author: KLINGEMAN, Justice.

text:
    STATE of Texas, Appellant, v. BEEVER FARMS, INC., Appellee.
    No. 15655.
    Court of Civil Appeals of Texas, San Antonio.
    March 2, 1977.
    Rehearing Denied April 13, 1977.

      C. W. Pearcy, Asst. Atty. Gen., Austin, for appellant.
    Paul M. Green, San Antonio, for appellee.
   KLINGEMAN, Justice.

A condemnation proceeding. The State of Texas, hereinafter called State or plaintiff, appeals from a judgment of the trial court dismissing the State’s objection to the award of the Special Commissioners and entering judgment on such award.

This condemnation case was filed by State on December 5, 1968 to acquire right of way for Interstate 35 in Frio County, Texas from Beever Farms, Inc., hereinafter called defendant. An award of $57,578.81 was made by the Special Commissioners on February 6, 1969. State timely filed its objections to the award on February 24, 1969 and deposited the sum of $57,578.81 in the registry of the court. Defendant filed its motion to withdraw such sum and thereafter withdrew such sum when such motion was granted by the court. No citation was ever served on defendant by State thereafter, but on December 8, 1972, the defendant executed a waiver of citation.

The first trial setting of this case was on February 16, 1970, but State requested and was granted a continuance at such time. The next trial setting in November of 1973 was continued after State refused to produce certain appraisal reports. Ultimately, after action by the Supreme Court of Texas, such report was delivered to defendant in October of 1974. Although some correspondence was carried on between the parties as to a possible settlement, it was to no avail.

On February 25, 1976, defendant filed its motion to dismiss for want of prosecution and entry of judgment on the Commissioners’ award. A hearing on such motion was set by the court resulting in entry of the judgment here under attack. The trial court made extensive findings of fact and conclusions of law.

State asserts 21 points of error which encompass three general areas. (1) Points of error asserting that the trial court erred and abused its discretion in dismissing its objections to the Commissioners’ award and in entering judgment on such award. (2) Points of error complaining that there is no evidence and insufficient evidence to support the trial court’s findings of fact and conclusions of law and that such findings and conclusions have no foundation in law. (3) Points of error asserting that the trial court erred in permitting defendant to interline its motion to dismiss by deleting the words “the cause” and substituting in lieu thereof “the objections.”

We first consider the points of error pertaining to the substitution of the words “the objections” in the motion to dismiss. During the hearing on the motion to dismiss defendant asked for and received permission from the court to change the words “the cause” to “the objections” in defendant’s motion to dismiss, which was done over plaintiff’s objection. This was done by striking out the words “the cause” and substituting the words “the objections.” We find no reversible error in such procedure. Rule 63, Tex.R.Civ.P., provides that amendments to pleadings shall be granted by the judge unless there is a showing that such amendment will operate as a surprise to the opposite party. Rule 66, which provides for trial amendments, states that the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense.

The allowance of trial amendments is within the sound discretion of the trial court, and unless it clearly appears that such discretion has been abused, its order permitting or refusing a trial amendment will not be disturbed. Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605 (1948); Missouri-Kansas-Texas Railroad Co. v. Gage, 438 S.W.2d 879 (Tex.Civ.App.—Fort Worth 1969, writ ref’d n. r. e.). It is abundantly clear from reading the motion to dismiss the intent and purpose of such motion and such interlineation merely confirmed the intentions of the movant as shown by the entire motion. State’s evidence as to due diligence would have been the same both before and after the amendment and the State has in no way shown surprise or prejudice. The trial court did not abuse its discretion in permitting the change or interlineation here complained of.

All the balance of plaintiff’s points of error will be discussed together. By such points of error plaintiff asserts:

(1) The trial court abused its discretion in dismissing the objection to the Commissioners’ award and in entering judgment on such award because:
(a) there is no evidence to support such dismissal and no evidence on which to base such award;
(b) there is no evidence to show a lack of due diligence;
(c) there is no evidence that would give rise to a presumption of abandonment;
(d) State rebutted the presumption of abandonment as a matter of law;
(e) State established due diligence as a matter of law;
(f) there has been a clear abuse of the trial court’s discretion.
[2] There is no evidence and insufficient evidence to support the trial court’s findings of fact and conclusions of law, and such findings and conclusions have no foundation under the evidence or the law.

It is settled that a party who files a petition must prosecute his claim with due diligence. If he fails to do this, a court has the inherent power to dismiss his claim for want of diligence in his prosecution. Pollok v. McMullen Oil & Royalty Co., 383 S.W.2d 837 (Tex.Civ.App.—San Antonio 1964, writ ref’d); Southern Pacific Transport Co. v. Stoot, 530 S.W.2d 930 (Tex.1975); 4 McDonald, Tex.Civil Practice § 17.18; 20 Tex. Jur.2d Dismissal § 33 (1960).

Our Supreme Court in Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85, 87 (Tex.1957), states the rule as follows:

[A] court has the right to dismiss a suit for failure to prosecute it with due diligence. . . . The matter rests in the sound discretion of the trial court. It is not an unbridled discretion, but a judicial discretion subject to review. Upon review, the question is whether there was a clear abuse of discretion by the trial court. That is a question of law.

Findings of fact and conclusions of law which were made in the trial court may be summarized as follows: This case was placed on a docket of the court by reasons of the objections to the award of the Special Commissioners filed by the State on February 24, 1969; State requested and was granted a continuance on the first trial setting of the case in February of 1970; the next trial setting was necessarily continued because State failed to produce certain appraisal reports of a witness to which defendant was entitled to under the rules of civil procedure; from and after October 8, 1974, when the Supreme Court ordered plaintiff to comply with this court’s order for the production of such report, plaintiff had done absolutely nothing to bring the case to trial; all delays in the disposition of the case are attributable to plaintiff. The court concluded that this case has been on file in this court for an unreasonable length of time; that during such unreasonable length of time there has been no significant action to bring the case to trial; that a delay of unreasonable duration has occurred in the prosecution of this case, which delay is solely attributable to plaintiff; there is a presumption that plaintiff had abandoned the prosecution of this case; that plaintiff, upon hearing, failed to establish a reasonable explanation for the delay in prosecuting this case.

Although plaintiff now complains of such findings and conclusions, no objections or exceptions were taken to the findings and no request for additional findings was made.

Under the record we cannot say there is no evidence to support the trial court’s findings of fact and conclusions of law, nor does the record substantiate State’s contention that such findings have no support under the evidence or the law. In this proceeding the burden was on the State to show good reason for the delay. The court found that it failed to do so, and its findings in this regard are not against the great weight and preponderance of the evidence, and are sufficiently supported by the evidence.

Plaintiff makes some contention that it was defendant’s [condemnee’s] burden to prosecute this case even though it did not file any objections to the Commissioners’ award and is perfectly satisfied with such award, citing Stuart v. Harris County Flood Control District, 537 S.W.2d 352 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n. r. e.), in support of such contention. While there is some language in Stuart which might support such contention, that case differs factually in the case before us, in that the condemnee, not the condemnor, filed objections to the award and thereafter withdrew such award and the alleged delay was on the part of the party who filed the objections. Moreover, it seems clear from the language and holding of the entire case that the court was speaking only in terms of objections filed by the condemnee in that the court stated:

The court correctly ordered a hearing to afford the party who had the burden of proceeding to trial (here the condemnee) an opportunity to prove good reason for the delay.

It can be argued that State [condemnor] is not a true plaintiff in this type of proceeding in that (1) regardless of who files objections, the condemnee has the burden of proving the value of the property at the trial. State v. Jackson, 388 S.W.2d 924 (Tex.1965); (2) condemnee would have the right to open and close argument. Wagoner v. City of Arlington, 345 S.W.2d 759 (Tex.Civ.App.—Fort Worth 1961, writ ref’d n. r. e.).

We have concluded that the more logical and better view is that the person who filed the objections has the burden to proceed to trial for a number of reasons. (1) Under the provision of Art. 3266, § 6, Tex.Rev.Civ. Stat.Ann. (1968), the party filing the objections has the burden of citing the adverse party. Ordinarily, the party who has the burden of issuing citation also has the burden to proceed. This position finds support in the Supreme Court’s holding in Denton County v. Brammer, 361 S.W.2d 198 (Tex.1962), wherein the Court placed the burden to proceed on the condemnee, who had filed objections to the award, stating that since the duty devolved upon the condemnee to cause the issuance of citation it was logical to say that he must act with reasonable diligence.

Moreover, under Rule 165a, Tex.R.Civ.P., a case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to diligently prosecute its claim. In the case before us, State was the movant and was the party seeking affirmative relief. The defendant did not file any objections to the award of the Special Commissioners and is perfectly happy with such award. It is illogical to place the onus of proceeding to trial on defendant in that it places the burden to proceed on the party who never wanted a trial in the first place. Under the State’s theory they could file objections and then do nothing ad infitum, without penalty. We hold that the burden to proceed to trial on this case was on the State.

In Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489 (1947), the Court said:

Once the court’s jurisdiction attaches to a motion which is made in accordance with the terms of this statute, the jurisdiction is not afterwards disturbed by the mere passage of time. Nevertheless, in going forward with the prosecution of the motion, as he is required to do, the movant is bound to exercise at least as high a degree of diligence as is required of a plaintiff in an independent suit. * * * Where the defendant in a suit is called to answer and has responded to the call, the duty devolves on the plaintiff to proceed in prosecuting the suit to a conclusion with reasonable diligence, and whenever a delay of an unreasonable duration occurs, such delay, if not sufficiently explained, will raise a conclusive presumption of abandonment of the plaintiff’s suit, and a discontinuance results.

