author: JAMES, Justice.

text:
    Johnnie WOLGAMOT et al., Appellants, v. Russell W. CORLEY et al., Appellees.
    No. 5409.
    Court of Civil Appeals of Texas, Waco.
    May 15, 1975.
    Rehearing Denied June 5, 1975.

      Trickey & Trickey, Richard M. Trickey, Fort Worth, for appellants.
    David B. Anderson, Cleburne, for appel-lees.
   OPINION

JAMES, Justice.

This is a trespass to try title suit by the record owners against claimants under the ten year statute of limitations, involving a five acre tract of land. The trial court entered judgment for the defendants (the limitation claimants) based upon a jury verdict, from which the record owners appeal. We reverse and render.

Plaintiff-Appellants Johnnie Wolgamot, et al are the heirs at law of E. R. York and wife Laura E. York, and are the record owners of the five acre tract in controversy. Defendant-Appellees Russell W. Corley and wife Theodocia Corley claimed the tract in question by ten years adverse possession.

E. R. York and wife Laura E. York (the common source of title herein) purchased as eighty acre rectangular tract out of the William B. Capps Survey in Johnson County, Texas, in 1912. The five acre tract in controversy is a rectangular tract located in the southwest corner of the 80 acre tract. In 1919 the Yorks conveyed to one Earl K. Mahanay 75 acres of land, same being the above-mentioned 80 acres, specifically excepting the 5 acre tract in question. From Mahanay this same 75 acre tract passed through several conveyances until the year 1939, when D. E. Wallace became its owner. On August 5, 1946 D. E. Wallace and wife conveyed the west 40 acres of the 75 acre tract to their son-in-law and daughter, William A. Sharp and wife Sarah Sharp. In 1946, the Sharps went into possession of the 40 acre tract as well as the adjoining 5 acre tract in controversy, and made their home on the 40 acre tract. The five- acre tract and the 40 acre tract were under one fence, and the Sharps kept and pastured eight to ten cows and calves on the 40 acres and the 5 acres all through the years from the time they purchased the 40 acres in 1946 until they sold their place to the Defendant-Appellee Theodocia Corley in 1967, as more particularly hereinafter described. Moreover, the five acre tract was used by the Sharps for ingress and egress to and from the public road. The gate was located at the southwest corner of the 5 acre tract, and the Sharps travelled across the 5 acres to get from their residence house (located on the 40 acres) to the public road.

On December 20, 1967, Defendant-Ap-pellee Theodocia Corley purchased a tract consisting of 38.15 acres, same being the 40 acre Sharp tract therein above mentioned less a strip 150 feet wide off the west end and adjoining the 5 acre tract in controversy on the north. Mrs. Corley purchased this 38.15 acre tract by warranty deed from Mrs. Sarah Sharp (who was then a widow) and the heirs of William A. Sharp deceased. At the same time Mrs. Corley secured a quitclaim deed from Mrs. Sarah Sharp and the heirs of William A. Sharp to the five acre tract in question. Mrs. Corley also purchased a 35.6 acre tract which adjoined the Sharp place on the east. After making these purchases on December 20, 1967, the Corleys went into possession of the purchased tracts and continued to pasture the 5 acre .tract along with the Sharp tract, renovated the old Sharp residence, and continued to use the 5 acre tract for ingress and egress as had the Sharps before them. In 1968, the Cor-leys executed and filed a dedication deed which created a public roadway 60 feet wide which began at the southwest corner of the 5 acre tract and ran along the south boundary of the 5 acre tract and thence eastward along south boundary of the Sharp tract, and on into the 35.6 acre tract adjoining the Sharp tract on the east.

As stated above, Johnnie Wolgamot, et al, the heirs at law of E. R. York and wife Laura E. York, the record owners of the 5 acre tract, brought this suit against the Corleys for title and possession of the 5 acre tract. The Corleys set up the defense of title by ten years adverse possession, among other defenses.

Trial was to a jury, to whom the following special issue (along with appropriate definitions) was submitted by the trial court, which was the sole issue to be answered by the jury:

“Do you find from a preponderance of the evidence that for any period of ten consecutive years prior to October 15, 1973, and subsequent to the year 1946, the Defendants (the Corleys) and those under whom they claim title, had peaceable and adverse possession of the 5 acre tract of land described in Plaintiffs’ petition, cultivating, using or enjoying the same? Answer ‘Yes’ or ‘No’.”

The jury answered “yes” to this issue. Based upon the jury’s answer to this special issue, the trial court entered judgment that the Plaintiff-Appellants (the record owners) take nothing, and adjudged title and possession of the 5 acre tract to be in the Defendant-Appellees, the Corleys (the limitation claimants).

Plaintiff-Appellants appeal to this court on one point of error, to wit, that there is no evidence to support the jury’s answer to the foregoing special issue. Counsel for Appellants was more specific in his brief and in oral argument before this court, and narrowed his “no evidence” contention by asserting that there is no evidence of any intention on the part of William A. Sharp and wife Sarah Sharp to claim the 5 acre tract adversely to the record owners. We sustain this contention, and reverse the trial court’s judgment and render judgment for the Plaintiff-Appellants.

As stated before, the Sharps had possession of the 5 acre tract from 1946 until December 20, 1967, when the Corleys secured a quitclaim deed to the 5 acre tract from the widow Sarah Sharp and the heirs at law of William A. Sharp. Mrs. Sarah Sharp testified by way of answers to written interrogatories which had been propounded to her. Mrs. Sharp in effect was asked whether or not the possession of her and her husband from 1946 until December 20, 1967, of the 5 acre tract was “continuous, exclusive, and not interrupted by any claim or adverse suit.” To this question she answered: “There was one time Mrs. York (Mrs. Laura E. York) came there and I would say it was approximately twenty-five years ago, and she knew they had it. It was there and so she come and she said that she decided they would just sell it so we knew it belonged to them — . So my husband he asked her how much she wanted for it and she said, ‘I’ll take two hundred dollars for it’, so, he said we would take it and she went to get her papers fixed up to it and she come back then I would say in about two weeks and she says, ‘Bill, I can’t sell it at that price.’ No taxes were paid on it and it would have cost her money to have sold it. She said to let it sit and some day it may sell for taxes and if it does you can buy it and that’s the last we have heard anything from the York People in approximately twenty-five years.”

Mrs. Sharp was asked whether the Sharps’ possession of the 5 acre tract was for a period of ten years “commenced and continued under a claim of right to said land inconsistent with the claim of any other person.” To this Mrs. Sharp answered: “We just lived there. Nobody claimed it and we didn’t claim it either — in fact it was no man’s land, that is what we called it.” Mrs. Sharp further testified that she and her family never paid any taxes on the 5 acre tract, and that no member of her family to her knowledge ever told any member of the York family that they (the Sharps) were claiming ownership of the 5 acre tract. With reference to the tract in controversy, Mrs. Sharp further testified: “It was just there, and so, as far as claiming it, you don’t claim anything that is not yours.”

The above conversation between William A. Sharp and Sarah Sharp on the one hand, and Mrs. Laura E. York on the other hand took, place “about twenty-five years ago.” Since Mrs. Sharp’s testimony was given on September 13, 1974, this means that this conversation took place in or about the year 1949, some three years after the Sharps went into possession of the 5 acre tract. The possession of the Sharps from 1946 until 1967 consisted of the following: (1) The 5 acre tract was fenced in together with the rest of the Sharp 40 acres, (2) The Sharps pastured from eight to ten head of cattle on the 40 acres and the 5 acres, and (3) The 5 acre tract was used by the Sharps as a means of ingress and egress from their residence (located on the 40 acre tract) to the public road. Insofar as the record shows, the nature of the asserted “adverse possession” of the Sharps did not change in any material way after the Sharps’ conversation with Mrs. York as compared with before said conversation. In other words, the record shows no acts or conduct on the part of the Sharps after said conversation with Mrs. York which could be construed as a repudiation of the York title to said 5 acre tract. Under this state of the record, we are constrained to hold that after the Sharps made the attempt to purchase the tract from Mrs. York in or about the year 1949, that limitations never began to run in favor of the Sharps as long as the Sharps possessed the 5 acre tract in question. The record shows affirmatively that the Sharps had no intention to claim possession adversely to the Yorks; and without this necessary element of intention on the part of the Sharps to claim adversely to the Yorks, the title of Defendant-Appellees as limitation claimants must necessarily fail. Since the Defendant-Appellees (the Cor-leys) had possession only from December 20, 1967, (when they secured the quitclaim deed to the 5 acres from the Sharps), the Corleys have not possessed the property themselves long enough to satisfy the ten year statute of limitations. Therefore the Corleys must of necessity rely upon adverse possession of the Sharps by way of tacking in order to muster ten years adverse possession. In view of our holding that the Sharps’ possession was not adverse or hostile to the York title as shown by the undisputed evidence, the Corley limitation title will not meet the test for the ten year statute of limitations. Article 5510, Vernon’s Ann.Texas Civil Statutes.

