author: JAMES, Justice.

text:
    BEST ASPHALT PAVING COMPANY, Appellant, v. Jim EASDON et ux., Appellees.
    No. 5860.
    Court of Civil Appeals of Texas, Waco.
    Sept. 21, 1978.

      James E. Ferguson, Cleburne, for appellant.
    Robert M. Mahanay, Mahanay & Higgins, Cleburne, for appellees.
   OPINION

JAMES, Justice.

This is a suit on an oral contract to build a road. Plaintiff-Appellant Best Asphalt Paving Company brought this suit against Defendant-Appellees Coastal Bend Dairy Queen, Inc. and Jim Easdon, et ux., Charlie Dell Easdon for damages for violation of an alleged oral contract wherein Best Asphalt agreed to build a road across land owned by Appellees.

Trial was had to a jury to whom was submitted two special issues, Number 1 of which was worded as follows:

“Do you find from a preponderance of the evidence that Best Asphalt Paving Company was not compensated for the dirt and rock work performed for the Defendant Jim Easdon?” To this the jury answered “We do not.”

Issue Number 2 was a damage issue which was conditioned upon an affirmative answer to Issue Number 1, and was therefore not answered, since the jury answered Issue Number 1 in the negative.

Pursuant to and in harmony with the jury verdict, the trial court entered judgment that Plaintiff Best Asphalt take nothing against the Defendants, from which judgment Best Asphalt appeals. We affirm.

Appellant Best Asphalt asserts error in the failure of the trial court to admit into evidence certain checks and invoices which were submitted by Plaintiff in support of its costs involved in building the road for Defendants; that the evidence is both legally and factually insufficient to support the jury’s answer to Special Issue Number 1, and that the trial court erred in the manner in which it submitted Special Issue Number 1. We overrule all of the Appellant’s points and contentions, and affirm the trial court’s judgment.

We revert to Appellant’s first point. Appellant offered in evidence a group of checks and invoices denominated as Plaintiff’s Exhibit Number 13, for the stated purpose of proving up Appellant Best Asphalt’s performance under the alleged contract and its cost for the work performed. Upon Appellees’ objection to the admissibility of these matters, the trial court excused the jury; whereupon Appellant presented the proffered checks and invoices to Lindsey Upshaw, one of the corporate officers of Appellant, outside the presence and hearing of the jury. The statement of facts reveals that Appellant offered in evidence thirteen checks, ten of which were payable respectively to individual corporate officers and employees of Best Asphalt principally for salaries and wages, one check to the First National Bank, testified to be for “corporate shares, withholding and Social Security,” one check to Higginbothams for the purchase of wooden grade stakes, and the remaining check to a payee not disclosed by the record for “Rocks.” None of these checks and invoices are in the record before us. There is testimony to the effect that during these times material to this controversy, Best Asphalt only had one road construction job in progress, and that was “the Easdon job” (for Appellees); however, there is some evidence that during these times material to this controversy, Best Asphalt was in the process of constructing an asphalt plant.

The trial court excluded the proffered checks and invoices from evidence. There was testimony to the effect that these salaries would have gone on regardless of whether the Easdon job had been in existence or not, and the check to the First National Bank for $935.00 shown to be for “corporate shares, withholding and Social Security” was manifestly not directly tied into or related to the work performed for Appellees. In view of the fact that from the record before us, most of the proffered checks and invoices appear to be mere corporate expense items not shown to be directly related to the Easdon job, coupled with the fact that said checks and invoices are not before us for examination and evaluation, we cannot say that the trial court erred in excluding these checks and invoices in question. Appellant’s first point of error is respectfully overruled.

Appellant asserts there is no evidence to support the jury’s answer to Special Issue Number 1. It was Plaintiff-Appellant’s burden to secure an affirmative answer to this issue, and the jury answered same in the negative. Therefore, Plaintiff-Appellant insofar as his “no evidence” point is concerned, is in the position of contending that the evidence conclusively establishes that Best Asphalt had not been paid for the dirt and rock work. The record does not so establish.

Alternatively, Appellant asserts that the jury’s failure to find that Best Asphalt had not been paid is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust, under the doctrine announced in In re King’s Estate (1951) 150 Tex. 662, 244 S.W.2d 660. We do not agree with either of these contentions.

The 120.98 acre tract of land in question was owned by Appellee Coastal Bend Dairy Queen, Inc., of which corporation Appellee Jim Easdon was president. Appellant’s contention is that Best Asphalt agreed to do the necessary dirt and rock work, and build a paved road across a designated area of Appellees’ land for $2.50 per square yard, which would amount to some $19,500.00 for building the road. However, Appellee Jim Easdon’s version of the oral agreement differed from Appellant’s version. Easdon testified that he made the deal with James Pack, who was at that time an employee of Best Asphalt. Easdon said Pack told him that “they” (meaning Best Asphalt) were in the process of trying to put together a plant in Cleburne to make asphalt, and they were going to get into the road building business. Easdon said when he discussed the matter of building the road, Pack told him, “We’ll take any of it or all of it,” that the dirt work Easdon desired would not cost Easdon over a thousand dollars, and that it would not take more than three days to do such dirt work.

It is undisputed that after Appellant did the dirt and rock work, that Appellant performed no more work on the road. The evidence is conflicting as to why Appellant’s work ceased. There is evidence that Appellant’s men told Easdon that their (Appellant’s) equipment was too light, and they would have to wait to get heavier equipment before continuing. There is evidence that after the dirt and rock work was completed, that Easdon told Appellant’s men that he wanted to wait for a rain in order to settle the base material on the road before going ahead with the paving. At any rate, after the dirt and rock work was completed, Appellant did no more work. Roy Pack and his son James Pack had been associated with N. P. Upshaw and his two sons, Lindsey and Mark, in the Best Asphalt Corporation. After the dirt and rock work was completed on the Easdon road, the Packs and the Upshaws had a falling out or disagreement which resulted in the two Packs leaving Best Asphalt. Easdon testified in effect that James Pack was the only man in Best Asphalt that possessed enough experience and know-how in road building to do a road-building job properly. After James Pack left Best Asphalt, Easdon made a deal with James Pack individually to complete the paved road.

During the time when Best Asphalt was performing the dirt and rock work, Easdon was presented at separate times three bills or invoices for work performed, one for $553.75, one for $4920.97, and one for $292.50. At each of these three times, Eas-don paid the bills presented to him, which is undisputed; and Easdon testified that on each such occasion he was assured that he had paid Best Asphalt all he owed them up to the time of such respective payments. In other words, according to Easdon’s testimony, the agreement was that he could quit Best Asphalt at any time by paying them for what work they had done; that he had paid them a total of $5767.22 for what Best Asphalt had done, and that he did not owe them any more money. It is undisputed that Appellant Best Asphalt performed no more work for Appellees after the last such payment Easdon made, hereinabove referred to.

As stated before, by the only special issue answered by the jury, the jury failed to find that Best Asphalt had not been paid for the dirt and rock work performed for Easdon. There was conflicting evidence bearing upon this issue. The jury as the trier of fact was entitled to resolve this conflicting evidence. We cannot say that the jury’s negative answer to this special issue is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Lastly, Appellant complains of the manner in which the trial court submitted Special Issue Number 1. There is no showing in the record that Appellant made any timely objection to the manner in which Special Issue Number 1 was submitted; neither did Appellant request the submission in writing of an issue worded in the manner Appellant deemed to be proper. This is a matter upon which Appellant had the burden of proof. By its failure to request a differently worded issue in writing, and failure to object to Special Issue Number 1 as submitted, Appellant has thereby waived any objection it may now have in this regard. Rule 279, Texas Rules of Civil Procedure.

All of Appellant’s points and contentions are overruled. Judgment of the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    John S. CARROLL, Jr., et ux., Appellants, v. Allen J. WIED et ux., Appellees.
    No. 1293.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 22, 1978.

      H. William Schneider, James A. Bouligny, Duckett, Bouligny & Collins, El Campo, for appellants.
    Richard L. Manske, El Campo, for appel-lees.
   OPINION

YOUNG, Justice.

Appellants, John S. Carroll and his wife, Geraldine M. Carroll, appeal from a judgment granting specific performance to the appellees, Allen J. Wied and his wife, Susan D. Wied, in connection with a contract for the sale of realty wherein the Carrolls were the sellers and the Wieds were the purchasers. We affirm.

The entire record on appeal is found in the transcript; there is no statement of facts. The transcript includes the pleadings of the parties, a document entitled “First Amended Agreed Statement of Facts”, the judgment, findings of fact and conclusions of law, two trial briefs, and other documents not material to this appeal.

Our first question is to determine whether this is an agreed case under Rule 263, T.R.C.P. In support of a determination that this is an agreed case, the document’s title exactly follows the language used in Rule 263 and the trial judge both signed and approved the statement, as required by Rule 263. This was done more than one month prior to trial. The findings of fact exactly duplicate the agreed statement of facts and explicitly provide that “the only evidence presented during the trial of the case for the court’s consideration was that appearing in the first amended agreed statement of facts filed in said cause signed by both parties . . .” The findings of fact were signed and approved by the court and also signed and approved by the attorneys for both the appellant and the appellee. Under these circumstances, we find the document filed herein constitutes an agreed case provided for in Rule 263. See Scott v. Slaughter, 97 Tex. 244, 77 S.W. 949 (1904); Perry v. Aetna Life Insurance Company of Conn., 380 S.W.2d 868, 875 (Tex.Civ.App.—Tyler 1964, writ ref’d n.r.e.); Chickasha Milling Co. v. Crutcher, 141 S.W. 355, 356 (Tex.Civ.App.—Texarkana 1911, no writ). Where a case is tried on an agreed statement, on appeal the appellate court will consider only those matters which are incorporated in the statement and the judgment. Rule 263, T.R. C.P., Cousins v. Cousins, 42 S.W.2d 1043 (Tex.Civ.App.—Amarillo 1931, writ ref’d).

