text:
    Everett Walter SOUTHARD, Sr., Appellant, v. Ruth Evelyn SOUTHARD, Appellee.
    No. 1139.
    Court of Civil Appeals of Texas, Tyler.
    May 25, 1978.

      Beatty Oldham, Oldham & Oldham, Houston, for appellant.
    Benjamin Havard, Houston, for appellee.
   McKAY, Justice.

This is an appeal from a property division resulting from a divorce between the parties. Appellee Ruth Evelyn Southard instituted proceedings against her husband, appellant Everett Walter Southard, Sr., seeking a divorce, custody of the minor child, child support and a division of the estate of the parties. Appellant answered and filed a cross-action for divorce. Trial was to the court, whereupon judgment was rendered granting the divorce, appointing appellee managing conservator of the child, and dividing the property. Appellant, Everett Walter Southard, perfected this appeal as to the property division.

We affirm the judgment of the trial court.

We have before us only the transcript in the proceedings below. There is no Statement of Facts on file in the cause. However, the trial court filed extensive findings of fact and conclusions of law. Those findings and conclusions pertinent to this appeal are as follows:

Findings of Fact
“2. That on March 12,1960, Ruth Evelyn Southard was married to Everett Walter Southard, Sr. in Palestine, Texas, and that they continued to live together as man and wife until February 27, 1976, when they separated and ceased to live together as husband and wife because of discord or conflicts of personalities that destroyed the legitimate ends of the marriage relationship and prevented any reasonable expectation of reconciliation.”
“4. On the 23rd day of October, 1958, prior to the marriage between Plaintiff and Defendant, but while the parties were engaged to be married and with pooled resources, Defendant purchased, in his own name, 14.75 acres in Anderson County, Texas. That after the marriage, continued payments on the mortgage were made out of community funds and substantial improvements were constructed, using community funds, and articles of household furnishings were accumulated, resulting in a substantial community equity in such property. That the property had a probable value of $25,000.00. That the Defendant had attempted to recognize the interest of Plaintiff and had tried to reflect such ownership by having the property assessed for taxes in the name of E. W. and Evelyn Southard.
“5. That on June 17, 1964, and after the marriage of the parties, they purchased as community property, Lot 3 in Block Four of Pine Terrace in Harris County, Texas, having an approximate value of $18,000.00, with an outstanding mortgage of approximately $7,000.00.
“6. That the household furnishings in the Harris County property were valued at approximately $2,000.00, and the value of the furnishings located on the 14.75 acres in Anderson County, Texas, were valued at approximately $2,000.00.
“7. That the parties owned a 1969 Chevrolet Pickup, driven by Defendant, and a 1973 Buick driven by Plaintiff.
“8. That the Plaintiff, except for a period of approximately nine (9) months, had worked all of the time she and the Defendant had been married and is presently employed by the City of Houston, and she had acquired an equity in a pension and retirement fund of the approximate value of $2,827.58. The Defendant is presently employed by the City of Houston and had likewise acquired an equity in a pension and retirement plan of the approximate same value as that of Plaintiff.”
Conclusions of Law
“5. That the property purchased on October 23, 1958, by the Defendant was by definition ‘separate property’, having been acquired before marriage. However, the Court having determined that there was a substantial community equity existing in the property by way of continued payments on purchase price out of community funds and the expenditure of community funds for improvements which materially and substantially increased the' value thereof, and by the further attempted ‘transfer’ on the tax assessment records, which, although legally barred by the statute of frauds, was evidence of defendant’s intentions to recognize the interest of Plaintiff and dispell any arguments of an intended gift by Plaintiff to Defendant’s separate property, justified the use of such property in offsetting each party’s claim against the other inequitable division of the property.
“6. That the Plaintiff’s community interest in the 14.75 acres in Anderson County, Texas was offset by Defendant’s community interest in the property located in Harris County, Texas. That an equitable division of the property be such that Plaintiff take the property in Harris County, Texas as her sole and separate property free and clear of any interest of Defendant; and that the Defendant take the property located in Anderson County free and clear of any community interest of Plaintiff. That the further equitable division of the property would be for the Plaintiff to take the 1973 Buick and the household furnishings in the house in Harris County, Texas, and that the Defendant take the 1969 Chevrolet Pickup and the household furnishings located in Anderson County, all such property being divided, being subject to any existing indebtedness.
“7. That the respective retirement funds, being approximately equal, should be granted to the owner, free and clear of any interest of the other party.”

Based on these findings of fact and conclusions of law, the trial court divided the property as follows:

Wife Husband
1. Home in Harris County $18,000.00 5. Anderson County property $25,000.00
2. 1973 Buick 6. 1969 Pickup truck
3. Furnishings $ 2,000.00 7. Furnishings $ 2,000.00
4. Retirement $ 2,821.58 8. Retirement $ 2,821.58

In the decree of divorce, the division of the property was preceded by the sentence: “IT IS THEREFORE ORDERED that the community property owned by the parties shall be divided as follows:” apparently including the Anderson County property as part of the community estate.

Appellant bases his appeal on five points of error. In substance, Points 1, 2, 3 and 5 complain of the trial court’s division of the community estate.

In Point 1 appellant contends that the trial court erred in holding that the real property awarded to appellant was part of the community property of the parties since it was undisputed that said real property was purchased by appellant prior to the marriage. We disagree.

Although the judgment of the trial court included the Anderson County property as part of the community estate, the trial court filed findings of fact which provide the basis for the judgment. It is well settled, however, that an appellate court will sustain the judgment if it is correct on any theory of the law applicable to the record, regardless of whether or not any reason at all is given. Howle v. Howle, 422 S.W.2d 252, 255 (Tex.Civ.App.—Tyler 1967, no writ). Recitations contained in the judgment cannot be substituted for separately filed findings of fact and conclusions of law. As such, they do not afford any basis upon which a losing party may attack the trial court’s judgment. Morin v. Morin, 561 S.W.2d 263 (Tex.Civ.App.—Corpus Christi 1978, no writ); Fenlon v. Jaffee, 553 S.W.2d 422 (Tex.Civ.App.—Tyler 1977, writ ref’d n.r.e.); Roberson Farm Equipment Co. v. Hill, 514 S.W.2d 796 (Tex.Civ.App.—Texarkana 1974, writ ref’d n.r.e.).

Because the trial court made separate findings of fact and conclusions of law, the recitation in the divorce decree that the Anderson County real property was community property does not supplant the trial court’s finding that such property was appellant’s separate property. Appellant’s contention is without merit, and his Point 1 is overruled.

Appellant argues in Point 2 that the trial court erred in treating his separate property as community property. In Point 3 he contends that the trial court made a disproportionate division of the property, and in Point 5 he argues that awarding all furniture and other articles of personal nature to the person having possession of them deprived him of his interest in the property.

The trial court is authorized to divide the property in a manner it deems just and right. Tex.Family Code Ann. sec. 3.63; Brooks v. Brooks, 561 S.W.2d 949, 951 (Tex.Civ.App.—Tyler 1978, no writ); Spiller v. Spiller, 535 S.W.2d 683, 684 (Tex.Civ.App.—Tyler 1976, writ dism’d); Cooper v. Cooper, 513 S.W.2d 229, 233 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ). The provisions of sec. 3.63 of the Texas Family Code do not require the property division to be equal. The trial court is given broad discretion in a divorce case in making its division of the property of the parties and this discretion will not be disturbed on appeal unless the court has clearly abused this discretion. Brooks v. Brooks, supra; Wetzel v. Wetzel, 514 S.W.2d 283, 285 (Tex.Civ.App.—San Antonio 1974, no writ); Cooper v. Cooper, supra.

In the absence of a statement of facts, the findings of fact made by the trial court are conclusive on the appellate court, and it must be presumed that the evidence was sufficient and that every fact necessary to support the findings and judgment was proved at the trial. Mosolowski v. Mosolowski, 562 S.W.2d 24 (Tex.Civ.App.—Tyler 1978, no writ); Vanity Fair Properties v. Billingsly, 469 S.W.2d 453 (Tex.Civ.App.—San Antonio 1971, writ ref’d n.r.e.); Mulcahy v. Cohen, 377 S.W.2d 100 (Tex.Civ.App.—Houston 1964, writ ref’d n.r.e.). Without the benefit of a statement of facts this court is in no position to pass on the question of whether the trial court abused its discretion in dividing the property. Accordingly, Points 2, 3 and 5 are overruled.

In Point 4 appellant contends that the trial court erred in dividing the property without relieving appellant of responsibility for indebtedness against properties awarded appellee and without providing appellant security that appellee would satisfy such indebtedness. We fail to see any merit in this contention. We have already discussed the consequences of appellant’s failure to file a statement of facts. Additionally, we doubt that the trial court would have been authorized to alter any loan contract without the entity which made the loan having been made a party to the suit. Accordingly, Point 4 is overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: BRADBURY, Justice.

license: Public Domain

text:
    C. R. PACKER, Appellant, v. FIRST TEXAS SAVINGS ASSOCIATION OF DALLAS, Appellee.
    No. 5165.
    Court of Civil Appeals of Texas, Eastland.
    May 25, 1978.
    Rehearing Denied June 29, 1978.
    Donald L. Prager, Ft. Worth, for appellant.
    Walter H. Dunlap, Jr., Turner, Rodgers, Sailers, Jordan & Calloway, Dallas, for ap-pellee.
   BRADBURY, Justice.