Both plaintiff and defendant rely on the Supreme Court’s holding in Denton County v. Brammer, supra. In Brammer, the con-demnee filed objections to the Commissioners’ award and after a long delay the con-demnor filed a motion to dismiss the objections. The trial court summarily overruled the motion to dismiss without hearing evidence. The majority of the Supreme Court held that there was a conclusive presumption of abandonment under the facts and rendered judgment dismissing the objections and confirming the Commissioners’ award as the proper judgment, stating:

It is our opinion that the trial court did abuse its discretion in failing to hold that the circumstances above mentioned raised a conclusive presumption that Brammer had abandoned his objections.
* * * * * *
While mere lapse of time between the filing of objections and the trial in this cause cannot operate as an abandonment by Brammer, of his objections and exceptions to the award, the circumstances of this cause raised a conclusive presumption of abandonment by Brammer of his objections, and since such circumstances were wholly unexplained, there was a clear abuse of judicial discretion on the part of the trial court in overruling Den-ton County's motion to dismiss.

The dissenting opinion felt that since no opportunity had been offered to Brammer to present evidence to the trial judge to explain his undue delay, the trial judge had no opportunity to exercise his discretion in adjudicating the basic facts of the discontinuance, and that the case should be reversed and remanded to the trial court with directions to hear such evidence as Bram-mer might care to offer on his motion to dismiss, and that if good reason for the delay is not shown by Brammer on such hearing, his objections should be dismissed and judgment should be entered on the award just as though no objections had been filed.

In such dissenting opinion, Justice Calvert, writing for the dissent, set forth the following rule:

One who files a judicial proceeding owes a duty to prosecute it with due diligence. When a motion to dismiss a proceeding on the ground of abandonment is filed, the trial court must first determine whether the proceeding has been on file, without action, for an unreasonable length of time. If it has not, the motion should be overruled summarily. If it has, a rebut-table presumption of abandonment arises, and an opportunity should be afforded the party who filed the proceeding to prove, if he can, that he had good reason for his delay in prosecuting the proceeding. If he fails or refuses to offer proof, or if the proof offered fails to show good reason for the delay, the presumption is not rebutted and becomes conclusive, and the motion to dismiss should be granted. If proof is offered and does show good reason for the delay, the presumption is rebutted and the motion should be overruled. Whatever may be the action of the trial court, and at whatever stage it is taken, it is to be taken in the exercise of sound judicial discretion and is erroneous only if it is so arbitrary as to constitute an abuse of discretion.

We have concluded that the trial court’s holding in the case before us is correct, both under the rules set forth by the majority and the dissent. A hearing was had on the motion to dismiss, and the parties given full opportunity to present whatever evidence they desired to present, and only after such hearing did the trial court enter its order' dismissing the proceedings.

The trial court made a finding that the cause had been on file an unreasonable length of time after the filing of objections by the State, and that a rebuttal presumption of abandonment or lack of due diligence arose. The trial court correctly ordered a hearing to afford the party who had the burden of proceeding (here the State) an opportunity to prove good reason for the delay. The court, after such hearing, concluded that the proof offered by the State failed to show good reason for the delay, whereupon the presumption of abandonment — or lack of due diligence — -became conclusive. In the exercise of its sound judicial discretion the court ordered the objections dismissed and entered judgment on the award. No abuse of discretion is shown.

All of State’s points of error have been considered, and all are overruled. The judgment is affirmed.

      . Ex parte Shepperd, 513 S.W.2d 813 (Tex.1974).

      . Plaintiff makes some contention that there is no authority to enter judgment on the award of the Special Commissioners after the objections have been stricken or dismissed, and the trial court erred in making such an award. We disagree. Such holding finds support in numerous authorities, including Denton County v. Brammer, supra; Stuart v. Harris County Flood Control District, supra; Moss v. State, 361 S.W.2d 408 (Tex.Civ.App.—Eastland 1962, no writ); Smith v. State, 388 S.W.2d 291, 293 (Tex.Civ.App. — Houston 1965, writ ref'd n. r. e.).


source: Caselaw Access Project

author: DIES, Chief Justice. KEITH, Justice,

license: Public Domain

text:
    ATCHISON, TOPEKA & SANTA FE RAILWAY CO., Appellant, v. Charles McCARTNEY, Appellee.
    No. 7879.
    Court of Civil Appeals of Texas, Beaumont.
    March 3, 1977.
    Rehearing Denied March 17, 1977.

      William J. Cornelius, Jr., Galveston, for appellant.
    J. Donald Bowen, Houston, for appellee.
   DIES, Chief Justice.

This is a Federal Employers Liability Act case wherein Charles McCartney as plaintiff below was awarded $450,000 by a jury in a suit against the Atchison, Topeka and Santa Fe Railway Company, defendant below, and from which the latter perfects this appeal. The parties will be referred to as they were below, or by name. Santa Fe does not challenge the jury’s findings of its negligence, but urges the award of $450,000 is excessive.

The subject of appellate review of excessive damages is covered extensively in the majority and concurring opinions found in Collins v. Gladden, 466 S.W.2d 629 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.). See also, Cezeaux v. Libby, 539 S.W.2d 187 (Tex.Civ.App.—Beaumont 1976, no writ). It would do little good to repeat the admonitions and difficulties confronting an appellate court in discharging this responsibility, and only unduly lengthen this opinion. In the end, it is a judgment call on our part whether the jury award is supported by the evidence. And each case stands on its own bottom.

Charles McCartney, plaintiff, finished the twelfth grade in Silsbee High School in 1971. Following that, he went into the feed store business, and, when that failed, he went to work for Santa Fe on the bridge gang. Two months later, he became a brakeman, a job which requires climbing off and on cars. His pay as brakeman was about $1,500 per month. On July 16, 1974, at about 6:20 a. m., he was on the end of a gondola car loaded with rock. He was to “set the brake” which is “a round wheel that you turn by hand.” This car had been uncoupled and “kicked” by the engine. This caused the rock-loaded car to “roll free”. Plaintiff tried to set the brake, but it “wouldn’t hold”. An engine was backing down on him; he realized his car and the engine would come together hard; so he changed position to the “collar band” thinking his chances of holding there to be better. The “collar band” is lower than the brake platform. “When I was stepping down, I had my left foot down and when I was stepping down with my right foot, it slipped and the cars hit and kind of throwed it into the draw-bar or band as the draw-bar was going in.” The draw-bar came in and caught his foot against the band. He looked down and “seen my shoe was bloody”. He pulled off the shoe and saw that his little toe was in the shoe. Pieces of meat were also in the shoe. His sock was shredded and mingled in with his skin. He was losing blood. It became painful. The radio in the engine was out; so plaintiff hopped to a road, flagged a pickup, which took him to a Silsbee hospital. An ambulance then took him to St. Elizabeth Hospital in Beaumont.

Dr. Scott Wallace performed the first of a series of operations. After a week, he left the hospital with only the loss of the little toe “along with some meat”. He then developed gangrene and returned to have the second and third toes down to the first joint removed, as well as the underneath part of the big toe. He was unable to move the big toe. His next operation was a skin graft. He tried walking then with a “boot”, but the pain never left. He went back for further surgery. More bone was removed. His condition did not improve; so further surgery removed all of the remainder of his toes and part of the ball of the foot (May 1975). He still couldn’t function; so a fifth operation (August 1975) removed more bone. Following this, he developed neuromas in the foot, which causes pain when anything (such as a sock) touches the foot. A sixth operation removed the neuromas (January 1976). The circulation in the foot is not normal, causing the foot to be blue or black in color. He was on crutches at the time of the trial. The foot is cold and pains more when held down. He is unemployed, has moved in with his father because of finances. He cannot climb up a car or walk from one to another. He has no training for any kind of a sit-down job. It “bothers” him that he cannot support his family. He was twenty-one years old when the accident occurred.

His wife, Densy, described how plaintiff loved the outdoors, the pain plaintiff had suffered, and the anxiety he experienced from taking pain pills.

Dr. Kermit Veggeburg, an orthopedic surgeon who first saw plaintiff December 3, 1975, described the injury thusly: “[Tjhis is a crush of the whole foot. More especially, the toes, so you might say it’s sort of like closing up something in a vise. As it appears to me, you get lots of spasm of the blood vessels, you get a lot ripping and rending of the tissues deep down in the structure of the foot, in between the bones, and in the areas that were the greatest involved, there was not enough circulation, obviously, to maintain life. These areas died, and had to be gotten rid of. . [S]o I would say the whole foot was really involved.”

Plaintiff was suffering a lot of pain when the doctor saw him; his foot was cold, sweating and cyanotic (blue). In addition to the conditions already described, plaintiff has developed Sudek atrophy of the right foot, a condition which itself is painful. If his condition persists, the doctor recommends a lumbar sympathetic block (injection of fluid on the side of back vertebra or surgical removal of the nerves). His future is sedentary, not as a manual laborer. He is going to have some degree of pain for the rest of his life. “I would rate him as a person who can walk twenty-five percent of the time . . . ” He will not be able to do the kind of work required of a brakeman.

Dr. Scott Wallace, the Beaumont orthopedist who performed the operations on plaintiff, said, “[W]e have had to do the other procedures mainly to attempt to get him a comfortable surface to walk on”, but since the surgery “he’s had some continued problem in that he has some vascular problems; he gets some discoloration when the foot’s down.”

Dr. Wallace was asked “whether or not he’s [plaintiff is] going to be able to go back to work and become a productive man?” His answer was, “I hope he can.” Dr. Wallace hoped plaintiff would be able to do clerical work inside an office, but he did not believe he could go back to his railroad work. Dr. Wallace also believed plaintiff had developed Sudek’s atrophy. The doctor’s previous optimism of plaintiff’s prognosis turned out to be unfounded. He still has plaintiff on pain medication.

The elements which the jury in this case was instructed to consider were: past and future physical pain; past and future mental anguish; past loss of earnings; loss of future earning capacity, and disfigurement.

In determining whether a verdict is “excessive”, the courts must review only that evidence favorable to the award, and the findings of the jury thereon will not be disturbed on the ground of “excessive” if there is any evidence to sustain the award. Hammond v. Stricklen, 498 S.W.2d 356 (Tex.Civ.App.—Tyler 1973, writ ref’d n. r. e.); Monsanto Company v. Milam, 480 S.W.2d 259 (Tex.Civ.App.—Houston [14th Dist.] 1972), affirmed, 494 S.W.2d 534 (Tex.1973); Sunset Brick & Tile, Inc. v. Miles, 430 S.W.2d 388 (Tex.Civ.App.—Corpus Christi 1968, writ ref’d n. r. e.).