The facts as presented in the agreed case show that on February 21, 1975, the plaintiffs and defendants signed a standard sales contract for property located in El Campo, Texas. The agreed purchase price was $32,000. The contract was qualified by language that the contract was contingent upon the purchasers’ being able to secure a loan in the amount of $25,600 from a lending institution or other source. The contract, however, contained no time or dates for performance.

Marvin Trochta was the listing realtor for the appellants but Florence Comstock Gage was the realtor who obtained the ap-pellees’ offer to buy and secured the execution of the contract. The appellees tendered to Ms. Gage the amount of $1,000. Ms. Gage placed this money into her escrow account at a bank in El Campo, Texas. And, at no time were the appellants tendered the $1,000 escrow sum.

On March 11, 1975, the appellants sent a letter to the appellees which read as follows:

“The contract of sale which you signed on February 21, 1975, has not been performed by you. I am therefore terminating this contract effective immediately.”

The appellees received this termination letter on March 13, 1975. When the appellants gave notice of termination of the contract, the appellees had not yet fulfilled the contingency about the loan provided for in the contract.

After the appellees received notice of termination and the repudiation by the appellants, they notified Ms. Gage that they intended to attempt specific performance of the contract. And, on March 18, 1975, the appellees’ attorney notified the appellants that they would be demanding specific performance of the contract.

On April 29, 1975, the appellees sued the appellants requesting specific performance of the contract. They rely on a provision in the contract which states:

“If any title objections are made, then the Seller or his Agent shall have a reasonable time to cure said objections and show good and marketable title. In the event of failure to furnish good and marketable title, the purchase money hereby receipted for is to be returned to Purchaser upon the cancellation and return of this contract, or Purchaser may enforce specific performance of same.”

Compare Nelson v. Jenkins, 214 S.W.2d 140, 144 (Tex.Civ.App.—El Paso 1948, writ ref’d).

Based on these facts the trial judge made the following conclusions of law:

“1. The plaintiffs and defendants entered into a contract of sale for real estate on February 21, 1975.
2. The contract of sale was not an option to purchase.
3. Defendants breached the contract of sale.
4. Plaintiffs are entitled to specific performance under the terms of the contract.”

Appellants bring forward three points of error. The first point contends that the trial court erred in finding the agreement was an enforceable contract of sale rather than an option to purchase. Appellants’ argument is simply this: the wording “contingent upon purchasers being able to secure a loan” renders the agreement an option with a condition precedent rather than a sales contract. We agree that the quoted language creates a condition precedent. Willeford v. Walker, 499 S.W.2d 190 (Tex.Civ.App.—Corpus Christi 1973, no writ). But this language does not determine whether the agreement constitutes an option to purchase as opposed to a sales contract.

In a contract of sale, one party is obligated to sell and the other to purchase; in an option there is conferred a right to purchase if there is an election to do so. White v. Miller, 518 S.W.2d 383 (Tex.Civ.App.—Tyler 1974, writ dism’d); 58 Tex. Jur.2d, Vendor and Purchaser § 58 (1964).

We think it was the clear intention of the parties to enter into a contract of sale rather than into an option to purchase agreement. Appellant has not directed us to any provision which indicates that the appellees could complete or ignore the contract at their pleasure. Compare Tate v. Morris, Graham & Morris, 248 S.W. 797, 800 (Tex.Civ.App.—Fort Worth 1923, no writ). Furthermore, ordinarily time is of the essence in an option and is not of the essence in a contract to sell and purchase real estate. Copeland v. Bennett, 243 S.W.2d 264 (Tex.Civ.App.—El Paso 1951, no writ). The contract herein did not specify any time for performance, and there is no indication in the record that the time was intended to be of the essence. In light of the above, we overrule appellants’ first point.

Appellants’ second and third points contend the court erred in finding that the appellants breached the contract of sale. In sum, appellants argue first that there can be no breach of contract and resulting specific performance because the condition precedent had not been completed, and secondly, that the twenty days between the signing of the agreement and the notice of intent to repudiate the contract was a reasonable time and did not cause a breach of contract.

We disagree with the argument that there can be no breach of contract before the condition precedent is fulfilled. The provision making the contract contingent upon the appellees’ securing a loan without a specified time limit created an implied contractual provision that the appellees would pursue their application for a loan diligently and would be allowed a reasonable time within which to secure it. Nelson v. Jenkins, supra; Willeford v. Walker, supra; 58 Tex.Jur.2d Vendor & Purchaser § 161 (1964). The appellants’ repudiation of the contract, constituted an anticipatory breach of the implied condition of the contract providing for a reasonable time to obtain financing. 13 Tex.Jur.2d Contracts § 309 (1960). Thus, appellees did not need to complete the condition precedent in order to sue for specific performance. Corzelius v. Oliver, 148 Tex. 76, 220 S.W.2d 632, 635 (1949); Copeland v. Bennett, supra.

We find no error in the trial court’s decision that the appellant breached the contract by repudiating it twenty days after it was signed. Ordinarily the question of what constitutes a “reasonable time” is a question of fact to be determined from the circumstances. Hall v. Hall, 158 Tex. 95, 308 S.W.2d 12 (1957); Shields v. Dunlap, 174 S.W.2d 642 (Tex.Civ.App.—Eastland 1943, no writ). But where the facts are undisputed, as here, the issue of what is a reasonable time for performance is a question of law for the court. Ridglea Interests, Inc. v. General Lumber Company, 343 S.W.2d 490 (Tex.Civ.App.—Fort Worth 1961, writ ref’d n.r.e.). In considering the facts as presented, we find no error in the trial court’s holding that the appellants breached the contract of sale herein by repudiating the contract within twenty days of its signing.

In appellants’ second point they also argue that there was no enforceable contract because they received no consideration for the contract. The appellants contend that because neither they nor their listing agent received the $1,000 escrow funds that no enforceable contract was entered. We disagree. Upon the signing of the contract, both parties undertook certain obligations, i. e., appellees impliedly promised to make diligent application for a loan and to take the proper steps reasonably necessary to close the purchase and the appellants impliedly promised to wait a reasonable time for the appellees to secure a loan and to convey good title upon proof of that loan. See Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454, 458 (1943). Nelson v. Jenkins, supra. The exchange of obligations constitutes sufficient consideration. 13 Tex.Jur.2d Contracts § 52 (1960). Appellants’ second and third points are overruled.

The judgment of the trial court is affirmed.


text:
    Carl F. LUEG, Jr., Appellant, v. Howard E. TEWELL, Jr., M. D., Appellee.
    No. 1313.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 22, 1978.

      Thomas E. Lucas, Lucas & Hudson, Houston, for appellant.
    David Kithcart, Orrin W. Johnson, Har-lingen, for appellee.
   OPINION

YOUNG, Justice.

This suit for alienation of affections, brought by Carl Lueg against Dr. Howard Tewell, was dismissed with prejudice under Rule 170, T.R.C.P., because Mr. Lueg failed to comply with a discovery order. We affirm.

On August 6, 1976, Mr. Lueg, and his wife were divorced. His ex-wife later married Dr. Tewell. Whereupon Mr. Lueg filed this suit on October 20, 1976, for alienation of affections. The petition generally alleged that Dr. Tewell schemed to break up Mr. Lueg’s marriage by using his great wealth and masculine wiles to further his purpose.

Dr. Tewell answered with a general denial and gave notice of intention to take an oral deposition of Mr. Lueg which notice included a request to produce nine groups of documents. The requested documents mostly pertained to the operation of two nursing homes, one in McAllen and one in San Benito. These homes were operated and partly owned by Mr. Lueg, who owned a majority interest; the remaining interest was owned by his former wife, Mrs. Tewell. Particularly relevant to this cause was the request to produce check books and check stubs from January 1, 1976 to date for the San Benito home and copies of check vouchers on the McAllen home for the same period.

On December 2, 1976, appellee took appellant’s deposition. Appellant did not produce six of the nine requested groups of items because they were at the auditor’s office, but apparently promised the appellee that he would produce the other items, including the above mentioned check stubs and vouchers, by December 15, 1976. Appellant Lueg, however, did not produce these requested items as promised and on March 7, 1977, appellee filed both a motion to compel their production and a motion for Mrs. Tewell to intervene as a party defendant.

This first motion requested production of nine groups of items, five of which were items requested in the subpoena duces te-cum, mentioned above, and four of which applied to additional aspects of the operation of the two nursing homes. The requested items relevant to this appeal appeared and were numbered as follows: 5) the bank statements, cancelled checks, check stubs, and voucher copies of all checks from January 1, 1976 to date; 6) all records, bank statements, deposit slips, and escrow accounts, pertaining to appellant’s acting as attorney ad litem for patients in the two nursing homes and more particularly as to deceased patient Lundquist, and three living patients, namely, Mora, Lang-ham and Linnville; 8) all cancelled checks or other records which reflect a loan to certain officers, including payments made by the business with respect to any vehicle used by the plaintiff. The motion then states that good cause exists to grant the motion because the documents sought would reflect appellant’s questionable business practices and how these practices were the actual cause of Mrs. Tewell’s alienation from Mr. Lueg. It further states that the information would be beneficial in a shareholder’s derivative suit as a counterclaim in the event Mrs. Tewell were allowed to intervene.