The possessor’s acknowledgement of title in another when made before the completion of the bar, as here, will defeat limitation. Bruni v. Vidaurri (1942) 140 Tex. 138, 166 S.W.2d 81; McDonald v. Batson (Waco, Tex.Civ.App.1973) 501 S. W.2d 449, no writ history; Nagel v. Hopingardner (Houston 14th, Tex.Civ.App. 1971) 464 S.W.2d 472, no writ history. “Peaceable possession,” even when accompanied with acts whose prima facie import is that of hostility may not, in truth, be adverse, for the intent of the possessor may bring his acts and conduct into consonance with recognition of the privileges of the true owner. Intent, then, is a controlling factor. Bruni v. Vidaurri, supra.

An offer to purchase (on the part of the possessor) from the record owner, when it involves an admission of title, as in the case at bar, is one method by which the title of another may be recognized, so as to defeat limitations. Houston Oil Co. of Texas v. Pullen (Tex.Com.App.1925) 272 S.W. 439, opinion approved by the Supreme Court; Mhoon v. Cain (1890) 77 Tex. 316, 14 S.W.24; Johnson v. Martinez (Dallas, Tex.Civ.App.1929) 18 S.W.2d 925, writ dismissed.

Since the Sharps acknowledged the York title in the manner as hereinabove pointed out, in or about the year 1949, before they could possibly have matured limitation title, in order for them to start limitations to run in their favor thereafter it was necessary for them to have repudiated the York title. That is to say, it was necessary for the Sharps to make known to the Yorks that their possession, occupancy and use had ceased to be one of permission and had become hostile to them (the Yorks). See Allen v. Sharp (Fort Worth, Tex.Civ.App.1950) 233 S.W.2d 485, writ refused. It has been held that constructive notice of such repudiation of the record owner’s title may be sufficient if the adverse occupancy is long-continued, open, notorious, exclusive, and inconsistent with the existence of title in others. Under such circumstances the law will raise the inference of notice of repudiation to the true owner. Vasquez v. Meaders (1956) 156 Tex. 28, 291 S.W.2d 926.

In the case at bar, there is no evidence of any repudiation by the Sharps of the York title at any time, either actual or constructive, and consequently limitations never commenced to run in favor of the Sharps. Therefore since the Corleys have not possessed the property except from December 20, 1967, they have held the property less than ten years, and cannot mature limitations on the strength of their own possession.

Judgment of the trial court is accordingly reversed and rendered in favor of Plaintiff-Appellants Johnnie Wolgamot, et al, for title and possession of the land in controversy.

Reversed and rendered.


source: Caselaw Access Project

author: ELLIS, Chief Justice.

license: Public Domain

text:
    HOWARD GAULT & SON, INC., Appellant, v. The FIRST NATIONAL BANK OF HEREFORD, Texas, et al., Appellees.
    No. 8523.
    Court of Civil Appeals of Texas, Amarillo.
    May 19, 1975.

      Jack Hazlewood, Amarillo, for appellant.
    Witherspoon, Aikin, Langley, Woods, Kendrick & Gulley, Thomas W. Kendrick, Shuval & Saul, Andrew J. Shuval, Hereford, for appellees.
   ELLIS, Chief Justice.

This suit was instituted by Howard Gault & Son, Inc., plaintiff-appellant, against three defendants, T. B. Thomas, Jr., The First National Bank of Hereford, Texas, and Pitman Grain Company, upon a claim involving the plaintiff’s alleged failure to receive the proceeds derived from the sale of grain grown on land owned by the plaintiff, sold by defendant Thomas to defendant Pitman who delivered its check therefor to Thomas who negotiated the check at defendant Bank. The trial court entered a take-nothing judgment in favor of the Bank and Pitman and awarded plaintiff judgment against defendant Thomas for the amount of the proceeds of the check together with certain sums on other claims by the plaintiff against Thomas. The judgment against Thomas was set aside and he was granted a new trial. By this appeal the plaintiff-appellant challenges the take-nothing judgment entered by the trial court in favor of the Bank and Pitman. Appeal dismissed.

Defendant Thomas and plaintiff Howard Gault & Son, Inc., hereinafter referred to as Gault, entered into a written agreement whereby Thomas would farm certain land owned by Gault. The parties were to share certain expenses and benefits with respect to the farming operations. Gault contended that all proceeds from the crops grown were to be delivered to it, and that the accounting between the parties would be accomplished at the end of each year in accordance with the terms of their agreement. A grain crop was harvested and a portion thereof sold to defendant Pitman Grain Company, hereinafter referred to as Pitman, who issued a check payable to “Thomas and Gault.” Thomas received the check and negotiated it by endorsement,

“Thomas and Gault T. B. Thomas,”

to defendant, The First National Bank of Hereford, hereinafter referred to as the Bank. The amount of this check was deposited to the personal account of Thomas and the Bank deducted the sum of $13,591.-93, the amount of the check, from the account of Pitman. Later Thomas used approximately $10,000.00 of the proceeds of the check to pay a personal note which he owed to the Bank. Gault obtained a writ of garnishment against the Bank as to the sum of $3,573.20 which remained on deposit in Thomas’ account with the Bank.

In the suit against the Bank, Pitman and Thomas, Gault alleged, among other matters, that Thomas was not authorized to negotiate the check and not entitled to the proceeds thereof independently of the accounting pursuant to their farming agreement. In addition, it was alleged that the endorsement was not effective; therefore, the Bank was not authorized to pay out the funds to Thomas and Pitman was still liable to it for the price of the grain. Gault also included in its suit against Thomas a claim for recovery on promissory notes, expenses and advances in the amount of $41,218.19 reduced by Thomas’ share of farm income of $29,855.72 pursuant to the fanning agreement with a resultant balance allegedly owed to Gault by Thomas of $11,362.40 plus the $13,591.93 amount representing the proceeds from the sale of the grain.

Originally, an interlocutory judgment by default was entered against Thomas and later set aside when it was determined that he had timely filed a general denial in answer to Gault’s petition and Thomas was permitted to participate in the trial before a jury. Thomas represented himself in the trial. At the time Gault rested its case, Pitman’s motion for an instructed verdict was granted. The cause as to the Bank and Thomas was submitted to the jury who returned a verdict to the effect that Thomas was not indebted to Gault and that the Bank did not act in bad faith in accepting the check in question. Gault filed a motion for judgment non obstante veredicto as to both defendants. The trial court denied the motion as to the Bank and granted such motion as to Thomas, entering judgment against Thomas for the sum of $20,837.02, which included the $13,591.93 proceeds from the check. Thomas filed a motion to set aside the judgment against him and for a new trial, and Gault filed a motion seeking a new trial as to the Bank and Pitman in the event Thomas was awarded a new trial. Thomas’ motion to set aside the judgment and for new trial was granted. Gault’s motion for new trial as to Pitman and the Bank was overruled. Gault seeks to appeal only from that portion of the judgment relating to the Bank and Pitman.

By the pleadings on which this cause went to trial Gault bases his claim of the $13,591.93 against the three defendants upon three theories of recovery. The claim is made against the Bank upon a theory of conversion; against Thomas, along with other claims, upon breach of contract; and against Pitman for non-payment for the grain received. Each of the claims is predicated upon the assumption that Thomas was not authorized to negotiate the check in question or directly receive the proceeds therefrom. It is noted that Gault alleges liability against the Bank and Pit-man as being both “joint” and “joint and severally” for the sum of $13,591.93; however, the claim of liability for the same $13,591.93 against Thomas is only alleged to be jointly with the other defendants.

Initially, the question arises as to whether this court has jurisdiction over this appeal since it appears from the record that one of the parties has not been disposed of by the judgment. In order for this court to have jurisdiction of the appeal, it must be brought from a final judgment since this proceeding does not come within any exceptions to the general rule which would authorize an appeal from an interlocutory order. See 3 Tex.Jur.2d, Rev. Appeal & Error § 73 (1974); Articles 1822 and 2249, Vernon’s Ann.Civ.St. A judgment is considered final only if it determines the rights of the parties and disposes of all of the issues involved so that no future action by the court will be necessary in order to settle and determine the entire controversy. Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890 (1956); Lubell v. Sutton, 164 S.W.2d 41 (Tex.Civ.App.—Texarkana 1942, writ ref’d). Further, when there are several defendants to a suit ordinarily no final judgment can be rendered against one until it is rendered against all, regardless of how independent their respective defenses may be. Sisttee v. Holland, 374 S.W.2d 803 (Tex.Civ.App. — Tyler 1964, no writ); Wootters v. Kauffman, 67 Tex. 488, 3 S. W. 465, 468; Texas Bank & Trust Co. of Dallas v. Clay, et al., 257 S.W.2d 774 (Tex.Civ.App. — Texarkana 1953, no writ). The granting of the new trial as to Thomas necessarily indicates that all of the parties have not been disposed of by the trial court, and no order of severance has been entered in this case. Also, it has been held that when a new trial is granted as to some of the parties, the original judgment becomes interlocutory. Long v. Garnett, 45 Tex. 400 (1876). In the absence of severance no appeal will lie for the party against whom an interlocutory judgment has been entered until it is a final judgment disposing of the whole case. Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W. 2d 200 (1959); Sears v. Mund Boilers, Inc., 328 S.W.2d 199 (Tex.Civ.App.—Texarkana 1959, writ ref’d).

