author: CIRE, Justice.

text:
    Tommy SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. B1951.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 14, 1979.
    Rique D. Bobbitt, Henry R. Muller, House & Bobbitt, Houston, for appellant.
    Joe Resweber, County Atty., Donald L. Saunders, Asst. County Atty., E. V. Bel-luomini, Jr., Houston, for appellee.
   CIRE, Justice.

This is an appeal from the forfeiture of a motor vehicle pursuant to Tex.Rev.Civ.Stat. Ann. art. 4476-15 § 5.03(a)(5) [Controlled Substances Act]. The vehicle in question was seized in connection with the prearranged sale by Tommy Lynn Smith, record owner of the vehicle, of a quantity of controlled substances to agents of the Texas Department of Public Safety acting in an undercover capacity.

After notice of seizure and forfeiture citing appellant Smith as record owner and the Reagan Commerce Bank of Houston as first lienholder, trial was had before the judge without a jury. Appellant there objected to the introduction into evidence of the controlled substances seized during the transaction on the ground that they had been obtained through an illegal seizure. The judge overruled this objection and entered judgment for the state forfeiting the vehicle to the Texas Department of Public Safety.

In appellant’s single point of error it is alleged that the trial court erred in failing to sustain appellant’s objection to the introduction into evidence of certain drugs because such drugs were illegally seized in violation of Tex.Rev.Civ.Stat.Ann. article 4476-15 § 4.09(a)(3), which states, “It is unlawful for any person . . . to . obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.” (Emphasis added). The word “person” means “any individual, corporation, government or governmental subdivision or agency, ... or any other legal entity”. Tex.Rev.Civ.Stat.Ann. art. 4476-15 § 1.02(21).

We hold that this section is inapplicable to police officers in the performance of their duty. Under the laws regarding statutory construction, “the court shall look diligently for the intention of the Legislature, keeping in view at all times . the evil and the remedy.” Tex.Rev.Civ. Stat.Ann. art. 10(6). The enacting provision of the Controlled Substances Act states that the act is directed to the “regulation of the . . . distribution, possession and use” of the various substances covered thereby. We feel that the legislature could not have intended section 4.09, as well as other sections of the act utilizing the terms “a person” or “any person” to apply to police officers in such a way as would render enforcement of the act impossible.

Also, section 5.03(a)(1) provides that “all controlled substances that are . distributed, . . . obtained, or possessed in violation of this Act” are subject to forfeiture. Section 5.04(b) provides that seizure of any property subject to forfeiture may be made without a warrant if:

(4) [T]he seizure was incident to a lawful arrest, lawful search, or lawful search incident to arrest.

Therefore, if the seizure of controlled substances was made incident to a lawful arrest or search, such seizure was legal and authorized by statute notwithstanding section 4.09(a)(3).

Appellant makes no claim that the war-rantless search and seizure were violative of the fourth amendment. We note, however, that under Tex.Code Crim.Pro.Ann. article 14.01(b), “A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.”

We further observe that the testimony of the arresting and participating narcotic agents established probable cause for a lawful arrest under the foregoing article.

Affirmed.

Panel consists of J. CURTISS BROWN, C. J., and COULSON and CIRE, JJ.

      . The Reagan Commerce Bank did not participate in this appeal, as its status as lienholder is protected under sections 5.07(c) and 5.08(b)(1) of article 4476-15.


source: Caselaw Access Project

author: MURRAY, Justice.

license: Public Domain

text:
    The BOARD OF ADJUSTMENT OF the CITY OF SAN ANTONIO, Texas, and Gladys F. Jones et al., Appellants, v. Robert F. NELSON and Sally Nelson, Appellees.
    No. 16133.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 14, 1979.
    Rehearing Denied March 14, 1979.

      Albert McNeel, Gilliland, McNeel & Davis, Jake Talley, Jr., Asst. City Atty., William H. Robison, San Antonio, for appellants.
    Don Krause, San Antonio, for appellees.
   OPINION

MURRAY, Justice.

The appellees, Robert F. Nelson and Sally Nelson, brought this suit by writ of certio-rari in district court against appellant, Board of Adjustment of the City of San Antonio, challenging the legality of a decision of the Board of Adjustment in granting the right to a nonconforming use of a lot in the city of San Antonio. Appellant, Mrs. Gladys Jones, owns the lot in question, which is within an area that was annexed by the city of San Antonio in 1972. On annexation, this lot was zoned R-l, single family residential.

Appellant, Jones, applied to the Board of Adjustment for a permit to establish nonconforming rights to a sign manufacturing shop on said lot. This permit was granted by the Board despite opposition by appel-lees, who subsequently brought suit in district court. The district court reversed the decision of the Board of Adjustment by granting appellees’ motion for summary judgment, and appellants then perfected their appeal to this court.

In their motion for summary judgment, appellees contended that the evidence shows as a matter of law that the admitted nonconforming use was abandoned by Mrs. Jones. Their motion also stated that since Mrs. Jones had failed to register the nonconforming use in accordance with section 42-35 of the City Code of San Antonio, this nonconforming use was terminated by the provisions of section 42-37(b) of the City Code of San Antonio, hereinafter referred to as City Code.