Here, we have a young man with a life expectancy of 49.4 years, and a work expectancy of 40.6 years earning $1,500 monthly who will never be able to return to his former employment, and he has no training for any other. It is undisputed he has suffered great pain, and will suffer pain probably indefinitely in the future, and the condition of the foot and the “boot” he must wear are to some extent disfiguring. These have led us to the conclusion that $450,000 is not an excessive award. This point is overruled. Appellant has one other point which we find to be without merit, and it is overruled.

The judgment of the trial court is affirmed.

AFFIRMED.

KEITH, Justice,

dissenting.

Contrary to what is said in the majority opinion, the award in this case is so excessive as to shock the conscience of this member of the court.

In his second question asked upon the trial of this cause, counsel for the plaintiff established the fact that plaintiff bore the nickname of “Sluggo”. Counsel then succeeded in selling five of Sluggo’s toes upon one foot to the Santa Fe for NINETY THOUSAND (tax proof) DOLLARS each. Thus, Sluggo and counsel left the courthouse with a judgment against a solvent defendant which ordered paid to him — in a lump sum, without discount, and tax free-his gross income for more than twenty-five years in the future.

We are here dealing with a young man in the prime of life with no disabling injuries other than those confined to his right foot. Yet, the majority finds that this award is not excessive and cites three cases. An examination of the cited cases reveals that six persons received severe and crippling injuries described in detail in the several opinions. Yet, these six persons collectively were awarded less than sixty percent of the sum awarded to our plaintiff.

I recognize the right of a jury to assess damages; still, I would give recognition to the constitutional duty imposed upon trial judges and those of the intermediate courts of this state, to review such judgments to determine excessiveness. I decline to shirk this second duty. We have a young man who has lost his toes upon one foot. With a monetary award such as he now has almost in hand, there is little incentive for him to attempt other gainful employment. Indeed, with judicious management of this large sum of money, he can earn tax free interest far in excess of his gross earnings on the railroad.

Since I would require a substantial remit-titur as a condition of affirmance and cannot convince my colleagues of the justness of my position, I dissent.

      . One of the more unpleasant duties of an intermediate appellate judge in Texas is that of passing upon claims that damage awards are excessive. So long as I continue in this office, I will strive to discharge that duty. I have concurred in requiring remittiturs. Collins v. Gladden, 466 S.W.2d 629, 637 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.). I have filed a “Non-Concurring Opinion”, expressing some degree of frustration as to the state of the law on the subject. Cezeaux v. Libby, 539 S.W.2d 187, 190 (Tex.Civ.App.—Beaumont 1976, no writ). While I have now come about in a full circle, I have not retreated from the position I staked out in Collins, supra. I now dissent.

      . Mrs. Stricklen was awarded $66,565.20 (498 S.W.2d at 358); Milam’s award was $83,750 (480 S.W.2d at 267). Four plaintiffs in the Sunset Brick Case received the sums set opposite their respective names: Wessels — $14,250; Baggett — $26,250; Miles — $73,500; and Vincent — $2,625 (430 S.W.2d at 393, 394). The total amount awarded these six plaintiffs was $266,940.20.
      On March 5, 1977, Sluggo’s judgment will have a value of FOUR HUNDRED NINETY THOUSAND, FIVE HUNDRED (tax proof) DOLLARS, which will increase before our judgment is final.


author: CHADICK, Chief Justice.

text:
    John L. WALL, Appellant, v. EAST TEXAS TEACHERS CREDIT UNION, Appellee.
    No. 8460.
    Court of Civil Appeals of Texas, Texarkana.
    March 8, 1977.
    Rehearing Denied April 19, 1977.
    Tom Bankhead, Bankhead & Davis, Carthage, for appellant.
    R. L. Whitehead, Jr., Whitehead-Beck-worth, Longview, for appellee.
   CHADICK, Chief Justice.

This is an appeal from the judgment of the District Court to which the Supreme Court of Texas remanded, with instructions, a suit upon a promissory note. The defendant below, John L. Wall, was dissatisfied with the judgment and has perfected an appeal. The judgment of the trial court is affirmed.

Appellant Wall briefs as reversible error the failure of the trial court to award him reasonable attorney fees “ . . . as mandatorily required in Article 5069-1.06 . ” and for “ . . . failing to find reasonable attorney fees due and owing . ” to Wall as “ . . . the undisputed facts showed the same to be $2,500.00.”

The Supreme Court’s mandate to the trial court required the trial court to determine “ . . . the amount of attorney fees for which petitioner, John L. Wall, is additionally liable.” The instruction is unambiguous, clear and understandable; there is no reason to subject it to construction. The language of the mandate as a whole, as well as its quoted language pertaining to attorney fees specifically, does not contemplate or imply that the additional attorney fee liability of any party, except John L. Wall, is remanded to the court for determination. When the Supreme Court remands a case and limits a subsequent trial to a particular issue, as in this instance, the trial court is restricted to determination of that particular issue. McConnell v. Wall, 67 Tex. 352, 5 S.W. 681 (1887); Humble Oil & Refining Co. v. Kishi, 299 S.W. 687 (Tex.Civ.App. Beaumont 1927, writ ref’d); 4 Tex.Jur.2d, Rev., Part 2, Appeal and Error — Civil Cases, Sec. 979. The record contains no basis for the trial court to award Wall attorney fees and it was not error to refuse to do so.

The judgment of the trial court is affirmed.

        Wall v. East Texas Teachers Credit Union, 533 S.W.2d 918 (Tex.1976).


author: GUITTARD, Chief Justice.

text:
    In re the ESTATE of Virginia L. O’HARA, Deceased.
    No. 19111.
    Court of Civil Appeals of Texas, Dallas.
    March 15, 1977.

      Lawrence Fischman, Weil, Craig & Fisch-man, Dallas, for Richard L. Brown.

      Gene W. Francis, Passman, Jones, Andrews, Coplin, Holley & Co., Dallas, for appellants Georgia L. Adams, Arthur L. Brown, Mrs. F. Prescott Jumper and Mrs. James Stillman.
    John L. Hauer, Lee M. Simpson, Akin, Gump, Strauss, Hauer & Feld, Dallas, for appellee Foundation for the Arts.
    Charles G. Purnell, George E. Bowles, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellee Dallas Museum of Fine Arts.
    Stephen J. Wilkinson, Asst. Atty. Gen., Austin, for Atty. Gen. of Texas.
    E. Taylor Armstrong, Donald A. Swanson, Jr., Storey, Armstrong, Steger & Martin, Dallas, for First National Bank in Dallas.
   GUITTARD, Chief Justice.

This action was brought by First National Bank in Dallas as executor under the will of Virginia L. O’Hara, deceased, to construe the provision of the will leaving a part of the residuary estate to “The Foundation for the Arts (Dallas Museum of Fine Arts).” The petition names as defendants The Foundation for the Arts and Dallas Museum of Fine Arts, which are two distinct entities, and also the decedent’s heirs at law. The Museum disclaimed in favor of the Foundation. The trial court granted summary judgment declaring the Foundation to be the beneficiary of the legacy in question. One of the heirs, Richard Brown, appeals on his own behalf, and the heirs as a group also appeal. All of the heirs contend that the legacy is void because it is so incurably ambiguous that the intent of the testatrix cannot be discovered, even with the aid of extrinsic evidence. In the alternative, they contend that summary judgment was improper because the intent of the testatrix was a fact issue which should have been submitted to a jury. Appellant Brown also contends that the trial court had no jurisdiction because certain other beneficiaries named in the will are indispensable parties and have not been joined.

We hold that the other beneficiaries are not indispensable parties and that the will, when construed in the light of the circumstances, is not ambiguous. Consequently, we affirm the summary judgment in favor of the Foundation.

Nonjoinder of Other Beneficiaries

The controversy concerns Item III of the will, as follows:

I give, devise and bequeach all of Che rest and residue of my property and estate unto the charities hereinafter named that percentage of said rest and residue which is set opposite the name of the respective charity, to wit:

Subsequent subdivisions of Item III specify other beneficiaries and the percentages bequeathed to each. The percentages aggregate one hundred percent. Appellant Brown did not formally raise the question of nonjoinder in the trial court, but he contends that it was fundamental error for the trial court to proceed without the other residuary beneficiaries named in Item III because they have a potential claim based on the theory that if the legacy in question fails for ambiguity, the failed legacy must be distributed among the remaining residuary beneficiaries.

We do not agree that nonjoinder of the other beneficiaries is fundamental error. Since Rule 39 of the Texas Rules of Civil Procedure was amended in 1971 to correspond to the amended Rule 19 of the Federal Rules of Civil Procedure, the Supreme Court of Texas has observed that it is “rare indeed” that the presence of a person is indispensable in the sense that his absence deprives the court of jurisdiction to adjudicate between the parties already joined. The court said that under present Rule 39, the concern “is less that of the jurisdiction of a court to proceed and is more a question of whether the court ought to proceed with those who are present.” Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200, 204 (Tex.1974). Thus, in Cooper, a married woman was held not to be an indispensable party to a suit by her husband to rescind a contract for sale of community real estate, although she could not be bound by the judgment in such a suit. In a companion case, Dulak v. Dulak, 513 S.W.2d 205 (Tex.1974), the supreme court held that failure to join a married woman in a suit brought against her husband to cancel the release of a joint note was not fundamental error. For a discussion of Cooper and Du-lak and a thorough analysis of the implications of Rule 39, see Dorsaneo, “Compulsory Joinder of Parties in Texas,” 14 Hous.L. Rev. 345 (1977).

Accordingly, we look to the provisions of Rule 39, as interpreted in Cooper and Du-lak, to determine whether the judgment of the trial court must be set aside because of nonjoinder of the other beneficiaries named in the will. Appellant Brown argues that these absent beneficiaries must be joined because even if appellants should be successful in obtaining a declaration that the legacy in question is void, they would still have to litigate entitlement to the failed legacy with the absent beneficiaries. He insists that their joinder is required by the following provisions of paragraph (a) of Rule 39:

A person . . . shall be joined as a party in the action if (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may . . . (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.