On March 15, 1977, appellee Dr. Tewell supplemented his motion to produce documents by requesting appellant’s income tax returns, personal financial statements, and copies of all credit card applications and all receipts for food and travel.

Appellant Lueg challenged both of these motions, and at a hearing on March 17, 1977, the court sustained all of the appel-lee’s requests, except that it imposed a limitation that the personal financial statements and credit card applications and receipts received after the August 6, 1976, divorce were not discoverable. The court also denied Mrs. Tewell’s motion to intervene and ordered that all nine groups of documents be delivered to defendant on or before April 17, 1977.

On April 15, 1977, appellant forwarded documents to appellee’s attorney in an attempt to comply with the court’s order. Items five, eight, and nine in defendant’s motion were not sent, however, as the appellant’s attorney advised appellee that they were available for inspection at the Houston office of the appellant’s attorney, in spite of the fact that both appellant and appellee resided in the Rio Grande Valley area.

On July 12, 1977, appellee filed a motion for sanctions for refusal to make discovery under Rule 167 and for contempt. The motion alleged that appellant had failed to produce items five, eight and nine of the first motion and the credit card receipts requested in the supplement and it requested their production. Moreover, it stated that the response to requested item six of the first motion was extremely incomplete and should be supplemented, and it also expounded upon the factual bases for Mrs. Tewell’s concern as to the four specifically named accounts.

A hearing was then held on this second motion on May 20, 1977. The court sustained appellee’s motion and ordered all requested items produced. The order further provided that the production of documents should take place in the County Courthouse at Brownsville, Texas, on June 3, 1977 at 2:00 P.M.

In furtherance of the order, the parties met on June 3, but because the volume of documents produced could not be copied in one day the parties agreed to recess the discovery until June 9,10 and 13. On June 9 the discovery resumed in the offices of appellee’s attorney in Harlingen, Texas. At that time, the appellee complained to appellant that he had not produced the items ordered. First, as to item five of the first motion, all bank statements, cancelled checks, check stubs and vouchers were not delivered. The record indicates that for every check issued from the McAllen nursing home, there were two carbon copies, namely, a pink voucher copy and a white voucher copy. The pink copy was used for auditing and general accounting purposes and the white copy was attached to the invoice or other supporting data which precipitated the issuance of the check. None of the pink or white copies were delivered on the 9th of June and several of the original cancelled checks were not delivered. While appellant was requested to deliver all pink copies and white copies, he chose to bring only selected pink copies, none of which gave the information as to the missing cancelled checks. Appellant’s reason for failing to produce all the pink copies was that his attorney had advised him that the appellees only wanted selected pink copies in spite of the fact that appellee’s attorney was never present for any of the discovery proceedings on the 9th, 10th, or 13th.

Similarly, appellant apparently told the appellee that he would produce all of the voucher copies during this round of discovery, but, none of the white voucher copies were ever produced. Appellant’s reason was again the advice of his attorney and that some of the white copies were at his auditor for year ending. Appellant did admit, though, that he did indeed possess many of the white copies requested but was just not going to produce them on advice of his attorney. In addition, appellant did not deliver the deposit slips to any of the requested bank statements until the 13th of June, at which time he did not give access to the cancelled checks, only the bank statements and deposit slips.

Secondly, as to item six, the records of the escrow accounts were again incomplete. Thirdly, none of the requested credit cards receipts were delivered. All other requested documents were apparently produced. As a result, appellee filed a second motion for sanctions and contempt. This motion was supported by extensive exhibits as to which requested documents had not been produced.

A hearing on this motion was held on July 21, 1977. At this hearing, Mrs. Tewell and Mr. Lueg testified. The essence of Mrs. Tewell’s testimony was that the appellant was holding back certain documents and was being totally uncooperative. Appellant denied this and asserted that, for example, the checks were missing due to appellee’s mishandling of appellant’s financial records during the discovery process in June.

The court granted appellee’s motion and ordered that appellant deliver four groups of documents, and deposit $1250.00 with the court for extra expenses by July 26 or his cause would be dismissed with prejudice. The items ordered were: 1) The missing checks; 2) the missing pink and white voucher copies; 3) the complete records as to the escrow accounts of the patients named in item six of the first motion and 4) the credit card information requested in the supplement to the first motion.

Appellant failed to comply with any of the requirements in this order and the court dismissed the cause with prejudice on July 29,1977. Appellant then filed a motion for rehearing and a motion for new trial. These motions were overruled.

Appellant brings seven points of error. The first six points complain of error in the trial court’s granting appellee’s first motion for discovery and the supplement thereto. It should be noted, though, that the trial court made two subsequent discovery orders after sustaining appellee’s first motion and supplemental motion of which appellant complains, namely, the May 20, 1977, order and the July 21, 1977, order. It was appellant’s refusal to obey the last discovery order which precipitated the court’s employment of the discovery sanctions.

It is a generally recognized rule that if sanctions are imposed for violating a discovery order, on appeal from the order imposing sanctions the appellate court will consider the propriety of the prior order for discovery. Familias Unidas v. Briscoe, 544 F.2d 182, 191 (5th Cir. 1976), 8 Wright and Miller, Federal Practice and Procedure, Civil § 2289 n. 55 (1970). In that regard, we will consider the propriety of the July 21, 1977, order rather than the original motion and order decided March 17, 1977, and will regard appellant’s arguments as they relate to the last discovery order.

Appellant’s first and fifth points contend the court abused its discretion in requiring the production of the ordered documents because good cause, relevancy and materiality were not shown.

According to Ex Parte Shepperd, 513 S.W.2d 813, 815 (Tex.Sup.1974), Rule 167 contains “general qualifications that the party seeking discovery must show ‘good cause’ and that the documents sought must be such as constitute or contain, or are reasonably calculated to lead to the discovery of, evidence material to any matter involved in the action.” It is generally agreed that under Rule 167, the movant has the burden of both pleading and proving good cause and materiality. Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (Tex.Sup.1959); Bryan v. General Elec. Credit Corp., 553 S.W.2d 415, 419 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ); Irwin v. Basham, 507 S.W.2d 621, 625-26 (Tex.Civ.App.—Dallas 1974, writ ref’d n. r. e.); Zuider Zee Oyster Bar, Inc. v. Martin, 503 S.W.2d 292, 298 (Tex.Civ.App.—Fort Worth 1973, writ ref’d n. r. e.). In deciding whether the movant has met this burden, we look to the movant’s motion or motions for discovery, his pleadings and his proof. See Bryan v. General Elec. Credit Corp., supra; Crane v. Tunks, supra. A mere conclusion or assertion of good cause is not enough. Narro Wrhse, Inc. v. Kelly, 530 S.W.2d 146, 150 (Tex.Civ.App.-Corpus Christi 1975, writ ref’d n. r. e.); Texhoma Stores, Inc. v. American Central Ins. Co., 424 S.W.2d 466 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.). Also, if the moving party can obtain the requested information without resorting to the discovery process, good cause does not exist. Texhoma Stores, Inc. v. American Central Ins. Co., supra.

In looking to the issues material to an alienation of affection case, and in reviewing the trial court’s order in the light of the above rules, we find that the movant, ap-pellee here, satisfied the good cause and materiality requirements.

The issues material to an alienation of affections suit are set out in the case of McQuarters v. Ducote, 234 S.W.2d 433 (Tex.Civ.App.—San Antonio 1950, writ ref’d n. r. e.). One of the three factors which the plaintiff must prove in an alienation of affections case is that the defendant’s conduct was the controlling cause of the loss. Appellee’s first motion to compel discovery stated that it was seeking the documents requested in order to show that it was the appellant’s own questionable business practices which were the controlling cause of the loss of affection. Furthermore, during the several hearings on the motions herein appellee’s attorney continually emphasized that the requested financial documents were material to showing the appellant’s impropriety in his business dealings.

Further, as to the allegations and proof, appellee stated in his first and second motions for sanctions that the plaintiff possessed certain documents relating to a Guy Linnville Account and, against Mrs. Te-well’s desires, the appellant kept a checking account, or 'deposit of some kind, for Linn-ville’s monies and in some fashion ended up owning a panel truck which had been the property of the patient Linnville. The later motion further stated that nothing was produced as to the Lundquist Account, a matter of great anxiety to Mrs. Tewell during her marriage to appellant Lueg. Additional proof was introduced at the hearing on July 21, 1977. Mrs. Tewell testified that the escrow accounts had been a source of friction during her former marriage. The testimony also showed that Mrs. Tewell helped to keep the books of the nursing homes and had a personal knowledge of their contents. Her personal knowledge of the operations of the nursing homes apparently caused great anxiety. As a result, the appellee was seeking to discover the documents which caused this anxiety. Thus, we find the allegations and proof show that the checks, voucher copies, and escrow account records were material.

As far as the credit card information is concerned, it is material both to the appellant’s financial status, the issue being raised in the appellant’s petition alleging a great disparity of wealth between the plaintiff and defendant, and to any issues as to the use and maintenance of the panel truck mentioned above where he requested records of payment or maintenance on any vehicle used by the corporation.