This is a summary judgment case. Plaintiff, First Texas Savings Association of Dallas, sued defendant, C. R. Packer, seeking judgment for a deficiency on a promissory note following a nonjudicial sale of property that secured the note. Judgment was entered for plaintiff from which defendant appeals. We affirm.

Defendant argues that the court’s refusal to permit him to implead third parties was error. Plaintiff was not asserting a claim against the proposed third-party defendants and they were asserting none against plaintiff. The transaction between defendant and the proposed third-party defendants was subsequent to the transaction which is the subject of this suit. The dispute between defendant and the parties he was seeking to implead was immaterial to plaintiff’s cause of action. The trial court did not abuse its discretion in refusing to permit defendant to bring in other parties. Johnson v. Packaging Corporation of America, 375 S.W.2d 780 (Tex.Civ.App.—Fort Worth 1964, no writ).

Defendant next complains that the motion for summary judgment was not sufficient. The motion set out the nature of the cause of action, the relief desired, and was supported by an affidavit of one of plaintiff’s vice-presidents detailing the facts relied on. Attached to the motion were copies of the note, deed of trust and trustee’s deed. The motion was sufficient to meet the requirement of Rule 166-A, T.R. C.P.

Defendant argues that plaintiff failed to conclusively establish that consideration was received for the note and that it was signed, executed and delivered. The basic documents sued on, the note, deed of trust and notice of proposed sale, were attached to request for admissions with requests that plaintiff admit or deny the matters relevant to plaintiff’s cause of action. Defendant did not answer the request for admissions, therefore, they are deemed admitted. Rule 169, T.R.C.P. These documents were not denied under oath as required by Rules 93(h) and 93(j), T.R.C.P. Plaintiff conclusively established that there were no genuine issues of fact.

Defendant says the request for admissions cannot be deemed admitted because plaintiff did not file a motion asking that they be admitted. Defendant argues that Rule 169, T.R.C.P., requires such motion. We disagree. It was the obligation of defendant, and not plaintiff, to file a motion if he did not desire to have the request for admissions deemed admitted. He did not file such motion and the matters plaintiff sought to have admitted were admitted by default. Masten v. Masten, 165 S.W.2d 225 (Tex.Civ.App.—Fort Worth 1942, writ ref’d); O’Connor v. City of Dallas, 337 S.W.3d 741 (Tex.Civ.App.—Texarkana 1960, writ dism’d).

Defendant says a genuine fact issue exists as to whether the property at foreclosure was sold for a grossly insufficient amount and relies on American Savings and Loan Association of Houston v. Musick, 531 S.W.2d 581 (Tex.1975). The court stated:

“The court noted that appraisal testimony indicated a value of all three tracts on the date of foreclosure at $338,365, though American Savings bought the three tracts for $25,000. However, the rule is well established that mere inadequacy of consideration is not grounds for setting aside a trustee’s sale if the sale was legally and fairly made. Tarrant Savings Association v. Lucky Homes, Inc., 390 S.W.2d 473 (Tex.1965). There must be evidence of irregularity, though slight, which irregularity must have caused or contributed to cause the property to be sold for a grossly inadequate price. Sparkman v. McWhirter, 263 S.W.2d 832, 837 (Tex.Civ.App.—Dallas 1953, writ ref’d).”

In the instant case, there is no showing of any irregularity in the trustee’s sale. Defendant by failing to deny request for admissions is in the position of admitting receiving a copy of the notice of proposed sale. Failure of notice is the only alleged irregularity that defendant relies on. He is deemed to have admitted receiving a copy of such notice. There being no irregularity in the sale, the inadequacy of consideration is immaterial.

We have considered all of defendant’s points of error and they are overruled.

Judgment of the trial court is affirmed.


author: DIES, Chief Justice.

text:
    Nelda Wood ROGERS and Lola Wood Ward, Appellants, v. GENERAL MOTORS ACCEPTANCE CORPORATION, Appellee.
    No. 8140.
    Court of Civil Appeals of Texas, Beaumont.
    May 25, 1978.
    William Drew Perkins, Lufkin, for appellants.
    John D. Stover, Lufkin, for appellee.
   DIES, Chief Justice.

General Motors Acceptance Corporation (hereinafter known as G.M.A.C.) sued Joe and Pauline Lackey for $65,427.00, and sued Nelda Wood Rogers and Lola Wood Ward for a declaratory judgment that plaintiff was entitled to receive $350.00 per month from Rogers and Ward pursuant to an assignment of sublease rentals. The trial court granted plaintiff’s motion for summary judgment, and Rogers and Ward instituted this appeal. The Lackeys have not appealed.

Joe Lackey was a Chevrolet dealer in Lufkin, Texas, and leased his business premises from Nelda Wood Rogers and Lola Wood Ward. Lackey financed the purchase of new automobiles for his stock by executing promissory notes payable on demand to G.M.A.C. Lackey fell behind in his lease payments to Rogers and Ward, and in his finance payments to G.M.A.C. Rogers and Ward sued Lackey concerning the lease payments.

Lackey sublet the premises, and assigned his right to receive sublease rental payments to G.M.A.C. on March 11, 1976. He also agreed not to settle his suit with Rogers and Ward without G.M.A.C.’s approval.

On April 27, 1976, Rogers and Ward settled their suit with Lackey, and agreed that they would receive the sublease rentals, and then pay him $350.00 per month. Lackey then assigned his right to receive $350.00 per month to G.M.A.C. When Lackey, Rogers, and Ward all refused to make the payments, G.M.A.C. instituted the present suit.

G.M.A.C. moved for summary judgment on August 3, 1977. Rogers and Ward filed a counterclaim on September 8,1977. G.M. A.C. answered that the counterclaim “fails to state any cause of action upon which a claim for relief can be based.” G.M.A.C. did not amend its motion for summary judgment to include the counterclaim. The motion for summary judgment was granted on January 4, 1978, and covered both G.M. A.C.’s original action and the counterclaim.

We affirm the summary judgment as to G.M.A.C.’s action against the Lackeys for $65,427.00, and for a declaratory judgment that Rogers and Ward pay G.M.A.C. the sum of $350.00 per month pursuant to the assignment of rentals agreement. We sever Rogers and Ward’s counterclaim, and reverse and remand this portion of the case for further proceedings.

Strict compliance with Tex.R.Civ.P. 166-A is essential to entitle a party to summary judgment. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958); Moody v. Temple Nat. Bank, 545 S.W.2d 289 (Tex.Civ.App.—Austin 1977, no writ).

A party is not entitled to have a summary judgment rendered in his favor unless he has filed a motion therefor. Dixon v. Shirley, 531 S.W.2d 386 (Tex.Civ.App.—Corpus Christi), writ ref’d n. r. e. per curiam, 545 S.W.2d 441 (Tex.1976); Republic Nat. Bank of Dallas v. Southern Brokerage Co., 338 S.W.2d 295 (Tex.Civ.App.—San Antonio 1960, writ ref’d n. r. e.); Durham v. I. C. T. Insurance Co., 283 S.W.2d 413 (Tex.Civ.App.—Dallas 1955, writ dism’d). The purpose for requiring such a motion is to put the non-moving party on notice as to what facts he must contradict to defeat the motion. Skeen v. Glenn Justice Mtg. Co., Inc., 526 S.W.2d 252 (Tex.Civ.App.— Dallas 1975, no writ).

In the present case, G.M.A.C. never moved for summary judgment as to Rogers and Ward’s counterclaim. Though counter-claimants’ attorney may have realized nearly two months before entry of judgment that the counterclaim was also involved, we cannot substitute this knowledge for notice and strict compliance with Tex.R.Civ.P. 166-A. We hold that the trial court erred in granting G.M.A.C. more summary judgment relief than it ever asked for.

As an additional reason for this conclusion, we note that G.M.A.C. only answered Rogers and Ward’s counterclaim with the general statement that it did not state a cause of action. Tex.R.Civ.P. 90 states that:

“General demurrers shall not be used. Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by motion or exception in writing and brought to the attention of the Judge in the trial court . . shall be deemed to have been waived . . .”

Tex.R.Civ.P. 91 points out the particular requirements of a special exception. Neither Rule 90 nor Rule 91 was complied with by G.M.A.C. in its answer to Rogers and Ward’s counterclaim.

The situation in the present case is analogous to that reviewed by our Supreme Court in Texas Department of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex.1974). In Herring, a prisoner sued prison authorities for personal injuries based on a claim of negligence in failing to provide adequate medical care. The Department of Corrections moved for summary judgment, alleging that Herring had failed to state a cause of action. No special exceptions to Herring’s pleadings were filed. Our Supreme Court concluded that:

“[T]he protective features of special exception procedure should not be circumvented by a motion for summary judgment on the pleadings where plaintiff’s pleadings, as here, fail to state a cause of action. To do so would revive the general demurrer discarded by Rule 90, Texas Rules of Civil Procedure.”