We need not consider this contention because it was not raised in the trial court by proper objection or plea in abatement. Appellant Brown attempts to raise it here as fundamental error, but we conclude that under amended Rule 39, as interpreted in Cooper and Dulak, the concept of fundamental error no longer includes potential prejudice to existing parties as a result of failure to join persons who might have been joined if a proper objection or plea in abatement had been presented. On appeal the question is not merely whether the trial court should have proceeded without requiring joinder of absent persons, but whether, having proceeded to judgment without objection, the result of the proceedings must now be undone. This is an added factor that must be weighed, along with the other criteria enumerated in Rule 39, when the question of nonjoinder is raised for the first time on appeal. If the interest of any of the existing parties has been prejudiced by nonjoinder of the absent beneficiaries, that interest must now be considered foreclosed because they failed to raise the point in the trial court. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 110, 126, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968), cited and followed in Cooper v. Texas Gulf Industries, Inc., supra, 513 S.W.2d at 204.

This holding, however, does not solve the problem of fundamental error. Notwithstanding the supreme court’s observation in Cooper that fundamental error because of nonjoinder is “rare indeed,” we are of the opinion that nonjoinder may still be fundamental error if the judgment would adversely affect the interests of absent parties who had no opportunity to assert their rights in the trial court. See Provident Tradesmens, supra, 390 U.S. at 110, 88 S.Ct. 733. In this connection we note that paragraph (a) of rule 39 requires joinder of an absent person who is subject to service of process if “ (2) he claims an interest in the subject matter of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest.” Under this provision, if it appears on appeal that absent persons claim interests in the subject matter and their ability to protect those interests will be impaired or impeded by the trial court’s judgment, then their nonjoinder is fundamental error unless the record shows that their joinder was not feasible. In that event the question is whether the trial court could properly proceed in their absence “in equity and good conscience” under paragraph (b) of Rule 39.

We conclude that nonjoinder of the absent beneficiaries in this case is not fundamental error. The record does not show that any of these beneficiaries “claim an interest relating to the subject of the action.” The subject of this action is not the entire estate of the decedent, or even the various residuary legacies provided for the absent beneficiaries, but only the 29.410 percent of the residuary estate bequeathed to “The Foundation for the Arts (Dallas Museum of Fine Arts).” So far as appears, the absent beneficiaries claim only the portions of the residuary estate bequeathed to them, and do not claim any part of the legacy in question, even if it should fail.

If we may properly consider the potential claims as well as actual claims of absent persons in determining the existence of fundamental error, the question remains whether, as a practical matter, a substantial ground exists for the assertion of such claims. It is not enough to assert, as does appellant Brown, that the absent beneficiaries have potential claims that cannot be adjudicated in their absence. Under Rule 39, mere assertion that someone has a potential claim does not establish that the alleged claimant must be joined before the action can proceed. Neither will such an unsupported assertion suffice on appeal to require that the result of the proceeding in the trial court be undone. The court must examine the potential basis of the claim to determine whether, as a practical matter, the absent persons have interests in the subject matter and, if so whether the disposition made by the trial court will impair or impede their ability to protect those interests.

By this standard we find no basis to hold that the absent beneficiaries have interests which the judgment will impair or impede. The rule is well established that when a residuary bequest or devise fails, the property in question passes to the heirs rather than to the other residuary beneficiaries. Sellers v. Powers, 426 S.W.2d 533, 537 (Tex.1968); 4 PAGE on WILLS, § 33.56 (Bowe-Parker ed. 1961). This rule applies with particular force here, since the bequest in question is a specified percentage of the residuary estate, and each of the other residuary beneficiaries is also bequeathed a specified percentage. Thus it is clear that even if the residuary bequest now in question should fail, the other residuary beneficiaries would receive only the percentages specified. Consequently, there is no reason to suppose that they have any interests that may be prejudiced by the judgment in this case.

In addition to his contention under Rule 39, appellant Brown asserts that the absent beneficiaries are necessary parties as a matter of substantive law under the Declaratory Judgment Act, Tex.Rev.Civ.Stat.Ann. art. 2524-1(11) (Vernon Supp. 1976). In support of this contention, Brown cites Crickmer v. King, 507 S.W.2d 314 (Tex.Civ.App.-Texarkana 1974, no writ) and Jennings v. Srp, 521 S.W.2d 326 (Tex.Civ.App.-Corpus Christi 1975, no writ). We regard those eases as distinguishable because they involved absent devisees and legatees whose rights to take the property in question were directly affected by the judgment. In this case we have already determined that the interests of the absent beneficiaries will not be so affected. Consequently, their joinder is no more required by the Declaratory Judgment Act than by Rule 39.

Construction of Legacy

The heirs contend that since this provision of the will names both The Foundation for the Arts and Dallas Museum of Fine Arts, but fails to provide which of the two shall be entitled to the percentage specified, the legacy is incurably uncertain and ambiguous. This argument ignores the parentheses enclosing the name “Dallas Museum of Fine Arts.” Parentheses are normally used to provide some sort of explanation or qualification of other matter in the text. Thus, by providing this particular legacy for “The Foundation for the Arts (Dallas Museum of Fine Arts) in Dallas, Texas,” the testatrix evidently intended that the property should go to The Foundation for the Arts and that the parenthetical reference to the Dallas Museum of Fine Arts should identify the Foundation as having some connection with or relation to the Museum. The parentheses exclude the idea that she intended to leave any property to the Museum itself.

This interpretation of the will is confirmed by the summary-judgment proof. Our consideration of the evidence extrinsic to the will need not include declarations by the testatrix concerning her intent. Words, however, always need interpretation in their application to external things. The court may always receive and consider evidence concerning the circumstances existing when the will was written that will enable the court to place itself in the testator’s position at the time and thus to determine the sense in which the words were used by the testator. Stewart v. Selder, 473 S.W.2d 3, 7 (Tex.1971). When evidence of such circumstances is considered in this case, it shows without dispute that there is no entity in Dallas, Texas, known as “The Foundation for the Arts (Dallas Museum of Fine Arts),” but that there is a Foundation for the Arts and also a Dallas Museum of Fine Arts, and that the testatrix was a member of the board of directors of the Museum. The evidence further shows that there is a connection between the two, in that one of the principal activities in which the Foundation is engaged is acquisition of paintings for display by the Museum. From this evidence it appears that reasonable minds could not differ with the conclusion that when the testatrix provided that a certain portion of her residuary estate should go to “The Foundation for the Arts (Dallas Museum of Fine Arts),” she intended to leave this part of her property to that particular Foundation for the Arts which was associated and connected with the Dallas Museum of Fine Arts, and that she did not intend that the Museum itself should be the direct beneficiary.

We reject, likewise, appellants’ argument that if extrinsic evidence must be considered to determine the intent of the testatrix, that intent is a question of fact to be determined by a jury. Since extrinsic evidence is always admissible to show the sense of the words of the will, as the supreme court announced in Stewart v. Selder, supra, the words may be considered ambiguous only if the meaning remains unclear after extrinsic evidence is received and considered. Long before Stewart v. Selder, the supreme court declared that construction of a written instrument is ordinarily a question of law for the court, and even if it contains language on its face ambiguous, but extrinsic evidence of circumstances is undisputed, construction of the instrument is still a question of law for the court. Brown v. Payne, 142 Tex. 102, 176 S.W.2d 306, 308 (1943); Turner v. Montgomery, 293 S.W. 815, 816 (Tex.Com.App. 1927, jdgmt. adopted). When the present will is considered in the light of the undisputed evidence of the circumstances at the time of its execution, no reasonable doubt remains that the testatrix intended that the legacy in question should go to The Foundation for the Arts rather than to the Dallas Museum of Fine Arts. Consequently, we hold that the will is not ambiguous and that summary judgment was proper.

Appellants call our attention to certain testimony in the deposition of the attorney who wrote the will concerning his conversations with the testatrix. They insist that this testimony shows that the statements of the testatrix concerning her intentions were so ambiguous that the attorney himself could not understand them and that he followed her instructions literally and thus left this provision incurably uncertain. We need not decide whether such declarations would be admissible to resolve a specific problem of interpretation such as a genuine equivocation or latent ambiguity. See Stewart v. Selder, supra, at 7. We hold that such declarations cannot be considered for the purpose of creating an ambiguity when the language of the will itself, when considered in the light of the circumstances, is reasonably certain. Cf. Lewis v. East Texas Finance Co., 136 Tex. 149, 146 S.W.2d 977, 980 (1941) (description of land in lease was not ambiguous after applying settled rules of construction; hence parol evidence was not admissible to show parties’ intention).

Finally, appellants complain of the trial court’s consideration of an affidavit of Frederick M. Mayer. They assert that since Mayer is a director of the Foundation, he is an interested witness whose testimony can only raise a fact issue. This point does not present reversible error because the judgment is fully supported by other undisputed evidence in the record and because Mayer’s affidavit, at least insofar as it concerns the circumstances at the time of execution of the will, is not within the interested-witness rule. Mayer’s affidavit concerns both the arrangements between the Foundation and the Museum and his conversations with the testatrix before she signed the will. Since we hold that the will is not ambiguous in the light of the undisputed evidence of the circumstances, we need not consider whether the trial court could properly consider Mayer’s statements concerning declarations by the testatrix. Insofar as Mayer’s affidavit concerned the relationship between the Foundation and the Museum and the membership of testatrix on the board of the Museum, his testimony is uncontradicted, clear, direct, and free from circumstances tending to impeach or discredit it. Consequently, at least in this respect, it is within the exception to the interested-witness rule recognized in Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).

Affirmed.


author: PER CURIAM.

text:
    Thomas E. PERRY, et al., Appellants, v. NUECES COUNTY, Texas, et al., Appellees.
    No. 1190.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 21, 1977.
    Rehearing Denied April 14, 1977.

      Charles R. Porter, Jr., Porter, Taylor, Gonzalez, Thompson & Rogers, Corpus Christi, for appellants.
    C. Edwin Prichard, Michael J. Wester-gren, Andrew J. Lehrman, Corpus Christi, for appellees.
   OPINION

PER CURIAM.

