author: MILLER, Justice.

text:
    Angelina SALVAGGIO, Individually et al., Appellants, v. BRAZOS COUNTY WATER CONTROL & IMPROVEMENT DISTRICT NO. 1, Appellee.
    No. A2124.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 9, 1979.
    Rehearing Denied June 6, 1979.
    Robert L. Burns, Sears & Burns, Houston, for appellants.
    Karl C. Hoppess, Warren G. King, Houston, for appellee.
    Before MILLER, PRESSLAR and SALAZAR, JJ.
   MILLER, Justice.

On November 28, 1977, appellee Brazos County Water Control & Improvement District No. 1, filed a petition for condemnation of certain land located in Brazos county which was owned by appellants. Pursuant to Tex.Rev.Civ.Stat.Ann. art. 3264 § 2 (Vernon 1968), the judge of the Brazos county court at law appointed three special commissioners to assess the damages occasioned by the condemnation. The commissioners filed their award with the court. The appellants filed their objections thereto in a timely manner. On April 19, 1978, appellants applied for a temporary injunction seeking to exclude appellee, who had deposited twice the commissioner’s award pursuant to Tex.Rev.Civ.Stat.Ann. art. 3268 (Vernon 1968) & (Vernon Supp. 1978-79), from entering onto the land. The injunction was denied and appellants appealed. The trial court’s action was reversed by the 1st Supreme Judicial District Court of Civil Appeals and remanded to the trial court with instructions to enter an order enjoining the Water District from entering the property. Salvaggio et al., v. Brazos County Water Control & Improvement District No. 1, No. 17203 (Tex.Civ.App.—Houston [1st Dist.] Nov. 2, 1978).

On November 28, 1978, the Water District filed a motion for dismissal with the trial court, which was granted on the same day. On December 27, 1978, the appellants filed a “Motion to Set Aside Order of Dismissal and to Set Trial for Determination of Attorney’s Fees and Expenses.” They alleged as grounds for such motion that they were not given proper notice of the hearing on motion for dismissal and that the Water District failed to comply with Tex.Rev.Civ. Stat.Ann. art. 3265 § 6 (Vernon Supp. 1978-79). This motion was denied on December 28,1978. Also on December 28,1978, appellants filed a “Cost Bond for Appeal From Judgment Dismissing The Cause” of November 28, 1978. On February 27, 1979, appellants filed a petition for writ of error and a cost bond for petition for writ of error with the clerk of the trial court. On March 5, 1979, appellants filed a transcript in this court. This was not within the 60 day filing time which is required for appeals by Tex.R.Civ.P. 386 nor was a motion to extend time filed pursuant to Tex.R. Civ.P. 21c. It was, however, within the 60 day filing requirement for writ of error. Tex.R.Civ.P. 386. On March 22, 1979, ap-pellee Water District filed a motion to affirm on certificate in proper form, Tex.R. Civ.P. 387, and to dismiss the writ of error.

Appellee’s motion to affirm on certificate and dismiss the writ of error finds support in the case of Jarrell v. Farmers’ & Merchants’ State Bond Bank, 128 Tex. 332, 99 S.W.2d 281 (1936). In that case at 282 the Supreme Court approved the following statement by the Commission of Appeals:

“. . . where an appeal is taken by giving notice and filing an appeal bond, and transcript is not filed in the Court of Civil Appeals within the statutory time, the right of the appellee to have the case affirmed on certificate is absolute, if motion to affirm is filed during the term to which the appeal was returnable, notwithstanding the appellant has abandoned the appeal by filing petition for writ of error and writ of error bond, and has filed transcript in the Court of Civil Appeals before the filing of the motion to affirm on certificate.”

Appellant strongly argues that the reasoning behind the decision in Jarrell is no longer applicable in light of the comprehensive changes made in the Texas rules of civil procedure in 1941. Although the Texas Supreme Court has not passed on this precise question, it refused a writ “no reversible error” which was taken in the case of International Security Life Insurance Co. v. Riley, 441 S.W.2d 858 (Tex.Civ.App.—Amarillo 1969, writ ref’d n. r. e.). No transcript at all was filed in Riley but the Amarillo court relied on Jarrell in affirming on certificate. We think Jarrell applies whether a transcript is filed before a motion to affirm is filed or not. We do not think that the appellants can maintain their writ of error once the appeal is disposed of by affirmance as such would expose the parties and this court to a possible risk of inconsistent judgments.

We grant the motion to affirm on certificate and dismiss the writ of error.


source: Caselaw Access Project

license: Public Domain

text:
    Tom ROTELLO, et ux., et al., Appellants, v. BRAZOS COUNTY WATER CONTROL & IMPROVEMENT DISTRICT NO. 1, Appellee.
    No. A2125.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 9, 1979.
    Rehearing Denied June 6, 1979.
    Robert L. Burns, Sears & Burns, Houston, Bill M. Payne, Bryan, for appellants.
    Karl C. Hoppess, Warren G. King, Houston, for appellee.
    Before MILLER, PRESSLER and SALAZAR, JJ.
   MILLER, Justice.

On November 28, 1977, appellee Brazos County Water Control & Improvement District No. 1, filed a petition for condemnation of certain land located in Brazos county which was owned by appellants. Pursuant to Tex.Rev.Civ.Stat.Ann. art. 3264 § 2 (Vernon 1968), the judge of the Brazos county court at law appointed three special commissioners to assess the damages occasioned by the condemnation. The commissioners filed their award with the court. The appellants filed their objections thereto in a timely manner. On April 19, 1978, appellants applied for a temporary injunction seeking to exclude appellee, who had deposited twice the commissioner’s award pursuant to Tex.Rev.Civ.Stat.Ann. art. 3268 (Vernon 1968) & (Vernon Supp.1978-79), from entering onto the land. The injunction was denied and appellants appealed. The trial court’s action was reversed by the 1st Supreme Judicial District Court of Civil Appeals and remanded to the trial court with instructions to enter an order enjoining the Water District from entering the property. Rotello, et ux., et al. v. Brazos County Water Control & Improvement District No. 1, 572 S.W.2d 120 (Tex.Civ.App.—Houston [1st Dist.] 1978, no writ).

On November 28, 1978, the Water District filed a motion for dismissal with the trial court, which was granted on the same day. On December 27, 1978, the appellants filed a “Motion to Set Aside Order of Dismissal and to Set Trial for Determination of Attorney’s Fees and Expenses.” They alleged as grounds for such motion that they were not given proper notice of the hearing on motion for dismissal and that the Water District failed to comply with Tex.Rev.Civ. Stat.Ann. art. 3265 § 6 (Vernon Supp.1978-79). This motion was denied on December 28,1978.' Also on December 28,1978, appellants filed a “Cost Bond for Appeal From Judgment Dismissing The Cause” of November 28, 1978. On February 27, 1979, appellants filed a petition for writ of error and a cost bond for petition for writ of error with the clerk of the trial court. On March 5, 1979, appellants filed a transcript in this court. This was not within the 60 day filing time which is required for appeals by Tex.R.Civ.P. 386 nor was a motion to extend time filed pursuant to Tex.R. Civ.P. 21c. It was, however, within the 60 day filing requirement for writ of error. Tex.R.Civ.P. 386. On March 22, 1979, ap-pellee Water District filed a motion to affirm on certificate in proper form, Tex.R. Civ.P. 387, and to dismiss the writ of error.

Appellee’s motion to affirm on certificate and dismiss the writ of error finds support in the case of Jarrell v. Farmers’ & Merchants’ State Bond Bank, 128 Tex. 332, 99 S.W.2d 281 (1936). In that case at 282 the Supreme Court approved the following statement by the Commission of Appeals:

where an appeal is taken by giving notice and filing an appeal bond, and transcript is not filed in the Court of Civil Appeals within the statutory time, the right of the appellee to have the case affirmed on certificate is absolute, if motion to affirm is filed during the term to which the appeal was returnable, notwithstanding the appellant has abandoned the appeal by filing petition for writ of error and writ of error bond, and has filed transcript in the Court of Civil Appeals before the filing of the motion to affirm on certificate.

Appellant strongly argues that the reasoning behind the decision in Jarrell is no longer applicable in light of the comprehensive changes made in the Texas rules of civil procedure in 1941. Although the Texas Supreme Court has not passed on this precise question, it refused a writ “no reversible error” which was taken in the case of International Security Life Insurance Co. v. Riley, 441 S.W.2d 858 (Tex.Civ.App.—Amarillo 1969, writ ref’d n. r. e.). No transcript at all was filed in Riley but the Amarillo court relied on Jarrell in affirming on certificate. We think Jarrell applies whether a transcript is filed before a motion to affirm is filed or not. We do not think that the appellants can maintain their writ of error once the appeal is disposed of by affirmance as such would expose the parties and this court to a possible risk of inconsistent judgments.

We grant the motion to affirm on certificate and dismiss the writ of error.


author: MOORE, Justice.

text:
    Robert Clinton RICHEY, Appellant, v. Loretta J. Richey BOLERJACK, Appellee.
    No. 1263.
    Court of Civil Appeals of Texas, Tyler.
    May 10, 1979.
    Rehearing Denied June 7, 1979.

      Joel B. Mitchell, Austin, for appellant.
    Joseph D. Martinec, Fabela, Martinec, Borsheim & Anderson, Austin, for appellee.
   MOORE, Justice.

Appellee, Loretta J. Richey Bolerjack, filed a motion for contempt against appellant, Robert Clinton Richey, for failure to make child support payments in accordance with the previous order of the court. She also requested the court to increase the child support payments. Appellant answered with a motion for summary judgment. After a hearing the trial court overruled appellant’s motion for summary judgment and entered an order finding him in arrears in child support payments in the amount of $1,312.50. The court ordered the appellant to pay the arrearage in four monthly installments of $328.00 each but did not find appellant to be in contempt or assess any punishment in the event he failed to make the payment. The court also ordered appellant to make future child support payments in the amount of $250.00 per month until the youngest child reached the age of eighteen. Appellant duly perfected this appeal.