The Supreme Court affirmed the opinion of the Court of Civil Appeals reversing and remanding the case for trial. We adopt the rationale of Herring in deciding the present case. See also, Lewter v. Dallas County, 525 S.W.2d 885 (Tex.Civ.App. — Waco 1975, writ ref’d n. r. e.), for the proposition that, in the absence of special exceptions filed by the defendant, the plaintiff’s petition will be treated as sufficient to state a cause of action.

We have reviewed the evidence in the present case under the applicable standard, and we hold that the trial court properly granted G.M.A.C.’s motion for summary judgment against the Lackeys for $65,-427.00, and against Rogers and Ward for a declaratory judgment. The summary judgment evidence establishes that there are no disputed issues as to any material fact with regard to these claims. Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958); Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970); G. Yates Bldg. Sup. v. Fid. & Cas. Co. of N. Y., 543 S.W.2d 709 (Tex.Civ.App.—Fort Worth 1976, writ ref’d n. r. e.).

With respect to Rogers and Ward’s counterclaim, G.M.A.C. did not ask for summary judgment, nor did it properly except to the counterclaim. The trial court should have severed the counterclaim, and only granted summary judgment as to the rest of the case. Tex.R.Civ.P. 41; Hayes v. Norman, 383 S.W.2d 477 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n. r. e.); Eames v. Jackson, 501 S.W.2d 457 (Tex.Civ.App.—Fort Worth 1973, no writ). We hereby order that Rogers and Ward’s counterclaim be severed, and reversed and remanded for further proceedings. The trial court’s judgment is in all other respects affirmed. Costs are adjudged against General Motors Acceptance Corporation.

REVERSED and REMANDED in part and AFFIRMED in part.


author: McDONALD, Chief Justice.

text:
    EMPIRE & ASSOCIATES, INC., Appellant, v. TEXAS CONTRACTORS RENTALS, SALES & SUPPLIES, INC., Appellee.
    No. 5903.
    Court of Civil Appeals of Texas, Waco.
    May 31, 1978.
    Rehearing Denied July 6, 1978.

      Clyde M. Marshall, Jr., Callaway & Marshall, Fort' Worth, for appellant.
    Benjamin N. Hamilton, Sheehy, Lovelace & Mayfield, Waco, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Empire from $7,686.27 judgment against it in suit for wrongful withholding of funds.

Plaintiff Texas Contractors is a corporation which rents and sells contractors equipment, and is owned by Robert Schroeder. Empire & Associates is a corporation which is an auctioneering firm, and is owned by Paul Smith.

Plaintiff acting through Schroeder contracted in writing with defendant acting through Smith, whereby defendant agreed to auction listed equipment of plaintiff and remit all proceeds to plaintiff less a 9% commission.

The auction was held and defendant remitted to plaintiff an initial payment of $20,000.; followed by a detailed accounting accompanied by a check for $17,836.65 (later augmented by a check for $180. totalling $18,016.65).' The check for $17,836.65 noted on its face, “This Represents Final Payment”. Plaintiff refused to cash the $17,-836.65 check and defendant issued an unconditional check six months later pursuant to agreement of counsel. Defendant withheld $6,120., asserted commission on a crane which was listed in the contract but which plaintiff itself sold prior to the auction; and $720. asserted commission on the attempted sale of a loader.

Plaintiff’s suit alleged fraud in the inducement of the auction contract listing the loader.

Trial was to a jury findings of which are summarized as follows:

1) After the auction sale Smith refused to promptly pay Schroeder $18,016.65 out of the proceeds of the sale.
2) In December 1976 Smith admitted said amount was due to Schroeder.
3) Smith should have paid Schroeder said amount December 31, 1976.
4) Smith represented to Schroeder that if he would sign the auction contract Smith would later furnish Schroeder a written agreement not to charge any commission if the crane was sold prior to the auction.
5) At the time of making such representation Smith had no intention of carrying it out.
6) Such representation was made by Smith with intention it be relied on by Schroeder.
7) Schroeder would not have signed the auction contract if Smith had not made the representation.
8) 9) Schroeder is entitled to exemplary damages of $5,000.
10) At time of signing the contract Schroeder and Smith had an oral agreement no commission would be charged if the crane was sold prior to the auction.
11) Schroeder and Smith intended the contract not cover the crane if it was sold prior to the auction.
12) Plaintiff did not misrepresent to bidders the model of the loader.
13) Defendant did not suffer any detriment by reason of plaintiff’s retention of the two checks.

The trial court rendered judgment on the verdict for plaintiff for; 1) $6,840. ($6,120. withheld commission on the crane, and $720. on the loader); 2) $846.27 interest on the $18,016.65 from December 31, 1976 to July 8,1977; 3) $5,000. exemplary damages. The trial court later required remittitur of the $5,000. exemplary damage and same is not in controversy on appeal.

Defendant appeals on 21 points which we summarize as four principal contentions.

Contention 1 asserts the trial court erred in admitting parol evidence to vary the terms of the written auction contract; in submitting Issues 4, 5, 6, 7, 10, and 11; in not disregarding answers to such issues; and in rendering judgment for the $6,120. and the $720.

Plaintiff and defendant signed a written contract for defendant to auction off plaintiff’s listed equipment which included the crane. Plaintiff alleged fraud in the. inducement of such contract, and the trial court admitted parol evidence of such, and submitted Issues 4, 5, 6, 7, 10 and 11. Smith testified one way and Schroeder testified to the contrary. The jury believed Schroeder and answered the issues submitted in accordance with his testimony, convicting defendant of fraud in the inducement.

One who is induced by fraud to enter into a contract has his choice of remedies. He may stand to his bargain and recover damages, or he may rescind; and the parol evidence rule does not stand in the way. of proof of such fraud. Dallas Farm Machinery Co. v. Reaves, 158 Tex. 1, 307 S.W.2d 233; Berry v. Abilene Savings Assn. CCA (Eastland) NRE, 513 S.W.2d 872.

The $6,120. item of recovery is sustained.

At the auction a loader was sold to a bidder upon representation that it was a 1974 model. The loader was in fact a 1972 model and the bidder refused to take the equipment. Defendant contended plaintiff misrepresented that the loader was a 1974 model and withheld $720. commission. Plaintiff denied supplying the information as to the model of the loader, and the jury in answer to Issue 12 sustained plaintiff. Defendant now asserts the provision in the contract: “Owner * * assume[s] responsibility for all representations made by * * his auctioneer, and will indemnify and hold Empire harmless from * * liability arising out of any * * misrepresentation,” entitles it to its commission. We disagree, but in any event defendant was convicted of fraud in the inducement, and cannot enforce such provision. Roberts v. Tipton, CCA (Waco), 562 S.W.2d 921; Central Motor Co. v. Thompson, CCA (Waco) NWH, 465 S.W.2d 405; Thompson Co. v. Sawyers, 111 Tex. 374, 234 S.W.2d 873; Advance-Rumely Thresher Co., Inc. v. Higgins, CCA (Amarillo) Er.Dismd., 279 S.W.. 531; Crayton v. Munger, S.Ct., 9 Tex. 285; Drinkard v. Ingram, S.Ct., 21 Tex. 650; Bates v. First National Bank of Waco, CCA (Waco) NWH, 502 S.W.2d 181; George v. Birchfield, CCA (Galveston) NWH, 264 S.W. 632.

Contention 2 complains of the trial court’s award of $846.27 interest on the $18,016.65.

The jury found defendant refused to promptly pay plaintiff $18,016.65 out of the proceeds of the auction; that defendant admitted such was due; and was due to have been, paid by December 31, 1976. Defendant sent plaintiff a check marked “Final Payment,” which plaintiff refused to cash because of the existing controversy over asserted commissions on the crane and loader. The amount was paid July 8, 1977. The $18,016.65 was admittedly due plaintiff and plaintiff was entitled to unconditional payment by December 31, 1976. The trial court did not -err in awarding plaintiff $846.27 interest on the $18,016.65 which was owed but not unconditionally tendered.

Contention 3 complains of the trial court’s submission of issues inquiring of the conduct of “Schroeder and Smith” rather than that of “plaintiff and defendant.”

The parties were family corporations owned by Schroeder and Smith. These individuals were the key witnesses, and the case involves the face to face dealings between the two men. Defendant states in its brief that the basic issue was whether the jury believed the version testified to by Schroeder or Smith.

The method of submission was within the discretion of the trial court, and in any event presents no error. Rule 434 TRCP.

Contention 4 complains of the submission of issues 8 and 9 relative to exemplary damages, and of the admission of evidence concerning attorneys’ fees and the income or worth of defendant.

The trial court required remittitur of the $5,000. exemplary damages which we think cured the asserted errors.

All defendant’s points have been considered and are overruled.

AFFIRMED.


author: HALL, Justice.

text:
    Carol ROBERTS et vir., as next friends of Stacey Roberts, a minor, Appellants, v. Latayne McIntyre PARRISH et al., Appellees.
    No. 5799.
    Court of Civil Appeals of Texas, Waco.
    June 1, 1978.
    Rehearing Denied June 29, 1978.
    W. Jiles Roberts, Houston, for appellants.
    James H. Barker and Alice Giessel, Tal-bert, Giessel & Stone, Russell H. McMains, Fulbright & Jaworski, J. David Reed and Kenneth Tekell, Tekell, Book & Matthews, Bernus Wm. Fischman, Lackshin, Nathan & Berg, Houston, for appellees.
   HALL, Justice.