The judgment entered in this case disposes of only the two parties, Pitman and the Bank, and orders a separate new trial as to Thomas. The controversy involves the liability as to the same subject matter, the proceeds of the $13,591.93 check. Severance cannot be accomplished by implication, but there must be an order for a severance in order that a final ap-pealable judgment may be rendered. See Permian Mud Service, Inc. v. Sipes, 357 S.W.2d 803 (Tex.Civ.App.—Eastland 1960, no writ) and authorities cited therein. Further, our Supreme Court has stated, “ . . . we do not think the finality and hence the appealability of a judgment should be made to turn upon whether the action is severable as to issues, as to parties, or as to causes of action.” Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., supra. Also, see Myers v. Smitherman, 279 S.W.2d 173 (Tex.Civ. App.—San Antonio 1955, no writ).

In the instant case, the trial court unquestionably had jurisdiction of all the parties related to this controversy and who had an interest in the subject matter of the litigation. No severance was sought or ordered. Therefore, in order for the judgment to be final in the sense that it is ap-pealable, it must determine the whole case, dispose of all matters and determine the rights of all parties. The judgment entered here does not dispose of all the parties and issues and is interlocutory and not appealable. See McCormick v. Hines, 503 S.W.2d 333 (Tex.Civ.App.—Amarillo 1973, no writ); Offer v. Bell, 397 S.W.2d 278 (Tex.Civ.App.—San Antonio 1965, no writ) ; Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., supra.

A party against whom an interlocutory judgment has been rendered has the right of appeal when and not before the same is merged in a final judgment disposing of the whole case. Transport Ins. Co. v. Wheeler, 420 S.W.2d 635 (Tex. Civ.App.—Houston [14th Dist.] 1967, writ ref’d n. r. e.); Myers v. Smitherman, supra. The proper procedure for an appellate court to follow where a party has attempted a premature appeal is for such court to dismiss such appeal on its own motion. Clayton Mfg. Co. v. Flake Uniform & Linen Service, Inc., 451 S.W.2d 934 (Tex.Civ.App.—Fort Worth 1970, no writ) ; Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., supra; Duke v. Gilbreath, 10 S.W.2d 412 (Tex. Civ.App.—Eastland 1928, writ ref’d); Plaster v. Texas City, 380 S.W.2d 137 (Tex.Civ.App—Tyler 1964, no writ).

In view of the foregoing, it is our opinion that the judgment sought to be appealed from is interlocutory in nature and no appeal will lie to this court based upon the actions taken. Accordingly, this appeal should be dismissed without prejudice to the rights of a party to perfect its appeal from any final appealable judgment subsequently entered in this cause.

This court being without jurisdiction, the appeal is dismissed.


author: ROBINSON, Justice.

text:
    Carol Ann FRYE, Individually, and as next friend of Judith Ann Frye, a minor, et al., Appellants, v. ROSS AVIATION, INC., a corp., Appellee.
    No. 8490.
    Court of Civil Appeals of Texas, Amarillo.
    April 7, 1975.
    Kolander, Templeton & Hamilton, Robert L. Templeton, Amarillo, for appellants.

      Stokes, Carnahan & Fields, O.. P. Fields, Jr., Amarillo, for appellee.
   ROBINSON, Justice.

From an order of dismissal on the theory of forum non conveniens, plaintiffs appeal. Modified to dismiss for want of jurisdiction, and affirmed as modified.

William Paul Frye was killed on May 19, 1972 when the Ross Aviation aircraft in which he was a passenger crashed at the Albuquerque, New Mexico, Airport shortly after take-off on a scheduled intrastate flight from Albuquerque terminating in Los Alamos, New Mexico. His widow, Carol Ann Frye, individually and as next friend for their children, and his mother, Peggy Frye who had qualified as adminis-tratrix of his estate in Randall County, brought this suit against Ross Aviation, Inc. and Beech Aircraft Corporation to recover damages for William Paul Frye’s death. Decedent was a resident of New Mexico. Plaintiffs alleged by their petition that decedent’s wife and minor children are residents of New Mexico and that decedent’s mother is a resident of Amarillo, Texas.

Ross Aviation, Inc. filed a special appearance contesting the jurisdiction of the court and subject to its special appearance, a motion to dismiss on the theory of forum non conveniens. At the hearing plaintiffs’ counsel testified without objection that, subsequent to the filing of the petition, and prior to the hearing, decedent’s wife and children had moved to Amarillo, Texas. Defendant Ross Aviation offered in evidence the portion of plaintiffs’ petition whereby plaintiffs alleged as follows: “Carol Ann Frye and her minor children are residents of the State of New Mexico. They reside at Los Alamos, New Mexico.”

The trial court overruled the motion to dismiss for want of jurisdiction, but sustained Ross Aviation’s plea of forum non conveniens, severed the case against Beech, and dismissed plaintiffs’ case against Ross Aviation, Inc. Plaintiffs appealed, contending that the trial court erred in finding that the doctrine of forum non conveniens applies under the facts adduced by the defendant and further that under the provisions of Article 4678, Vernon’s Ann.Civ. St., the trial court had no discretion, but was required to try the case once it found it had jurisdiction.

Defendant Ross contends by cross point that regardless of the application of the doctrine of forum non conveniens, the judgment of dismissal is correct because the courts of Texas lack in personam jurisdiction over Ross Aviation, Inc., in this case.

We first consider the question of jurisdiction. Ross Aviation, Inc., is a Delaware Corporation. It does not have a permit to do business in Texas. The principal business of Ross Aviation, Inc., is the performance of a contract with the Atomic Energy Commission under which Ross Aviation provides air transportation for A.E.C. personnel and cargo. The operation is conducted out of Albuquerque, New Mexico. The contract was made in New Mexico with the A.E.C. office in Albuquerque. There were no negotiations concerning the contract in the State of Texas. Ross aircraft come into Texas on an unscheduled basis and only when dispatched under A. E.C. orders. Such flights are frequent, averaging about one every other day. Ross Aviation does not own or lease any property in Texas. It does not have an office in Texas and has no personnel, employees, officers, agents or other people employed in or residing in the State of Texas. Ross does not solicit business in Texas.

There is no connection between any flight into Texas and the aircraft accident that caused Frye’s death. The crash occurred in New Mexico and the witnesses to the crash as well as Ross’s pilots and maintenance people who have information material to the case live in New Mexico. Louis Pierce, a Vice President of Ross Aviation, testified that bringing the employees with relevant information to Amarillo for a trial would bring their operation to a virtual standstill.

The standard to be applied in determining whether a Texas court can maintain jurisdiction over a non-resident corporation in a case such as this where the defendant corporation does not have a permit to do business in Texas, has no office in Texas, solicits no business in Texas and has no agent or employees in Texas, is set out in the opinion of the Texas Supreme Court in O’Brien v. Lanpar Co., 399 S.W.2d 340 (Tex.1966). The three factors which we must consider are:

“(1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.”

Also see Odom v. Thomas, 338 F.Supp. 877 (S.D.Tex., Houston Div.1971) and Hayes v. Caltex Petroleum Corporation, 332 F.Supp. 1205 (S.D.Tex., Corpus Christi Div.1971.)

Here the defendant’s activities in Texas did not give rise to, and in fact bear no relation to, the cause of action. Thus, Texas courts do not have jurisdiction of Ross Aviation.

By their reply brief appellant plaintiffs contend that defendant Ross implicitly accepted the court’s jurisdiction by pleading the doctrine of forum non conveniens and further contends that appellee defendant “by continuing after the trial court had found jurisdiction and submitting its plea in abatement under the doctrine of forum non conveniens has made a general appearance before the court and thereby submits itself to the jurisdiction of the court for all purposes.”

Rule 120a, Texas Rules of Civil Procedure provides in part as follows:

“Such special appearance shall be made by sworn motion filed prior to plea of privilege or any other plea, pleading or motion; provided, however, that a plea of privilege and any other plea, pleading, or motion may be contained in the same instrument or filed subsequent thereto without waiver of such special appearance.”

Defendant’s plea to dismisss on the ground of forum non conveniens was filed expressly subject to the special appearance. We conclude that defendant did not make a general appearance by filing its plea in abatement or by seeking a ruling thereon after the court found that it had jurisdiction.