The record is before us upon an agreed statement of facts. There are no findings of fact or conclusions of law.

The agreed statement of facts is as follows:

“(1) The presence of a court reporter at the hearing of this cause on the 20th of April 1978 was waived by both parties.
“(2) At the above referenced hearing, there was no facts in controversy.
“(3) The facts which are understood and agreed to by both parties were that the RESPONDENT, ROBERT CLINTON RICHEY, complied with the order entered herein dated 10 August, 1976, by paying $300.00 per month for child support until the eldest of the four children covered by said Order, said child being Vikki Rose Richey, reached age 18, at which time RESPONDENT reduced his child support payments by twenty-five percent (25%), said reduction being made without agreement of MOVANT, LORETTA RICHEY BOLERJACK, and being made without request to, or approval of the Court. This reduction resulted in an arrearage of $1,312.50, as was found by the trial Court.”

The record reveals that in the original divorce decree, appellee was appointed managing conservator of the parties’ five minor children. By a subsequent order dated August 10, 1976, appellant was appointed the managing conservator of one of the children and was ordered to make child support payments in the amount of $300.00 a month for the support of the four children in the custody of appellee, Loretta J. Richey Bol-erjack. The order of August 10, 1976, which appellant is accused of disobeying, recited that the $300.00 per month child support payments were to continue until the “said children ” reach the age of 18 years or until further order of the court. (Emphasis supplied.) On January 18, 1978, appellee instituted the present suit by filing an affidavit for contempt alleging that the appellant had paid only $225.00 per month child support since January 1977, instead of the $300.00 per month as ordered by the court. She further alleged that due to a change of conditions, the child support payments should be increased.

The order in the present case recites as follows:

“The previous order of this Court dated August 10, 1976 clearly requires Respondent to pay $300.00 per month for the support of the four minor children adopted by Respondent and born of Movant, Vikki Rose Richey, Robin Suzanne Ri-chey, Patrice Danielle Richey and Sheryl Kay Richey, until the youngest child reaches the age of eighteen years; the Court further finds that Respondent has failed to make such payments and is in arrears in the amount of $1,312.50.
“The Court further finds that the sum of $250.00 per month is a reasonable amount of money to be paid by Respondent to Movant for the support of the two minor children remaining in Mov-ant’s household under the age of eighteen years. . . . ”

After ordering appellant to pay the sum of $250.00 per month for future child support payments, the order recited as follows:

“IT IS FURTHER ORDERED that respondent pay to movant by paying through the Travis County Domestic Relations Division at the Travis County Courthouse, Austin, Travis County, Texas, the sum of $328.00 on or before the 1st day of August 1978; the sum of $328.00 on or before the 1st day of November 1978; the sum of $328.00 on or before the 1st day of February, 1979; and the sum of $328.00 on or before the 1st day of May, 1979, until all amounts found to be in arrears and due for the failure to pay child support are paid in full.”

Appellant contends that the trial court erred in finding him in arrears in child support payments and ordering him to pay the same because the order of August 10, 1976, requiring him to pay $300.00 until “the said children reach the age of 18 years or until the further order of the court” is ambiguous and unenforceable. In reply ap-pellee argues that this court is without jurisdiction to hear the appeal. She takes the position that this is an appeal from a contempt order, the validity of which may be attacked only by a writ of habeas corpus. We agree with appellee’s contention that this court lacks jurisdiction, but on grounds other than those relied on by appellee.

It will be observed that the order in question does not attempt to enforce the previous order for child support payments by contempt as prayed for by the appellee. Nowhere does the order specifically state that the court found that the appellant was in contempt. It does adjudge that appellant was in arrears in the amount of $1,312.50, but it does not prescribe any punishment for contempt, nor does it provide that appellant will be held in contempt in the event he fails to obey the order requiring him to pay the arrearage in four monthly installments. In order to dispose of ap-pellee’s motion for contempt, a further order would be required after a hearing to determine whether an act of contempt had been committed and if so, to assess the penalty therefor. Consequently, that portion of appellee’s suit seeking to enforce past support payment by contempt was left in limbo without a final disposition having been made thereon. It is therefore clear that the order is not a final appealable order. In effect, it merely imposed upon appellant the same obligation he already had under the support order dated August 10, 1976, and did nothing more than to extend the time in which the support payments could be made. Since the order falls short of disposing of appellee’s motion for contempt, it does not amount to a final judgment disposing of all issues before the court.

In Wagner v. Warnasch, 295 S.W.2d 890, 892-93 (1956), a similar situation was presented. The court, speaking through Chief Justice Hickman, said:

“To be final a judgment must determine the rights of the parties and dispose of all the issues involved so that no future action by the court will be necessary in order to settle and determine the entire controversy. This familiar rule is established by many cases, a number of which are cited in 3 Tex.Jur. p. 126, Sec. 62. In Linn v. Arambould, 55 Tex. 611, 618, this court quoted with approval from Freeman on Judgments as follows: ‘But an order or decree, made for the purpose of carrying a judgment or decree already entered into effect, is not a final judgment or decree, and cannot be appealed from as such.’ The order in this case was made for the sole purpose of expediting the carrying into effect of a judgment already entered, and it falls squarely within the rule just quoted.”

Obviously, the purpose of the order appealed from in the present case was to carry into effect the support order which had already been entered. Since it did nothing more than grant the appellant additional time to comply with the support decree, it did not finally preclude further proceedings in the court below. As the order was not a final judgment, it follows that this court is without jurisdiction to hear the appeal.

If, by a liberal construction, the order should be held to be a judgment of contempt, this court would have no jurisdiction because of the well settled rule that the validity of a contempt order may be attacked only by a writ of habeas corpus. Wagner v. Warnasch, supra; Garcia v. Garcia, 469 S.W.2d 920 (Tex.Civ.App.-San Antonio 1971, no writ history); 12 Tex.Jur .2d Contempt, sec. 59.

Although appellant has brought an additional point of error challenging the judgment on other grounds, since no final ap-pealable judgment was rendered by the trial court, this point cannot be considered in this proceeding.

The appeal is dismissed for want of jurisdiction.


author: McDONALD, Chief Justice.

text:
    Hazel DORMAN et al., Appellants, v. FERRIS INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 6035.
    Court of Civil Appeals of Texas, Waco.
    May 10, 1979.
    Rehearing Denied June 7, 1979.

      William J. Ruhe, Jr., Richardson, for appellants.
    Earl Luna and George Vorpahl, Luna, Murtón & Vorpahl, Dallas, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiffs Dorman, et al. from judgment of the trial court sustaining defendant School District’s “Plea in Abatement and Motion to Dismiss”, and dismissing plaintiffs’ case.

Plaintiffs Dorman, et al., taxpayers in the Ferris Independent School District, filed suit against the District, its trustees and Tax Assessor, on September 29, 1978, alleging a fundamentally erroneous plan of taxation of property within the district and seeking a temporary restraining order, temporary injunction, and permanent injunction enjoining defendants from “certifying the tax rolls, until all taxable and assessable property is placed thereon in a uniform and equal manner * * * and from spending revenues until the tax rolls have been certified * * Plaintiffs further sought mandatory injunction compelling defendants to do their specified duties as prescribed by the Statutes of Texas.

Defendants filed “Plea in Abatement and Motion to Dismiss” alleging that the tax roll which plaintiffs seek to prevent certification of has already been certified; and that plaintiffs’ suit is moot.

The trial court after hearing sustained defendants’ Plea in Abatement and dismissed plaintiffs’ cause of action.

Plaintiffs appeal on 8 points which we summarize as follows:

1) The trial court erred in dismissing plaintiffs’ suit because the evidence conclusively shows a fundamentally improper plan of assessment of taxes by the district.

2) The trial court erred in finding that the injunction sought by plaintiffs was too late because the evidence conclusively showed the tax plan had not been validly placed into effect.

Plaintiffs assert that Article 7255 VATS (made applicable to School Districts by Article 1060A VATS) which provides that “Each Tax Collector shall begin the collection of taxes annually on the first day of October or as soon thereafter as he may be able to obtain the proper assessment rolls * * *” precludes the tax plan from taking effect as a matter of law until October 1.

We reject such contention. The tax plan goes into effect when the Board approves and adopts the tax roll and Ordinance setting the tax rate and levying taxes for the District. See Jackson v. Maypearl ISD, infra, in which plaintiff filed suit September 30, but after the tax plan had been put into effect.

As noted plaintiffs filed their suit on September 29, 1978 seeking to enjoin defendants from “certifying the tax rolls until all taxable property is placed therein in an equal manner”. Defendants filed Plea in Abatement asserting the tax rolls had already been certified and that plaintiffs action was moot.

Contrary to plaintiffs’ contention the evidence is conclusive that the Board of defendant school district certified the tax roll of the district on August 16, 1978; and is further conclusive that the Board approved and adopted the 1978 tax roll and Ordinance setting the tax rate and levying the taxes for the tax year 1978 on September 19, 1978, and that the tax plan for the tax year 1978 was placed in effect on September 19, 1978.