Appellant Mrs. Carol Roberts was backing from a driveway on premises controlled by National Motels into a public street in the City of Pasadena when the automobile she was driving was struck by one being driven by Mrs. Latayne McIntyre Parrish. Mrs. Roberts was pregnant at the time of the collision. The day the collision occurred, September 1,1971, was also the day Mrs. Roberts and her medical doctors had determined was the delivery day for the child. However, the child, a girl named “Stacey,” was not born until five weeks later, on October 7, 1971.

Mrs. Roberts and her husband, R. J. Roberts, initiated this suit on August 30, 1973, for damages caused them individually by the collision. With leave of court, the minor child, Stacey, was added as a plaintiff on August 5, 1975. The case proceeded with the parents suing individually and as next friends for the minor child. They named as defendants Mrs. Parrish and her husband, National Motels, Universal Waste Control Systems, Inc., and Sanitary Refuse Systems, Inc. In their last amended petition, filed on September 16, 1976, they pleaded negligent causation for the collision against Mrs. Parrish in several particulars; and they alleged that the other defendants negligently caused the collision by placing excessively high waste containers where they blocked the view of drivers on the public street. They alleged that Mrs. Roberts was twenty-six years of age with a life expectancy of 50.9 years; that as a result of the collision she sustained physical pain, mental anguish, physical disability, loss of earning capacity, and has required medical services, all of which will continue into the future; that they have been and will be caused to incur medical, hospital, dental, and related expense required for the treatment of Stacey until she becomes eighteen years of age; that Stacey’s birth was delayed for several weeks as a result of the collision, causing her injury and illness; that the injuries and illness have caused and will cause the child to sustain physical pain and mental anguish and will cause her to sustain physical disability and loss of earning capacity and require medical services and expense subsequent to her becoming eighteen years of age through her life expectancy of 74.9 years. Individually, they prayed for $35,000.00 as a result of injuries to Mrs. Roberts; and for $5,000.00 for their expenses incurred and to be incurred for treatment of the child’s injuries and illness during her minority. As next friends of the child they prayed for $250,-000.00 for her damages.

When the case was first called for trial, on September 8, 1976, the court determined that there was an apparent conflict of interest between the parent plaintiffs and the minor plaintiff, and appointed the Honorable Bernus Wm. Fischman as attorney and guardian ad litem “to represent and protect the interests of the minor child.” This appointment was in compliance with the provisions of Rule 173, Vernon’s Tex.Rules Civ. Proc. The trial of the case was then postponed until September 27, 1976, to permit the plaintiffs to take the deposition of a medical witness which related to the child’s case, and, no doubt, to permit the guardian ad litem to prepare for trial.

A pre-trial conference was held on September 24, 1976. By the time of this conference the parents had learned that the guardian ad litem had negotiated a potential settlement with the defendants on behalf of the minor for $1500.00. The parents vigorously opposed this settlement. To avoid it, and to remove any conflict between them and the child, they moved to non-suit their cause of action for medical expenses because of injuries to the minor and the cause of action they filed as next friends on behalf of the minor, thereby leaving only the suit they pleaded individually for personal injuries suffered by Mrs. Roberts. The record shows that since birth the child has suffered with allergies, that the enamel of her teeth has deteriorated resulting in the removal of several teeth, that her fingernails are deformed, that she has visual and perception problems compatible with learning disabilities, that she is hyperactive, and that she has been treated by fourteen physicians and two dentists for those maladies. It was (and is) the position of the parents and their attorney that those physical problems were caused by a post-mature birth of five weeks caused by the. collision, or by certain drugs and medications administered to the mother as a result of the collision before the child was born, or by a combination of the delayed birth and the drugs; and that, given time (which may take several months or several years), they can establish their contentions with medical evidence. In the mother’s words, they viewed the $1500.00 settlement figure as “ridiculously” negligible when compared to the minor’s injuries and expenses.

In support of the parents’ motion for non-suit at the pre-trial conference, their attorney stated to the court, “I personally am prepared today, to insure that the child will not lose anything, to deposit that amount of money [$1500.00], myself, in the registry of the court for use and benefit of the child. . . The interest of the child cannot be hampered if I put $1500.00 in the registry of the court for the use and benefit of that child and let the case not be disposed of on the merits. And, if there’s any loss, I take it.” In response, the guardian ad litem told the court that after a thorough investigation into the merits of the case he had concluded that negligence on the part of the defendants causing the collision was doubtful, that whether the birth of the child was in fact post-mature was also “very questionable,” and that even if the birth of the child was actually delayed because of the collision, the possibility that the child’s physical problems were caused by the delay was “speculative and remote” under present medical proof. He then stated to the court, “I do not approve of an attorney becoming an underwriter or surety for his clients’ case, to the extent of his time, but I don’t see how, in the exercise of my duty and based on what I have already told this court, that I could reject that offer. If I have the power to appear, with the court’s approval I will accept his offer, and then upon drawing up the appropriate papers, which I will do, and this money be deposited in the registry of the court, I will resign with the court’s approval the position of attorney ad litem and allow counsel to go forward as a representative of the child. I think if I have gotten $1500.00 for the child from whatever source then she is protected. If he wants to do that, which in my opinion is poor judgment, but if he wants to do that, I say let him do it if he is so sure of the developments that will occur and that the case can be won on the merits on the theory that he has advanced, and then I would respectfully urge the court to approve it because I think the child can’t lose on that deal.”

The court then told the parties to “get back to what we are here about,” learned that plaintiffs had not yet taken the needed deposition, instructed the parties to immediately arrange for the taking of the deposition, expressly declined to act on plaintiffs’ motions for non-suit, and reset the trial date for November 1, 1976. Plaintiffs emphasized to the court that even with the deposition they probably would need four to six months to prepare for trial.

When the case was called for trial on November 1, 1976, the guardian ad litem recommended the $1500.00 settlement to the court for approval. Before the settlement agreement was heard by the court, plaintiffs again expressed their opposition to it. They moved the court to non-suit their individual suits and to also non-suit the cause of action they filed as next friends on behalf of the minor. Concurrently, and in connection with the motion, plaintiffs’ attorney again offered to pay $1500.00 into the registry of the court for the sole use and benefit of the minor and stated to the court that he was “ready, willing and able” to do so. Plaintiffs reasoned that once non-suited their individual causes of action would be forever barred by the two-year statute of limitation thereby permanently eliminating any claimed conflict between them and the child’s interests; that their deposit in lieu of the settlement left no benefit to the child by reason of the settlement; that to approve the settlement would end the child’s case on the merits; and that to grant the motions for non-suit and permit their tender would leave the child’s case open for possible favorable development and could only benefit and in no way harm the child’s best interests.

The court granted plaintiffs’ motions for non-suit on their individual cases, but refused to approve the motion to non-suit the child’s case.

During the time between the hearing on September 24th and the one on November 1st, the guardian ad litem prepared an instrument denominated “Agreed Order Granting Nonsuit” which provided for the $1500.00 deposit into the registry of the court by plaintiffs’ attorney “to be held unconditionally for the use and benefit of the minor child,” the non-suiting of the child’s cause of action, and the discharge of the court-appointed guardian ad litem. It contained a recited finding that those measures would be in the best interests of the child. At the hearing on November 1st, after the plaintiffs’ individual causes had been non-suited, but before the settlement agreement was heard, plaintiffs moved the court to enter this order. Thereupon, the guardian ad litem made this statement to the court: “It is perfectly true that the order to which [plaintiffs’ attorney] has referred was prepared by me after he insisted or requested on several occasions that I do so. I prepared that order and I allowed [plaintiffs’ attorney] to pick it up and I advised him that if the court were so inclined to grant such an order that was the form of order that I would be agreeable to, and I am not joining in the motion to have the agreed order entered and I would suggest to the court that while it’s true that the child would probably come out with the same .amount of money — there is, I think, some serious questions here of the propriety of this device, if you will, that may raise a question, and I simply want to clarify it for the purpose of the record that I am not participating in the motion by virtue of the fact that I drafted up the words on that piece of paper.” The court refused to consider the proposed order, and proceeded to hear the settlement agreement.

In support of his recommendation for approval of the settlement, the guardian ad litem told the court, “I have made a determination that there is no conceivable way that we could prevail now or at any time in the future in this case. . . and I made the determination that the case had to be settled based upon whatever I could possibly persuade the defendants to pay in settlement of the case.” The record shows that he based those conclusions upon a study of causal responsibility for the collision; a detailed examination and analysis of the trial court record which contained among other things depositions of the parties, depositions of physicians who treated Mrs. Roberts during her pregnancy and after the birth of the child, depositions of physicians who have treated the child since birth for her physical problems, and hospital records relating to mother and child; and independent conferences with medical experts about the relationship between the collision and post-mature delivery and the child’s problems. No one questions the guardian ad litem’s good faith in recommending the settlement.

After the hearing, the court approved the settlement agreement and rendered judgment based upon it. The judgment recited that the court was of the opinion that the settlement was in the best interests of the minor plaintiff, awarded the minor a recovery of $1500.00 from defendants, required that amount deposited into the court’s registry for the use and benefit of the minor, recited that the deposit had been made and the award had been fully and finally satisfied, and adjudged that the defendants were “fully and finally relieved and discharged from any and all liability to the minor plaintiff as a result of the accident made the basis of this suit.”