Appellant plaintiffs next contend that the trial court’s order overruling defendant’s plea to the jurisdiction is not before this court because such an order is interlocutory and not appealable. It is true that an order overruling a plea to the jurisdiction may not be appealed until there is a final judgment in the case. Carpenter Body Works v. McCulley, 389 S.W.2d 331 (Tex.Civ.App. —Houston 1965, writ ref’d) However, in the case before us, the court entered a final judgment of dismissal The question is properly before us on ap-pellee’s cross point. The judgment of the trial court will be upheld if it is correct on any applicable theory of law whether the trial court gives the correct reason or any reason at all. Holbrook v. City of El Paso, 377 S.W.2d 669 (Tex.Civ.App.—El aso 1964, writ ref’d n. r. e.). We hold that the trial court correctly dismissed the cause, but should have done so for want of jurisdiction. The judgment is accordingly modified to dismiss the cause for want of jurisdiction.

We do not reach appellants’ points of error concerning the scope of a plea of forum non conveniens or their point of error contending that Art. 4678 is mandatory so as to require the Texas courts to hear the cause once in personam jurisdiction is found.

The trial court’s judgment is modified to dismiss the cause for want of jurisdiction. As modified, the judgment is affirmed.


author: CHADICK, Chief Justice.

text:
    Leonard E. HOFFMAN, Jr., and W. R. Sessions, Appellants, v. Frank LOVE, Jr., Appellee.
    No. 8265.
    Court of Civil Appeals of Texas, Texarkana.
    May 20, 1975.
    W. R. Sessions, Sessions & Sessions, Dallas, for appellants.
    Edward J. Drake, Brady, Drake & Wilson, Dallas, for appellee.
   CHADICK, Chief Justice.

A District Court of Dallas County, Texas, rendered the following judgment in case No. 79-663-D on September 14, 1972, viz:

“IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the lien of judgment of the Plaintiffs, Leonard E. Hoffman, Jr., and W. R. Sessions, abstracted in the Judgment Records of the County Clerk of Dallas County, Texas, vol. 156, page 155, be foreclosed upon and against the real estate and property at 4400 Beverly Drive, Highland Park, Texas, being Lot 12, in Block 133 of Highland Park West, 4th installment, an addition to the town of Highland Park in Dallas County, Texas, according to the map thereof recorded in vol. 3, page 349, Map Records of Dallas County, Texas to the extent of $21,750.00 and costs of sale and that the Sheriff of Dallas County shall in execution of this judgment take said property under this judgment and post same for sale and sell same at public sale in the same manner and under the same provisions and with the same formalities as otherwise provided by law for public sale of property by officers authorized to sell as under execution of judgment, and said sale shall be made by said Sheriff of Dallas County, Texas, in execution of this judgment and

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that out of the proceeds of said sale by said Sheriff of said property the sum and amount necessary and required to discharge a portion of Plaintiffs’ judgment in the amount of $33,976.62 and costs of court in cause No. 51414-C in the 68th District Court of Dallas County, Texas, and interest on said principal sum of $33,976.62 at the rate of 6% per annum from July 14, 1960, until paid less $300.00 credit to the extent and amount of $21,750.00 shall be so paid and applied after payment of costs of such sale and execution hereof and any proceeds of sale in excess of the sum necessary and required to pay the costs of sale and said property as herein ordered and $21,750.00 of said judgment, principal, interest and costs in favor of Plaintiffs herein against Robert P. Karll of the judgment lien foreclosed by this judgment shall he paid and delivered by the Sheriff to Frank Love, Jr., Interve-nor in this cause, and costs of court other than costs of sale herein are all taxed against the Defendants, Robert P. Karll and Mozelle L. Karll and credit on the judgment of Plaintiffs against Robert P. Karll herein foreclosed from sale of said property shall he applied first to costs, then interest and then principal and the balance of said judgment after credit as herein decreed shall remain due, owing and undischarged against Robert P. Karll in favor of plaintiffs as decreed in said cause 51414-C for all of which judgment and foreclosure herein, let execution and process to carry out said judgment issue.” On appeal according to stipulations on file, this judgment was modified by adding thereto a provision that Frank Love, Jr. be permitted thirty days after the mandate of the Court of Civil Appeals was filed in the trial court to “. . . pay into the court or to plaintiffs the amount of their judgment to the extent of the $21,750.00 excess found by the trial court, and upon such payment, in-tervenor’s title is quieted as against any further claim by plaintiffs. If such amount is not paid within that time, then the judgment of the trial court as originally entered shall be carried out.” The opinion of the Court of Civil Appeals casts doubt upon the propriety of some aspects of the judgment but the opinion explains that the limited scope of the appeal would not permit review or revision of the questioned provisions. Hoffman v. Love, 494 S.W.2d 591 (Tex.Civ.App. Dallas 1973, writ ref’d n. r. e.). As modified by the Court of Civil Appeals the judgment of the trial court became final on September 19, 1973.

Thereafter, on November 20, 1973, Frank Love, Jr., as plaintiff, instituted this declaratory judgment action naming Leonard E. Hoffman II and W. R. Sessions as defendants. Hoffman and Sessions answered; and in response to allegations that Hoffman had assigned his interest in the judgments rendered in case No. 79-663-D and No. 51414 — C, acknowledge that such interest had been assigned to his children, all above eighteen years of age, namely, Leonard E. Hoffman III, Paul F. Hoffman, C. Gretchen Hoffman, Sally F. Hoffman. Such children entered their appearance and answered to the plaintiff’s petition and aligned themselves as parties with the defendants Hoffman and Sessions. Reference hereafter to Hoffman and Sessions should be understood to include the named Hoffman children. At conclusion of the trial of the declaratory action, judgment was entered June 20, 1974, containing among its provisions an adjudication and declaration that no interest was recoverable on the judgment in case No. 79-663-D or “ . . . with respect to the sum of $21,750.00 . . . ”. Hoffman and Sessions have perfected an appeal. The judgment of the trial court is affirmed.

The appellants’ brief contains three points of error but the merit of the appeal is rested upon this proposition:

“Appellants are entitled to interest at six percent (6%) on their judgment [in case No. 79-663-D] under Article 5069-1.05 Texas Civil Statutes and the errors of the .Court complained of result from denial by the Trial Court of such right by his judgment herein.” (Bracketed language added). The parties’ pleadings joined issue upon equitable and other grounds. Stipulations were made but the agreement is not in accord with Texas Rules of Civil Procedure 263 and this is not an agreed case as contemplated by that rule.

In speaking of interest as the compensation allowed by law for the use or forbearance or detention of money, Vernon’s Tex.Rev.Civ.Stat.Ann. art. 5069-1.03 provides that all judgments of the courts of this State shall bear interest at the rate of six percent per annum from the date of the judgment. The language of the statute is plain and clear. Except for slight change in wording relative to contractual interest, the statute is in all respects identical with its predecessor, Tex.Rev.Civ.Stat. Ann. art. 5072. The former statute has been consistently construed as authorizing interest, as a legal incident of the statute, on judgments at the rate of six percent per annum, though the judgment makes no reference to recovery of interest. Carter v. McHaney, 373 S.W.2d 82 (Tex.Civ.App. Corpus Christi 1963, no writ); Lewis v. Hill, 429 S.W.2d 572 (Tex.Civ.App.Tyler 1968, no writ) ; Broadway Drug Store of Galveston, Inc., v. Trowbridge, 435 S.W.2d 268 (Tex.Civ.App. Houston 14th Dist.1963, no writ); 1 Freeman on Judgments, Section 85.

The appellee urges affirmance on the ground that interest should not be awarded in the absence of pleading and proof of entitlement thereto. The following cases are cited: Berryman v. Norfleet, 41 S.W.2d 722 (Tex.Civ.App. Amarillo 1931, writ dism’d) ; Pereira v. Gulf Electric Company, 343 S.W.2d 334 (Tex.Civ.App. Waco 1960, writ ref’d n. r. e.); Gulf States Paint Company v. Kornblee Company, Inc., 390 S.W.2d 356 (Tex.Civ.App. Texarkana 1965, writ ref’d n. r. e.) ; San Antonio A. P. Ry. Co. v. Collins, 61 S.W.2d 84 (Tex.Com. App.1933, opinion adopted). These and similar cases are concerned with recovery of interest that accrued prior to trial or is recoverable as damages. On this subject see 1 McDonald Texas Civil Practice, Section 1.11. The interest under consideration in this appeal is of a different character.

This case is concerned with the interest an award bears after final judgment and before satisfaction thereof. Compare City of San Antonio v. Alamo Nat. Bank, 155 S.W. 620 (Tex.Civ.App. San Antonio 1913, writ ref’d) ; Lewis v. Hill, supra. The interest on the judgment in such case is to compensate for the detention of money from the time it became due until the time the judgment is paid. The purpose of Article 5069-1.05 is to set the rate of interest a money award bears under such circumstances.