Concerning possession of the items requested, the evidence which showed their existence was supplied at the hearing on July 21, 1977, by the testimony of both the appellant and Mrs. Tewell. Mrs. Tewell testified that the checks had indeed existed and were not lost during the discovery process. Proof as to the existence of the missing vouchers was admitted by the appellant. Similarly, proof of the existence of the records respecting the escrow accounts was supplied by the appellant himself and by Mrs. Tewell’s testimony. Finally, proof of the existence of the credit card information was supplied by Mrs. Tewell’s testimony and by her verified letter to appellant. Thus, though the appellant contends that most of the documents requested in the court’s last order were not in his possession, we find sufficient evidence to justify the court’s finding possession in the appellant. The record also indicates that all of the items requested were not available to the appellee by any other means as evidenced by several letters in the record. Appellant also argues that some of the documents requested were available as public records. However, he gives no indication as to which documents they were and where they would be found as a public record. Accordingly, we hold that good cause existed to discover all requested documents.

Appellant argues, on the other hand, that the records and documents were not relevant to the issue of what was the controlling cause of the loss of Mrs. Tewell’s affections. He reasons that Mrs. Tewell’s thoughts and impressions concerning the business affairs and relative financial positions of the parties is the only relevant evidence to this issue at trial. We disagree. In Lisle v. Lynch, 318 S.W.2d 763, 767 (Tex.Civ.App.—Fort Worth 1958, writ ref’d n. r. e.), the court held that in an alienation of affection case evidence of financial circumstances was admissible to show the state of affection and cooperative relations between the spouses. Similarly, we here find that the evidence to support Mrs. Tewell’s knowledge and beliefs as to the matters causing her loss of affection is admissible and therefore is discoverable. See 2 McDonald, Texas Civil Practice § 10.03 at 538 (1970).

Appellant also contends that the trial court’s requiring appellant to produce his income tax records was an abuse of discretion. The record reflects, however, that these records were delivered to the appel-lee. This issue is accordingly moot. Crane v. Tunks, supra at 439.

Finding no showing that the trial court abused its discretion relative to the last discovery order, we overrule appellant’s first and fifth points. See Hopkins v. Hopkins, 540 S.W.2d 783, 789 (Tex.Civ.App.—Corpus Christi 1976, no writ).

Appellant’s second, third and fourth points of error contend the trial court abused its discretion in allowing the discovery herein because it amounted to a “fishing expedition”, and because its purpose was to not only harass the plaintiff but to gain information for a shareholder’s suit against the plaintiff. These contentions are without merit.

We find no evidence in the record that reflects an intent upon the appellee’s part to harass the appellant. The record reflects that appellee sought to discover documents which would aid him in preparing his defense. Insofar as the shareholder’s suit is concerned, Mrs. Tewell originally sought to intervene in this cause and bring a shareholder’s action. Her request was denied, though, and the record reflects that the documents ordered produced in the order under consideration were all material to the appellee’s defense, even though they might to some degree bear upon a stockholder’s suit if, in fact, one is brought. Finally, the constraints of Rule 167 were designed to prevent “fishing expeditions.” Texhoma Stores, Inc. v. American Central Ins. Co., supra. We have found that the appellees satisfied the requirements of Rule 167 by both showing good cause and materiality as to the documents requested. Appellants’ points two, three and four are overruled.

Appellant’s sixth point contends the trial court abused its discretion in ordering the production of the documents herein because they were not adequately described. We cannot agree.

The motions for sanctions and production of documents, which was heard July 21, 1977, lists every item requested and attaches supporting letters of correspondence which previously requested the same documents. We hold that both the motion to produce and the order of the court was sufficiently precise to notify the appellant as to which particular documents were desired. Appellant’s sixth point is overruled.

Appellant’s seventh point contends the trial court abused its discretion in dismissing appellant’s cause with prejudice.

The argument under this point is not that the court was without jurisdiction to dismiss the case with prejudice, but rather that the court abused its discretion in so doing under the circumstances of this case.

The purpose of the sanctions provided in Rule 170 is to secure compliance with discovery orders, not to punish an erring party. U. S. Leasing v. O’Neill, Price, Anderson, 553 S.W.2d 11, 12 (Tex.Civ.App.—Houston [14th Dist.] 1977, no writ). The sanction of dismissal is a harsh one, and should be imposed only when clearly authorized. Texhoma Stores, Inc. v. American Central Ins. Co., 398 S.W.2d 344 (Tex.Civ.App.—Tyler) writ ref’d n. r. e., 401 S.W.2d 593 (Tex.Sup.1966). A party must be given notice and a chance to be heard on any motion to impose a sanction for failure to produce documents. Sears, Roebuck & Company v. Hollingsworth, 156 Tex. 176, 293 S.W.2d 639 (1956). Once these procedural safeguards are met, the imposition of sanctions for failure to comply with discovery is directed to the sound discretion of the trial court, and the court’s action can be set aside only upon a showing of clear abuse of discretion. Young Companies, Inc. v. Bayou Corp., 545 S.W.2d 901 (Tex.Civ.App.—Beaumont 1977, no writ).

The facts in our case reflect that the appellant was given adequate notice of the motion to impose sanctions, and was given an opportunity to be heard with counsel present. An order was entered giving appellant five days in which to comply with the order or have his cause dismissed with prejudice. The record supports deductions by the trial court that the appellant willfully refused to provide any of the documents requested and that the appellant consistently enlisted dilatory tactics to delay the discovery, and even failed to comply with personal agreements. Under these circumstances it was not an abuse of discretion for the trial court to dismiss the cause with prejudice. Compare Ramsay v. Santa Rosa Medical Center, 498 S.W.2d 741 (Tex.Civ.App.—San Antonio 1973, writ ref’d n. r. e.), cert. den. 417 U.S. 938, 94 S.Ct. 3062, 41 L.Ed.2d 661 (1974). Accordingly, appellant’s seventh point is overruled.

The judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    Clinton MANGES et ux., Appellants, v. FIRST STATE BANK & TRUST COMPANY et al., Appellees.
    No. 1379.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 22, 1978.

      Arnulfo Guerra, Cornelius Duvall, Roma, for appellants.
    Jarrel D. McDaniel, Vinson & Elkins, Houston, M. L. Null, Anderson, Smith, Null & Stofer, Victoria, Thomas A. Garner, Jr., Rhodes, Garner & Roberts, Port Lavaca, for appellees.
   OPINION

PER CURIAM.

The appellants in each of these cases have filed motions asking for similar relief and which have been independently challenged by appellees on similar grounds. In cause number 1419, Duval County Ranch Company, et al. v. Harlingen National Bank, appellants have filed a motion to extend time to file the record and a like motion for leave to file their brief. In cause number 1379, appellants have filed a motion to extend time to file their brief. Appellees have filed a motion to dismiss the latter case for want of prosecution.

This Court requires all motions containing factual allegations to be verified. See our local rules published as the appendix in Continental Oil Co. v. Dobie, 552 S.W.2d 183 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.). The challenges raised by the appellees in both cases concern the truthfulness of factual allegations made by C. H. Duvall, attorney for the appellants in both cases, in the respective verified motions to extend time. Misrepresentations of fact made by attorneys in verified motions may be either intentional or negligent. Such misrepresentations, regardless of motive, could form the bases of complaints to grievance committees for review and appropriate action by such committees.

Affidavits of the district and deputy district clerks in Calhoun and Cameron Counties, which appear to refute statements made by Mr. Duvall, were filed by appellees as a part of their replies in opposition. Ap-pellees cite various other defects in the original motion filed by Mr. Duvall in Cause No. 1419, but we find these defects were either cured by subsequent filings or are insufficient alone to require denial of the motion.

This Court relies on the sworn factual statements made by attorneys, and considers a challenge to the truth of a verified statement to be very serious. Mr. Duvall was instructed to respond in writing to the challenges in both cases and also to appear for a hearing set for August 15, 1978. Due to a conflict with a case in federal court, the hearing, at the request of Mr. Duvall, was postponed to September 6, 1978, a date which Mr. Duvall assured the Clerk of this Court would be convenient for him.

On September 6, 1978, two attorneys for appellees in Cause No. 1379 appeared, but Mr. Duvall did not appear, nor did he inform the Court prior to docket call of his whereabouts. After the start of the hearing, he telephoned from Brownsville to explain he was involved in a case in federal court which required his presence there. This Court heard arguments from the attorneys present and took all the pending motions under advisement, and we allowed Mr. Duvall to file an additional brief thereafter.

At the outset we note that the standard of review for a motion to extend time to file the record under Rule 21c, T.R.C.P., is governed by the “reasonable explanation” standard as interpreted by the Supreme Court in Meshwert v. Meshwert, 549 S.W.2d 383 (Tex.Sup.1977), whereas an extension of time to file appellant’s brief is governed by the “good cause” standard in Rule 414, T.R. C.P. See Continental Oil Co. v. Dobie, supra, and cases cited therein. Therefore we reach a different result in the two cases.

MOTIONS IN CAUSE NO. 1419

We first consider the motions in Cause No. 1419. The record was due to be filed in this Court on June 13, 1978. Three days later the transcript was tendered for filing, along with a motion to extend time to file the record. The explanation offered for failure to timely file the transcript was that the office of the District Clerk of Cameron County informed Mr. Duvall on June 14 that the transcript was ready and could be picked up upon payment of the cost, the District Court required payment despite the filing of a valid cost bond, and that he could not reach his client and secure the funds for payment until June 16. Appellees opposed the motion and provided two affidavits of deputy district clerks, which stated they had called Mr. Duvall on June 7 and June 13 to inform him of the readiness of the transcript and of the requirement for payment. In his answer filed August 11, 1978, Mr. Duvall attached a copy of his long distance telephone bill, which reflected calls from the coordinator’s and clerk’s offices on June 8 and 14, respectively. He emphasized that he had never alleged the clerk’s office failed to timely prepare the transcript or failed to timely notify him of its readiness; rather, the lateness resulted from the difficulty in contacting his client and securing the funds to pay for the transcript. He considered advance payment to be unnecessary and the demand therefor to be unwarranted when a cost bond has been filed, but attempted nevertheless to comply with the requests made by the District Clerk.