The tax plan having been placed in effect on September 19,1978 and plaintiffs having filed their suit on September 29, 1978 the remedies of injunction and mandamus are lost as to them. City of Arlington v. Cannon, S.Ct., 153 Tex. 566, 271 S.W.2d 414; Zglinski v. Hackett, CCA (Austin) NRE, Tex.Civ.App., 552 S.W.2d 933; Milligan v. Corsicana Ind. School District, CCA (Waco) Tex.Civ.App., 381 S.W.2d 97; Jackson v. Maypearl Ind. School District, CCA (Waco) NWH, Tex.Civ.App., 392 S.W.2d 892; Blaha v. McHenry, CCA (Houston 14) NRE, Tex. Civ.App., 468 S.W.2d 186; Muncy v. Johnston, CCA (Amarillo) NWH, Tex.Civ.App., 402 S.W.2d 525; Swamp Irish, Inc. v. Snow, CCA (Corpus Christi) NWH, Tex.Civ.App., 501 S.W.2d 690. See also: State v. Whittenburg, S.Ct., 153 Tex. 205, 265 S.W.2d 569.

Had plaintiffs sought to enjoin defendants from putting into effect the erroneous plan of taxation, as to them, and filed such suit prior to the time such plan had been put into effect, as was done in Del Valle Ind. Sch. Dist. Bd. of Equal. v. Hackett, CCA (Waco) NRE, Tex.Civ.App., 563 S.W.2d 338, plaintiffs would have been entitled to that injunctive relief. But here plaintiffs only sought to enjoin defendants from certifying the tax rolls, and filed their suit after the tax rolls had already been certified, and after and the tax plan for 1978 had been put into effect, and were thus properly denied the injunctive relief sought.

All plaintiffs’ points and contentions are overruled.

AFFIRMED.


author: HALL, Justice.

text:
    James GRAYSON et al., Appellants, v. James I. DUNN, Jr., et al., Appellees.
    No. 5955.
    Court of Civil Appeals of Texas, Waco.
    May 10, 1979.
    Rehearing Denied June 7, 1979.

      Bernard C. Reeves, Reeves, Jackson & Bournias, P. C., Fairfield, for appellants.
    Mac L. Bennett, Jr., Bennett & Bennett, Normangee, W. A. Keils, Jr., Teague, for appellees.

      . For the factual development of the parties’ common source of record title see Haynes v. Dunn, 518 S.W.2d 880 (Tex.Civ.App.—Waco 1975, writ ref’d n. r. e.) which was a controversy between plaintiffs’ relatives and these defendants over an adjoining tract of 30 acres.

   HALL, Justice.

This is a trespass to try title action over 27.62 acres of land located in the F. C. Booker Survey, in Leon County, Texas, and presently possessed by defendants. Plaintiffs claimed record title and also title by adverse possession. The suit was filed on October 3, 1972. Trial was to a jury in December, 1977. Judgment was rendered that plaintiffs take nothing. Plaintiffs appeal. We affirm the judgment.

Plaintiffs are the surviving heirs at law of Bill Grayson, deceased. They are James Grayson; O. G. Grayson; Beulah Mae Hall (whose husband is also joined as plaintiff); Frances Stell Thomas; and Bessie Grayson, the widow of Bill Grayson. Defendants originally were James I. Dunn, J. H. Buchanan, and R. L. Oden. Mr. Oden died before the case was tried, and Naelyn Oden Hinton and Jack Hinton, in their capacities as independent executors of Oden’s estate, were substituted in his place as defendants.

Plaintiffs and defendants claim record title to the tract in question. They stipulated that Haymon Haynes was their common source.

Defendants’ chain of record title is: (1) Haymon Haynes to The Jewett State Bank, by general warranty deed dated August 6, 1929; (2) The Jewett State Bank, by and through its liquidating trustees, to defendant J. H. Buchanan, by special warranty deed dated September 15, 1952; (3) convey-, anee of an undivided one-half interest by J. H. Buchanan to defendant R. L. Oden, by special warranty deed dated December 1, 1952; and (4) conveyance of only the surface estate by Buchanan and Oden to defendant Dunn, by general warranty deed dated March 27, 1968.

Plaintiffs’ chain of record title is: (1) Haymon Haynes to R. B. Adams, by general warranty deed dated December 16, 1929; (2) R. B. Adams to Bill Grayson, by general warranty deed dated August 27, 1948; (3) the death of Bill Grayson on March 12, 1964. The record does not show whether Bill Grayson died testate or intestate, but it is not questioned in the record that, as between our parties, plaintiffs are entitled to the property if Mr. Grayson owned it at his death.

Plaintiffs pleaded that the purported deed dated August 6, 1929, from Haymon Haynes to The Jewett State Bank, upon which defendants’ title is based, was in fact intended as a mortgage, and that they therefore held superior record title. They also alleged that they and their predecessors had matured title to the land by adverse possession and use under the ten-year statute of limitation, prior to the time this suit was filed on October 3, 1972.

Defendants denied plaintiffs’ claims and alleged they were innocent purchasers for value without notice of any infirmity or defect in their title asserted by plaintiffs.

The jury made the following answers to the special issues:

1. Failed to find that the deed from Haymon Haynes to The Jewett State Bank, dated August 6, 1929, was intended as a mortgage.
2. Failed to find that “the plaintiffs and those under whom they hold and claim had and held peaceable, adverse and continuous possession of the 27.62 acres of land, . . . cultivating, using or enjoying the same, openly notoriously and adversely for any period of ten (10) consecutive years or more prior to the 3rd day of October, 1972.”
3. (This issue, conditioned upon an affirmative answer to issue 2, was not reached by the jury).
4. (A) and (B). Found that (A) when R. B. Adams purchased the tract from Haymon Haynes, and (B) when Bill Grayson purchased the land from R. B. Adams, neither Adams nor Gray-son at the time of his purchase had “actual or constructive notice of any equity, claim or title of Defendants or those under whom they claim.”
5.(A), (B) and (C). Found that (A) when defendant J. L. Buchanan purchased the tract from The Jewett State Bank, and (B) defendant R. L. Oden purchased from Buchanan, and (C) when defendant Dunn purchased from Buchanan and Oden, none of the defendants at the time of his purchase had “actual or constructive notice of any equity, claim or title of Plaintiffs or those under whom they claim.”

Defendants moved the court to disregard the jury’s answer to special issue 4 on the ground that it was immaterial in the light of the answers to issues 1 and 2, and to render judgment for them on the remainder of the verdict. The motion was granted, the answer to issue 4 was disregarded, and judgment was rendered on the remainder of the verdict that plaintiffs take nothing and that defendants recover title and possession to their respective interests in the land.

Plaintiffs assert that the evidence established their claim of ten years’ adverse possession as a matter of law, or, in any event, that the jury’s failure to find for them on that issue was against the great weight and preponderance of the evidence. We overrule those contentions.

Plaintiffs’ claim of adverse possession was based upon the testimony of plaintiff James Grayson. The essence of his testimony was this: Bill Grayson was my father. In May, 1949, when I was twenty, my father and I began fencing the land in question. Working evenings and weekends, we completed the fence in about three months. After we completed the fence to my father’s satisfaction, we “run a little few cows, what few we had,” on the land. “To the best of my knowledge” we had cows on this land each and every year after that “for a portion of the time.” Normally, it would be about six or seven months of the year “at the most. I farmed a little bit on the Hinson place up until 1960. After I gathered the crop we would move these cows back there for the winter, so I would consider about seven months.” We kept the fences patched up “in fair condition.” When we removed the cows each year we didn’t give up possession to anyone else or intend to abandon the land. It was done with the intention to keep the land and use it in the future, as we did. When the cows were off the land we would attend to the fences which we kept up “in fair shape.” We also cut firewood off the place. After the 1960 season we didn’t carry the cows back. After my father died in 1964 none of us went back onto the land. I knew that the defendant James I. Dunn took possession of the land early in 1968 and constructed a fence around it and began to graze cattle on it. Although I saw him many times after that, I did not tell him “this is my land” or “don’t you fence my land” or “I want my land.”

It is the general rule that the testimony of a party or of any witness interested in the result of the case, even where uncontradicted, does not establish a fact as a matter of law because the credibility of the witness is still at issue for the faet-finder’s determination. Collora v. Navarro, (Tex.1978) 574 S.W.2d 65, 69. In Collora the Court recognized the exception to the general rule, applicable under proper circumstances, where the testimony of an interested party or witness “pertains to matters reasonably capable of exact statement, and is clear, direct, and positive, is internally devoid of inconsistencies and contradictions, and is uncontradicted either by the testimony of other witnesses or by circumstances — in short, when there is nothing to cause any reasonable suspicion as to its truth”; and said that the general rule may not, therefore, be applied “in a cut-and-dried fashion,” but that its application “must turn on the facts of each case.” Several factors were set forth in the opinion for consideration in determining the application of the general rule.

We need not detail all of James Grayson’s testimony on the limitation issue. In the light of the guidelines stated by our Supreme Court in Collora, it is our view and holding that his testimony simply was not of the probative quality necessary to lift it from application of the general rule. Considering the whole record, we also hold the jury’s failure to find for plaintiffs on the question was not against the great weight and preponderance of the credible evidence.

Under the express wording of special issue 2 the jury were required to find, for an affirmative answer, that the adverse possession relied upon by plaintiffs must have been “continuous possession” for the full term of ten consecutive years. This requirement was also set forth in the court’s definitions of “peaceable possession” and “adverse possession” which accompanied the special issue. In the light of James Grayson’s testimony that he and his father kept their cows off the land for five months of each of the years in question, plaintiffs requested the following explanatory instruction to the jury in connection with the term “continuous possession” as used in the special issue:

“A temporary vacancy unaccompanied by an intention to abandon the premises will not interrupt continuous possession as that term is used herein.”

The request was refused. Plaintiffs assign error to the ruling. The complaint is overruled.