The record in this case does not show when the judgment as modified in case No. 79-663-D matured, if it did, into a money award. Pertinent to such conclusion is the circumstance that the record does not contain the judgment of the Court of Civil Appeals modifying and affirming the trial court’s judgment nor the date the appellate court’s mandate was filed in the trial court. However an extract pertaining to modification from the appellate court opinion is set out in the stipulations of the parties. The extract recites that Frank Love, Jr. would be permitted thirty days after the Court of Civil Appeals mandate was filed in the trial court to “ . . . pay into the court or to plaintiffs the amount of their judgment to the extent of the $21,750.00 . . . ”. The stipulations in their entirety may be fairly construed as agreeing that the Court of Civil Appeals judgment allowed Love to make such payments. But if it be considered as proved that the appellate court’s judgment complied in detail with such court’s opinion such fact is of little aid as the record does not show when the mandate was filed in the trial court. On analysis the stipulations do not show a recovery of money was awarded. Frank Love, Jr., was not adjudged to pay any sum of money. Love was obligated only when and if he timely elected to pay Twenty-One Thousand Seven Hundred Fifty Dollars and be quieted in his title. No personal judgment was rendered against him. The record shows he conditionally tendered such amount on two occasions but it does not show such tenders were timely, that is, within thirty days after the Court of Civil Appeals mandate was filed in the trial court. Thus, the record does not show that by election or otherwise Frank Love, Jr. became liable to pay a money judgment or that interest accrued upon an award he elected or was adjudged to pay.

As demonstrated, the trial court did not err in failing to award interest in accordance with the terms of Article 5069-1.05 on the judgment in case No. 79-663-D. The validity of the trial court judgment is not questioned except as to the interest feature. No reversible error is shown. Appellants’ motion for rehearing is granted. The opinion of this court dated April 29, 1975, is withdrawn and this opinion substituted for it. The judgment of the trial court is affirmed.


author: TUNKS, Chief Justice.

text:
    CITY OF PASADENA et al., Appellants, v. E. D. RICHARDSON, Appellee (two cases).
    Nos. 1155, 1175.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 14, 1975.
    Rehearing Denied June 4, 1975.

      Charles A. Easterling, City Atty., Pasadena, for appellants.
    Charles E. Humphrey, Jr., B. J. Walter, Jr., Jesse R. Pierce, Foreman, Dyess, Prewett, Rosenberg & Henderson, and James C. Calaway, Houston, for appellee.
   TUNKS, Chief Justice.

This is a consolidated appeal of two causes of action involving identical parties and interrelated issues. Appellants, the City of Pasadena, Texas, the Pasadena Civil Service Commission and its Director, and the Pasadena Chief of Police, appeal from the judgment of the district court granting a writ of mandamus in favor of appellee, E. D. Richardson, and from the granting of his motion for summary judgment.

On June 12, 1972, appellee, E. D. Richardson, was indefinitely suspended from the Pasadena Police Department by then Chief of Police Ellis Means on the grounds of insubordination for allegedly refusing to obey Means’ order to submit to a polygraph test. Richardson was duly served with the charges against him and he timely gave notice of appeal to the Pasadena Civil Service Commission. The Commission held a hearing on the matter within thirty days of Richardson’s appeal. The only witnesses at the hearing were Means and Richardson, and there was a conflict in their testimony as to whether Means had only requested or had actually ordered Richardson to submit to a polygraph examination. Six days after the formal hearing had ended, the Commission received affidavits corroborating Means’ testimony from three policemen who had been present at the meeting between Means and Richardson but who had not been called to testify at the hearing. Neither Richardson nor his attorney was notified of the receipt of this evidence so that they were deprived of the opportunity of rebutting it. On July 17, 1972, the Pasadena Civil Service Commission issued its final order upholding the action of Chief Means and permanently dismissing Richardson solely on the grounds of insubordination for his refusal to obey Means’ alleged order to submit to a polygraph test.

Richardson appealed this decision to the district court where, after a trial de novo, the Commission’s order was sustained. The district court’s judgment was affirmed by this Court. Richardson v. City of Pasadena, 500 S.W.2d 175 (Tex.Civ.App.-Houston [14th Dist] 1973). Writ of error was granted by the Texas Supreme Court, and the judgments affirming the order of dismissal were reversed and the Commission’s order was set aside. Tex.Civ.App., 513 S. W.2d 1 (1974). The Court based its reversal on the Civil Service Commission’s action in considering evidence which was not offered at the hearing. This, it was held, constituted a denial to Richardson of procedural due process. The opinion of the Court was handed down July 24, 1974, and the City’s motion for rehearing was denied September 24, 1974. The mandate of the Supreme Court, directing that its “ . . . decision be certified to the District Court of Harris County, Texas, for observance”, was issued on October 7, 1974.

Richardson then made demand upon appellants to be reinstated on the police force to the position or class of service from which he was suspended, with accrued back pay for the period of his suspension. This request was refused. On November 8, 1974, the Pasadena Civil Service Director notified Richardson that a new hearing would be held on November 27, 1974. Richardson’s counsel replied by letter that Richardson was ready, willing and able to resume his duties and demanded that he be restored to the police force with back pay and that the notice of rehearing be withdrawn. Richardson then filed in the district court a petition for writ of mandamus that he be reinstated with back pay. He also asked the court to restrain appellants from holding the November 27 hearing.

On Richardson’s petition a hearing was held before the district court on November 25, 1974. Richardson testified that at all times since the Supreme Court’s decision was handed down, he had been ready, willing, and able to return to work on the police force. Appellant B. B. Storey, the Pasadena Civil Service Director, testified that he intended to hold a hearing to determine whether Means ordered Richardson to take the lie detector test and whether to suspend Richardson or to reinstate him with back pay. The district court took the matter under advisement pending the outcome of the November 27 rehearing of the suspension. After the rehearing on November 27, 1974, the Commission issued its final order permanently dismissing Richardson from the police force. In this order the Commission found that Chief Means’ charge of insubordination based on Richardson’s refusal to submit to a polygraph examination was true and that the suspension should be upheld.

The district court then rendered its final judgment in the mandamus proceeding on December 4, 1974. Richardson was granted a writ of mandamus directing the appellants to restore him to the position from which he was suspended on June 12, 1972, and to pay him $24,082.74 accrued compensation for the period of his suspension. Appellants gave notice of appeal from that judgment and have perfected their appeal to this Court.

On December 6, 1974, Richardson filed a petition in the district court to set aside the Commission’s November 27 order on the grounds that it violated the Firemen's and Policemen’s Civil Service Act, Vernon’s Tex.Rev.Civ.Stat.Ann. art. 1269m (1963), as well as his rights under the federal and state Constitutions. Richardson in that case moved for summary judgment, which was granted by the district court. A final judgment was rendered on January 28, 1975, setting aside the Commission’s order of November 27, 1974, and reinstating Richardson as a member of the police force with back pay from November 27, 1974 until the date on which he is reinstated. Appellants gave notice of appeal from that summary judgment and have perfected their appeal to this Court. On March 12, 1975, we granted the parties’ joint motion to consolidate the two appeals for submission and decision.

Appellants by their first point of error contend that the trial court lacked jurisdiction to issue a writ of mandamus directing them to reinstate Richardson to the police force with back pay for the period of his suspension through November 27, 1974. Appellants argue that Article 1269m vests in the Pasadena Civil Service Commission the exclusive responsibility of administering personnel problems of the police department, and that for a court to direct the Commission to reinstate an employee by means of mandamus would interfere with its statutory authority.

Appellants’ first point of error is overruled. In Bichsel v. Carver, 321 S.W.2d 284, 287 (Tex.Sup.1959), it was held that “ . . . mandamus is a proper. remedy in the situation presented.” In that case the Civil Service Commission was threatening to hold a hearing on charges against a policeman. The charges upon which hearing was to be held had been amended in violation of the procedural provisions of Section 16 of Article 1269m.

Appellants’ principal argument here, in both the mandamus case and the appeal from the Commission’s order of discharge wherein the district court rendered summary judgment, is that the Supreme Court, in reversing this Court’s and the district court’s former judgments, did not order that Richardson be reinstated with back pay. The Supreme Court said, at 513 S.W.2d 4, that “[t]he judgments of the courts below are reversed and the order of the Commission is set aside.” The mandate that the Supreme Court then issued recited that “ . . . the judgments of the Court of Civil Appeals, and District Court be, and hereby are, reversed and . the order of the Pasadena Civil Service Commission be, and hereby is, set aside.” The mandate also said that “[i]t is further ordered . . . that this decision be certified to the District Court of Harris County, Texas, for observance.”