We are of the opinion that the original motion lacks completeness, but the facts alleged therein and in the fuller explanation filed August 11, are not in absolute conflict with facts asserted by appellees. We are also of the opinion that the reason for lateness is “a plausible statement of circumstances indicating that failure to file within the sixty-day period was not deliberate or intentional, but was the result of inadvertence, mistake or mischance.” Meshwert v. Meshwevt, 549 S.W.2d 383, 384 (Tex.Sup.1977). As for the District Clerk’s requirement for advance payment before releasing the transcript, see City of Ingleside v. Johnson, 537 S.W.2d 145 (Tex.Civ.App.—Corpus Christi 1976, no writ).

The statement of facts was received for filing on July 28, 1978. The official court reporter provided an affidavit stating, among other things, that he received the request to prepare the statement of facts on June 9,1978. This was only four days in advance of the date that the statement of facts was due to be filed in this Court. Mr. Duvall stated in his motion that the request had been mailed June 1, but that it was misaddressed and thus resulted in delayed delivery. The request of June 1 was only 12 days before the record was due, even if it had reached the reporter the same day. While the reason for the late request has not been fully explained, we find, in view of the brevity of the statement of facts (38 pages) presented, that this alone will not require denial of the motion.

Having given the attorney the benefit of all reasonable doubts, we find that the explanation is reasonable. Appellants’ motion to extend time to file the record is granted. The transcript is ordered filed as of June 16, 1978, and the statement of facts is ordered filed as of July 28, 1978, the dates on which each portion of the record was received. The motion for leave to file appellant’s brief is also granted, and it is ordered filed as of August 30, 1978. Appellees will have 25 days from the date of this opinion to file their brief.

MOTIONS IN CAUSE NO. 1379

Cause No. 1379 is an appeal from a summary judgment. Appellants sued appellees for breach of contract, conversion of personal property, and defamation of character after appellees had foreclosed on the collateral securing a promissory note which was past due. Appellees’ motion for summary judgment, relying on the written terms of the note and the inadmissibility of parol evidence to vary the terms thereof, was controverted by appellants, who raised the issue of fraud in the inducement to sign the note. The District Clerk of Calhoun County timely prepared the transcript and mailed it directly to the Clerk of this Court. The record which was due June 9, 1978, was mailed by the District Clerk on May 22, 1978, and received by our Clerk on May 24. Appellants’ brief was due 30 days later, or June 23, 1978. Rule 414, T.R.C.P. The brief was tendered on July 7, 1978.

On June 26, 1978, appellants filed a motion for extension of time to file their brief, asking the date to be extended to July 7, 1978. Appellees’ responded by opposing appellants’ motion and also filing a motion to dismiss for want of prosecution. The verified motion to extend time stated that C. H. Duvall had not received notice from anyone that the transcript had been filed, and it was not until June 26 that he learned it had been filed on May 24. He also stated that he called the District Clerk of Calhoun County on June 7 to inquire about whether the transcript had been filed, and that he was left with the impression that it was being mailed or filed at about the date of the call.

In their opposition, appellees refute the statement concerning lack of notice and also attached an affidavit of the District Clerk stating she talked with Mr. Duvall on May 23 and again on June 14, but not on June 7. She stated that notice of mailing the transcript was sent on May 22 and oral notice was given during the May telephone conversation.

The challenge to the veracity of facts contained in the motion was similar to that in Cause No. 1419, and the court ordered Mr. Duvall to reply to this challenge at the same time as in the other case. He filed an answer August 14, 1978.

To his answer Mr. Duvall attached a copy of his long distance telephone charges for the pertinent time period at our request. It shows no calls to or from Calhoun County on June 7, but only on May 22 and June 14. He affirmed his position that he did not receive any written notice of the date of filing, although he does not dispute that such notices may have been sent by the District Clerk and the Clerk of this Court. He stated that the description in his original motion of a telephone call on June 7 was due to faulty memory, and the oral notice of mailing which occurred in a telephone conversation with the District Clerk must have occurred on June 14. He does not suggest it could have occurred in May.

The alleged failure to receive notice either by mail or telephone is the basis of his “good cause” for late tender of appellants’ brief. The Clerk of this Court mailed a notice to Mr. Duvall on May 24 that the transcript had been filed, and the District Clerk, by affidavit, verified that she mailed written notice to all attorneys of record on May 22 and gave oral notice by telephone conversation to Mr. Duvall at approximately the same time. Appellees argue that Mr. Duvall’s motion contains falsehoods regarding lack of notice, or, at the very least, reflects only a mistaken belief as to the due date for the brief.

The alleged telephone call on June 7 did not occur. Mr. Duvall’s explanation that it must have occurred June 14 does not account for the fact that the transcript would have been overdue if it had actually been mailed or filed on that date, and yet he did not make further inquiry as to the status of the case at that time. We agree with the appellees that the statement of the District Clerk regarding notice given in the May telephone call, combined with the events following that call, require the conclusion by this Court that Mr. Duvall had timely notice of the filing of the transcript and that statements to the contrary are not credible.

The representations are offered by Mr. Duvall to explain why he was mistaken in his belief as to the due date of the brief. The allegations, whether they were intentional or negligent misrepresentations, show an effort to make the mistaken belief appear plausible. We find this to be insufficient.

To meet the standard of “good cause” in Rule 414, the appellant must show that failure to timely file the brief was prevented by some event beyond the immediate control of the litigant which was to some extent unforeseeable, and that appel-lees have not suffered material injury by late tender of appellant’s brief. Continental Oil Company v. Dobie, 552 S.W.2d 183 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.); Andrews v. Twin Montana, Inc., 547 S.W.2d 54 (Tex.Civ.App.—Fort Worth 1977, no writ); Davidson v. Butler, 519 S.W.2d 511 (Tex.Civ.App.—Fort Worth 1975, no writ); Rule 415, T.R.C.P. Mistaken belief, alone, is not enough. In addition, appellants have made no attempt to discharge their burden of showing appellees have suffered no material injury by late tender of their brief. Raney v. Mack, 504 S.W.2d 527 (Tex.Civ.App.—Texarkana 1974, no writ); Lueck v. Carter, 466 S.W.2d 90 (Tex.Civ.App.—Fort Worth 1971, no writ); Franke v. Franke, 373 S.W.2d 891 (Tex.Civ.App.—Corpus Christi 1963, no writ).

Rule 414, T.R.C.P., gives Court of Civil Appeals discretion in evaluating “good cause” and determining whether to grant an extension of time to file a brief. In the exercise of this discretion, we decline to permit the brief tendered on July 7,1978, to be filed.

Where appellant’s brief is not filed, the scope of appellate review is limited to ascertaining whether the record before the Court shows fundamental error, or whether the record presents questions of law of importance to the public in general as distinguished from the parties to the appeal. Andrews v. Twin Montana, Inc., supra; Shepard v. Shepard, 546 S.W.2d 888 (Tex.Civ.App.—Fort Worth 1977, no writ); Hol-Main Corp. v. Dissen, 531 S.W.2d 912 (Tex.Civ.App.—Corpus Christi 1975, no writ); Franke v. Franke, 373 S.W.2d 891 (Tex.Civ.App.—Corpus Christi 1963, no writ). We have carefully reviewed the transcript and do not find fundamental error or questions of law of concern to the public generally.

In an effort to evaluate possible harm to appellants due to the acts of their attorney, we have read, not only the record, but appellants’ brief as well, which was received in this Court, though not filed, as hereinbefore stated. We are persuaded that the judgment rendered by the trial court is sound. Appellants’ cause of action was based on an alleged oral agreement that the promissory note, which shows a duration of six months, would be automatically extended for an additional six months. In reply to appellees’ motion for summary judgment, appellants’ affidavit attempted to show fraud in the inducement to sign the note. The elements of the affirmative defense of fraud were set out in Oilwell Division, United States Steel Corp. v. Fryer, 493 S.W.2d 487, 491 (Tex.Sup.1973). The affidavit contained allegations of fact concerning some elements of the proof necessary to establish fraud, but a mere conclusion regarding at least one vital element.

When an affirmative defense is raised in opposition to a motion for summary judgment, the burden is on the non-mov-ant to come forward with summary judgment evidence sufficient to raise a fact issue with respect to each element of the affirmative defense. Oram v. General American Oil Co. of Texas, 513 S.W.2d 533 (Tex.Sup.1974); Nichols v. Smith, 507 S.W.2d 518 (Tex.Sup.1974). An absence of summary judgment evidence as to any one of the elements of fraud is fatal to the defense of fraud, which had been pled by appellants. See Panhandle & Santa Fe Ry. Co. v. O’Neal, 119 S.W.2d 1077 (Tex.Civ.App.—Eastland 1938, writ ref’d); Wilson v. Jones, 45 S.W.2d 572 (Tex.Comm’n App. 1932, holding approved). Facts, rather than legal conclusions, are essential. Hidalgo Surety Savings and Loan Assoc., 487 S.W.2d 702 (Tex.Sup.1972); Associates Discount Corp. v. Rattan Chevrolet, Inc., 462 S.W.2d 546 (Tex.Sup.1970).

