect that the Trustee’s Sale was void because the price paid by the Savings Association for the property at the Trustee’s Sale was inequitably low. The rule is established that mere inadequacy of consideration alone does not render a foreclosure sale void if the sale was legally and fairly made. Tarrant Savings Association v. Lucky Homes, Inc., 390 S.W.2d 473 (Tex.1965). In American Savings and Loan Association of Houston v. Musick, 531 S.W.2d 581 (Tex.1975), the Supreme Court added another requirement that there “must be evidence of irregularity, though slight, which irregularity must have caused or contributed to cause the property to be sold for a grossly inadequate price.” As previously pointed out, there was no irregularity in the Trustee’s Sale. If the dissolution of the restraining order without Mrs. Forestier’s actual knowledge could have caused the property to have been sold for an inequitably low price, that dissolution order, which was signed by Judge Curry, was not illegal, improper, or irregular and, as previously pointed out, was caused solely by the uncalled-for actions of Mrs. Forestier and her agent. This point is also overruled.

The trial Court granted San Antonio Savings Association’s motion for summary judgment on its counterclaim in trespass to try title, and Mrs. Forestier complains that there existed one or more genuine issues of fact which precluded the summary judgment. However, she fails to point out, either in the point itself or in the argument, any specific fact issue in the trespass to try title action. The Savings Association’s trespass to try title action was based upon its summary judgment proof which consisted of its record fee simple title to the property by reason of the Trustee’s Sale under the deed of trust executed by the Forestier’s, the trustee’s deed, and Daniel N. Forestier’s admitted possession of the property after it was vacated by Mrs. Forestier. The real question in dispute has been the validity of the Trustee’s Sale, and, as previously pointed out, that was a valid one. The trustee’s deed therefore was valid and conveyed to the Savings Association record fee title to the property. This last point is overruled.

Daniel N. Forestier filed a separate brief whereby by reference he adopted all points, arguments and authorities as presented by Irene V. Forestier in her brief. Without additional discussion, all of those points are overruled.

We have considered all of the points presented by both Appellants, and they are all overruled. The judgment of the trial Court is affirmed.