The Supreme Court apparently did not deem it necessary to order that Richardson be reinstated. It did, however, clearly set aside the Commission’s order of dismissal. In Fire Department of City v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664, 667 (Tex.Sup.1949), the Court, in discussing the constitutionality of Section 18 of Article 1269m, which provides for appeal to the district court from an order of dismissal, said: “Reinstatement of the employee necessarily ensues from vacating the order dismissing or suspending him.” We believe that by that language it is meant that, upon the vacation of the Commission’s order of dismissal, Richardson was restored to his position of employment with the Pasadena Police Department. It would be futile to restore him to the status of a policeman under temporary suspension and charged with offenses by the Chief of Police, the status he was in immediately before the Commission issued its 1972 order discharging him. It had been more than two years since his suspension and appeal to the Commission. The Commission could not issue a valid order dismissing him unless it did so within thirty days of his notice of appeal. Todd v. City of Houston, 508 S.W.2d 140 (Tex.Civ.App.-Houston [1st Dist.] 1974, writ ref’d n. r. e.). The only effective thing the district court could do in “observance” of the Supreme Court’s decision, as ordered by the October 7, 1974 mandate issued by that Court, was to determine the amount of Richardson’s back pay and order that he be reinstated with such back pay. That has now effectively been done.

The judgments of the district court, both in issuing the mandamus and in granting Richardson’s motion for summary judgment in his appeal from the Commission’s second order of dismissal, are affirmed.

Affirmed.


author: BARROW, Chief Justice.

text:
    James MACPHEE, Appellant, v. Gilbert E. KINDER, d/b/a Gilbert E. Kinder Company, Appellee.
    No. 15405.
    Court of Civil Appeals of Texas, San Antonio.
    May 7, 1975.

      Joseph F. Sage, Dean & Sage, Inc., San Antonio, for appellant.
    Charles M. Jefferson, Davis & O’Conner, San Antonio, for appellee.
   BARROW, Chief Justice.

Appellant appeals from a take-nothing summary judgment in his suit to recover for breach of an employment contract whereby appellant was to be paid commissions for the sale of lots and houses in a subdivision owned by appellee. Appellant sought to recover past due commissions, damages for wrongful discharge and, in the alternative, damages for appellee’s fraudulent representations that a real estate license was not required of appellant. The trial court concluded that the Real Estate License Act, Article 6573a, Vernon’s Tex.Rev.Civ.Stat.Ann. (1969), barred a recovery by appellant because he was not licensed and granted appellee’s motion for summary judgment.

Appellant entered into a written contract with appellee whereby appellant was to be paid a fifteen percent commission on land sales and a three percent commission on house sales of property owned by appellee in Bulverde Estates, a subdivision being developed by appellee. These commissions were based on the percentage of the total sales price received by appellee. Appellant worked under this agreement for six or seven months when he was discharged by appellee. Appellant received certain commissions for sales made by him, but brought this suit for the balance allegedly owed him, as well as for the loss of other commissions by reason of his wrongful discharge. Appellant alleged that it was not necessary that he be licensed under Article 6573a because he came within the exemptions provided in Section 6, Subdivisions (1) and (4); but that if a license was required, he sought damages in the alternative for appellee’s fraudulent representations that a license was not required.

The Real Estate License Act generally binds any person who engages in, or any business enterprise which engages in, the real estate business. Specifically, if a party engages in any or all of the multitude of acts enumerated in Section 4(1) of the Act, whether full-time or part-time, he comes within the purview of the Act and must be licensed. Included under Section 4(1) is

“ . . . any person who, for another or others and for compensation or with the intention or in the expectation or upon the promise of receiving or collecting compensation:
(a) Sells, exchanges, purchases, rents or leases real estate; .
(1) Subdivides real estate into two or more parts or tracts which are to be sold, leased, exchanged or rented to others, or for the purpose of erecting buildings for residential or business purposes to be sold, leased, exchanged or rented.”

Under Section 4(2) the term “Real Estate Broker” includes any person employed by or on behalf of the owner of real estate at a stated salary or upon a commission to sell, exchange or offer for sale such real estate.

Appellant concedes that he was not licensed as a broker or salesman, but urges that he was exempt under the provisions of Sections 6(1) and (4) of the Act. Under Section 6(1) the Act does not apply to the sale of real estate by a person when such person does not engage in the activities of a real estate broker as an occupation, business or profession on a full or part-time basis. The obvious intention of this exemption is to exclude any individuals who engage in any one or more of the enumerated acts but who are not acting in the capacity of a real estate agent. For example, an advertising agency that prepares and places in the newspapers real estate advertisements is not within the act. Van Zandt v. Fort Worth Press, 353 S.W.2d 95 (Tex.Civ.App.—Fort Worth), affirmed, 359 S.W.2d 893 (Tex.1962); Avent v. Stinnett, 513 S.W.2d 89 (Tex.Civ.App—Amarillo 1974, no writ); Amdur, The Real Estate License Act — Synopsis, Elaboration and Comments, 12 S.Tex.L.J. 269, 277. Here appellant was directly engaged in the sale of real estate as an occupation on a full-time basis. The exemption in Section 6(1) has no application to appellant’s acts.

Section 6(4) provides:

“This Act shall not apply to the sale, lease, or transfer of any property when such sale, lease, or transfer is made by the owner, or one of the owners, or the attorney for said owner or owners, or his or its regular employees, unless the owner or owners or the attorney for said owner or owners is engaged wholly or in part in the business of selling real estate.” (Emphasis ours)

The theory behind this exemption is that a person has a right to sell his own property without having to be licensed, or without having to obtain the services of a real estate agent. Appellant urges that the Texas Real Estate Commission (TREC) does not require licensure of builders who sell their homes or of agents solely employed by a builder. See Amdur, The Real Estate License Act — Synopsis, Elaboration and Comments, 12 S.Tex.L.J. 269, 280-281 (1970). Appellee owned all of the subdivision and appellant asserts that, as a full time employee of appellee, no license was required of appellant.

The summary judgment proof establishes that although appellee owns the property being sold by appellant, appellee is engaged wholly or in part in the business of selling real estate. Therefore, the provisions of the Real Estate License Act apply to the sales by appellant of the houses and lots in the subdivision being developed by appel-lee. The construction placed on this unambiguous provision by the TREC is immaterial to appellant’s rights under the Act.

Section 19 of the Texas Real Estate License Act prohibits an unlicensed person from bringing or maintaining any action for the collection of compensation for the performance in this State of any of the acts set out in subdivision (1) of Section 4 of the Act. Our courts require a strict compliance with the terms of the Real Estate Dealers License Act if a broker or salesman is to use the courts for recovery of his fees or charges for his services. Hall v. Hard, 160 Tex. 565, 335 S. W.2d 584 (1960); Struller v. McGree, 374 S.W.2d 256 (Tex.Civ.App.—San Antonio 1963, writ ref’d n. r. e.). Since appellant was unlicensed and did not come within any exemption, he is prohibited from bringing a suit to collect compensation for said sales. This prohibition applies not only to his claim for past due commissions, but also to his claim for loss of future compensation.

Appellant asserts in the alternative that he is entitled to recover damages by reason of appellee’s fraudulent representation that a license was no't required. A similar contention was made and rejected by the Supreme Court in Breeding v. Anderson, 152 Tex. 92, 254 S.W.2d 377 (1953). In rejecting a claim for conspiracy to defraud plaintiff of his commission, the Court pointed out that the Act precludes recovery of any compensation for services rendered by an unlicensed person in making a sale of real estate. A suit for fraudulent representation, as to the need for a license, while sounding in tort, is an attempt to recover compensation for sale of real estate which is prohibited by the Act. See also Collins v. McCombs, 511 S.W.2d 745 (Tex.Civ.App. — San Antonio 1974, writ ref'd n. r. e.).

The trial court did not err in granting appellee a take-nothing summary judgment in appellant’s suit to recover compensation for sale of appellee’s houses and lots in Bulverde Estates.

The judgment is affirmed.


author: OSBORN, Justice.

text:
    In the Matter of M. W., Appellant.
    No. 6428.
    Court of Civil Appeals of Texas, El Paso.
    March 19, 1975.
    Rehearing Denied April 16, 1975.
    Paul H. Dionne, Alex R. Gonzalez, Fort Stockton, for appellant.
    Aubrey Edwards, Dist. Atty., Big Lake, for appellee.
   OPINION

OSBORN, Justice.

This is an appeal from a proceeding in which the Juvenile Court waived its exclusive jurisdiction of a minor under Section 54.02 of the Texas Family Code, V.T.C.A., and transferred M. W. to the District Court for criminal proceedings. We reverse and dismiss the case.

The basic facts giving rise to this appeal are not in dispute. M. W. was born November, 15, 1956. In March, 1974, a petition was filed in the Juvenile Court alleging that said child was seventeen years old, and that on June 28, 1973, and June 29, 1973, when he was sixteen years old, he committed a felony by selling a narcotic drug. Citations directed to M. W. and to his parents, both show service by delivering the citations to Paul Dionne, an attorney. The attorney filed an answer for M. W. in March, 1974. About a week later the prosecuting attorney filed a motion requesting the Juvenile Court to waive its jurisdiction and transfer the cause to the District Court in accordance with Section 54.02 of the Family Code. The motion contains a certificate of service by mailing the motion to the attorney of record for the child and his parents. The transcript contains a copy of a written notice of hearing signed by the District Clerk and reflecting copies to all parties and the attorneys, but it does not show that such notice was received by M. W. and there is no proof that it was sent by registered or certified mail, return receipt requested, as permitted by Section 53.07 of the Family Code for service of a summons. Following the granting of a motion for continuance filed by the attorney for the child, the motion requesting the Juvenile Court to waive its jurisdiction was heard on July 24, 1974, and the order granting said motion was entered on August 2,1974.