Appellants’ motion to extend time to file their brief in Cause Number 1379 is denied. Appellees’ motion to dismiss for want of prosecution is granted.

Appeal dismissed.


author: DODSON, Justice.

text:
    Edwin L. COX, Jr., Appellant, v. MESA PETROLEUM COMPANY, Appellee.
    No. 8894.
    Court of Civil Appeals of Texas, Amarillo.
    Sept. 25, 1978.
    Rehearing Denied Oct. 23, 1978.
    Templeton & Garner, Amarillo, Garner, Vickers & Purdom, Jack 0. Nelson, Jr., Lubbock, for appellant.

      Sanders, Saunders, Brian, Finney & Thomas, Jerry K. Sawyer, D. D. Dent and Barry F. Cannaday, Amarillo, for appellee.
   DODSON, Justice.

Appellant Edwin L. Cox, Jr., the plaintiff and cross-defendant below, challenges the adverse portion of a judgment awarding appellee Mesa Petroleum Company, a corporation, $16,374.10, together with nine percent interest from the date of judgment, on its cross-action for the unpaid contract price of certain cattle feed commodities used by Cox. Cox maintains that the trial court erred in awarding the judgment based upon the contract price rather than the market price of each of the commodities because the jury determined, with regard to his action for breach of warranty of merchantability, that each of the commodities were unmerchantable. However, issues essential to Cox’s breach of warranty claim— whether Cox notified Mesa that the individual commodities were considered nonconforming when used — were neither requested nor submitted to the jury. We determine that the evidence fails to conclusively establish the required notice of unmer-chantability for each of the commodities. The judgment is affirmed.

On December 16, 1974, Cox purchased from Mesa the Randall County Feedyard and other assets, including feed commodities which were detailed in their Purchase and Sale Agreement. The Agreement provided that Cox was to purchase within specified times all the cubed alfalfa (not in issue), baled alfalfa, “old” silage and “new” silage located at the feedyard. Payments for the commodities were to be made on a continuing basis when used by Cox at the following prices: baled alfalfa at $65 per ton, “old” silage at $15 per ton and “new” silage at the average price per ton which Mesa had paid, not to exceed $20 a ton. Cox, however, was not obligated to purchase any unmerchantable commodities.

Cox brought suit against Mesa on August 18, 1975, alleging a breach of express and implied warranties of merchantability with regard to feed commodities purchased under the contract. Cox also sought damages for the cancellation of a leasehold interest arising out of the contract. Mesa answered and filed its cross-action against Cox for the full contract price for all the feed commodities. Mesa further claimed damages against a former employee, James Herring, and Cox for fraud arising out of the contract negotiations and closing.

The jury absolved Herring and Cox of any fraud in the transaction and found Cox to have been damaged in the amount of $50,000 for the wrongful cancellation of the lease. Following its finding that all commodities were unmerchantable when used, the jury determined the market value of baled alfalfa to have been $32 a ton, of “old” silage $11.25 a ton and of “new” silage $15 a ton. Both Cox and Mesa moved for judgment on the verdict and Mesa filed its motion for judgment notwithstanding the verdict. Mesa also moved for the court to enter express findings of fact with regard to the issues of novation and notice. In response to this latter motion, the trial court entered two of Mesa’s requested findings prior to judgment. First, Cox and Mesa were found to have agreed upon a novated price of $60 a ton for the baled alfalfa used in March and April 1975. Secondly, the trial court found:

That the letter of June 3, 1975 from Ed L. Cox, Jr. to Gaines L. Godfrey, Mesa’s Vice President, (Plaintiff’s Exhibit 76) constituted reasonable notification with reservation of the rights by Cox for that quantity of baled alfalfa accepted and used subsequent to the date thereof but did not constitute notice as to the other feedstuffs (emphasis added).

This constituted the sole express finding on the issues of notice.

The trial court determined that Mesa was entitled to payment in the amount of $372,-831.63 for the stipulated quantities of all feed commodities used by Cox. Previous payments totalling $306,457.53 were credited against the $372,831.63. The resulting $66,374.10 amount was offset by the $50,000 jury award to Cox, culminating in a net judgment of $16,374.10 with interest for Mesa.

The specific portion of the judgment which Cox complains of provides that Mesa is entitled to: the contract price of $65 per ton for baled alfalfa used from December 1974 through February 1975; the novated price of $60 per ton for baled alfalfa used during March and April of 1975; the contract price of $15 per ton for “old” silage used from January through August 1975; the maximum contract price of $20 per ton for “new” silage used in August 1975; and $15.30 per ton (as found by the jury) plus $1.00 per ton shipping and packing costs for “new” silage used from September 1975 through December 1976. Cox maintains that he .is obligated to pay only the market price for the baled alfalfa used from December 1974 through April 1975, and for all the “old” and “new” silage which was used. This contention is based on the jury finding that all commodities were unmerchantable and the argument that Cox conclusively established notice of such nonconformities to Mesa.

We first address the issue of notice with regard to the baled alfalfa. The undisputed evidence shows that Cox accepted and used 1,662.93 tons of baled alfalfa from December 1974 through April 1975. As a general rule, the buyer must pay the contract rate for any goods accepted. Tex.Bus. & Com.Code Ann. § 2.606 (1968). However, section 2.714(a) of the Business and Commerce Code provides that a buyer who has accepted goods and given notice to the seller under section 2.607(c) may recover damages for any nonconformity resulting from the seller’s breach. Section 2.607(c)(1) states: “Where a tender has been accepted the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.” Tex.Bus. & Com.Code Ann. § 2.607(c)(1) (1968).

The questions of notice and merchantability of the commodities are essential elements of Cox’s breach of warranty claim; they are not independent grounds of recovery. The burden of alleging and proving these elements was on Cox. Tex.Bus. & Com.Code Ann. § 2.314 (1968); Clarostat Mfg., Inc. v. Alco Aviation, Inc., 544 S.W.2d 788, 792-93 (Tex.Civ.App.—San Antonio 1976, writ ref’d n. r. e.). For Cox to prevail on this appeal the evidence must conclusively show that he gave Mesa notice of nonconformity of the baled alfalfa consumed prior to June 3rd and with regard to all the “old” and “new” silage.

The evidence with regard to the issues of notice shows that Cox assumed possession of the feedlot soon after the December 1974 purchase and continuously used quantities of the alfalfa from December 1974 through February 1975. In March of 1975 Cox’s feedlot manager met with representatives of Mesa. At the March meeting the parties agreed that Cox would receive a reduction of the contract price of $65 per ton to $60 per ton for his accelerated use of all the hay within six months from the contract date rather than the one year period provided for in the contract. Thereafter Cox used substantial quantities of hay in March and April of 1975. In April of 1975 Cox had two firms analyze the alfalfa. There is no evidence that the results of these analyses was forwarded to Mesa as Cox’s- notification of nonconformity of baled alfalfa with reservation of rights. We are persuaded that the questions of reasonable notice on the baled alfalfa used during these months were for the trier of facts. The failure to request or submit such issues constituted an omission under Rule 279 of the Texas Rules of Civil Procedure. Cox failed to conclusively establish that notice was given regarding the baled alfalfa. Thus, these issues are deemed found in support of the judgment. Rule 279.

We next address Cox’s contention that the evidence conclusively established notice with regard to the “old” and “new” silage. We have reviewed the record and found an absence of testimony indicating that Cox notified Mesa that the “old” and “new” silage was considered unmerchanta-ble. Cox also argues that the court erred in determining that the June 3, 1975, letter “did not constitute notice as to the other feedstuffs” (“old” and “new” silage). In this regard, Cox directs our attention to the first line of the letter, which states, “We have communicated with you on several occasions with respect to the Purchase and Sale Agreement dated December 16, 1974 (the “Contract”), and specifically Paragraph 1(c) thereof, which refers to the purchase of baled alfalfa and silage located at the Randall County Feedyard.” This sentence contains the letter’s only reference to silage. The sentence does not indicate the nature of any previous communications. The remainder of the letter addresses only the alleged unmerchantability of the baled alfalfa. When viewed in context with the entire letter, the introductory sentence fails to establish notice of unmerchantability of the “old” and “new” silage. We conclude that Cox failed to conclusively establish notice to Mesa of unmerchantability of the “old” and “new” silage within a reasonable time after he discovered or should have discovered the breach.

Cox further contends that the general instructions contained in the court’s charge, when read in connection with the jury findings of unmerchantability of the feed commodities, are sufficient to support a finding that reasonable notice was given to Mesa on all three feed commodities. In support of his position Cox directs us to portions of Rule 277 of the Texas Rules of Civil Procedure which gives the trial court discretion with respect to submitting issues broadly with “explanatory instructions and definitions as shall be proper to enable the jury to render a verdict . . . .” The only reference to notice contained in the court’s charge is: “A rejection of goods must be within a reasonable time after their delivery or tender. Rejection is ineffective unless the buyer reasonably notifies the seller.” This instruction does not purport to charge on the notice prescribed in section 2.607(c)(1) of the Business and Commerce Code concerning accepted goods. Therefore, we are not persuaded that the abstract and unrelated instruction concerning reasonable notice of rejected goods is converted by Rule 277 into an implied jury finding of notice of unmerchantability within a reasonable time after Cox discovered or should have discovered the breach.