This is an attempted appeal from a judgment nunc pro tunc rendered against appellants on November 12, 1976. Appellees have filed a plea to the jurisdiction and motion to dismiss the appeal.

The original judgment was rendered by the trial court on September 16, 1976. The motion for new trial following the first judgment was not timely filed. Thereafter on November 12,1976, the appellants filed a motion to enter a judgment nunc pro tunc which was granted and a new judgment was entered. A new motion for new trial, this time timely filed as to the new judgment, was thereafter overruled on November 16, 1976. Proper appellate steps in this appeal would date from the latter judgment if the nunc pro tunc judgment were valid. Rule 306b, T.R.C.P. Otherwise, we lack jurisdiction of tAis appeal.

Appellants in this cause contend that an error was made in the entry of the September 16 judgment because the judgment in the minutes of the court does not accurately reflect the judgment as pronounced from the bench. The error on which they rely is an alteration in a letter designation following the district clerk’s cause number. A background of the facts is important for a proper determination of this case.

When the case was originally filed, it was assigned cause number 74-3048-B. The letter following the numeric sequence of digits is an identification system used by the Nueces County District Clerk to indicate the particular district court to which the case has been assigned. Throughout the time in which any case is active, the letter designation following the cause number is subject to change in the event the particular case is transferred between the various District Courts of Nueces County, but the numeric digits assigned in accordance with Rule 23, T.R.C.P., never change. In the instant case, the cause was originally assigned to the 117th District Court whereupon the district clerk placed the letter “B” following the cause number so that it would correspond with the district clerk’s lettering system for the 117th District Court. Thereafter, the case was assigned to the 214th District Court and the letter designation was changed to “F” to correspond with the lettering system for that court. Subsequently and finally, the case in question was transferred to the 94th District Court which has a “C” letter identifying it.

The record shows that thereafter when pleadings and orders were prepared for filing, the attorneys who prepared such papers almost invariably continued to use the original letter “B” (which was first assigned when the case was first filed) even though such letter did not properly correspond with the lettering system used by the district clerk’s office. Whenever this happened, the district clerk’s personnel would correct the court papers by drawing through the incorrect letter and substituting the correct letter designating the court to which the case “C” was then assigned, (i. e., “-F’).

On August 2, 1976, the Judge of the 94th District Court (which is the “C” court according to the district clerk’s lettering system) ordered a severance of the case. He identified the two severed causes as 74-3048-B — 1 and 74-3048-B-2. Actually, if the trial Judge of the 94th District Court had been following the district clerk’s correct lettering system, the two severed causes should have been 74-3048-C-l and 74-3048-C — 2. However, upon receipt of the order of severance for filing, a deputy district clerk (without the authority of the trial court insofar as the record reflects or from any of the attorneys involved in the case) drew a line through the letter “B” at the top of the page and substituted the letter “C” as she had done in other papers in this cause. The order was then placed in the minutes of the 94th District Court. This same procedure was followed at the time that the judgment was entered. Whoever prepared the original judgment for the trial court’s signature used the original (correct) cause number, the original district clerk’s court designated letter (“B” which was incorrect) and the (correct) number “1” to indicate the particular severed lawsuit that was tried to judgment, i. e., 74-3048-B — 1. After the judgment was rendered and signed, a deputy district clerk again crossed through the letter “B” at the top of the page and wrote above it the letter “C” and filed the judgment in the minutes of the 94th District Court. The appellants contend that the judgment which carried the designated letter “B” and which was signed by the trial court, should have carried forward the same designated letter “B” when it was recorded in the minutes of that court. Since the trial court’s judgment, although correct in every other detail, was entered in the minutes of the 94th District Court with the letter “C”, a judgment nunc pro tunc was sought to change the letter “C” back to a “B”, so that the judgment transcribed into the records of that court would accurately reflect the original judgment rendered by such court.

The first level of inquiry is to ascertain whether an error in the judgment entered into the minutes of the court occurred when the district clerk substituted the letter “C” for the letter “B”.

There can be no contention that the above discrepancy in the letters was a judicial error. The basic difference between clerical and judicial errors was explained in detail in Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912). See also Reavley and Orr, Trial Court’s Power to Amend its Judgments, 25 Baylor L.Rev. 191 (1973). Any error committed in the judicial act of rendition can only be corrected by the trial judge during the time in which he has jurisdiction over his judgment.

The law concerning clerical errors has been stated many times: if a judgment, as rendered by a trial court, is not faithfully transcribed into the records of that court, the error is clerical. The power of courts to have their records at all times accurately reflect the judgments as rendered is inherent to correct or amend their records by nunc pro tunc judgment.

“The failure of the minute entry to correctly or fully recite what the court judicially determined does not annul the act of the court, which remains the judgment of the court notwithstanding its imperfect record.
Hence it is that from the earliest times the power of correcting or amending their records, by nunc pro tunc entry, so as to faithfully recite their action, has been possessed and exercised by the courts as an inherent right, independent of any statute, and, in the absence of express provision, unaffected by limitation. . . . Our statutes govern the procedure of its exercise; but they are only cumulative of this inherent power of the courts to have their records at all times speak the truth. . . .” Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912).

A judgment nunc pro tunc does not disturb the initial judgment determined by the trial court, it merely brings the court records into conformity with it. Lone Star Cement Corporation v. Fair, 467 S.W.2d 402 (Tex.Sup.1971); Knox v. Long, 152 Tex. 291, 257 S.W.2d 289 (1953); Coleman v. Zapp, supra; Quintanilla v. Seagraves Ford, Inc., 522 S.W.2d 274 (Tex.Civ.App.—Corpus Christi 1975, no writ); Zamora v. Salinas, 422 S.W.2d 249 (Tex.Civ.App.—Corpus Christi 1967, writ ref’d n. r. e.).

The critical inquiry, therefore, is whether the change in the letter (“B” to “C”) was such an “error” that the court records were so inaccurate, that it required the entry of a judgment nunc pro tunc on November 12, 1976, to make the court records correctly or fully recite what the court judicially determined. Relief by means of a judgment nunc pro tunc should be granted only if the evidence of a clerical error is clear, satisfactory and convincing and such error does in fact exist. See Stuart v. City of Houston, 419 S.W.2d 702, 703 (Tex.Civ.App.-Houston [14th Dist.] 1967, writ ref’d n. r. e.).

After reviewing the record in its entirety, we are convinced that the judgment rendered and signed by the trial judge on September 15,1976, was the actual judgment of the trial court in every respect. The same judgment that was signed and rendered eventually and actually found its way to that trial court’s minutes so that the minutes did in fact correctly recite the original judgment as rendered. The lettering system that was used by the district clerk was only a routing symbol for use by that office. The statutory cause number assigned (consisting entirely of numeric digits) was the same throughout. The severed cases received their “ — 1” and “-2” suffixes as positive identification of the two severed causes. The only difference between what the court judicially determined and the minute entry in the court’s minutes was the alphabetic routing symbol that the district clerk changed to assist such clerk in the management of its court papers within the district clerk’s office. We hold that the change in letter from “B” to “C” by the district clerk was not an error that was subject to correction by a judgment nunc pro tunc.

Not every change is correctable by judgment nunc pro tunc. Surely a judgment nunc pro tunc would not be applicable to change typographical errors or to matters that did not affect the judgment that was rendered by the trial judge when compared to the minute entry. To permit any kind of error made by any person to be corrected by a judgment nunc pro tunc might open such remedial action to abuse. These types of changes have never been contemplated by the rules or case law. For instance, to allow such a change would, in effect, violate the rule that prohibits entry of a judgment nunc pro tunc for the purpose of enlarging the time for appeal. See Anderson v. Casebolt, 493 S.W.2d 509 (Tex.Sup.1973); Rodriguez v. Valdez, 521 S.W.2d 668 (Tex.Civ.App.—San Antonio 1975, no writ); Brown v. Vander Stucken, 435 S.W.2d 609 (Tex.Civ.App.—San Antonio 1968, no writ). This is all that the present judgment nunc pro tunc accomplished.

The judgment nunc pro tunc entered November 12, 1976, did not actually correct an error in the earlier judgment. It did not correct or amend the minutes of the 94th District Court to reflect the judgment actually rendered by the trial court. Therefore, the judgment nunc pro tunc is not valid.

The time period for the appellants to perfect their appeal from the only valid judgment in this cause began on September 16, 1976. Because the transcript was not presented for filing until January 7, 1977, it was not timely filed. Appellees’ plea to the jurisdiction and motion to dismiss is GRANTED.

APPEAL DISMISSED.

      . Letter A designates the 28th District Court. Letter B designates the 117th District Court. Letter C designates the 94th District Court. Letter D designates the 105th District Court. Letter E designates the 148th District Court.


text:
    EAGLE LIFE INSURANCE COMPANY, Appellant, v. Theresa OWENS, Appellee.
    No. 8442.
    Court of Civil Appeals of Texas, Texarkana.
    March 22, 1977.
    Rehearing Denied April 19, 1977.

      Charles M. Jefferson, Davis & O’Connor, San Antonio, for appellant.
    Harry B. Friedman, Errol N. Friedman, Harkness, Friedman & Kusin, Texarkana, for appellee.
   CHADICK, Chief Justice.

This is a venue case. The trial court overruled a joint plea of privilege and its proponents have appealed. Judgment of the trial court is reversed and the case is remanded for entry of an order sustaining the plea of privilege and transferring the case.

Mrs. Theresa Owens (plaintiff-appellee) filed suit in Bowie County against Eagle Life Insurance Company and Heritage Insurance Managers (defendants-appellants) to collect the proceeds of a life insurance policy alleged to have insured the life of Mrs. Owens’ deceased fifteen-year-old daughter. The insurance and the management companies answered Mrs. Owens’ suit with a joint plea of privilege, filed June 21, 1976, to be sued in Bexar County. On the second day after the plea of privilege was filed, Mrs. Owens responded to it by filing a motion to quash. Thirty days thereafter, on July 23rd next, the companies filed an amended joint plea of privilege. Four days after the companies filed their amended plea, Mrs. Owens filed a response to it specifically controverting the amended plea and claiming venue in Bowie County under provisions of Tex.Rev.Civ.Stat.Ann. Art. 1995, Subdivs. 5, 23 and 28. The companies moved to strike Mrs. Owens’ controverting affidavit during the plea of privilege hearing, August 23, 1976, and their motion was overruled.