The continuous possession of land by an adverse holder required under the limitation statute is interrupted by a temporary vacancy, unless the duration of the vacancy is reasonable under the existing circumstances and is made under circumstances which reasonably show that the adverse holder did not intend thereby to abandon the premises. Dunn v. Taylor, 102 Tex. 80, 113 S.W. 265, 267; Hardy v. Bumpstead, 41 S.W.2d 226 (Tex.Com.App.1931). See also, Hawkins v. Rudco Oil & Gas Co., 187 S.W.2d 230, 234 (Tex.Civ.App.— Texarkana 1945, writ ref’d w.m.); Halsey v. Humble Oil & Refining Co., 66 S.W.2d 1082, 1084 (Tex.Civ.App.—Beaumont 1933, writ dism.).

Rule 279, Vernon’s Tex.Rules Civ.Proc., provides in part that the court’s failure to submit a definition or explanatory instruction shall not be a ground for reversal of the judgment “unless a substantially correct definition or explanatory instruction has been requested” by the complaining party.

Defendants have not contended that the annual vacancies in question were unreasonable as a matter of law, and we do not decide that question. At least, under the evidence, a fact question for the jury was raised as to the reasonableness of their duration and as to whether they were made under circumstances reasonably consistent with an intention not to abandon the land. Plaintiffs’ requested instruction did not incorporate those essential elements of reasonableness. It would have permitted a finding in plaintiffs’ favor without consideration of those elements. Therefore, it was not in substantially correct form. Under Rule 279, plaintiffs cannot properly seek reversal on the court’s failure to give the instruction.

Plaintiffs’ remaining complaints are also without merit under the record. They are overruled.

The judgment is affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    Jimmy Burton PHILLIPS, Appellant, v. VINSON SUPPLY COMPANY, Appellee.
    No. B2079.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 16, 1979.
    Rehearing Denied June 6, 1979.

      Carnegie H. Mims, Jr., Houston, for appellant.
    Eric Hopkinson, Houston, for appellee.
    Before BROWN, C. J., and COULSON and CIRE, JJ.
   J. CURTISS BROWN, Chief Justice.

Jimmy Burton Phillips (Phillips or appellant) appeals from a trial court order dismissing his suit against Vinson Supply Company (appellee) with prejudice. We reverse and remand.

Phillips instituted this suit against appel-lee on February 2, 1978. He sought damages under article 8307c, Tex.Rev.Civ.Stat. Ann. (Supp.1978-79), which prohibits discrimination against an employee who files for worker’s compensation benefits. He alleged that he had suffered mental pain and anguish, loss of wages, and loss of future earnings and prayed for recovery exceeding the amount of $10,000.00.

Appellee answered and then specially excepted to several parts of appellant’s petition, including that portion alleging damages. This exception was based on the ground that the petition failed to “enumerate the dollar value for each element of damage plaintiff [alleged] to have incurred. . ” Appellee asked that plaintiff “be required to itemize each element of damage he has incurred. . . .” Appellee also propounded a number of interrogatories to appellant. Upon a hearing, the special exception described above was sustained and appellant was given thirty days to amend and itemize the dollar value for each element of damages claimed.

One week after answers to interrogatories were due, appellee filed a motion to compel such answers. A hearing was held, which appellant’s counsel failed to attend, and appellant was given eight days to answer the interrogatories. Upon appellant’s failure to do so, appellee moved to dismiss appellant’s cause of action. At a hearing appellant was given ten days to amend his petition and to file answers to interrogatories.

Answers were filed on the ninth day. The amended pleading was not filed. Upon a hearing the trial judge found that the ánswers were “wholly deficient in that they [were] signed by the attorney of record . ,” contrary to rule 168. He also found that answers numbered two, four, and six did not fully respond to the subject of inquiry. Based on this and upon appellant’s failure to amend his pleading, it was ordered, on September 25, 1978, that appellant’s causes of action against appellee be dismissed with prejudice.

Appellant raises two points of error. We will first consider his contention that it was error for the trial judge to sustain the special exception to his petition.

Rule 47, Tex.R.Civ.P., sets forth those matters to be contained in an original petition. These are to include -

(b) in all claims for unliquidated damages only the statement that the damages sought exceed the minimum jurisdictional limits of the court .

Section (c) provides that upon special exception, the trial judge shall require the pleader to specify the maximum amount claimed. There is no language authorizing the court to require itemization of specific elements. Accordingly it is error to sustain a special exception directed to such an end.

Appellee contends that rule 47 must be read in connection with rule 56, which states: “When items of special damage are claimed, they shall be specifically stated.” This rule does nothing to alter those matters required or allowed under rule 47. It provides only that, for instance, when a plaintiff seeks to recover for loss of earning capacity, he shall expressly state the fact that he seeks such in his petition. The rule contains no language mandating allocation of a dollar value to elements of special damage; it requires only that the items of damage claimed be stated.

Further, rule 45 provides that the fact that an allegation “be of legal conclusion shall not be ground for objection when fair notice . . . is given by the allegations as a whole.” Appellee was given that notice of claimed damages required by rules 47 and 56, and therefore that portion of appellant’s petition alleging damages was not subject to special exception.

For these reasons it was error to dismiss appellant’s suit on the ground of failure to amend his petition.

We will next consider whether the judge erred in dismissing this case with prejudice on the ground that appellant failed properly to comply with the order to answer interrogatories.

Rule 168 allows the trial judge to utilize against a party who refuses to answer any interrogatory those sanctions authorized by paragraphs (a) and (b) of rule 215a. This rule permits the judge to make such orders as are just, including those allowed by rule 170. Rule 170 allows the court to make such orders as are just in regard to the refusal, including

(c) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.

The rule obviously authorizes dismissal of ajl or part of the cause of action of a party who fails to comply with a discovery order. However, we hold that the specific term “dismissal”, as used here, without any further authorization for the attachment of prejudice, is to be construed in the sense in which it is generally understood, that is, without prejudice. See, Crofts v. Court of Civil Appeals for the Eighth Supreme Judicial District, 362 S.W.2d 101 (Tex.Sup.1962), wherein the supreme court stated that “dismissal is in no way an adjudication of the rights of parties; it merely places the parties in the position that they were in before the court’s jurisdiction was invoked just as if the suit had never been brought.” 362 S.W.2d at 104.

We can conceive of a situation in which the refusal on the part of the plaintiff to comply with a discovery order is sufficiently blatant and unjustified as to call for a judgment on the merits against that party. This action is indicated by the provisions of the rule allowing a default judgment against the disobedient party and such other orders as are just. However, when such a judgment on the merits is undertaken, it must be clearly characterized as such. Under these circumstances the court is empowered to grant a take-nothing judgment against the plaintiff. Obviously, pursuant to rule 170, only the most aggravating of circumstances would warrant a default judgment on the merits.

Having held that dismissal with prejudice is unauthorized for failure to answer interrogatories, we will consider the words “with prejudice” as surplusage and treat the action of the court merely as a dismissal. It then becomes necessary for us to consider whether the trial court abused its discretion under the facts in this case in dismissing pursuant to rule 170.

The court’s final order to appellant to answer the interrogatories was on September 11, 1978. The answers were filed on September 20, within the time limit given. The court thereupon determined that the answers were defective in that they were signed by appellant’s attorney and because three answers insufficiently responded to the interrogatories. Accordingly the judge, on September 25, without further notice to appellant that the answers were in any way defective, and without allowing an opportunity to correct the alleged defects, dismissed the case with prejudice. This dismissal occurred less than eight months after appellant’s original petition was filed.

Pursuant to rules 168, 170, and 215a, the trial judge has a number of remedies open to him in seeking to secure compliance with the discovery rules and with court orders made in connection therewith. It is recognized that the purpose of these rules is not to punish the disobeying party, but is to secure such compliance. Ebeling v. Gawlik, 487 S.W.2d 187 (Tex.Civ.App.-Houston [1st Dist.] 1972, no writ history). We find that the judge, in not giving notice as required by rule 168 or providing a hearing concerning the specific nature of the deficiencies and an opportunity to make the necessary corrections, deprived appellant of due process and abused his discretion in failing to utilize other remedies available to him to assure compliance with the order. Texhoma Stores, Inc. v. American Central Insurance Co., 398 S.W.2d 344 (Tex.Civ.App.-Tyler 1966, writ ref’d n. r. e.).

We sustain both of appellant’s points of error and reverse and remand this case to the trial court.

Reversed and remanded.

CIRE, J., not participating.


author: WARD, Justice.

text:
    Hubert TRIAL d/b/a Old Fort Trading Post, Appellant, v. Don McCOY, Appellee.
    No. 6783.
    Court of Civil Appeals of Texas, El Paso.
    May 16, 1979.

      Lonnie W. Duke, San Antonio, for appellant.
    Schwartz, Earp & McClure, David R. McClure, El Paso, for appellee.
   OPINION

WARD, Justice.

The dissatisfied buyer of an antique pistol sued the seller under the Deceptive Trade Practices — Consumer Protection Act, Tex.Bus. & Comm. Code Ann. Sections 17.-41—17.63 (Supp. 1978-1979), seeking trebled damages and attorney fees based on Sections 2.312 (1968) and 17.50, (Supp. 1978— 1979), Tex.Bus. & Com. Code Ann. On previous appeal of this case, we determined that the seller’s liability to the buyer was established, and the Plaintiff-buyer was entitled to recover under Section 2.312, Tex. Bus. & Comm. Code Ann. (1968), as the Defendant-seller had breached the warranty of title, and the Plaintiff’s actual damage was the loss of the purchase price of the firearm. Trial v. McCoy, 553 S.W.2d 199 (Tex.Civ.App.1977, no writ). A partial remand back to the trial Court was ordered, however, to determine whether or not the Plaintiff-buyer was a “consumer” and therefore entitled to trebled damages and attorney fees under Section 17.50, Tex.Bus. & Comm. Code Ann. (Supp. 1978 — 1979). Trial on remand was heard before the Court without a jury, and the trial Court entered its judgment awarding trebled damages and attorney fees against the Defendant-seller. Findings of fact and conclusions of law were filed. We affirm.