We also disagree with Cox’s contention that “[sjince Mesa failed to deny under oath reasonable notice, such fact was deemed admitted under Tex.R.Civ.P. 93.” For support Cox directs us to the opening paragraph of Rule 93 and subparagraph (m). These provisions are not applicable to this case. The contract between the parties does not prescribe a time limit within which notice of proof of claim must be given to Mesa as a prerequisite for Cox to bring an action thereunder. 2 R. McDonald, Texas Civil Practice § 7.32 (rev. 1970).

Our discussion is dispositive of Cox’s first nine points of error. None of them presents reversible error and each is overruled.

Cox’s final point of error claims:

Point of Error No. Ten. The trial court erred in entering judgment that Mesa is entitled to receive $103,004.43 from Cox for 6,319.29 tons of “new” silage used during December, 1975, through June, 1976, at a price of $16.30 per ton, for the reason that said judgment is contrary to the jury finding that the reasonable cash market value of the “new” silage at the time such silage was used or rejected was $15.00 per ton (emphasis added).

For Cox to prevail on this contention it was essential that he conclusively establish the required notice of unmerchantability of such commodity or obtain a favorable finding thereon. He did neither. However, in his brief in support of the point, Cox also maintains that the trial court erred in calculating the amount due under the contract for the “new” silage at $16.30 per ton.

The contract between the parties provided for payment of “new” silage at “the average price per ton paid by Mesa (which average price will not exceed $20) . . .” At the trial Mesa introduced evidence of $1.00 to $1.50 per ton package costs as a part of its “average price per ton paid” for the new silage. Cox objected to the admissibility of the testimony contending that the package cost was not a part of the contract price. The trial court ruled that the testimony was admissible, and that the packing cost was a part of Mesa’s price for the new silage. The jury found that “the average price per ton paid, after shrink, without regard to packing cost, by Mesa for new ensilage at the time it was purchased” was $15.30 per ton.

This case was tried to a jury prior to the amendment of Rule 324 of the Texas Rules of Civil Procedure. Cox did not file a motion for new trial attacking either the court’s admission of the evidence on packing costs or its ruling that packing costs constituted a part of Mesa’s price for new silage. Neither Cox’s motion for judgment on the verdict nor Mesa’s motion for judgment notwithstanding the verdict questioned the propriety of the $1.00 packing cost being included in the contract price for new silage. Only Mesa, in its motion for judgment on the cross-action, raised the $1.00 packing cost by requesting that it be added to the jury finding of $15.30 per ton. Under the procedural posture of this case, we conclude that Cox has failed to preserve error in relation to the $1.00 packing cost. Tex.R.Civ.P. 324 (1977); State Farm Mutual Automobile Insurance Company v. Cowley, 468 S.W.2d 353 (Tex.1971). Cox’s tenth point of error is overruled.

Accordingly, the judgment of the trial court is affirmed.

      . This net judgment reflects offsets and credits allowed by the trial court.

      . Rule 324 was amended, effective January 1, 1978. Prior to the amendment, the rule stated: “In all cases tried in the county or district court, where parties desire to appeal from a judgment of the trial court, a motion for new trial shall be filed as a prerequisite to appeal; provided that neither a motion for new trial nor an assignment therein shall be a prerequisite to the right to complain on appeal of the action of the court in giving a peremptory instruction, or in withdrawing the case from the jury and rendering judgment, or in rendering or refusing to render judgment non obstante veredicto or notwithstanding the finding of the jury on one or more special issues, or in overruling a motion for judgment on the verdict made by the party who becomes appellant . .”


author: HALL, Justice.

text:
    John BYNUM, Appellant, v. OLSON & CARGILL DIRT COMPANY, Appellee.
    No. 5937.
    Court of Civil Appeals of Texas, Waco.
    Sept. 28, 1978.
    Rehearing Denied Oct. 19, 1978.

      William C. Shaddock, Strother, Davis & Stanton, Dallas, for appellant.
    John L. Bates, Waco, for appellee.
   HALL, Justice.

This is a venue case involving the application of subdivision 4 of Article 1995, Vernon’s Tex.Civ.St.

Plaintiff Olson & Cargill Dirt Company brought this suit in McLennan County on a sworn open account for an alleged balance due of $3,246.00 for topsoil furnished and certain yard work done by plaintiff at the special instance and request of defendants John Bynum, L. M. Dabney, Lewis Crump, and First Homes of Texas, Inc. The record does not reflect that any defendant answered plaintiff’s suit, but defendant John By-num filed a plea of privilege to be sued in Dallas County, the county of his residence. Plaintiff controverted Bynum’s plea. After a hearing without a jury, the trial court overruled the plea of privilege. Bynum appeals. We affirm the court’s ruling.

The evidence shows that the materials furnished and the work done by plaintiff were in connection with the construction of ten houses built by or constructed in the name of defendant First Homes of Texas as builder in McLennan County. It also shows that Bynum is president of First Homes of Texas, that defendant Crump is an officer of First Homes, and that defendant Dabney is the company’s real estate sales representative. Plaintiff’s petition contained an alternative count in which it was asserted that the defendants had diverted trust funds intended for materialmen on those jobs, including plaintiff, within the meaning of Article 5472e, Vernon’s Tex.Civ.St. Evidence was adduced by plaintiff in support of that count. The parties devoted most of their briefs to the questions of the sufficiency of the proof to support the cause of action set forth in plaintiff’s alternative count, and venue of it. However, Bynum asserts in his brief that the “principal theory” of recovery alleged by plaintiff was “under a sworn account.” Bynum also admits in his brief that, “In plaintiff’s original petition and at the venue hearing, plaintiff established that First Homes of Texas, Inc., has its offices at and resides in Waco, McLennan County, Texas.”

Subdivision 4 of Article 1995 provides, “If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.” To obtain the benefits of that venue provision the plaintiff must (1) plead and prove that one defendant resides in the county of suit; and (2) allege in his petition a joint cause of action against the resident and nonresident defendant, or a cause of action against the resident defendant so intimately connected with the cause of action alleged against the nonresident defendant that the two may be joined to avoid a multiplicity of suits; and (3) prove the cause of action pleaded against the resident defendant. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936).

We need not detail plaintiffs petition and its attached exhibits. It pleads a cause of action on sworn account against all the defendants, jointly, under Rule 185, Vernon’s Tex.Rules Civ.Proc. Plaintiff did not formally introduce the sworn account into evidence, but that was not necessary under the record of the case. It is settled that if the defendant fails to file a written denial under oath and in the form provided in Rule 185, he will not be permitted to dispute receipt of the items or services or the correctness of the stated charges; and, under those circumstances, the sworn account constitutes prima facie evidence of the debt without the necessity of formally introducing the account into evidence. Airborne Freight Corporation v. CRB Marketing, Inc., 566 S.W.2d 573 (Tex.Sup.1978). Since defendant First Homes failed to file a sworn denial of the account, no further evidence was required and plaintiff therefore proved its cause of action against that defendant, a resident of McLennan County, the county of suit. Accordingly, the requirements of subdivision 4 of the venue statute for maintaining the suit in McLen-nan County were satisfied. Because By-num was the nonresident defendant, his liability on the sworn account, pleaded against him and First Homes jointly, was not a material question on the plea of privilege hearing. Stockyards Nat. Bank v. Maples, supra, at 95 S.W.2d 1304.

We need not and do not pass upon the contentions of the parties which are concerned with the sufficiency of the proof at the venue hearing of plaintiff’s cause of action for alleged diversion of material-men’s funds by defendants.

The judgment is affirmed.

      . Rule 185. Suit on Sworn Account.
      When any action or defense is founded upon an open account or other claim for goods, wares and merchandise, including any claim for a liquidated money demand based upon written contract or founded on business dealings between the parties, or is for personal service rendered, or labor done or labor or materials furnished, on which a systematic record has been kept, and is supported by the affidavit of the party, his agent or attorney taken before some officer authorized to administer oaths, to the effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the party resisting such claim shall, before an announcement of ready for trial in said cause, file a written denial, under oath, stating that each and every item is not just or true, or that some specified item or items are not just and true; . When the opposite party fails to file such affidavit, he shall not be permitted to deny the claim, or any item therein, as the case may be.


text:
    Gilbert SHORT et ux., Appellants, v. Richard LYNESS et ux., Appellees.
    No. 5925.
    Court of Civil Appeals of Texas, Waco.
    Sept. 28, 1978.
    Rehearing Denied Oct. 19, 1978.

      Tommy Altaras, Cleburne, for appellants.
    Harry L. Dulick, McPherson & Dulick, Cleburne, for appellees.
   HALL, Justice.

This is a trespass to try title action filed January 12, 1977, by plaintiffs-appellees Richard C. Lyness and wife against Gilbert Short and wife to recover title and possession of a 0.149-acre tract of land located in Johnson County. Plaintiffs based their suit for title solely upon their claim of ten years’ adverse possession of the tract by them and their predecessor, under the provisions of Articles 5510 and 5516, Vernon’s Tex. Civ.St. Plaintiffs also sought $250.00 damages for destruction of a fence by defendants.

Trial was to a jury. A single special issue was submitted to the jury, reading as follows:

“Do you find from a preponderance of the evidence that [plaintiffs], and those under whom they claim, have had and held peaceable and adverse possession of the property in controversy, using, cultivating, or enjoying the same, for a period of ten consecutive years or more, prior to the filing of the suit on January 12,1977?
“Answer: Yes or No.”

The jury answered the issue, “Yes.”

Based upon the jury verdict, judgment was rendered vesting title to the tract in plaintiffs and awarding them possession. They were also awarded $100.00 damages. Defendants appeal, asserting that the evidence is legally and factually insufficient to support the jury’s answer to the special issue. We overrule those contentions and affirm the judgment.