From the filing dates of the several pleadings, it is apparent that Mrs. Owens did not controvert the companies’ original plea of privilege for more than thirty days after she had notice of it although she did promptly controvert the amended plea within two days after its filing. The procedure for controverting a plea of privilege is set out in Tex.R.Civ.P. 86. The rule provides that controverting affidavits must be filed on behalf of the party controverting the plea of privilege “within ten days after he or his attorney of record received the plea of privilege.” As a general proposition it may be said that when a timely controverting affidavit is not filed, the situation here, the trial judge must sustain the plea of privilege and transfer the case as prayed unless timely filing is excused by: 1) an order pursuant to Tex.R.Civ.P. 5 enlarging the time in which the controverting affidavit may be filed; or 2) dismissal from the case of the defendant filing a plea of privilege; or 3) the defendant waiving the venue issue before filing a plea of privilege. See 1 McDonald’s, Texas Civil Practice, Sections 4.46.1, 4.46.2, 4.47 and 4.48. Rule 86 does not within itself provide for enlargement of time in which a controverting affidavit may be filed or recognize any circumstance as justifying tardy filing. Therefore, inability to respond within the prescribed time, the pendency or condition of other pleadings and motions except as indicated, do not relax the provisions of the rule. To enlarge the time for tardy filing resort must be made to Rule 5. It, Rule 5, permits enlargement of time, even though the time prescribed by Rule 86 has expired. Turner v. Garber, 232 S.W.2d 173 (Tex.Civ.App. Dallas 1950, no writ); Texas-Louisiana Power Co. v. Wells, 121 Tex. 397, 48 S.W.2d 978 (Tex.Comm.App.1932, opinion adopted).

ENLARGEMENT OF TIME

During the plea of privilege hearing, counsel for the companies objected to evidence tendered by Mrs. Owens in support of her controverting affidavit and urged the companies’ written motion to strike Mrs. Owens’ plea. At this juncture, Mrs. Owens’ counsel stated to the court that he did not believe Mrs. Owens was “required to file a controverting affidavit until such time as there was some action on” her motion to quash theretofore filed. Counsel proceeded to explain to the court the basis of the motion to quash as well as how the companies’ amended plea of privilege then before the court differed from their original plea of privilege which had been superseded. Counsel for Mrs. Owens did not at that or at any other time move the court to permit Mrs. Owens’ controverting affidavit to be considered as timely filed. At the conclusion of counsel’s statement the court overruled the companies’ motion to strike Mrs. Owens’ controverting affidavit and continued with the hearing.

The portion of Rule 5 pertinent to the issue here is:

“When by these rules or by a notice given thereunder or by order of the court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion (a) with or without motion or notice, order the period enlarged if application therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or (b) upon motion permit the act to be done after the expiration of the specified period where good cause is shown for the failure to act; . . .”

Under the two standards prescribed by this rule a court may, pursuant to part (a), without notice enlarge the time in which a controverting affidavit may be filed if application for enlargement of time is made before expiration of the time originally prescribed in Rule 86. Significantly and in contrast with part (a), after expiration of the period originally prescribed a court is not authorized by part (b) to grant relief on its own motion. With reference to good cause for tardy filing, an application for enlargement of time in which to file a controverting affidavit must be determined by the circumstances in the particular case. For good cause to exist a plaintiff must free himself of any implication of negligence, and show that some mistake or overreaching or some actual or constructive fraud upon the part of the defendant or his attorney induced delay. See 1 McDonald’s, Texas Civil Practice, Section 4.48.

To summarize, Mrs. Owens did not expressly move the trial judge to allow her to tardily file her controverting affidavit nor did she apply to the court for enlargement of time in which to do so. Refusing to file her controverting affidavit while her motion to quash was pending was an independent decision in no way influenced by the companies. When all facts are taken into account, though it be conceded that consent for tardy filing may be implied as in Norwood v. Forster, 290 S.W.2d 576 (Tex.Civ.App. Waco 1956, no writ), good cause is not shown. It will become apparent in the following discussion that Mrs. Owens’ motion to quash did not raise a venue issue and was merely a routine motion that would have been appropriate as a part of a controverting affidavit. To permit such motion to stay the time for filing a controverting affidavit would frustrate a principal purpose of Rule 86. See Live Oak County v. Lower Nueces River Water S. Dist., 352 S.W.2d 139 (Tex.Civ.App. San Antonio 1961, writ dism’d); Terrell v. Vandergriff, 351 S.W.2d 910 (Tex.Civ.App. Amarillo 1961, no writ).

MOTION TO QUASH

The form, content and allegation of the original plea of privilege filed by the companies complied with the requirements of Rule 86 and in addition contained a paragraph immediately preceding the prayer in this language:

“The Defendants specifically state that at the time TERRI V. GATLIN died she had no valid insurance policy with either of them. The only life insurance policy TERRI Y. GATLIN had with EAGLE LIFE INSURANCE COMPANY was a thirty-day policy, which had already expired at the time of her death.”

The relief prayed in the plea of privilege instrument was that the case be transferred to Bexar County. On the second day after the original plea of privilege was filed, Mrs. Owens responded to it by filing a motion to quash “. . . for the reason that said plea of privilege contains an answer . . ” to Mrs. Owens’ pleadings. The companies’ amended plea of privilege dropped the quoted allegation but made no other change. As previously noted, Mrs. Owens responded to the amended plea of privilege promptly. At the hearing on the plea of privilege Mrs. Owens’ motion to quash was not presented to the court and was expressly abandoned.

If Mrs. Owens’ motion to quash had merit, sustaining it would constitute a basis for the judgment rendered below. The circumstances render it unlikely that the trial court intended to found judgment on it; however, to avoid the implication of the judgment in this respect it will be demonstrated that the motion to quash was not meritorious. Earlier it was recognized that a motion to strike or quash is appropriate when a defendant, before filing a plea of privilege, invokes the judicial power of the court. The purpose of the companies’ previously quoted allegation in the original plea of privilege is obscure but there was no prayer for judgment upon the allegation and nothing in the record shows the companies at any time invoked the trial court’s power to decide the allegation in a manner that negatived a continuing intent to insist upon the plea of privilege. The allegation, standing alone, did not waive the plea of privilege. See Pit Construction Co. v. West Texas Equipment Co., 494 S.W.2d 642 (Tex.Civ.App. Amarillo 1973, writ dism’d); Geary, Hamilton, Brice & Lewis v. Coastal Transp. Co., 399 S.W.2d 878 (Tex.Civ.App. Dallas 1966, no writ); H. Molsen & Co., Inc. v. Williamson, 510 S.W.2d 366 (Tex.Civ.App. Dallas 1974, no writ); Hickman v. Swain, 106 Tex. 431, 167 S.W. 209 (1914); Thompson v. O’Donohoe, 482 S.W.2d 711 (Tex.Civ.App. Waco 1972, no writ); O’Neal v. Texas Bank & Trust Co. of Sweetwater, 118 Tex. 133, 11 S.W.2d 791 (Tex.Comm.App.1929, opinion adopted). The motion to quash was not in order and did not justify failure to file a controverting affidavit.

There is no suggestion in the record that either of the companies was dismissed after filing their joint plea of privilege. For the reasons discussed, it becomes the duty of this Court to reverse the judgment of the trial court and to remand the case to the trial court with instructions to enter judgment sustaining the plea of privilege and an order transferring the case to Bexar County, Texas. It is so ordered.

       A plaintiffs motion to strike raises the issue of waiver of venue by defendant in the absence of a controverting affidavit, when before filing the plea, the defendant has invoked the judicial power of the court. See Ware v. Texboro Cabinet Corporation, 350 S.W.2d 47 (Tex.Civ.App. Texarkana 1961, writ dism’d). A motion to strike or quash under such circumstances is not to be confused with pleas in bar, in abatement and to the jurisdiction as defined in Texas Highway Department v. Jarrell, 418 S.W.2d 486 (Tex.1967), nor, for that matter, with special exceptions to the sufficiency of the plea of privilege. See Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551 (1946).


author: STEPHENSON, Justice.

text:
    SABINE INVESTMENT COMPANY OF TEXAS, INC., Appellant, v. Everett P. STRATTON et ux., Appellees.
    No. 7917.
    Court of Civil Appeals of Texas, Beaumont.
    March 24, 1977.
    Kenzy D. Hallmark, Lufkin, for appellant.
    Mark S. Ward, Huntsville, for appellee.
   STEPHENSON, Justice.

Plaintiffs, Everett Stratton and wife, brought this suit for specific performance of a contract for sale of land, allegedly entered into with defendant, Sabine Investment Company of Texas, Inc. Trial was by jury, and judgment was rendered for plaintiffs upon the verdict. The parties will be referred to here as they were in the trial court.

The jury found that Cecil Rhine-hart had actual authority to bind defendant in executing the contract of sale in question. Defendant has a no evidence point attacking that jury finding. In passing upon this point of error, we consider only the evidence favorable to such finding.

The favorable evidence is as follows: Cecil Rhinehart was employed by defendant to sell real estate for them. He was furnished business cards by defendant which contained both of their names and the words “real estate”, “lake lots”, “acreage”, and “mobile homes”. On November 14, 1973, plaintiffs were boating on Lake Rayburn and met Cecil Rhinehart. He was introduced as defendant’s salesman, and he gave plaintiffs his business card. He showed plaintiffs some acreage in the Donald McDonald survey. He also showed plaintiffs a drawing of a map of that survey which had various tracts identified by number. Plaintiffs saw tracts 5 and 6 on that date and again on November 16, 1973. On such latter date, they signed the contract of sale, made the basis of this suit, and left a check in the amount of $1,000 with Cecil Rhine-hart. Written on such check were the words “Down Payment on Lot # 5.” The description in the contract of sale showed “Lot No. 5, in the Donald McDonald Survey, Subdivision in Sabine County, Texas, according to Plat recorded in the County Clerk’s Office of such County, or legal description as follows: 3.7 acres more or less.” The contract of sale also showed the cash price as $10,000, down payment as $1,000, balance $9,000 with interest from date at 10 percent per annum, and equal monthly installments of $118.95.