In August, 1974 when the gun was sold to the Plaintiff, Section 17.45 of the Deceptive Trade Practices — Consumer Protection Act, Tex.Bus. & Comm. Code Ann., provided:

(4) ‘Consumer’ means an individual, partnership or corporation who seeks or acquires by purchase or lease, any goods or services.
(5) ‘Merchant’ means a party to a consumer transaction other than a consumer.

Since it was this Court’s opinion that one who was a merchant as defined in the Act could not be a consumer entitled to the trebled damages under Section 17.50, Tex. Bus. & Comm. Code Ann. (Supp. 1978-1979), the trial Court under the remand order had to determine the status of the buyer as either consumer or merchant. Under the remand order, the trial Court has now found that the Plaintiff purchased the pistol as an addition to his hand gun collection and not for purposes of resale; that at the time he was not in the business of buying or selling firearms; that he was a “consumer” in the transaction as the term was used in Section 17.50 and ás defined in Section 17.45; and that he was not a “merchant.”

Defendant’s first two points attack these findings, the arguments advanced in the prayer indicating that the evidence is legally insufficient for their support. Under these challenges, we will consider only the evidence favorable to the findings and reject all others to the contrary.

The Plaintiff had been a gun retailer but sold that business in January, 1973. By that time, he had become a gun collector specializing in Remington hand guns, and accumulated an antique hand gun collection which he kept at his home and which he retained at the time of the sale. He did not sell any guns out of that collection, but was ready to trade items or continue to buy items to upgrade the collection. He did this for his own personal enjoyment and not for profit. The Plaintiff purchased the gun in question to go in his Remington gun collection, believing it was factory engraved and therefore a very rare piece, and he had no intention to purchase the individual pistol for resale. It was only after studying the gun after its purchase and having other collectors examine it that he determined it was not factory engraved and therefore not beneficial to his collection. Because it was not factory engraved, he took the pistol to Yuma, Arizona, to a gun show to sell it. There, it was taken from him by the sheriff because it was stolen property. The evidence was legally sufficient to support the findings of the Court that the Plaintiff at the time of the purchase was a “consumer” as opposed to a “merchant,” and as such was entitled to the benefits provided by Section 17.50 of the Act. The first two points are overruled.

By his third point, the Defendant argues he was entitled to the benefits of the limited defenses provided for by Section 17.50A of the Act as amended in 1977, his contention being that the Article was remedial in nature, and applied to pending litigation. Without discussing this assertion, the Defendant is not in position to claim the defenses for the following reasons. In the first place, the defenses are in the nature of confession and avoidance and are affirmative defenses, and under the Rule had to be specially pleaded. Rule 94, Tex.R.Civ.P. No such pleadings appear of record. The Defendant waived the defense by failure to plead it. CNL Financial Corporation v. Hewlett, 539 S.W.2d 176 (Tex.Civ.App.—Beaumont 1976, writ ref’d n.r.e.). In the second place, the Defendant neither requested nor secured any additional findings of fact from the trial Court concerning any such partial defense. Failure of the defendant to request additional findings effects a waiver of the ground of defense where no element thereof has been found. Rule 299, Tex.R.Civ.P.; Pinson v. Dreymala, 320 S.W.2d 152 (Tex.Civ.App.—Houston 1958, writ dism’d); 4 McDonald, Texas Civil Practice sec. 16.09. Not having requested nor obtained any findings to support any portion of his defensive theory, the Defendant is in no position to complain of the judgment. The point of error is overruled.

The Plaintiff in his pleadings on which he went to trial prayed for attorney fees reasonable “in relation to the amount of work expended, and to be expended, pursuant to Sec. 17.50, Texas Business and Commerce Code; . . . ” There were no pleadings as to attorney fees expended or to be expended in the body of the pleading. No special exception was levied to the pleadings by the Defendant. Over the objection of the Defendant, the Plaintiff introduced testimony in regard to attorney fees incurred through trial and on appeal. The Defendant’s objection that there were no pleadings to sustain such evidence was overruled, and the evidence was permitted. After the trial and before the judgment was entered, the Plaintiff requested and was granted permission to file a trial amendment, wherein he alleged as part of the body of his pleadings that he was entitled to attorney fees reasonable in relation to the amount of work expended and to be expended in said case. By his last points, the Defendant complains of the action of the trial Court in permitting the trial amendment and in making the award of reasonable attorney fees on appeal. The prayer in the pleadings, even without other pleadings, was sufficient to authorize an award of attorney fees in the higher court. Ledisco Financial Services, Inc. v. Viracola, 533 S.W.2d 951 (Tex.Civ.App.—Texarkana 1976, no writ). Permitting the trial amendment was within the Judge’s discretion. Tex.R.Civ.P. 66. These points are overruled.

The judgment of the trial court is affirmed.


text:
    Richard DE ANDA, Appellant, v. COUNTY OF EL PASO, Appellee.
    No. 6789.
    Court of Civil Appeals of Texas, El Paso.
    May 16, 1979.

      Edelmira Navarro, El Paso, for appellant.
    George N. Rodriguez, Jr., County Atty., Michael P. Davis, Albert A. Biel, Jr., Asst. County Attys., El Paso, for appellee.
   OPINION

WARD, Justice.

This is an appeal from a take nothing summary judgment rendered against the Plaintiff, Richard De Anda, in his suit against the Defendant, County of El Paso. The Plaintiff sued for property damages caused to his truck when it fell into a drainage ditch that crossed the County road where a bridge had been torn up by the County, and no warnings or barricades had been displayed. The sole question presented is whether property damage alone can be recovered here under the Texas Tort Claims Act, Article 6252-19 (Supp. 1978-1979). We affirm.

Plaintiff alleged that he was driving on an El Paso County road when his truck fell into a drainage ditch which had been dug up by County employees where it crossed the road, the road being rendered impassable. He alleged that the accident was a result of the negligence of the County’s employees in failing to warn the Plaintiff of this condition, in failing to place barricades across the road, and in failing to place warning lights at the location; and that the negligence was a proximate cause of the accident. The Plaintiff limited his recovery to damages to his truck. The County’s pleadings and motion for’summary judgment claimed non-waiver of governmental immunity to the property damage claim. The summary judgment proof consisted of the Plaintiff’s affidavit which detailed the event and stated that the accident occurred in the evening when it was getting dark.

Under a general point complaining of the summary judgment, the Plaintiff recognizes that Section 3 of the Texas Tort Claims Act waives immunity and creates liability in three general areas: use of public owned vehicles, premise defects and injuries arising out of conditions or use of property. Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex.1976). He further recognizes that the Act as originally passed in 1970 specifically waived sovereign immunity in an action seeking money damages arising from personal injuries or death; and that it wasn’t until the Act was amended in 1973 that the governmental unit could be liable for money damages for property damages or personal injury or death caused by the negligence of an employee arising from the use of a motor-driven vehicle. In this case, there is no question but that the first part of the Act regarding motor-driven vehicles or equipment does not apply. His argument is simply that this is a special defects case, and that where special defects are involved, property damage can be recovered. He relies on Section 14(12) of the Act entitled “Exemptions” which states: “[Tjhis section shall not apply to the duty to warn of special defects such as excavations or roadway obstructions;” and on Section 18(b) of the Act under “Exclusions” which provides that the limitation of duty relating to premise defects “shall not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads or streets . . . ” See County of Harris v. Eaton, 573 S.W.2d 177 (Tex.1978), and City of Houston v. Jean, 517 S.W.2d 596 (Tex.Civ.App.— Houston [1st Dist.] 1974, writ ref’d n.r.e). Plaintiff therefore concludes that the legislature intended to make the government unit liable for all damages in special defects cases; that, construing the Act generally in the liberal manner as directed by Section 13 thereof, Section 14(12) and Section 18(b) create an ambiguity as far as property damage is concerned and should be construed favorably to the Plaintiff to permit his recovery.

We reject the argument. Section 3 is the liability creating provision of the Act, and it makes government units liable for property damage only when caused by the negligent acts of State employees in their operation of motor-driven vehicles. The Defendant’s immunity has not been waived in cases involving conditions of real property where the claim is for property damage only. Sections 14(12) and 18(b) do not expand this limited liability for property damage created in Section 3. The point is overruled.

The judgment of the trial Court is affirmed.


text:
    Elizabeth CARRIERE, Administratrix of the Estate of Gina Elizabeth Martin, Deceased, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 6823.
    Court of Civil Appeals of Texas, El Paso.
    May 16, 1979.
    Rehearing Denied June 6, 1979.
    Richard Yetter & Associates, P. C., Richard Yetter, El Paso, for appellant.
    Grambling, Mounce, Sims, Galatzan & Harris, John A. Grambling, El Paso, for appellee.
   OPINION

WARD, Justice.

This is an appeal from a summary judgment granted in favor of a Defendant uninsured motorist insurance carrier where the estate of the insured sued for the conscious pain and suffering resulting from injuries sustained by the decedent prior to her death, and arising out of an automobile accident. The question presented was whether or not the present action was barred by a release and by a judgment in a former wrongful death action brought under Article 4671 et seq., Tex.Rev.Civ.Stat. Ann., against the same Defendant. Under the circumstances presented, we affirm the judgment of the trial Court and hold the action was barred.