Among other complaints on appeal the parents asserted the court erred in failing to accept their tender of the amount of the settlement and non-suit the child’s cause of action, and in approving the settlement agreement.

Responding to plaintiffs’ request for findings of fact and conclusions of law, the court expressly determined that “The maladies and illness from which the minor, Stacey Roberts, is said to suffer have not been shown to have been proximately caused or to have resulted from the occurrence made the basis of this lawsuit.” Upon this determination the court based the further conclusion that approval of the settlement was in the best interest of the minor. As Ave have said, the record before the trial court contained depositions of the parties and many physicians, and records of several hospitals. Although granted opportunity to supplement the appellate record, even after oral submission, plaintiffs have brought forward to this court only one deposition and the records of one hospital. In the absence of a complete statement of facts we must, and do, presume that the record before the court supported the determination that there was no showing of causal connection between the collision and the child’s physical problems. Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex.Sup.1968).

A guardian ad litem is appointed in cases of this nature to assist the court in protect-mg the rights and effecting the best interests of the minor plaintiff. Wright v. Jones, 52 S.W.2d 247, 252 (Tex.Comm.App.1932). Under the circumstances existing at the time the parents’ motion to non-suit the child’s case was submitted to the court, we believe it was the court’s duty to first conduct a hearing on the settlement negotiated and recommended by the guardian ad litem before it ruled on the motion, and that it acted properly in doing so. Again, in the absence of the complete record made on that hearing, we must presume the record supported the court’s refusal to accept the parents’ $1,500.00 tender and non-suit the child’s case, and its approval of the settlement agreement, as being in the best interests of the child. Mays v. Pierce, 154 Tex. 487, 281 S.W.2d 79, 82 (1955); Guthrie v. National Homes Corporation, 394 S.W.2d 494, 495 (Tex.Sup.1965).

Appellants’ points and contentions are overruled. The judgment is affirmed.


author: SPURLOCK, Justice.

text:
    Richard Ben MARTIN, Appellant, v. Charles E. SKELTON, Appellee.
    No. 17973.
    Court of Civil Appeals of Texas, Fort Worth.
    June 1, 1978.
    Rehearing Denied June 29, 1978.

      Hogan, Fudge & Elder and W. Bernard Fudge, Wichita Falls, for appellant.
    Elmer H. Parish, Wichita Falls, for appel-lee.
   OPINION

SPURLOCK, Justice.

This case involves an option to purchase real estate for a term of five years. Appellant (Martin) notified appellee (Skelton) by letter that he was exercising his option for two acres out of a larger tract of twenty acres, but this exercise and tender of payment was refused by appellee. Appellant then sought to exercise the option as to the entire twenty acres of land, but once again, appellee refused. After a non-jury trial, the court rendered judgment that plaintiff was not entitled to any specific performance. Appellant has perfected his appeal.

We affirm in part and reverse and remand in part with instructions.

By his first point of error, appellant contends that the “trial court erred in finding that the option contract was dated and thus by inference executed on the 1st day of July, 1971, since there was no evidence to support that fact.”

In considering a “no evidence” point, we must view the “evidence in its most favorable light in support of the finding of the vital fact, considering only the evidence and the inferences which support the finding and rejecting the evidence and the inferences which are contrary to the finding.” Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361, 364 (1960).

The option contract provides that it is to run for “five (5) years from date hereof”. The following sentence is located above the signature lines in the option contract: “Witness our hands this 1st day of July, 1971.”

Appellant places great emphasis upon the fact that the acknowledgment is dated the 23rd of July, 1971. That emphasis, however, is misplaced in that an acknowledgment only makes an instrument recordable in the County Clerk’s office under the provisions of Tex.Rev.Civ.Stat.Amn. art. 6626 (Supp.1978); it does not indicate when the instrument itself was signed. We overrule appellant’s “no evidence” point; we hold that the option contract itself supports the finding of the trial court that the option contract was dated and executed on July 1, 1971.

By his second point of error, appellant contends that the trial court erred in finding that the option contract expired as of midnight, June 30, 1976. The option contract provides that it may be exercised by buyer “on or before five (5) years from date hereof, for the sum of $1,000.00 per acre”. As mentioned above, the following sentence appears above the signature lines: “Witness our hands this 1st day of July, 1971.” We overrule this point of error; we hold that the option expired on June 30, 1976.

Because of the similarity of the legal issues raised by appellant’s third and fifth points of error, we shall discuss them together. By his third point of error, appellant basically contends that the trial court erred in finding as a matter of law that the plaintiff is not entitled to specific performance of the option contract insofar as the two (2) acre tract of land described in the letter dated June 29, 1976, is concerned, since the defendant (appellee) did not receive the letter until July 6, 1976. By his fifth point of error, he contends that the trial court erred in finding as a matter of law that appellant was not entitled to specific performance of the option contract to the extent of the two acres, in that the trial court found that the contract did not authorize the appellant to exercise the option by way of letter. '

The trial court made (inter alia) the following important findings of fact: (1) appellant (plaintiff) mailed a letter dated June 29, 1976, to appellee (defendant) whereby appellant stated that he was exercising the option with respect to the two acres of land described in said letter; (2) appellant mailed two copies of said letter to the appellee; one letter was sent “regular mail or hand delivered to Defendant’s box, and one being mailed by certified mail, return receipt requested. The non-certified letter was either hand delivered by Plaintiff to Defendant’s box on June 29, 1976 or delivered by Postal Authorities to Defendant’s box on June 30,1976 and that Defendant was then on vacation and not at home, and the certified letter was signed for and received by Defendant on July 6,1976 when Defendant returned home from vacation.” (Emphasis added.)

Appellee-defendant has not complained of the trial court’s findings of fact. As the above findings of fact clearly indicate, the trial court found that the letter dated June 29, 1976 was delivered on either June 29 or June 30, 1976. Under either of those two dates, we hold that the option was timely exercised as to the two acres of land.

The evidence and the court’s findings of fact clearly demonstrate that the appellee was out-of-town on vacation, thus making it impossible for him to be given personal notice of the exercise of the option that he had granted. Also, the evidence clearly demonstrates that appellant did not know the appellee’s exact whereabouts in order to give personal notice.

Here the option contract did not seek to limit or define the methods by which the appellant could timely exercise the option.

It has been held that the failure of the holder of the option to comply strictly with the terms or conditions of the option will be excused when such failure is caused by the conduct of the person who granted the option. Jones v. Gibbs, 133 Tex. 627, 130 S.W.2d 265, 272 (Tex.Comm’n.App.1939, opinion adopted). However, in the case at bar, appellant has complied with the terms of the option contract as to the two-acre tract of land described in the June 29, 1976 letter, in that personal notice is not required by the terms of the option contract. Here, appellee failed to receive actual notice at the exact time of exercise only because he was out-of-town. Under these circumstances, we hold that the June 29, 1976 letter was a reasonable method available to the appellant who wanted to timely exercise his option and his actions were a sufficient discharge of his duty. Also, we hold that under these circumstances, it is irrelevant that appellee did not read the June 29th letter until he returned from vacation on July 6,1976. We sustain appellant’s third and fifth points of error.

By his sixth point of error, appellant contends that the trial court erred in finding as a matter of law that he was not entitled to specific performance as to the two-acre tract of land in that the trial court concluded that the option contract failed to state by whom or in what manner the selection of a lesser acreage out of the twenty acre tract of land was to be made.

In the option contract, the “party of the second part” is the purchaser. The contract provides: “It is agreed that during said five (5) year option the PARTY OF THE SECOND PART may purchase one (1) or more acres or the total twenty (20) acres upon PARTY OF THE SECOND PART’S option.” (Emphasis added.)

We hold that the above-quoted provision in the option contract clearly provides that the selection of any acreage of less than twenty acres was at the option of the purchaser; i. e., the appellant.

In passing upon appellant’s sixth point of error, we are also faced with the issue as to whether the option contract and the June 29, 1976 letter exercising the option as to the two acres satisfy the statute of frauds.

In the option contract, the twenty-acre tract of land was identified by a complete legal description.

Chief Justice Massey, speaking for this court in Best Building Company v. Sikes, 394 S.W.2d 57, 62 (Tex.Civ.App.—Fort Worth 1965, writ ref’d n. r. e.) wrote:

“It appears that existence in one party of an unqualified right of determination or selection of an amount and location of premises (within an area certainly ascertainable) meets the requirements of the Statute of Frauds where there is no necessity of any further agreement or approval by the other party.”

Since the appellant here had the right to carve out a smaller tract of land out of the larger tract, we hold that the option contract complied with the statute of frauds.

In determining whether the June 29, 1976 letter exercising the option as to the two-acre tract of land satisfies the statute of frauds, we must look at the language in that letter, which describes the twenty-acre tract as “Tract No. 1”.

The crucial part of that letter is as follows:

“I desire to exercise my option with respect to Tract No. 2 and hereby give you notice thereof. Tract No. 2 is to be as nearly in the form of a square as may be surveyed and is to have 297 feet along the East line and 297 feet along the South line of Tract No. 1.”

At the trial, a registered public surveyor testified that he had located and surveyed the precise two-acre tract of land, based upon the description given in the letter.