Joe Moore testified he had been a salesman for defendant and had executed many contracts for defendant and had never been told such contracts were subject to defendant’s approval. He also testified that after the incident out of which this action arose, defendant had new forms of contracts prepared to show such contracts were subject to approval by an officer of the defendant.

Defendant contends that Tex.Bus.Corp. Act.Ann. art. 5.08 (1956) controls this point of error. This statute provides that a corporation may convey land by deed signed by the president or a vice president or attorney-in-fact for the corporation, when authorized by appropriate resolution of the board of directors or stockholders. Defendant’s argument is that it is undisputed that it is a corporation, and there is no evidence that Cecil Rhinehart is the president or a vice president or an attorney-in-fact, authorized by resolution to execute the contract of sale in question. Defendant concludes that if Rhinehart could not execute a deed then he could not bind defendant to a contract of sale. We disagree.

A different rule applies in the factual situation before us. If this defendant was a corporation engaged in some business other than the buying or selling of real estate, and the contract of sale covered some real estate used in the corporate business, we would agree. However, this defendant was in the business of buying and selling land and had employed Cecil Rhinehart, among others, to sell such land. Rhinehart was furnished, by defendant, an office located near the property in question together with business cards showing his connection with defendant. A secretary employed by defendant was made available to Rhinehart together with maps and forms for contracts of sale. All of the surrounding circumstances would lead anyone doing business with Rhinehart to believe that Rhinehart had the authority to contract for the sale of defendant’s land. The favorable testimony shows this was the usual manner for defendant to carry on the business of selling its land. Cecil Rhinehart had the implied authority from defendant to enter into the contract of sale with plaintiffs.

Even though there is little case and text law in Texas on this subject, we have found the following support for our conclusion. 19 Am.Jur.2d “Corporations” § 1227 at 640 (1965) it is stated:

“By virtue of his office alone, no officer or agent of a corporation has any authority to sell or make a contract for the sale of the real estate of the corporation. Nevertheless, the power of a corporate officer or agent to contract for the sale of the corporate lands does not necessarily have to be conferred by a formal resolution of the board of directors, but may, as in case of other power, be inferred from the conduct of the corporation in the transaction of its business and the power which the corporation has customarily permitted the officer or agent to exercise.”

In 9 A.L.R.2d 1312 § 3 “Sale of Corporate Assets” (1950) this statement is made:

“Statutes requiring approval by a specified percentage of the stockholders in a corporation in order to validate a sale of all or a part of its business, franchise, or property have been held inapplicable to sales of all or a part of their real estate by corporations engaged in a general real-estate business; therefore, such sales have been upheld notwithstanding the fact that there was no attempt to proceed in accordance with the terms of such a statute.”

In Tuttle v. Junior Bldg. Corporation, 228 N.C. 507, 46 S.E.2d 313, 317 (1948), this statement is made:

“The rule limiting the authority of officers in respect to the sale of real property is not, however, inflexible. Where a corporation is authorized to and does in fact engage in the business of buying and selling real estate and its officers are in the habit of conveying the property purchased as a part of the corporate stock in trade with the silent approval or acquiescence of the board of directors, authority so to do will be implied. Brimmer v. Brimmer [174 N.C. 435, 93 S.E. 984], supra; Watson v. Manufacturing Co., 147 N.C. 469, 61 S.E. 273. In determining whether the rule must be applied, the business in which the corporation is engaged, the duties necessary to be performed by its officers, the relation of the property dealt with to the business and to its other property, the surrounding circumstances and the principle that corporate officers have ‘the implied power, in the absence of express limitations, to do all acts on behalf of the corporation that may be necessary or proper in performing’ their duties must be considered. Clark on Corporations, 494; Brimmer v. Brimmer, supra; Lumber Co. v. Elias [199 N.C. 103, 154 S.E. 54], supra.”

One of the few Texas cases partially in point is Donnell v. Currie & Dohoney, 62 Tex.Civ.App. 134, 131 S.W. 88 (Texarkana 1910, writ ref’d). In this case, it was held that even though the agent had no power to convey the title to land, that such power was not essential to enable the agent to make an executory contract binding his principal to convey it. This point of error is overruled.

Defendant has a point of error that the contract in question does not satisfy the Statute of Frauds; Tex.Bus. & Comm.Code Ann. § 26.01 (1968) because the description of the land is inadequate.

The general rule, as followed by an unbroken line of authorities, is that the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the land to be conveyed may be identified with reasonable certainty. Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972), and Williams v. Ellison, 493 S.W.2d 734 (Tex.1973).

The description in the contract in question before us, as set forth above, shows the land to be Lot 5 in the Donald McDonald Survey Subdivision in Sabine County, Texas, according to plat recorded in the County Clerk’s office. No name of the subdivision is given, and the record shows no plat of this land in the County Clerk’s office. A plat was admitted in evidence upon testimony that it is like the one plaintiffs were shown by Rhinehart. Assuming, for the purpose of further discussion, that the admission of such plat satisfies the requirement that it is “other existing writing” referred to in the contract, we proceed to consider the plat. Such plat gives the perimeter courses and distances so that the entire tract out of which this lot is alleged to be taken, can be located when considered with the information on the plat that it is Tract No. 4 from Jasper Timber Co. & Sabine Investment, November 19,1970, Yol. 224, Pg. 85. We think it is a reasonable inference that reference is thereby made to a deed and its recordation. Such plat shows it is divided in small parcels with the numbers from 1 to 29. The small parcels have the outside distances given with no angles or directions. It is apparent that no valid legal description could be arrived at by using the contract and plat together. To be able to ascertain with reasonable certainty the tract of land intended by the parties, the courses as well as the distances would be needed. As said in Guenther v. Amer-Tex Const. Co., 534 S.W.2d 396 (Tex.Civ.App.—Austin 1976, no writ), doubtless the parties may have known and understood the land intended to be conveyed, the knowledge and interest of the parties will not give validity to the contract.

The use of the plat in connection with the contract in an attempt to find a good description of the property is highly doubtful. The trial court would not admit the plat in evidence for all purposes, but made this statement: “So there will be no question about it, I am admitting this map or this drawing to show what was used to show him the property he looked at.”

The plat itself is somewhat crude, and it is obvious that the absence of “courses” indicates an actual survey was needed in order to complete the descriptions. Plaintiffs’ testimony showed the surveyors were on the ground working when this transaction was being negotiated. Plaintiffs’ testimony was also to the effect that a road was just being built; the trees had just been knocked down, and it was real muddy. A crew was to come out later and clear the underbrush. The evidence indicates everything was still in a tentative stage.

There were other aspects of the contract indicating it had not been completed. The name L. G. McCormick was written into the contract as a purchaser. It was understood that he would come up later and sign the contract. Rhinehart told the plaintiffs he would hold the contract until McCormick signed it. Plaintiffs were also told that if McCormick liked Lot No. 6 better the $1,000 down payment would be transferred to that lot if it had not been sold. The contract was not dated; it was not shown when the installments would come due, and no date was shown as to when the parties signed it. The evidence shows the parties signed the contract on Saturday, and plaintiffs were called the following Monday to be told the contract had not been approved. The un-cashed check was returned by mail to plaintiffs. This point of error is sustained. This case is reversed and rendered that plaintiffs take nothing.

REVERSED and RENDERED.


author: CORNELIUS, Associate Justice.

text:
    C. W. HAGLER, d/b/a H & H Builders, Appellant, v. CONTINENTAL NATIONAL BANK OF FORT WORTH, et al., Appellees.
    No. 8419.
    Court of Civil Appeals of Texas, Texarkana.
    March 29, 1977.

      Tom James, Dallas, for appellant.
    Sam J. Day, McDonald, Sanders, Ginsburg, Phillips, Maddox & Newkirk, Fort Worth, for appellees.
   CORNELIUS, Associate Justice.

The opinion formerly issued in this cause is withdrawn and the following is substituted therefor.

Appellant, C. W. Hagler, brought suit against Appellees, Continental National Bank of Fort Worth and Frank McDowell, one of the Bank’s officers, for declaratory judgment declaring that his mechanic’s and materialman’s lien against certain real estate was superior to a deed of trust held by the Bank, and to enjoin the Bank’s foreclosure of its lien. The foreclosure sale was temporarily restrained, but ultimately was carried out under an agreed order. The injunction question is therefore moot and has passed out of the case. In a trial before the court, judgment was entered declaring that appellant’s mechanic’s lien was inferior to the Bank’s deed of trust lien and that appellant should take nothing.

This action arose out of the ill-fated plans of Crystal Properties, Inc. to purchase land and build and operate a dinner theater thereon. Appellant was the general contractor for the construction. The negotiations between Crystal Properties and appellant antedated the acquisition of the land. A standard AIA form Construction Contract was signed on December 18, 1973. It provided for a construction price of $405,-000.00 which was subsequently increased to $465,177.38 as the result of “change orders.” It further provided that construction would begin on January 2, 1974, and would be completed within 120 days. At about the time the construction contract was being negotiated, Crystal Properties was also negotiating with the Appellee Bank for a loan to finance the purchase of the land and the construction of the theater. On December 26, 1973, the loan was extended, title to the property was acquired by Crystal Properties, and the deed of trust to the Bank was executed. The loan was for $555,000.00, of which $132,000.00 was for purchase of the land. It was anticipated that the remainder would be used to finance construction of the theater. Appellee Bank advanced all $555,000.00 of the loan proceeds during the construction. Construction was completed and the theater opened in October, 1974. Crystal Properties failed to pay some $96,-673.00 due appellant on the construction contract, whereupon appellant filed his mechanic’s and materialman’s lien affidavit for that unpaid balance. The theater fell into financial trouble and was closed on June 30, 1975. Crystal Properties also defaulted in the payment of the Bank note, which resulted in the Bank’s foreclosure of its deed of trust.