Gina Martin lost her life when her automobile collided with one driven by an uninsured motorist in May, 1976. She died intestate and was survived by her husband, John Martin; by her minor son, Joshua; and by her parents, Wilbert Carriere and Elizabeth Carriere. In August, a settlement of the claim was proposed by State Farm Mutual Automobile Insurance Company, which had issued the policy containing the uninsured motorist provision. Pursuant to the settlement, the surviving husband, John Martin, executed a release releasing State Farm from any and all causes of action he had as surviving husband of Gina Martin for her personal injuries or death from the accident: A friendly suit was then instituted by Wilbert Carriere suing as next friend of Joshua Martin, the minor, against State Farm, wherein damages were sought for the death of the child’s mother under the Texas death statute, Article 4671, Tex.Rev. Civ.Stat.Ann., the petition also containing the following allegation:

In addition, if Gina Elizabeth Martin sustained any conscious pain and suffering, he is the sole heir and is entitled to damages _or such conscious pain and suffering.

A guardian ad litem was appointed for the minor therein, and final judgment was entered awarding the minor the sum of $10,000.00, the judgment reciting that the sum was then paid and in addition that the said Wilbert Carriere take nothing by such action by virtue of an assignment on file therein. Nineteen months later, Elizabeth Carriere as Administratrix of the Estate of Gina Martin, Deceased, filed the present suit against the Defendant under the uninsured motorist coverage of the same insurance policy to recover for the conscious pain and suffering that Gina Martin experienced before her death.

The Defendant’s answer pleaded that the release executed by John Martin, and the final judgment in favor of the minor child, would bar the present claim for the conscious pain and suffering of the deceased, and to permit the present recovery would allow a double recovery in favor of the sole heirs of Gina Martin. The motion for summary judgment filed asserted the facts as outlined and that a cause of action for conscious pain and suffering for the personal injuries of a person who later dies from the injuries can be asserted by either the heirs of the deceased or the administrator of the deceased; that all the claims of all heirs of Gina Martin had been disposed of by both the release and the final judgment, the latter being res judicata as to the claim asserted by the minor; and to permit the present suit would allow a double recovery to the sole heirs who had theretofore been compensated for such damages. The summary judgment proof consisted of the release executed by John Martin, exemplified copies of all proceedings in the former law suit, admissions on file, and depositions of the notary public witnessing the release and of the guardian ad litem for the minor in the previous law suit. Plaintiff filed nothing in answer to the motion for summary judgment by way of written motion, answer or other response, nor did she offer any controverting summary judgment proof.

By a general point, the Plaintiff now complains of the summary judgment, her arguments being that neither the release by the surviving husband nor the child’s action barred the present claim for the decedent’s conscious pain and suffering, as both the release and the suit were confined to the child’s claims arising out of a wrongful death action. The point is overruled for the reasons stated.

This is the first time that such an assertion has been made. Amended Rule 166— A(c), Tex.R.Civ.P. (Supp.1979), now provides:

Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.

Therefore, no reversible error is shown. Casey v. United States Leasing Corp., 571 S.W.2d 576 (Tex.Civ.App.—Dallas 1978, no writ).

Regardless, the claim has been previously released and barred. It is recognized that there are two separate and distinct causes of action which may arise where injuries wrongfully inflicted result in death. One is the common law action for damages sustained by the decedent and the estate as a result of the injuries. This is the cause of action for conscious pain and suffering, and it survives to the heirs or legal representatives under the provisions of Article 5525, Tex.Rev.Civ.Stat.Ann. The other is the wrongful death statute where the right of action is conferred upon the surviving husband, wife, child and parents of the deceased. The Supreme Court had held that since these statutory beneficiaries are not always entitled to assert both causes of action, the general rule is that the judgment in the wrongful death action does not necessarily bar a subsequent suit on behalf of the estate to recover for the physical pain and suffering sustained by the decedent prior to death. Landers v. B. F. Goodrich Company, 369 S.W.2d 33 (Tex. 1963). Here, the statutory beneficiaries actually asserted both causes of action. The friendly suit brought in behalf of the child made it both a wrongful death action and a survival action. The judgment entered was final and inclusive as to both actions.

The release in question was a broad one that discharged State Farm from any and all actions, causes of action, claims or demands . . . from any and all injuries suffered or sustained by Gina Martin. It included anything relating to the survival action for the pain and suffering as well as for claims arising from a wrongful death action. Cannon v. Pearson, 383 S.W.2d 565 (Tex.1964).

Since the father and the son were the only heirs of the decedent, the previous judgment and the release included and disposed of the claims now being made. To rule otherwise would permit a double recovery against the present Defendant such as was condemned in the Landers case, supra. The judgment of the trial Court is affirmed.


author: BISSETT, Justice.

text:
    STATE of Texas, Appellant, v. Tom BOUNDS and Mercedes Co-Operative Gin, Appellees.
    No. 1396.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 17, 1979.
    Rehearing Denied June 7, 1979.

      Joe N. Pratt, J. David Hughes, R. Lam-beth Townsend, Austin, Juan J. Hinojosa, McAllen, for appellant.
    William L. Hubbard, Bonner & Bonner, Harlingen, for appellee.
   OPINION

BISSETT, Justice.

This is a suit brought by the State of Texas to enforce the provisions of Tex.Rev. Civ.Stat.Ann. art. 911b, the “Texas Motor Carriers Act,” to recover civil penalties thereunder and for an injunction. Trial was to the court, sitting without a jury. Judgment was signed on May 24, 1978, which denied all relief prayed for by the State. The State has duly perfected an appeal from that judgment.

The State alleged that Tom Bounds acted unlawfully as a motor carrier on 38 separate days during the period from July, 1976, to September, 1976, in that he transported property for compensation or hire over a public highway in Texas between two incorporated cities without having first obtained a certificate of public convenience and necessity or a permit from the Railroad Commission authorizing such transportation, in violation of the Act. It further alleged that Mercedes Co-operative Gin aided and abetted Bounds in such unlawful operation, in violation of the Act. Both defendants denied such allegations.

The controlling question presented by this appeal is whether or not Bounds was a motor carrier for compensation or hire, as defined by the Act, who was required to possess either a certificate of public convenience and necessity from the Railroad Commission or á permit from the Commission during the trucking operation here involved. The question is one of fact, to be determined from all the facts and circumstances in evidence. Anderson, Clayton & Co. v. State, 125 Tex. 453, 82 S.W.2d 941 (1935, opinion adopted); New Way Lumber Co. v. Smith, 128 Tex. 173, 96 S.W.2d 282 (1936). If it be held that he was a motor carrier who violated the Act, then, the next issue to be resolved is whether or not the Gin aided or abetted him in the violation.

The Gin is in the business of ginning cotton. As an adjunct to its business, it sold cottonseed to Valley Co-op Oil Mill and received a sales price therefor plus the per ton freight rate set by the Railroad Commission of Texas, which regulated cottonseed shipments. Prior to the 1976 ginning season, the Gin used its own trucks to haul cottonseed to Valley Co-op. For the 1976 season, the Gin changed its trucking operation and leased trucks owned by Bounds to transport the cottonseed from Mercedes, Texas, and Edcouch, Texas, where two of its gins were located, to Valley Co-op, at Harlingen, Texas. The transportation of the cottonseed sold by the Gin to Valley Co-op was over public highways between two or more incorporated cities. It was stipulated that Bounds did not possess a certificate of public convenience and necessity from the Railroad Commission which would authorize him to operate as a common carrier to transport cottonseed for hire over the highways of this State. Counsel for Bounds judicially admitted that Bounds did not have a permit from the Commission.

Bounds leased three trucks to the Gin under three written leases, each of which covered a particular truck. The term of each lease was 120 days. Compensation “as rental for said vehicle” was 60<p per mile for each mile “Lessee operates said vehicle.” All of the leases are in identical language, and each contains the following provisions:

“[L]essee agrees to furnish all gasoline and motor oil necessary to operate said vehicle during said period (of lease), and to also furnish at his own expense the driver and assistant driver . . . .” ******
“It is understood and agreed that Lessee shall have full possession and control of the equipment herein described at all times during the term of this lease . Lessee shall select and employ the driver or operator of the vehicle, and that such driver or operator shall at all times be under the control, domination and direction of Lessee . . . ”

Subsequent to the execution of the leases, the parties, at the suggestion of the Gin’s manager, entered into an oral agreement, whereby it was agreed that Bounds would be paid either the rental of 60$ per mile as provided by the leases, or the total of the per ton freight rates that the Gin received from Valley Co-op, less all expenses incurred by the Gin in hauling the cottonseed from its gins to Harlingen, whichever was to his advantage.

Copies of the written leases were filed with the Department of Public Safety, as required by Tex.Rev.Civ.Stat.Ann. art. 6701c — 1 (1977). A written memorandum of the oral agreement was not so filed.

The Gin maintained an “accounts receivable” for Bounds. Posted to that account were certain advancements made by the Gin to Bounds, purchases of gasoline and oil for the trucks under lease, other expense items relating to the operation of the trucks, and all wages paid to the several truck drivers. The Gin deducted the amount of social security taxes chargeable to the truck driver from each check given to the drivers of the leased trucks as wages, and paid that amount to the Internal Revenue Service. The social security taxes so paid by the Gin for the truck drivers were not posted to Bounds’ “accounts receivable,” and Bounds did not reimburse the Gin for such social security taxes.

On October 4, 1976, a final settlement was reached. Bounds received a check from the Gin for the total of the “freight rates” ($11,741.46) collected by the Gin from Valley Co-op. In turn, Bounds delivered his check to the Gin for the balance shown on the “accounts receivable” ($5,127.62).

Bounds admitted that he was in the trucking business at the time he entered into the lease agreements. He owned six trucks. The three which were not under lease to the Gin were used by him in “hauling cotton” under a “permit on them.”

The trial court found that during the time in question: Bounds did not have, nor did he exercise, any authority to hire or fire any of the truck drivers who drove the leased trucks; Bounds did not have, nor did he exercise, any authority relating to the rate of pay, working hours, or details of job performance with respect to the truck drivers; Bounds did not have, nor did he exercise, any authority as to the maintenance of the trucks; Bounds had no right to control the hauling operations; and the Gin had the exclusive right to control the hauling operations.