The Appellant raises ten points of error, some of which involve procedural due process issues, and he also attacks the sufficiency of the evidence to support the transfer order. Since his last point of error controls the disposition we make of this case, the other points need not be decided. The tenth point asserts that the Juvenile Court lacked jurisdiction over M. W. because he was never personally served with citation or summons as required by law.

Chapter 53, Title 3, of the Texas Family Code controls the procedures applicable to a child prior to a judicial proceeding. Section 53.04 provides for the filing of the petition, Section 53.05 provides for the time set for a hearing, and Section 53.06 provides that the juvenile court shall direct issuance of a summons to the child named in the petition and his parents and the child’s guardian ad litem, and Subsection (e) provides that any party, other than the child, may waive service of summons by written stipulation or by voluntary appearance at the hearing.

Chapter 54, Title 3, of the Texas Family Code controls judicial proceedings, and Section 54.02 specifically deals with waiver of jurisdiction by the juvenile court and transfer to the district court. Section 54.-02(b) requires compliance with the notice requirements of Section 53.06 and provides that the summons must state that the hearing is for the purpose of considering discretionary transfer to criminal court.

As previously stated, the only citation or summons directed to M. W. was served upon his attorney and not upon the child as the Code requires. And that summons was issued after the petition was filed and before the motion to transfer was filed and did not state that the hearing was for the purpose of considering transfer to criminal court.

The Courts of this State have always recognized the necessity for personal service upon a minor. In Wheeler v. Ahrenbeak, 54 Tex. 535 (1881), the Court pointed out the necessity of complying with a statutory requirement for service upon a defendant and concluded that such right could not be waived by a minor even though “no injustice in fact was done by failure to serve the minor defendants personally with process.”

In Wright v. Jones, 52 S.W.2d 247 (Tex.Comm’n App.1932, holding approved), the Court discussed the necessity for service of process upon a minor at considerable length and said:

“It is true that under the statute an appearance may be entered by a defend- ■ ant without process being served, either by written memorandum signed by him, or by his duly authorized agent or attorney, filed among the papers of the cause (Rev.Stat.1925, art. 2045), by the filing of an answer (article 2047), a motion to quash citation (article 2048), or an entry of appearance in open court to be noted by the judge and entered in the minutes (article 2046), but this applies only to persons sui juris. A person non sui jur-is, such as a minor, cannot appear and thereby confer jurisdiction of the court over him. 4 Tex.Jur. pp. 620, 621; 2 R.C.L. 324. An infant can neither acknowledge nor waive the regular service of process upon him. 14 R.C.L. 284. * * *
<( ⅜ ⅝ ⅜
“In Sprague v. Haines, 68 Tex. 215, 4 S.W. 371, 373, Judge Gaines said: ‘The service of process upon the minors is essential in order to confer jurisdiction upon the court, and to authorize the appointment of a guardian ad litem. The record upon appeal should show that they have been duly served.’
“In Kremer v. Haynie, 67 Tex. 450, 3 S.W. 676, 677, Chief Justice Willie announced : ‘Two of these defendants * * * are * * * minors, and a guardian ad litem was appointed for them by the court, who answered and represented them in the cause. But the court had no authority to appoint a guardian ad litem for minors on whom the court had not acquired jurisdiction by service of process. Wheeler v. Ahrenbeak, 54 Tex. 535. A guardian appointed under such circumstances could not bind the minor by any decree rendered in the cause. The decree was of no more validity than if no guardian at all had been appointed for the minors. For want of service upon the parties mentioned, the judgment will have to be reversed.’
« ⅜ ⅜ *
“When an infant is made a party to an action, he must be served with process. 1 A.L.R. 922, 936 ; 89 Am.Dec. 186, note 3. He cannot waive service like an adult and cannot authorize some one else to do so for him. * * *

Thus the fact that the attorney served with citation filed an answer for M. W. is of no consequence. Section 53.06 expressly excludes the child from the persons who can waive service of summons. This statutory requirement is nothing more than a codification of the long-standing requirement for personal service upon minors. One of the most recent pronouncements of the rule appears in Casanova v. State, 489 S.W.2d 727 (Tex.Civ.App.—San Antonio 1972), where the Court said:

“The rule is well established in this jurisdiction that a minor, even in a ‘civil proceeding,’ lacks the capacity to waive service, and that nc one may waive it for him. Wright v. Jones, 52 S.W.2d 247 (Tex.Com.App.1932); 2 McDonald, Texas Civil Practice, Citation, Section 9.02, p. 364 (1970 rev.). The rules pertaining to service on minors in civil cases are well expressed by the Waco Court of Civil Appeals in Morris v. Drescher, 123 S.W.2d 958, 959-960 (1939, writ ref’d), as follows:
‘The trial court should not have proceeded to trial on the merits of the cause . . . without proper service of citation on Dorothy Lynn Drescher (the minor), Wright v. Jones, Tex. Com.App., 52 S.W.2d 247; but should have dismissed the cause in the event service was not secured within a reasonable time. Alexander v. Barfield, 6 Tex. 400 . . . Likewise, the court was not authorized to appoint a guardian ad litem for her if not served by process, Kremer v. Haynie, 67 Tex. 450, 3 S.W. 676 .. .
‘If judgment had been rendered against Dorothy Lynn Drescher without proper service of citation affirmatively appearing of record, she could have taken advantage of such fact at any stage of the proceedings on appeal or writ of error because the judgment against her would have partaken of the nature of a judgment by default, for the reason that she was without legal capacity under the law to waive any of its requirements, Wheeler v. Ahrenbeak, 54 Tex. 535 . . . ”

In a per curiam opinion, the Supreme Court of Texas agreed with the holding of the Court of Civil Appeals concerning the necessity for service of process upon a minor. State v. Casanova, 494 S.W.2d 812 (1973).

Therefore we can only conclude that the transfer order was erroneous because of a failure to comply with the notice provisions of Section 53.06 and Section 54.02. Appellant’s tenth point of error is sustained. Since M. W. is now eighteen years old he is no longer subject to the jurisdiction of the Juvenile Court. Therefore the case may not be remanded to the Juvenile Court and the only procedure available to this Court is to vacate the order and to dismiss the case. Carrillo v. State, 480 S.W.2d 612 (Tex 1972); State v. Casanova, supra.

ON MOTION FOR REHEARING

The State of Texas in its motion for rehearing asserts that we should set aside our prior opinion and judgment in this case because we failed to consider the affidavit of the District Attorney that the Grand Jury of Pecos County did on the 3rd day of September, 1974, return two indictments against M. W. for the sale of heroin, and that we erred in failing to find that the transfer order was not relied upon by the Grand Jury at the time such indictments were returned. See Hight v. State, 483 S.W.2d 256 (Tex.1972).

The only issue before this Court, whose jurisdiction is limited to civil matters, is the validity of the transfer order. We have not and cannot pass upon the validity of any criminal indictments since this Court has no criminal jurisdiction. We have no way of knowing whether the Grand Jury relied upon the transfer order or not, but since M. W. was only sixteen years old when the offense was committed we would expect that in view of Art. 30(b), Vernon’s Ann.Penal Code of Texas (1925), as amended, the transfer order was relied upon. See 5 Tex.Tech.L.Rev. 584 (1974). But that issue is not and cannot be decided by this Court which has no criminal jurisdiction.

The motion for rehearing is overruled.


author: MASSEY, Chief Justice.

text:
    Leon YANCY, Appellant, v. Frank A. WOLFE, Jr., Appellee.
    No. 17631.
    Court of Civil Appeals of Texas, Fort Worth.
    May 30, 1975.

      Wynn, Irby, Brown, McConnico & Mack, and William M. Schur, Fort Worth, for appellant.
    Crumley, Murphy & Shrull and Roswald Shrull, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

This is a suit for damages resulting from the alleged tort of the defendant. The pleadings attributed the liability of defendant as obtaining because of vicarious liability in that the tortious action or omission to act was by his agents, servants, and employees.

Leon Yancy was plaintiff; Frank A. Wolfe, Jr. was defendant. Defendant obtained summary judgment that plaintiff take nothing by his suit, from which plaintiff appealed.

We dismiss the appeal.

The initial question is whether we have jurisdiction of the appeal. It was stated by another Court of Civil Appeals that “This Court does not have jurisdiction of an attempted appeal, unless the record shows that notice of appeal was given in one of the two manners provided for by Rule 353, T.R.C.P.” Ortega v. Employers Casualty Co., 223 S.W.2d 663 (San Antonio, Tex.Civ.App., 1949, no writ history).