The trial court’s judgment that appellant’s lien was inferior to that of the Bank’s was based upon findings of fact to the general effect that (1) the Bank’s deed of trust had its inception prior to appellant’s lien, as it was executed before any construction began or materials were delivered pursuant to the construction contract, (2) $132,000.00 of the Bank’s loan represented purchase money for the acquisition of the property, secured by a vendor’s lien, (3) the Bank advanced to Crystal Properties the full $555,000.00 represented by the Bank’s note and secured by its deed of trust, and (4) regardless of which lien was prior in time, appellant was estopped to claim that his mechanic’s lien was superior to the Bank’s lien because the construction contract provided that construction would begin on January 2, 1974, a date subsequent to the execution of the Bank’s deed of trust.

Appellant concedes that the Bank’s deed of trust was superior to his mechanic’s lien insofar as the $132,000.00 representing the purchase price of the land is concerned and that foreclosure by the Bank effectively extinguished any right of foreclosure he may have had, but he nevertheless contends that his lien is superior to the Bank’s as to any of the foreclosure proceeds in excess of the purchase price, and that he is entitled to judgment against the Bank for $96,673.00 of such excess proceeds under the principles discussed in Irving Lumber Company v. Alltex Mortgage Company, 468 S.W.2d 341 (Tex.1971) and Habitat, Inc. v. McKanna, 523 S.W.2d 787 (Tex.Civ.App. Eastland 1974, no writ). To be so entitled, appellant’s lien must have had its inception prior to the execution of the Bank’s deed of trust. Section 1 of Article 5459, Tex.Rev.Civ.Stat.Ann. (Supp. 1976 — 1977), provides as follows:

“Section 1. The lien herein provided for shall attach to the house, building, improvements or railroad for which they were furnished or the work was done, in preference to any prior lien or encumbrance or mortgage upon the land upon which the houses, buildings or improvements, or railroad have been put, or labor performed, . . . provided, any lien, encumbrance or mortgage on the land or improvement at the time of the inception of the lien herein provided for shall not be affected thereby, and holders of such liens need not be made parties in suits to foreclose liens herein provided for.” (Emphasis supplied.)

Section 2 of Article 5459, Tex.Rev.Civ.Stat. Ann. (Supp.1976 — 1977), defines inception of the lien as follows:

“Sec. 2. The time of the inception of the lien, as used in this article, shall mean the occurrence of the earliest of any one of the following events:
(a) The actual commencement of construction of the improvements or the delivery of material to the land upon which the improvements are to be located for use thereon for which the lien herein provided results, provided such commencement or material is actually visible from inspection of the land upon which the improvements are being made; or
(b) If the agreement for the construction of the improvements or any part thereof or the agreement to perform labor or furnish material ... is writ ten, the recording of such agreement ■ . . ; or
(c) If the agreement for the construction of the improvements or any part thereof or the agreement to perform labor or furnish material . . .is oral, the recording of an affidavit in the Mechanic’s Lien Records of the county in which said land is located stating that the lien claimant has entered into an agreement with the owner of such property for construction of improvements thereon, . . . ” (Emphasis supplied.)

Appellant’s construction contract was not recorded. Thus, for appellant’s lien to have had its inception prior to the date of the Bank’s deed of trust, construction or delivery of materials must have been accomplished prior to December 26, 1973, and the construction or materials must have been actually visible from an inspection of the land. The trial court found to the contrary, and appellant attacks that finding as being based upon insufficient evidence or as being so against the great weight and preponderance of the evidence as to be manifestly unjust.

Evidence on the question of when materials were delivered or construction began was conflicting. Appellant testified that two pier holes were drilled on the property in August of 1973 and that some grading or clearing of the site was accomplished sometime before December 26th. He also stated that some reinforcing steel was delivered to the site prior to December 26th and he produced a check dated August 16, 1973, for $1,078.40 payable to Allied Steel which he said represented payment for the steel. Mr. Cardwell, the general superintendent for appellant, testified that he sent a tractor and truck to the site around December 1, 1973, and cleaned it of rubbish. He said the steel was delivered to the site on December 10, 1973, at which time a toolhouse was also placed on the site. Mr. Hooper testified that he drilled test holes on the site for appellant. The holes were fifteen or sixteen feet deep. Mr. Hooper said it looked at the time as if the site might have been graded at one time but had then been allowed to grow back in grass. He could not be certain when he drilled the holes but thought it was before Christmas of 1973.

For the appellee, Mr. Boazman, a former employee of the Bank, testified that he attended a ground-breaking ceremony in late January of 1974 and that there was no visible sign of improvements or construction work at that time. He walked over the site and observed no evidence of grading or construction of any kind. Mr. McDowell also attended the ground-breaking ceremony and observed the site. He testified the premises were still grassy, the grass had not been graded off the site and there was no material or construction visible, but only a small structure prepared for the ceremony itself and two bulldozers to be used for the ground-breaking.' Mr. Cullum also attended the ground-breaking ceremony. He testified that he made arrangements to get the bulldozers from appellant to be used for the official or symbolic ground-breaking. He identified eight photographs which were taken at the ceremony and he testified they accurately portrayed the condition of the site at the time. The photographs show the site from various angles and show only the bulldozers and the structure testified about by Mr. McDowell. Appellee disputed that the $1,078.40 check to Allied Steel was for the Crystal Palace job, and brought out that appellant bought considerable quantities of steel from Allied for other jobs at about the time involved in this controversy. In rebuttal, appellant testified that the Crystal Palace job number was on the voucher of the check to Allied Steel which he introduced. Testimony was also elicited from Mr. McDowell that he did not visit the building site prior to the ceremony and made no effort to determine, prior to making the bank loan, whether or not construction had begun.

There was no indication or intimation that, once construction began or material was placed on the land, it was subsequently destroyed or removed. Therefore, the trial court could reasonably infer, that had such construction begun or material been placed on the land prior to December 26th, it would have still been there and would have been visible in January when the groundbreaking ceremony was held. There was ample testimony, confirmed by the photographs, that nothing of the sort was visible at the time of the ground-breaking ceremony. Although appellant’s witnesses testified positively that materials were delivered prior to December 26th, the trial court was not required to believe appellant’s evidence but could conclude from all the circumstances that no material had been placed on the land or construction begun prior to December 26,1973. From the evidence in this record, we cannot say such a conclusion is based upon insufficient evidence or is against the great weight and preponderance of the evidence. The finding is therefore sufficient to support the trial court’s judgment that appellant’s lien did not have its inception prior to the Bank’s lien and was therefore inferior to it.

Our determination of the foregoing question renders a discussion of appellant’s other points unnecessary. The judgment of the trial court is affirmed.


author: CORNELIUS, Justice.

text:
    Emma TURNER, Individually and as next friend, Appellant, v. The COUNTY OF MARION, Appellee.
    No. 8467.
    Court of Civil Appeals of Texas, Texarkana.
    March 29, 1977.
    Rehearing Denied April 19, 1977.
    Mary Bingham Edwards, Houston, for appellant.
    Tony Hileman, Jefferson, for appellee.
   CORNELIUS, Justice.

Appellant seeks to appeal from an order of the trial court denying her motion for summary judgment.

Appellant filed this suit seeking damages for the alleged wrongful death of her husband, Ernest Turner. The petition alleged that Mr. Turner was employed by Marion County as an operator of a dirt moving tractor or “front end loader,” and that while engaged in the scope of his employment and due to the negligence of the county, he was killed when the vehicle overturned and crushed him. The appellee answered by general denial. After some admissions had been secured pursuant to Tex. R.Civ.P. 169, appellant filed a motion for summary judgment, alleging that appellee had raised no defense, that no material issue of fact existed and that she was entitled to judgment as a matter of law. Ap-pellee resisted the motion on the ground that appellant’s petition stated no cause of action, and then filed its own motion for summary judgment. The trial court denied both motions.

An order denying summary judgment is purely interlocutory and is not ap-pealable unless the case comes within the narrow factual situation presented in Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958). See Ackermann v. Vordenbaum, 403 S.W.2d 362 (Tex.1966); Haynes v. Dunn, 518 S.W.2d 880 (Tex.Civ.App. Waco 1975, no writ); Hoover v. Barker, 507 S.W.2d 299 (Tex.Civ.App. Austin 1974, writ ref’d n. r. e.); Garver v. First National Bank of Canadian, 406 S.W.2d 797 (Tex.Civ.App. Amarillo 1966, writ ref’d n. r. e.); Archer v. Skelly Oil Company, 314 S.W.2d 655 (Tex.Civ.App. Amarillo), writ ref’d n. r. e. per curiam, 159 Tex. 154, 317 S.W.2d 47 (1958); 4 McDonald’s, Texas Civil Practice, Sec. 17.26.13, p. 183, and cases there cited; Annot., 15 A.L.R.3rd 927 (1967). Appellant recognizes the general rule but contends that her case is an exception because her claim is liquidated, and as both parties moved for summary judgment, the orders denying them had the effect of fully and finally disposing of all issues in the case. We do not agree. Appellant’s claim is not a liquidated demand. Worley v. Smith, 26 Tex.Civ.App. 270, 63 S.W. 903 (1901, no writ). Even if her claim could be considered liquidated, the order denying her motion for summary judgment did not finally dispose of all the issues in the case. When a court denies a motion for summary judgment, it inf eren tially finds that there are one or more material disputed issues of fact and holds the case for trial on the merits. F. & T. Development Co. v. Morris, 248 S.W.2d 233 (Tex.Civ.App. Fort Worth 1952, no writ). The party whose motion has been denied has not been harmed, even if he is correct in his position that there is no material issue of fact and he is entitled to judgment as a matter of law, because he will have his right of appeal should the case ultimately be decided against him in the trial court. F. & T. Development Co. v. Morris, supra.

Here the trial court did not dismiss the case or otherwise enter a final judgment. It merely denied both motions for summary judgment, leaving the case on the docket pending trial. Consequently, the order is interlocutory and not appealable.

The appeal is dismissed.

      . That is, where motions for summary judgment have been filed by all of the real parties at interest and the appeal is prosecuted from a judgment granting one or more of them.