The trial court concluded that during the time in question: Bounds was not engaged in the transportation of property for hire as contended by the State; Bounds did not transport the Gin’s cottonseed for hire in violation of the Act; Bounds did not furnish to the Gin, during the same period of time, both the trucks and drivers for the trucks; Bounds did not assume the characteristic burdens of the transportation business, and the Gin did assume, in significant measure, those burdens; the Gin did not aid or abet Bounds in a violation of the Act; the State is not entitled to recover any penalties from either Bounds or the Gin, and is not entitled to an order enjoining any possible future violation of the Act by either of them.

None of the findings of fact are challenged in this appeal. All of the conclusions of law are attacked on the ground that the trial court “erred as a matter of law” in so “holding.”

The term “motor carrier” is defined in Section 1(g) of the Act as follows:

“The term ‘motor carrier’ means any person . . . , their lessees, owning, controlling, managing, operating, or causing to be operated any motor-propelled vehicle used in transporting property for compensation or hire over any public highway in this State, where in the course of such transportation a highway between two or more incorporated cities, towns or villages is traversed; . .

Section l(j) of the Act, in pertinent part, reads:

“The term ‘transporting property for compensation or hire’ shall include the furnishing during the same period of time of equipment and drivers to persons . , and their lessees . . . , owning, controlling, managing, operating or causing to be operated any motor-propelled vehicle, . . . ”

Section 2 of the Act, in pertinent part, provides:

“No motor carrier . . . shall operate any motor-propelled vehicle for the purpose of transporting or carriage of property for compensation or hire over any public highway in this State except in accordance with the provisions of this Act . .

Section 3 of the Act, in pertinent part, provides:

“No motor carrier shall, . . . operate as a common carrier without first having obtained from the (Railroad) Commission, ... a certificate of public convenience and necessity . . .No motor carrier shall, . . . operate as a contract carrier without first having obtained from the Commission a permit so to do, . ”

The term “contract carrier” is defined in Section 1(h) of the Act as follows:

“The term ‘contract carrier’ means any motor carrier as hereinabove defined transporting property for compensation or hire over any highway in this State other than as a common carrier.”

In the case at bar, Bounds, when he delivered the trucks to the Gin, lost all control over them for the duration of the leases (120 days from date of each lease). He neither issued nor received any receipts for property hauled or delivered, freight bills, manifests, or any other shipping document of any kind. He did not bill anyone for freight charges, nor did he receive payment from Valley Co-op for any freight charges arising out of the trucking operation. He had no authority to hire any drivers for the leased trucks, nor did he have any control over the drivers who were hired by the Gin, and who were under the exclusive control of the Gin. He assumed no risks, financial, or otherwise, and no responsibilities incidental to the trucking operation during the terms of the leases.

In resolving the issue at hand, we attach no significance to the fact that Bounds, under the lease contracts, was to be compensated for the use of his trucks on a mileage basis and on a different basis under the oral agreement. In either event, the amount was compensation for the use of his trucks, and nothing more. The amount of compensation could not be determined until the leases terminated. That election by Bounds relating to his compensation, without more, could not have any bearing on whether he violated a provision of the Act prior to the date he made such election.

The Act is not concerned with the compensation agreed to be paid the owner of trucks under a lease. It is concerned only with the regulation of motor carriers who transport property belonging to others for compensation or hire over the highways of Texas. One of the requirements is that a copy of the lease, where the property is being transported in leased vehicles, be furnished the Department of Public Safety. Bounds complied with that requirement. Nowhere in the Act is a requirement that the terms and provisions of the lease be approved by either the Railroad Commission, the Department of Public Safety, or any other lawful regulatory agency.

The filing of the oral agreement could have no effect upon the duties, obligations, responsibilities or activities of the Department of Public Safety in its efforts to enforce the provisions of the Act. Compensation for the use of the trucks, or the formula for its determination, was of no concern to the Department. The fact that the option, when exercised by Bounds, resulted in the payment of more money to him than would have been paid had he been compensated on a mileage basis is immaterial to the issues presented in this appeal.

The State argues that under the holding of State v. Logue, 376 S.W.2d 567 (Tex.Sup.1964), the Gin could not be held to be a private carrier of its own property since the drivers for the leased trucks were not its regular employees, and therefore it necessarily followed that Bounds had to be a motor carrier for compensation or hire, and subject to being regulated by the Act. We do not agree.

The Gin had ten or twelve employees who were employed all of the time. During the ginning season the work force increased to a “little over a hundred” employees. The ninety or more persons who were employed during the ginning season were “regular employees” of the Gin for the season. The drivers for the leased trucks fall into that category. The fact that the wages paid to the drivers of the trucks leased from Bounds were paid by checks which were posted to the “accounts receivable” and not to the “payroll account” did not affect their status as regular employees, despite the State’s argument to the contrary. The posting of checks to accounts receivable was no more than a bookkeeping procedure to accurately account for all expenses associated with transporting the cottonseed, which did not determine the status of an employee. We hold that under the peculiar facts of this case, the drivers of the leased trucks were regular employees of the Gin for the ginning season, the period covered by the leases.

The cottonseed was the property of the Gin. The leased trucks and the drivers were under the absolute control of the Gin. The freight charges were in accordance with the tariffs set by the Railroad Commission. They were paid by Valley Co-op directly to the Gin.

It is conclusively shown by the record that Bounds did not furnish to the Gin, during the same period of time, both the trucks and drivers therefor. The' State’s argument that the term “furnishing” the drivers must be “construed to include the ‘economic’ as well as ‘physical furnishing of a driver if the legislative plan as to private carriers is not to be circumvented’ ” is without merit.

During the terms of the leases, all of the burdens of the trucking operations were assumed and borne by the Gin. None were assumed or borne by Bounds. The reimbursement by Bounds to the Gin of all expenditures incidental to the transportation of the cottonseed did not have the effect of imposing any of the burdens on Bounds or relieving the Gin of any such burdens during the time when the cottonseed was being transported. The trial court properly concluded that the Gin assumed in significant measure the burdens of transportation during all times material to the action brought by the State and that Bounds did not assume such burdens.

The State contends that the evidence shows as a matter of law that a violation of the Act was proved; that the provisions of the Act respecting the requirements that the motor carrier possess either a certificate of public convenience and necessity or a permit from the Railroad Commission before transporting property over public highways between two or more incorporated cities could only be enforced against Bounds; and that, under the facts of this case, to hold otherwise would, in effect, permit a violation of the Act by deceit and subterfuge. We disagree.

The State, in support of its position, relies upon Reavley v. State, 124 Tex.Cr.R. 528, 63 S.W.2d 709 (1933), and Berry v. Golden Light Coffee Company, 160 Tex. 128, 327 S.W.2d 436 (1959). We do not consider either of those cases in point. They are factually distinguishable from the case at bar.

In the Reavley case, the defendant Reav-ley leased a truck to Armour & Co. for the purpose of transporting the lessee’s products over public highways. He was paid a compensation of $60.00 per week. He employed .the driver, paid his wages and all other expenses of operation. He obligated himself to furnish another truck in the event of a breakdown of the truck under lease. The driver collected all charges, and Reavley was responsible to Armour & Co. for the prompt remittance of all such collections. Reavley further agreed to save Armour & Co., the lessee, harmless from any claim made by the driver under compensation laws in the event of injury to the driver. The Court held that he was a contract carrier for hire and a permit was required. In the Reavley case, the control of the trucking operation was in Reavley; here the control was in the Gin.

In the Berry case, Cunningham leased a truck to Golden Light Coffee Co. for the purpose of transporting coffee for the latter. Cunningham had a permit to transport other commodities, but did not possess a permit to transport coffee. The drivers of the trucks were employees of Cunningham and were under his control. Labels were painted on the truck which indicated that the truck was owned and operated by Golden Light. The drivers were instructed to and, upon occasion, did inform law enforcement officers that the truck was owned by Golden Light and that they were its employees. Golden Light was not in an economic position to operate its own trucks. The Court held that for the purpose of securing the transportation of its coffee, Golden Light, in effect, represented that it was transporting its own property, and that the contract was entered into for the deliberate purpose of circumventing the Act by making it appear that the trucks actually owned by Cunningham and operated by him were the property of Golden Light. In the Berry case, damages were sought for an injury received in an automobile-truck collision (where the truck was being driven by one of Cunningham’s employees) against the lessee on the ground that it and not the lessor was in fact the transportation operator. Here, enforcement of the Act is sought against the lessor of the trucks, not the lessee. Moreover, it is conclusively shown that the Gin was in an economic position to operate its own trucks during the 1976 ginning season had it elected to do so. There is absolutely no evidence of any attempt by the Gin or Bounds to inform law enforcement officials that the trucks were owned by the Gin, or that the drivers were not employed by it. There is nothing which remotely suggests that the arrangement was a guise for the purpose of deceiving anyone as to the true nature of the business arrangement. The leases are fairly susceptible of the construction that the trucks were to be used exclusively in the prosecution of the Gin’s business by hauling the Gin’s cottonseed to its purchaser. No better means could be devised to evidence such purpose than by filing copies of the leases with the Department of Public Safety which showed on their faces the terms of the leases including the fact that the lawful right to control the trucks under lease was vested in the Gin, the lessee, who also had the exclusive right to employ and control the drivers of the trucks.

We hold that Bounds was not a motor carrier as defined by the Act, that is, he was not engaged either in controlling, operating or causing to be operated motor-propelled vehicles used in transporting property for compensation or hire over the public highways of this State. The trial court correctly concluded that Bounds did not violate “Art. 911b, V.A.C.S.” Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709 (1945); Farmers’ Gin Co-op Ass’n v. Mitchell, 233 S.W.2d 948 (Tex.Civ.App.—El Paso 1950, no writ).