We hold that the land described in the June 29, 1976 letter complied with the statute of frauds. Accordingly, we sustain the appellant’s sixth point of error and hold that appellant was entitled to specific performance as to the two-acre tract of land.

By his fourth point of error, appellant basically contends that the trial court erred in finding that he was not entitled to specific performance of the option contract as to the remaining eighteen acres of land, since the trial court concluded that a July 23, 1976 letter was not timely.

After appellee “rejected” appellant’s exercise as to the two-acre tract of land, appellant sought to exercise the option as to the entire twenty acres by letter dated July 23, 1976. This attempted exercise on July 23rd was not timely, in that (as the trial court and we have concluded) the last day of the five year option term was June 30, 1976. We overrule appellant’s sixth point of error.

We affirm in part and reverse and remand the case in part with instructions to the trial court to order specific performance as to the two acre tract of land upon tender of $2,000.00 by appellant within thirty days from the date that the mandate is issued.


author: MASSEY, Chief Justice.

text:
    Troy Lyles McCOY, Appellant, v. Gladys Sylvia McCoy FLEMING, Appellee.
    No. 17972.
    Court of Civil Appeals of Texas, Fort Worth.
    June 1, 1978.
    Rehearing Denied June 29, 1978.
    Anderson & Martin and Rosendo Rodriguez, Jr., Wichita Falls, for appellant.
    Bill J. Ballard, Wichita Falls, for appel-lee.
   OPINION

MASSEY, Chief Justice.

In Cause No. 99,793-B in the District Court of Wichita County, Texas, judgment was rendered October 30, 1975, dissolving the marriage between appellee, Gladys Sylvia McCoy, and appellant, Troy Lyles McCoy. The judgment further awarded ap-pellee custody of the minor child, Gary Todd McCoy, born 1965, and awarded appellant custody of two older children. For the support of Gary Todd the appellant was ordered to pay the amount of $150.00 per month. This judgment became final.

Subsequently, in April of 1977, the appellant was ordered to appear and show cause why he should not be held in contempt of the Wichita County court for arrears in the amount of child support of $1,800.00, plus obligation to pay attorney’s fees to be taxed as costs in the contempt proceeding. Notice was served upon the appellant at his Tennessee residence. He filed his special appearance, and subject thereto his answer. He did not attend the hearing, save by counsel who was present.

After hearing.the Order Holding Respondent (appellant) in Contempt for Failure to Pay Child Support was rendered on July 29, 1977, including provisions, viz:

“The Court has jurisdiction of the cause and the parties.
“Respondent has contemptuously disobeyed the order [in the judgment] by failing to make periodical payments ordered and is now in arrears in the amount of $2,150.00; and . . should be held in contempt of court.
“It is the order of the court that the Respondent pay an attorney fee of $1500.00 and provided there be no appeal to the Court of Civil Appeals by Respondent the attorney fee is reduced to $750.00. Said attorney fee shall be paid to the Wichita County Family Court Services, County Courthouse, Wichita Falls, Texas. Said attorney fee is taxed as costs.
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that Troy Lyles McCoy, Respondent, be, and is hereby adjudged to be, in contempt of this Court and that punishment therefore be fixed and assessed at a fine of $250.00 and confinement in the County Jail of Wichita County, Texas, for a period of 10 days and that Respondent thereafter be further confined in said jail until Respondent has fully purged such contempt by the full observance of obedience of the decree of this Court . . .”

Not being present appellant was not confined pursuant to the order of July 29,1977. He remained in Tennessee. However, he proceeded to go through formalities as by regular appeal to a Court of Civil Appeals from a final judgment of a trial court. The record presented was filed by the clerk of this court.

A proceeding to have a defendant held in contempt after there has been finality of the judgment is a special proceeding. An order which either holds or refuses to hold in contempt a respondent in a proceeding brought for that purpose is not appeala-ble. The attempted appeal herein is to be dismissed.

See 12 Tex.Jur.2d § 57 (1960) p. 535, “Contempt,” “Review — By appeal or writ of error”; Ex Parte Cardwell, 416 S.W.2d 382 (Tex.1967); Curtis v. Curtis, 448 S.W.2d 245 (Tex.Civ.App.—Austin 1969, no writ); and the many Texas cases listed at p. 534 in 33 A.L.R.3rd, p. 448, et seq., Annotation: “Ap-pealability or Contempt Adjudication or Conviction.”.

The appeal is dismissed.


author: O’QUINN, Justice. SHANNON, Justice, PHILLIPS, Chief Justice,

text:
    Edward GOLDSMITH et ux., Appellants, v. Vernon R. BAKER et ux., Appellees.
    No. 12706.
    Court of Civil Appeals of Texas, Austin.
    June 7, 1978.
    Rehearing Denied June 28, 1978.

      Terrence Kendall, Kendall, Randle, Finch & Osborn, Austin, for appellants.
    R. Douglas Muir, Eskew, Brady, Womack & Muir, Austin, for appellees.
   O’QUINN, Justice.

Appellants, Edward Goldsmith and wife, Juliette Goldsmith, filed their petition for bill of review in district court seeking to set aside a default judgment taken against them in 1974, in a suit brought by Vernon R. Baker and wife, Audane Baker, appellees in this appeal, for damages growing out of sale to appellees of a giftshop franchise.

After hearing on the petition before the court without aid of a jury, the court entered judgment that the Goldsmiths take nothing upon the conclusion as a matter of law that “The Goldsmiths failed to prove by a preponderance of the evidence that they had a meritorious defense to the cause of action of the Bakers alleged to support the judgment in the prior suit.” (Emphasis added)

The Goldsmiths on appeal bring two points of error. We will sustain the points of error and reverse the judgment of the trial court.

In the original cause the Bakers sued the Goldsmiths, their son Warren Goldsmith, and Mark S. Barrow, claiming that the four defendants entered into a conspiracy to sell the Bakers a giftshop franchise, using as inducement to purchase fraudulent misrepresentations, and that in reliance the Bakers paid $10,000 for the franchise, incurred other expenses and losses, quit their jobs in another city and moved to Austin to establish the shop.

In their petition for bill of review the Goldsmiths alleged that after being served with citation in the original suit, they wrote and mailed an answer addressed to the judge of the district court in which the suit was pending and subsequently received a certified mail receipt from the Travis County courthouse prior to appearance day. Thereafter default judgment was entered against the Goldsmiths. The Goldsmiths alleged they received notice of the judgment more than thirty days after its entry, subsequent to which they filed their petition for bill of review.

To meet the requirement of showing a meritorious defense, appellants alleged that they had agreed with the Bakers only to take over a lease on the property located in Austin; that they made no misrepresentations; and that any representations made to the Bakers by appellants were true. The Goldsmiths further alleged that they did not receive from the Bakers a fee in exchange for a franchise, and that if the Bakers paid a franchise fee, payment was made either to the other defendants or to a corporation controlled by the other defendants, but that the Goldsmiths had no knowledge of any such payment. Appellants further asserted that the reason the Bakers were unsuccessful in their attempt to open the planned store lay in the fact that the Bakers were lacking in financial strength.

After hearing before the court, the trial court found as a matter of fact that the answer appellants sent to the court was delivered to the mail room of the Travis County courthouse, where it was properly received and forwarded to the office of the judge of the court in which suit was pending, after which it disappeared through no fault of the Goldsmiths. The trial court also concluded that the answer as a matter of law constituted answer to the suit; and found as a matter of fact that the Goldsmiths had no notice of the default judgment until more than thirty days after its entry.

The trial court entered judgment, nevertheless, that appellants take nothing by their suit because the court concluded as a matter of law that “ . . . the Goldsmiths failed to prove by a preponderance of the evidence that they had a meritorious defense to the cause of action of the Bakers alleged to support the judgment in the prior suit.” (Emphasis added)

The Goldsmiths have appealed and bring two points of error. First, appellants assert the court erred in entering a “take nothing” judgment against the Goldsmiths because the Goldsmiths did not have the burden of showing by a preponderance of evidence that they had a meritorious defense to the cause of action asserted by the Bakers. Second, appellants urge that the adverse finding is against the great weight and preponderance of the evidence.

In reaching a decision in this appeal, the Court’s determination must rest upon examination of the record on the basis of viewing the effort by the • Goldsmiths to reinstate themselves in court through a petition for bill of review, not by a suit against the Bakers. To succeed in a proceeding for bill of review to set aside the prior final judgment, the petitioner “ . . . must allege and prove: (1) a ' meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own.” Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950).

It is well established, by decisions prior to and after the decision in Hagedorn, that proof of the elements there enumerated involves trial of two issues. First, the complaining party proves that he was prevented from presenting a meritorious defense to the original cause of action by fraud, accident, or by wrongful act of the opposite party, and petitioner was not himself negligent, thereby entitling petitioner to a retrial of the cause of action on the merits. Second, the cause of action is retried on the merits.

In 1961 the Supreme Court held, in an opinion by Chief Justice Calvert, that: “In a bill of review proceeding the plaintiff must allege and prove that he was not negligent in suffering the default judgment to be rendered against him and that he has a meritorious defense to the suit. Our decisions require that the two issues be tried together so that the court may render a new final judgment.” (Emphasis added) McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (1961).