By Texas Rules of Civil Procedure, rule 353, “Notice of Appeal”, the time within which an aggrieved party shall give notice of intention to appeal is within ten days after the judgment, etc. It is admitted that plaintiff did not give notice in open court, noted on the docket or embodied in the judgment, so our sole question is whether there was substantial compliance with the alternative provision of the rule, requiring that the Notice of Appeal be filed with the clerk within the requisite ten days.

Judgment in the case was signed November 18, 1974. Included in the transcript is a letter from plaintiff’s attorneys to the Judge of the trial court which bears date of November 20, 1974, and which bears the file mark of the clerk of the court as November 21, 1974. It is obvious from the text of the letter that the attorney who sent it was not aware that any judgment had been rendered. There were several paragraphs which argue reasons why the court should not sign the form of judgment which had been presented to the court by the opposite party. Additionally the attorney stated in the letter to the court the following: “Although I feel that the Order prepared by Mr. Shrull accurately reflects the contents of your letter of November 6, 1974, I cannot approve the form of this Order. Since it is our intention to appeal any adverse decision, I feel that the Order should at least recite the following facts: . . . .” (Emphasis supplied.) Thereafter the attorney stated that he was enclosing a proposed Order for the court. It was filed along with the letter on November 21, 1974. Interesting to note is that it did not embody a notice of appeal.

It is that part of the letter which we have quoted, and in particular the words to which we have supplied emphasis, upon which plaintiff relies in contending that there was notice of appeal in this case.

We hold that there was not the required notice of appeal, and • that because there was not this Court never acquired jurisdiction of the appeal and it should therefore be dismissed.

Here there was statement of intent to appeal, and by necessary implication a statement of intent to give notice of appeal in the future, but no notice of appeal as such.

The requirement of the Rule would have been satisfied had the letter in question stated the number and style of the case and court in which it was pending (which it did) and that appellant desired to appeal from the judgment or from some designated portion thereof. In our view the statement relative to notice was prospective merely, and did not amount to a present act by which notice was served.

No case squarely in point has been found. Authorities used in arriving at our decision include Werner v. Murray, 430 S. W.2d 126 (San Antonio, Tex.Civ.App., 1968, error refused); Standard Insurance Co. v. Teague Brick & Tile Co., 425 S.W. 2d 63 (Waco, Tex.Civ.App., 1968, error refused); Calame v. Prudential Insurance Company of America, 423 S.W.2d 940 (Waco, Tex.Civ.App., 1968, no writ history). See also texts and authorities cited in 4 Tex.Jur.2d p. 42, “Appeal & Error — Civil Cases”, Sec. 222, “Manner of giving — filing with clerk”, and Sec. 223 (p. 44), “ — Notation on docket or embodiment in judgment, order, or minute of open court notice”; 4 Am.Jur.2d p. 800, “Appeal and Error”, Sec. 316, “Generally”.

In relation to the question posed we have considered the decision of the Court in Sanders v. Aetna Life Ins. Co., 201 S.W.2d 234 (Galveston, Tex.Civ.App., 1947, reversed on other grounds at 146 Tex. 169, 205 S.W.2d 43, 173 A.L.R. 968), but have concluded that it is not applicable here because in the case before us notice was prospective in its nature. The fact that the plaintiff was without knowledge that judgment had already been entered is deemed immaterial.

In the event we err in the conclusion that this Court is without jurisdiction it is our holding, upon examination of the record, that judgment of the trial court granting summary judgment was erroneous in that defendant failed to discharge the burden incumbent upon him. If he would sustain judgment in his favor he would be obliged to show that under no theory would plaintiff be able to make out a pri-ma facie case of tort liability against him. This he failed to accomplish.

The appeal is dismissed.


author: CURTISS BROWN, Justice.

text:
    Claretto MARINO, Appellant, v. VIGILANT INSURANCE COMPANY, Appellee.
    No. 1148.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 14, 1975.

      James B. Davis, Davis, Patchen & Hag-erty, Houston, for appellant.
    Stephen C. Dillard, Fulbright & Jawor-ski, Houston, for appellee.
   CURTISS BROWN, Justice.

This is a workmen’s compensation case in which the appellant Claretta Marino (appellant or Marino) was the claimant and Vigilant Insurance Company (appellee or Vigilant) was the compensation carrier.

Appellant admittedly received a compen-sable injury March 16, 1973, resulting in a hernia. The focus of the dispute in the trial court and here is on the question of whether appellant also sustained a back injury. Trial was to a jury. The verdict in answer to special issue number one was that appellant had not sustained an accidental injury to her back on the occasion in question. In answer to special issue number four the jury found that the disability of Mrs. Marino was solely caused by the hernia. Other findings were made by the jury which are not material to this appeal.

Appellant attacks the factual and legal sufficiency of the evidence to support the findings to special issues numbers one and four. She also complains of the submission of special issue number four contending that it was an inferential rebuttal issue that should not have been submitted under Rules of Civil Procedure, rule 277 as amended. These contentions are presented to us through six points of error.

With all due respect to appellant, her contentions that there was no evidence to support the adverse findings are patently without merit. Her contention that the ■ evidence is factually insufficient to support the verdict requires us to review the entire record. Appellant unfortunately worded her “great weight” points in such a manner as to bring into question whether factual insufficiency is properly presented. We have reached the conclusion that the clear thrust of appellant’s points is directed to the action of the trial court in overruling her motion for new trial and hence we will consider these points adequate to invoke our fact-finding jurisdiction.

Appellant testified that she injured her back on the same occasion that she sustained the hernia. She reported the back injury to her fellow employees and to her supervisors. She was taken to Dr. J. J. Waller, Jr. and she testified that she advised him of her back injury. According to appellant, she complained of her back condition while in the Heights Hospital for her hernia operation. She presented the evidence of Dr. James Albert Brown who diagnosed a herniated disc in the lumbar area. He testified that in his opinion the accident in question was a producing cause of the ruptured disc. Mrs. Marino points out that the defendant’s medical expert, Dr. William P. Price, diagnosed a soft tissue strain of the lower lumbar region of her back.

On the other hand, appellee presented the evidence of appellant’s foreman that she had made no mention of a back injury to him. Dr. Waller testified that he had procured and recorded all complaints of pain related to him by appellant. His records contained no notation that she complained of any back pain on the date of her accidental injury. He diagnosed a right side femoral hernia. She returned to work following Dr. Waller’s examination until she was admitted to the hospital for repair of the hernia. During this period of employment she did not complain of back trouble. Upon admission to Heights Hospital, the admission sheet does not reflect any complaint of back pain. There was one complaint of back pain recorded in the nurse’s notes on the day following her surgery. During his follow-up care of the appellant after her hospitalization, Dr. Waller recorded no back complaints. Dr. Price, appellee’s orthopedic expert, although finding a soft tissue strain at the time he examined Mrs. Marino, testified that he could not state that it was a result of the lifting incident. His testimony was that it could have resulted from injury, disease or posture. Vigilant had obtained a statement from appellant after her injury. In this statement taken May 16, 1973, she stated that she had “no back ailments,” and detailed the on-the-job injury causing her hernia. While appellant with some force and reason, attacks the fairness of the means used to procure this written statement, it is nevertheless impeaching of her claimed back injury.

This record presents a typical case for the resolution of factual disputes by the jury. Under appellant’s evidence the jury could have found total and permanent disability. Under appellee’s evidence the jury could and did find that she sustained no injury other than a hernia. We have reviewed the evidence under appropriate standards and cannot find that the answers of the jury to issues number one and four were against the great weight and overwhelming preponderance of the evidence.'

Appellant is correct in her contention that special issue number four should not have been submitted since it is an inferential rebuttal issue. Rule 277, Tex.R.Civ.P., as amended states: “Inferential rebuttal issues shall not be submitted.” See Gulf Insurance Company v. Hodges, 513 S.W.2d 267 (Tex.Civ.App.—Amarillo 1974, no writ); Texas Employers Insurance Ass’n v. Mitchusson, 515 S.W.2d 168 (Tex.Civ.App.—Eastland 1974, no writ). However, appellant has not properly preserved this point for review. She did not object to the submission of special issue number four on the ground that it was an inferential rebuttal issue. Texas Employers’ Insurance Ass’n v. Neuman, 379 S.W. 2d 295 (Tex.Sup.1964). Even more fatally, she failed to incorporate this contention as an assignment of error in her motion for new trial. Tex.R.Civ.P. 320, 324, 325. Southern Roofing and Sheet Metal Company v. Paramount Construction Company, Inc., 512 S.W.2d 781, 783 (Tex.Civ.App.—Houston [14th Dist.] 1970, writ ref’d n. r. e.).

Finding no merit in this appeal and hav- • ing considered and overruled all of appellant’s points of error, this case should be, and is hereby, affirmed.

Affirmed.