Having held that Bounds was not in violation of the Act, it necessarily follows that the Gin could not have aided and abetted him in a violation thereof. However, we discuss the argument made by the State in support of its contention that the Gin, by aiding and abetting Bounds, violated the Act. It argues that the failure to file a written memorandum of the oral agreement with the Department of Public Safety was deliberate, and that such failure “was to leave the illusion” with the Department of Public Safety that Bounds would be compensated solely on a per mile of use, which enabled the Gin to continue “to maintain the on-paper illusion of a private carriage operation.” The State also says that “the transactions were structured to mask their nature,” with the end result that the Gin “received, for all practical purposes, all of the advantages of a certificated for-hire transportation service,” without assuming any of the burdens and risks of the trucking operation, and that the Gin acted “as a mere conduit to funnel the revenues collected from Valley Co-op and the total expenses of the truck operation, including drivers wages, to Tom Bounds.” We disagree.

The record will not sustain the State’s contention that, as a matter of law, the Gin aided and abetted Bounds in acting as a motor carrier in violation of the Act. The trial court did not err in concluding that the Gin did not aid and abet Bounds in any violation of the Act.

We have read the record in its entirety. The evidence amply supports the trial court’s findings of fact. We find no reversible error in either the trial court’s conclusions of law or in its judgment. We have considered all of the points of error which have been brought forward by the State. All points are overruled.

      . The Texas Motor Carriers Act will be referred to in this opinion as the “Act.”


author: YOUNG, Justice.

text:
    Donald R. BERING, Appellant, v. REPUBLIC BANK OF SAN ANTONIO and Charles H. Leopold, Appellees.
    No. 1359.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 17, 1979.
    Rehearing Denied June 7, 1979.

      Clark G. Thompson, Houston, Terrell S. Mullins, Hallettsville, for appellant.
    Macklin K. Johnson, Armond G. Schwartz, Hallettsville, for appellees.
   OPINION

YOUNG, Justice.

In this summary judgment case appellant, Donald R. Bering, sued the Republic Bank of San Antonio and Charles H. Leopold, appellees, to set aside a substitute trustee’s sale held pursuant to a deed of trust. Both of the appellees filed motions for summary judgment which were granted. Bering appeals.

The record in this case reflects the following facts and events. On July 15, 1974, appellant Bering borrowed $17,000 from the Republic Bank to purchase 68.36 acres of land in Lavaca County, Texas. Appellant executed and delivered to the Bank his promissory note in the above amount, the repayment of which was secured by a vendor’s lien and a deed of trust lien. James B. Stewart was named trustee, but the deed of trust provided for the appointment of a substitute trustee without other formality than the designation in writing.

The note matured on July 14, 1975, and remained unpaid. After several unsuccessful efforts by the Bank to collect, notice of a trustee’s sale, to be held at the courthouse steps in Hallettsville, was posted for December 2, 1975, and written notice was given to appellant. The Bank subsequently caused to be cancelled such notice and sale at the request of appellant upon his representation that he would refinance the loan if given until January of 1976. Appellant did not tender the funds in January as promised, and Cecil Schenker, who had been appointed substitute trustee, posted notice of sale for January 6, 1976, between the hours of 10:00 a. m. and 4:00 p. m. in Hallettsville. Notice of such sale was also given to the appellant and his attorney.

On January 6, 1976, at approximately 1:00 p. m. Schenker as substitute trustee, talked with Clark Thompson, appellant’s attorney in Houston, asking whether he had received cash for payment of the note. Thompson advised Schenker, who was then in Hallettsville with Jerry Angerman, president of the Bank, that the cash had not yet arrived. He did, though, ask that Schenker delay the sale until 3:00 p. m. Schenker advised Thompson that he would have to discuss the requested further delay with Angerman, and would then call Thompson. At approximately 1:30 p. m. Angerman called Thompson and advised that he would not agree to any further delay. The sale was held at approximately 2:00 p. m. on that day at the Lavaca County Courthouse in Hallettsville, Texas.

Appellee Leopold purchased the property for $21,000, such being the highest bid for cash. Schenker executed his substitute trustee’s deed conveying the property, and Leopold filed the deed of record. Appellant filed this suit on February 6, 1976, seeking to set aside the above conveyance. Appel-lees’ motions for summary judgment were granted on November 7, 1977, from which action Bering appeals.

Appellant brings six points of error. Point 1 contends that the trial court committed error in granting the summary judgment because there was no valid appointment of the substitute trustee. We need not consider this contention, however, because the appellant did not plead facts which, if true, would have given rise to this defense, nor is the issue raised by any of the summary judgment evidence which was before the trial court. The issue cannot be raised for the first time on appeal. “Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934, 936 (Tex.1972); State of Cal. Dept. of M.Hyg. v. Bank of S.W. Nat. Ass’n, 163 Tex. 314, 354 S.W.2d 576, 581 (1962). Appellant’s point 1 is overruled.

Appellant’s points 2, 3, 4 and 6 contend the trial court erred in granting the summary judgment because there existed issues of fact concerning the gross inadequacy of the price paid for the property at the trustee’s sale coupled with the trustee’s failure to postpone the sale until 3:00 p. m. on January 6, 1976. We disagree.

In his affidavit before the trial court, appellant Bering stated that the sale price of $21,000 was inadequate consideration for such property. He stated that in his opinion as a real estate salesman the property involved had a reasonable market value on January 6, 1976, of between $54,-400 and $68,000. While Bering’s statements are sufficient to raise a fact issue as to the adequacy of the sale price; even so, mere inadequacy of consideration alone is not grounds for setting aside a trustee’s sale. Or stated another way, our Supreme Court in Am.Sav. & Loan Ass’n of Houston v. Musick, 531 S.W.2d 581, 587 (Tex.1976) said:

“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”

Appellant contends further in that regard that the trustee had an obligation of fairness to both the mortgagor and the mortgagee, and that the trustee’s failure to wait until 3:00 p. m. was such irregularity when coupled with the inadequacy of the price as to require a setting aside of the sale. See First Federal Savings & Loan Ass’n of Dallas v. Sharp, 359 S.W.2d 902 (Tex.1962). We find the trustee’s failure to postpone the sale until 3:00 p. m. was not such an irregularity as would justify setting aside the trustee’s sale herein. The evidence is conclusive that the trustee posted the proper notices, and advised the public that the sale would be held on January 6, 1976, between the hours of 10:00 a. m. and 4:00 p. m. Though the trustee had the right to sell the property at 10:00 a. m., he waited until 1:30 p. m. to find out whether appellant Bering had secured the funds necessary to compensate the mortgagee. Bering’s attorney had not secured the money at 1:30 p. m. and the trustee rightfully decided to sell the property.

We also note that there is no indication in the record that Bering asked a representative to be present in Hallettsville for the sale. Furthermore, Thompson, to whom Bering was attempting to transfer the money, was located in Houston and the sale was in Hallettsville, which we judicially know is at least 100 miles from Houston. The deed of trust provided that the sale should be a “cash sale.” In common ordinary popular acceptance a direction to sell for cash is a clear and unqualified direction not to sell or pass title to the goods without cash in hand. First Federal Savings & Loan Association v. Sharp, 347 S.W.2d 337, 340 (Tex.Civ.App.—Dallas 1961), affirmed, 359 S.W.2d 902 (Tex. 1962). Even if Thompson had secured the funds by 3:00 p. m. it would have been difficult, if not impossible, for him to travel the 100 miles from Houston to Hallettsville before the 4:00 p. m. sale deadline.

In light of the above discussion, we think the evidence is conclusive that Schenker’s refusal to delay the sale presented no irregularity which, even if coupled with a purported inadequacy of price, would justify setting aside of the sale herein. Biddle v. National Oil Line Insurance Co., 513 S.W.2d 135, 138 (Tex.Civ.App.—Dallas 1974, writ ref’d n. r. e.); Zeiss v. First State Bank, 189 S.W. 524 (Tex.Civ.App.—Beaumont 1916, writ ref’d). See also Sparkman v. McWhirter, 263 S.W.2d 832 (Tex.Civ.App.— Dallas 1953, writ ref’d) wherein it was held that the pendency of negotiations to refinance a defaulted loan was not sufficient to set aside a trustee’s sale. Appellant’s points 2, 3, 4 and 6 are overruled.

Appellant’s point 5 asserts that the trial court erred in granting the summary judgment because the inadequacy of the price coupled with appellant’s tender (upon filing suit) of the full amount of the debt plus interest, and attorney’s fees, constitutes grounds in equity for setting aside the trustee’s sale.

We agree with appellant that inadequacy of price, standing alone, is sufficient to justify a court of equity in setting aside an execution sale when the judgment debt- or makes a prompt offer to make the purchaser whole by returning his investment in the property and paying all costs. Collum v. DeLoughter, 535 S.W.2d 390, 393 (Tex. Civ.App.—Texarkana 1976, writ ref’d n. r. e.). The sale herein, however, was not an execution sale, but was one made under the authority of a deed of trust. Accordingly, appellant’s point 5 is overruled.

There is yet another reason to affirm the trial court’s judgment. The written judgment of the trial court recites, among other things, the following:

“. . . and the court having considered the pleadings, deposition, and admissions on file, . . . ” (Emphasis supplied).

Appellant has failed to bring forward on appeal the mentioned deposition, which appears to be the deposition of Clark Thompson, appellant’s attorney. In the absence of the complete record considered by the trial court, the appellate presumption is that the omitted deposition established the propriety of the summary judgment rendered below. Williams v. Mac Financial Corporation, 505 S.W.2d 316, 319 (Tex.Civ.App.—Tyler 1973, writ ref’d n. r. e.).

The judgment of the trial court is affirmed.