The trial court in the case now on appeal held that the Goldsmiths “failed to prove by a preponderance of evidence that they had a meritorious defense . . . ” (Emphasis added) It is apparent that the trial court held that the Goldsmiths failed on the second issue described by the Supreme Court and held, further, that the Goldsmiths had the burden of persuasion on that issue.

The rule is settled that when a person has been deprived of his rights through no fault of his own, and a court of equity in due exercise of its discretionary powers grants relief, the grant is one of “ . . . relief by retrying the case upon its merits, and the former judgment may be set aside and such relief will be granted as is appropriate and warranted by pleading and proof on the entire case.” (Emphasis added) Texas Employers’ Ins. Ass’n v. Arnold, 126 Tex. 466, 88 S.W.2d 473, 474 (1935), citing with approval and quoting from Humphrey v. Harrell, 29 S.W.2d 963, 964 (Tex.Comm’n App.1930, jdgmt adopted).

McDonald states the rule in this language: “The controversy turns upon two issues: (I) Was the judgment complained of rendered as a result of fraud, accident, or mistake, without the negligence of the complainant either in the course of the former action or after judgment? (II) Was the judgment incorrect? The burden is upon the complainant to establish the affirmative of the elements of the first issue. If he does so, the burden of proof upon the second issue rests upon the party who would have had such burden had no judgment been entered.” (Emphasis added) 4 McDonald, Texas Civil Practice, sec. 18.29.

The trial court found that the Goldsmiths had met and discharged their burden under the first issue. Thereafter the burden of proof rested upon the Bakers who had the burden prior to entry of the default judgment.

It is obvious that the Supreme Court in McEwen v. Harrison, supra, expressly adopted the view found in McDonald, for there the Court declared, “If ... a defendant has not been negligent in suffering a default judgment to be rendered against him by a court which had jurisdictional power to render it, or in permitting it to become final, and if he has a meritorious defense to the suit, he may still have the suit tried on its merits with the right to require the plaintiff to prove his case and the corresponding right to establish his defense.” (Emphasis added) 345 S.W.2d 706, 710.

The language of the Supreme Court in McEwen clearly reiterates the rule as stated by that Court a century earlier. In Witt v. Kaufman, 25 Tex.Supp. 384, 387 (1860), Chief Justice Wheeler, speaking for the Court, after finding the defendant had established entitlement to have the judgment declared void, ordered, in the same proceeding, a retrial of the cause of action for the “purpose of doing full and complete justice between the parties . . ” and directed “ . . judgment for the plaintiff upon the cause of action on which the judgment . . . was rendered, if, upon the merits, the plaintiff was entitled to judgment.” (Emphasis added)

Once a meritorious defense has been shown, that is, a showing by probative evidence that the result probably would have been different, “ . . the parties are then relegated to their original status of plaintiff and defendant, with the burden of proof resting upon the plaintiff to make his case . ” (Emphasis added) Crosby v. Di Palma, 141 S.W. 321, 325 (Tex.Civ.App. El Paso 1911, writ ref’d).

The judgment of the trial court is reversed. The cause is remanded to the trial court with instructions that the suit be tried on the merits with the burden of proof on plaintiffs below to make their case, in conformity with this opinion.

Reversed and Remanded with Instructions.

SHANNON, Justice,

concurring.

I concur in the opinion of Justice O’QUINN that the judgment of the district court be reversed.

A movant in a bill of review proceeding seeks to invoke the equitable powers of the Court to set aside a previous judgment and enter a new judgment. Dosamantes v. Dosamantes, 500 S.W.2d 233, 238 (Tex.Civ.App.1973, writ dism’d). He must first demonstrate that he has a meritorious defense to the original suit before a court of equity will set aside the default judgment. Overton v. Blum, 50 Tex. 417, 425 (1878). If the movant has no meritorious defense to the suit on the merits, setting aside the judgment would be a vain act and a trespass on the court’s time not countenanced by equity. McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (1961).

The movant is required to do more than specifically plead a meritorious defense. He has the burden to produce some evidence of the meritorious defense to the original cause of action. Overton v. Blum, supra; Humphrey v. Harrell, 29 S.W.2d 963 (Tex.Comm’n App.1930, judgment adopted); Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240 (Tex.1974); Hollis v. Seibold, 23 S.W.2d 811 (Tex.Civ.App.1929, writ dism’d); Crosby v. Di Palma, 141 S.W. 321, 325 (Tex.Civ.App.1911, writ ref’d). If he fails to produce some evidence of a meritorious defense, the court should deny the bill of review.

The movant has the additional burdens of production and persuasion of the other requirements of the bill of review. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950). If the movant satisfies the initial burden to produce evidence, then the parties are relegated to their original posture “ . . . with the burden of proof resting upon the plaintiff to make his case, leaving the defendant the right . to rely merely upon the weakness of his adversary’s case.” Crosby v. Di Palma, supra.

If a jury case, the court submits special issues inquiring whether the default judgment came about through the fraud, accident, or wrongful act of another unmixed with any negligence of movant. The special issues submitting the merits of the original case are conditioned upon favorable answers to the special issues submitting the elements of the bill of review. Of course, if the movant asserted affirmative defenses, he has the usual burdens of production of evidence and persuasion on those issues.

PHILLIPS, Chief Justice,

dissenting.

I respectfully dissent.

During this bill of review proceeding, the case was fully tried and the record fully developed. This is conceded by appellants. It is quite apparent from the court’s judgment and from a review of the testimony, that the court was of the opinion that appellants had not proved a meritorious defense. In my judgment, the record supports the finding.

I note at the outset that the equitable bill of review is a new proceeding brought by the loser in the original proceeding to vacate the original judgment. The bill of review proceeding is neither a continuation of the original action nor is it a motion for new trial. The plaintiff in a bill of review proceeding must allege and prove the elements of his cause of action. Moreover, once a default judgment has become final, the judgment becomes a vested right. A court of equity will not vacate the judgment for the purpose of giving the defeated party a second opportunity to be heard on the merits of the case. Finality must be accorded judgments; therefore, the grounds upon which equitable relief may be granted are narrowly construed.

In Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950), the Supreme Court stated the general rules for the granting of a bill of review. These are that before a litigant can successfully set aside a final judgment, he must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own.

The court held that not only must a meritorious defense be pleaded but that the moving party must go further and prove such a defense. Thus the plaintiff in a bill of review must meet and satisfy a two-pronged test. See also McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (1961).

The initial inquiry is whether the pleadings state a meritorious defense worthy of submission to the trier of facts. Wallace v. Snyder National Bank, 527 S.W.2d 485 (Tex.Civ.App.1975, writ ref’d n. r. e.). Thus, if the motion to vacate the judgment discloses a meritorious defense, the Hage-dorn test then requires that the movant prove a meritorious defense. Thus we come to the quantum of proof imposed at law in order to set aside the judgment by bill of review.

At this point I note that there is a well-settled distinction between the pleadings and proof necessary to grant a new trial on a motion therefor after a default judgment and a motion to set aside a judgment by way of bill of review. See Smith v. Ferrell, 44 S.W.2d 962 (Tex.1932). To prevail in the former, it is necessary only that the movant allege facts which would constitute a meritorious defense to the other party’s cause of action and that it be supported by evidence proving prima facie that movant has such a defense. See Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939); Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966); Wallace v. Snyder National Bank, supra. In Ivy, the Court said;

“The rule of Craddock does not require proof of a meritorious defense in the accepted sense to entitle one to a new trial after default; the motion should be granted if it ‘sets up a meritorious defense.’ In this respect the burden a defaulting defendant must assume on motion for new trial is much less onerous than the burden he must assume in a bill of review proceeding filed after expiration of the time for filing a motion for new trial. In the latter situation, except in unusual circumstances as reflected in Hanks v. Rosser, 378 S.W.2d 31 (Tex.Sup.1964), the issues of negligence or fault on the part of the defendant, fraud, accident or wrongful act on the part of the plaintiff, and meritorious defense are tried together in a single full-blown trial in which ‘every issue must be disposed of, and relief denied or granted.’ ”

Further, as stated by the Supreme Court in Ward v. Nava, 488 S.W.2d 736 (Tex. 1972):

“In Ivy v. Carrell, supra, this Court said:

“ ‘The motion must allege facts which in law would constitute a defense to the' cause of action asserted by the plaintiff, and must be supported by affidavits or other evidence proving prima facie that the defendant has such meritorious defense.’ ” (Emphasis added)

Thus if “the burden a defaulting defendant must assume on a motion for new trial is much less onerous than the burden he must assume in a bill of review proceeding” and the burden one must assume in the former situation is to prove “prima facie that the defendant has such meritorious defense,” how can it be said that mere allegations of a meritorious defense in the movant’s petition or the introduction of only some evidence satisfies the proof requirement set forth in Hagedorn?