It is settled that in deciding a “no evidence” complaint we must view the evidence in its most favorable light in support of the finding, and we may consider only the evidence and inferences which support the finding. Lucas v. Hartford Acc. & Indent. Co., 552 S.W.2d 796, 797 (Tex.Sup.1977).

Throughout their testimony, the witnesses related their statements to eleven photographs and to blackboard drawings. The drawings are not a part of the appellate record; and rather than the original photographs we have only electronic reproductions which are difficult for us to interpret. Additionally, the witnesses’ testimony was riddled with references to unidentified locations on the photographs and the drawings, like, “up there that way,” “over there that way,” “in this area,” “back here,” “out there,” “out here like this,” and “right through here,” which we find unintelligible. Nevertheless, we believe the following plat and evidence is a fair interpretation of the record under the rule of review set forth above.

The properties owned by the parties are bounded on the east by State Highway 917, and are located near the rural community of Egan in northern Johnson County.

The disputed tract is located within lines AB, BC, CD, and AD on the plat. AB is 301.96 feet in length, BC is 5517 feet, CD is 33.2 feet, and AD is 359.91 feet. Plaintiffs purchased their acreage with a house on it from C. A. Collins on January 18, 1974. On September 4, 1976, defendants purchased 3.83 acres which adjoin the north side of plaintiffs’ property. The disputed tract is contained in the metes and bounds description set forth in defendants’ deed; it is not contained in the field notes in plaintiffs’ deed. Plaintiffs’ deed calls for line AD as its north boundary line, and an extension of line CD, south, for its west boundary, which is the rear of the property.

Collins’s deed contained the same description that is set forth in plaintiffs’ deed. When he purchased the property in 1948, there was a fence at the rear of the property from point D along the southerly extension of line CD; a fence for a distance of at least 150 feet from C to B and on toward A, but not to A, to a point along the side of his house; remnants of a fence from the end of that fence to A; and a cedar post at A, which is in the west line of State Highway 917. In 1950 he extended his rear fence from C to D. He testified that he did not ask anyone if he could erect the extension because “it was on my property. I didn’t have to ask anybody if I could put it up.” He bought the property from “post to post” and believed his deed included the tract now in dispute. He also sold the land to plaintiffs “from post to post” and they purchased it in that fashion believing the disputed tract was included in the description in their deed. Until this dispute arose, there was never a fence along line AD.

From 1948 until his sale to plaintiffs in 1974, Collins used the western part of the tract in question, behind his house, for grazing stock and for chicken coops. The balance was used as the yard to his house, and was a part of his front yard, and he kept it mowed and tended out to the highway. His use was obvious to all, the area of his use was well-defined by his upkeep, and he claimed the land as his own, believing it was included in his deed. There is no evidence that anyone ever questioned his use or ownership of the tract.

After plaintiffs’ purchase from Collins, they used the part of the disputed tract behind their house for grazing stock, and continued Collins’s prior use of the remainder as the side and front yard to their house, mowing and fertilizing it. Additionally, along the side of their house they stored materials on it which they were using in making an addition to the house; and they placed playground equipment for their children on the eastern part of it which formed a part of their front yard. They claimed the land as their own, and believed it was included in their deed.

After defendants purchased the 3.83 acres in September, 1976, they caused a survey to be made, and then, over plaintiffs’ protest, erected a fence along line AD, and tore down the fence from C to D and the fence extending part of the way along the line from C to B to A. As we have said, until that time no fence had ever been constructed on line AD. This lawsuit followed.

The evidence we have recited is legally sufficient to support the jury’s answer to the special issue. Our review of the entire record convinces us that the finding is not against the great weight and preponderance of the evidence.

Specifically, defendants assert that Collins’s and plaintiffs’ use of the land was not sufficient to support a finding of adverse possession. They also say that the fact that the fence along line CA did not extend all the way to the highway defeats plaintiffs’ claim of appropriation of the tract by them and Collins as a matter of law.

The use and enjoyment of land necessary to make its possession adverse under our limitation statutes is only that to which the land is adaptable and capable of being used. Wallis v. Long, 75 S.W.2d 138, 142 (Tex.Civ.App.—Galveston 1934, writ ref’d). The use of the small tract in question in connection with the claimants’ rural home for grazing stock, raising chickens, and for a yard were certainly uses for which the tract was reasonably adaptable and capable of being used.

An inclosure of land is not essential to adverse possession. Tarver v. Na- man, 265 S.W.2d 852, 856 (Tex.Civ.App.—Waco 1954, writ ref’d n. r. e.). “If the limitation claimants’ possession and use of the land to defined and marked boundaries, whether fenced or not, were sufficiently peaceable, open, notorious and adverse to give fair notice of the extent and hostility of their claim and obtained for a sufficient length of time, the requirements of the statute would be satisfied.” McCall v. Grogan-Cochran Lumber Co., 143 Tex. 490, 186 S.W.2d 677, 680 (1945). In our case, the evidence that Collins’s and plaintiffs’ use and possession of the tract extended to defined and marked boundaries, parts of them fenced, and were peaceable, open, notorious and adverse for 38 years, met the requirements of the statute.

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

      . Art. 5510. Ten years’ possession. Any person who has the right of action for the recovery of lands, tenements or hereditaments against another having peaceable and adverse possession thereof, cultivating, using or enjoying the same, shall institute his suit therefor within ten years next after his cause of action shall have accrued, and not afterward.
      Art. 5516. Possession by different persons. Peaceable and adverse possession need not be continued in the same person, but when held by different persons successively there must be a privity of estate between them.


author: EVANS, Justice.

text:
    Tom ROTELLO and wife, Lela Rotello, Appellants, v. BRAZOS COUNTY WATER CONTROL & IMPROVEMENT DISTRICT NO. 1, Appellee.
    No. 17202.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Sept. 28, 1978.
    Sears & Burns, Robert L. Burns, C. Charles Dippel, Houston, for appellants.
    Karl C. Hoppess, Warren G. King, Houston, for appellee.
   EVANS, Justice.

On April 28, 1978 this court entered an order enjoining the appellee, Brazos County Water Control & Improvement District No. 1, Big Creek, pending the further order of this court, from entering upon and clearing trees and vegetation and excavating on the land of the appellants involved in this proceeding,-and requiring, as a condition to the issuance of a temporary writ pursuant to said order, that the appellants execute and file with the clerk of this court a bond in the amount of $25,000.00 payable to the adverse party, and conditioned that the appellants would abide by the court’s decision made in this cause and would pay all sums of money and costs which might be adjudged against them if the temporary injunction should be dissolved in whole or in part.

On May 1,1978, the appellants executed a bond in the required amount, and such bond was approved by the Clerk of the court and filed May 2, 1978.

On August 4, 1978, the appellee filed a petition with this court requesting that a judgment for damages be entered against the appellants if it should be the judgment of this court that the appellants were not entitled to a temporary injunction and that such injunction should be dissolved. This court has denied the appellee’s petition, and the appellee asks that the court reconsider its order of denial, contending that the entry of such order may prejudice its efforts to obtain relief if the temporary injunction should be dissolved.

The district court has jurisdiction over an action to recover damages for wrongful issuance of a temporary injunction. Johnson v. McMahan, 40 S.W.2d 920 (Tex.Civ.App.—Amarillo 1931, writ ref’d). Such an action must be brought in the district court notwithstanding the fact that an appellate court may have issued the temporary injunction order upon which the action is based.

The appellee’s petition and its motion for reconsideration are denied without prejudice to the right of the appellee to seek appropriate relief in the district court.


text:
    Angelina SALVAGGIO et al., Appellants, v. BRAZOS COUNTY WATER CONTROL & IMPROVEMENT DISTRICT NO. 1, Appellee.
    No. 17203.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Sept. 28, 1978.
    Sears & Burns, Robert L. Burns, C. Charles Dippel, Houston, for appellants.
    Karl C. Hoppess, Warren G. King, Houston, for appellee.
   EVANS, Justice.

On April 28, 1978 this court entered an order enjoining the appellee, Brazos County Water Control & Improvement District No. 1, Big Creek, pending the further order of this court, from entering upon and clearing trees and vegetation and excavating on the land of the appellants involved in this proceeding, and requiring, as a condition to the issuance of a temporary writ pursuant to said order, that the appellants execute and file with the clerk of this court a bond in the amount of $25,000.00 payable to the adverse party, and conditioned that the appellants would abide by the court’s decision made in this cause and would pay all sums of money and costs which might be adjudged against them if the temporary injunction should be dissolved in whole or in part.

On May 1,1978, the appellants executed a bond in the required amount, and such bond was approved by the Clerk of the court and filed May 2, 1978.

On August 4, 1978, the appellee filed a petition with this court requesting that a judgment for damages be entered against the appellants if it should be the judgment of this court that the appellants were not entitled to a temporary injunction and that such injunction should be dissolved. This court has denied the appellee’s petition, and the appellee asks that the court reconsider its order of denial, contending that the entry of such order may prejudice its efforts to obtain relief if the temporary injunction should be dissolved.

The district court has jurisdiction over an action to recover damages for wrongful issuance of a temporary injunction. Johnson v. Mahan, 40 S.W.2d 920 (Tex.Civ.App.—Amarillo 1931, writ ref’d). Such an action must be brought in the district court notwithstanding the fact that an appellate court may have issued the temporary injunction order upon which the action is based.

The appellee’s petition and its motion for reconsideration are denied without prejudice to the right of the appellee to seek appropriate relief in the district court.