In Hagedorn the Supreme Court held that the burden to establish a meritorious defense lies with the movant. (Indeed, in this respect McDonald refers to this movant as “the plaintiff” in an entirely new proceeding. 4 McDonald, Texas Civil Practice, § 18.27.2 (1971) (11) Meritorious Claim or Defense). Burden of proof and burden of persuasion are synonymous. Huckaby v. Huckaby, 436 S.W.2d 601 (Tex.Civ.App. 1968,.,writ ref’d n. r. e.). To prove is “to make certain, to establish, to fix or settle unalterably.” Texas & New Orleans Ry. Co. v. Flowers, 336 S.W.2d 907, 914 (Tex.Civ.App.1960, no writ). The general rule in civil cases is that the party having the burden of proof must establish the case by a preponderance of the evidence. State v. Turner, 556 S.W.2d 563 (Tex.1977). So, in a civil case, the evidence to support a claim must preponderate. If it does not, the evidence fails to prove the claim in any degree.

In summary, the burden of proof or risk of nonpersuasion is on the litigant who seeks to alter the status quo. This burden is placed upon the movant by the pleadings and the substantive law. Moreover, the movant has the initial duty of producing some evidence in order to satisfy the judge that the judgment should be reopened and that a retrial on the merits should be had.

Thus where the movant (plaintiff) satisfies the court that he has a prima facie case of proving the negative — no liability to the prior plaintiff — the burden of going forward shifts to the defendant (prior plaintiff) in the bill of review proceeding. Defendant must then go forward with enough evidence to raise the issue of liability. The burden of persuasion, however, remains on the movant or the “plaintiff” in the equitable proceeding. At this point the question becomes who should win. Accordingly, appellants here had to establish by a preponderance of the evidence that their defense should prevail. Having failed to do this, the trial court entered a “take-nothing” judgment to their suit.

The obvious result of the majority and concurring opinions is to give appellant two bites at the papaya when under the pleading and proof such is unwarranted. It is well settled that in a bill of review proceeding all the issues are tried together in a single full-blown trial in which “every issue must be disposed of, and relief denied or granted.” Texas Employers’ Ins. Ass’n. v. Arnold, 126 Tex. 466, 88 S.W.2d 473 (1935).

For these reasons, I would hold that the judgment of the trial court was correct so that it should be affirmed.

      . See generally Hanks v. Rosser, 378 S.W.2d 31 (Tex.1964).


text:
    Daniel L. HAWKINS, Appellant, v. Jack FRANKLIN et al., Appellees.
    No. 5177.
    Court of Civil Appeals of Texas, Eastland.
    June 8, 1978.
    Rehearing Denied June 29, 1978.
    Arthur Mitchell and Robert A. Miller, Mitchell, George & Belt, Austin, for appellant.
    Don R. Wilson, Abilene, for appellees.
   BRADBURY, Justice.

This is an appeal from an order of the trial court dismissing the cause of action brought by appellant, Daniel L. Hawkins, individually, and his stockholder’s derivative action on behalf of Abilene Tube & Channel, Inc., against appellees, Jack Franklin, D & J Operating, Inc. and Abilene Tube & Channel, Inc.

Appellees answered appellant’s original petition with their plea in abatement, special exceptions, and original answer. After filing his first amended original petition appellant filed his motion for nonsuit as to his stockholder’s derivative action. This was granted on December 27,1977. Thereafter the court entered the following order of dismissal:

“ON THIS, the 17th day of January, 1978, the Court having considered the Motion of the Defendants, JACK FRANKLIN, D & J OPERATING, INC. and ABILENE TUBE & CHANNEL, INC., for Judgment, as well as the Motion for Non-Suit of the Plaintiff, DANIEL L. HAWKINS, which said Motion for Non-Suit was granted by the Court on the 27th day of December, 1977; and the Court, having read the pleadings, considered the evidence, and after hearing argument of counsel, is of the opinion that the pleadings of the Plaintiff, DANIEL L. HAWKINS, are insufficient to state a cause of action, other than a derivative stockholder’s suit, and that the Order for Non-Suit, heretofore entered, should operate as a dismissal of the entire cause, without prejudice to Plaintiff’s right to refile same:
It is, therefore, ORDERED, ADJUDGED AND DECREED that this cause be, and the same is, hereby DISMISSED against the Defendants, ABILENE TUBE & CHANNEL, INC., JACK FRANKLIN and D & J OPERATING, INC., without prejudice to Plaintiff’s right to refile same, with costs adjudged against the Plaintiff, for which let execution issue,”

It is from this order that this appeal has been perfected.

The relevant parts of appellant’s first amended original petition are as follows:

“II.
At all times herein Plaintiff was a stockholder in Abilene Tube & Channel, Inc., and until April 15,1977 was a stockholder in D & J Operating, Inc. Defendant Jack Franklin was at all times herein a stockholder, officer and director of Defendants Abilene Tube & Channel, Inc. and D & J Operating, Inc. Due to their respective positions in Abilene Tube & Channel and D & J Operating, Inc., there existed a fiduciary relationship between Plaintiff Hawkins and Defendant Franklin.

III.

Defendant D & J Operating, Inc. was originally constituted as a partnership between Plaintiff Hawkins and Defendant Franklin. The fiduciary duty between the partners continued after the incorporation.

IV.

Defendant Franklin has breached the fiduciary relation that existed with Plaintiff Hawkins by conspiring with Defendants D & J Operating, Inc. and Abilene Tube & Channel to destroy Plaintiff Hawkins minority interest in Defendant Abilene Tube & Channel. To that end Defendants have:

1) created false and fraudulent obligations of Abilene Tube & Channel, Inc.;
2) appropriated the assets of Abilene Tube & Channel, Inc.;
3) precluded Plaintiffs’ rightful participation in management of Abilene Tube & Channel, Inc.;
4) threatened to and will collapse Abilene Tube & Channel, Inc. to the extent that the minority stockholder, Plaintiff Hawkins, is and will be without earnings;
5) siphoned off all of the earnings of Abilene Tube & Channel, Inc. to the extent that the minority stockholder, Plaintiff Hawkins, is and will be without earnings;
6) refused to enforce contracts for the benefit of Abilene Tube & Channel, Inc.;
7) looted the treasury of D & J Operating, Inc. as well as Abilene Tube & Channel, Inc. to the destruction of their solvency and ability to meet their current obligations;
8) undertaken to create a subsidiary and/or holding company as a maneuver and squeeze-out play to destroy Plaintiffs’ interest in Abilene Tube & Channel, Inc.;
9) done many other wrongful acts amounting to a squeeze-out and destruction of Plaintiffs’ interest in D & J and Abilene Tube, all of which are well known to Defendant Franklin;

All to Plaintiff Hawkins damage in the amount of $500,000.

V.

On or about April 15, 1977, Plaintiff Hawkins sold his interest in D & J Operating, Inc. to Defendant Franklin. Defendant Franklin breached his fiduciary duty to Plaintiff Hawkins by not disclosing the true financial position of D & J Operating, Inc. Defendant Franklin did not reveal that what Plaintiff Hawkins had believed were capital contributions to Abilene Tube & Channel were going to be transformed into loans by Defendant Franklin. Plaintiff Hawkins has been damaged by this breach of fiduciary duty in the amount of $500,000.

VI.

Defendant Franklin as an officer of Abilene Tube & Channel breached his fiduciary duty to said corporation and its stockholders by creating false and fraudulent obligations of Abilene Tube & Channel for his own personal benefit. Defendant Franklin created false and fraudulent obligations of Abilene Tube & Channel, Inc. in favor of D & J Operating, Inc., a company wholly owned by Defendant Franklin at the time the false obligations were created. Plaintiffs have been damaged in the amount of $500,000 by this breach of fiduciary duty.”

Appellant argues that Paragraphs IV and V stated individual causes of action. Ap-pellees urge that all of appellant’s allegations are derivative in character except as set out in Paragraph V. Appellees argue, however, that Paragraph V does not constitute a ground for recovery because it “is inconsistent with the other pleadings and is destroyed by the exhibits and evidence presented by Appellant”. The order of dismissal is a judgment on the pleadings.

When dismissal is without prejudice, as in the instant case, it is not on the merits. Winter Garden Land Co. v. Zavalla-Dimmit Counties Water Improvement Dist. No. 1, 5 S.W.2d 606 (Tex.Civ.App. — El Paso 1928, writ dism’d). We cannot consider the merits of appellant’s cause of action, but only whether his pleadings are sufficient to assert a cause of action.

In Binz v. Harwood, 297 S.W.2d 210 (Tex. Civ.App.—Fort Worth 1956, writ ref’d), the court stated:

“. . . A reviewing court will not pass upon the merits of a case which was dismissed without a decision on the issues involved. Until that question is reached and the trial court has ruled thereupon there would be nothing to review by this court except its action in dismissing the cause . . . ”

Appellees attempt to sustain the trial court’s judgment by arguing that the exhibits and evidence show that appellant does not have a meritorious cause of action. We cannot consider the merits of the case and are limited to determining if the pleadings assert a cause of action. We hold that appellant in Paragraph V of his first amended original petition alleged an individual cause of action. Our Supreme Court in Gulf, Colorado & Santa Fe Railway Co. v. Bliss, 368 S.W.2d 594 (Tex.1963) stated:

“It is a general rule, so well established as to need no citation of authority, that the petition will be construed as favorably as possible for the pleader. The court will look to the pleader’s intendment and the pleading will be upheld even if some element of a cause of action has not been specifically alleged. Every fact will be supplied that can reasonably be inferred from what is specifically stated . .

The judgment of the trial court is reversed and remanded.