Section 42-35 of the City Code provides in part as follows:

(a) Registration. The owner or owners of the land and/or structure or structures in which nonconforming use is located shall register such nonconforming use by filing with the department of building and planning administration a registration statement for such nonconforming use within three (3) years from the effective date hereof [June 28,1965]. Nonconforming uses and structures in newly annexed territory shall be registered within one (1) year of their annexation.

Section 42-37(b) provides that failure to comply with the registration requirement terminates the right to operate the nonconforming use.

We agree with appellees that the right to the nonconforming use has been terminated. It is undisputed that appellant, Mrs. Jones, did not register her nonconforming use. Under section 42 — 45.3 of the City Code, the powers of the Board of Adjustment are strictly construed and limited to the strict enforcement of the zoning ordinances, and the Board has no discretion to grant a nonconforming use where none exists. See Board of Adjustment of City of San Antonio v. Willie, 511 S.W.2d 591 (Tex.Civ.App.—San Antonio 1974, writ ref’d n. r. e.); Swain v. Board of Adjustment of City of University Park, 433 S.W.2d 727 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.), cert. denied, 396 U.S. 277, 90 S.Ct. 563, 24 L.Ed.2d 465 (1970). In Willie, this court upheld the trial court’s rendition of a summary judgment, which reversed a decision of the Board of Adjustment on the basis that the evidence did not support the decision of the Board. In discussing the limitations on the power of the Board of Adjustment, this Court held:

A Board of Adjustment acts as a quasi-judicial body, having no statutory power to legislate. It is restricted in its decisions to the powers vested in it by the legislature and city council. It may not materially alter the specific intent and extent of the zoning ordinance as this power is within the province of the city council.

511 S.W.2d at 593. Any judgment in excess of an ordinance under which a Board of Adjustment operates is void. City of Lufkin v. McVicker, 510 S.W.2d 141 (Tex.Civ.App.—Beaumont 1973, no writ). When the Board of Adjustment allowed the nonconforming use to continue in direct contravention of section 42-37(b), which requires automatic termination of the right to operate a nonconforming use that is not registered in accordance with section 42-35, it exceeded its authority; therefore, its judgment is void.

In response, appellant, Mrs. Jones, contends that section 42-35 of the City Code is unconstitutional when applied to the facts of this case because it deprives her of property without due process of law. We disagree. The purpose of this registration ordinance is to provide San Antonio with sufficient knowledge of the nature and extent of nonconforming uses claimed within the City so that the City can consider these nonconforming uses in planning and can monitor their abandonment. Without a registration scheme it would be impossible for San Antonio to begin to implement the plan for the fair and reasonable return of the property to the character of the surrounding neighborhood. This ordinance was enacted to promote the need, health, safety, and general welfare of the public. Since the ordinance bears a reasonable relationship to the object sought to be obtained, it is constitutional. City of University Park v. Benners, 485 S.W.2d 773 (Tex.1972), appeal dismissed, 411 U.S. 901, 93 S.Ct. 1530, 36 L.Ed.2d 191 (1973); Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475 (1934).

This scheme of registration set out in section 42-35 would not benefit San Antonio in carrying out a comprehensive zoning plan without the sanction contained in section 42-37(b). It is well established that a reasonable termination of nonconforming use is within the scope of municipal police power. City of University Park v. Benners, 485 S.W.2d at 778; White v. City of Dallas, 517 S.W.2d 344, 349 (Tex.Civ.App. — Dallas 1974, no writ). In discussing nonconforming uses, the Supreme Court stated in Ben-ners :

There are strong policy arguments and a demonstrable public need for the fair and reasonable termination of nonconforming property uses which most often do not disappear but tend to thrive in monopolistic positions in the community. We are in accord with the principle that municipal zoning ordinances requiring the termination of nonconforming uses under reasonable conditions are within the scope of municipal police power; and that property owners do not acquire a constitutionally protected vested right in property uses once commenced or in zoning classification once made. Otherwise, a lawful exercise of the police power by the governing body of the City would be precluded.

485 S.W.2d at 778. As the sanction for nonregistration, section 42-37(b) also provides for the return of the nonconforming uses of property to that of the surrounding neighborhood. It too bears a fair and reasonable relationship to the object sought to be obtained and is constitutional.

Appellant, Mrs. Jones, also makes a procedural due process attack on section 42-35 because she did not receive actual notice of this ordinance when her property was annexed by the City of San Antonio. She contends that the termination of her nonconforming use without special personal notice to her of the requirements of registration is unconstitutional. We disagree.

Persons residing in, or having dealings with, a city are presumed to know its ordinances. 31A C.J.S. Evidence § 132(2) (1964). In addition, persons living within the limits of an incorporated city are charged with notice of its ordinances. City of Dallas v. Coffin, 254 S.W.2d 203 (Tex.Civ.App.—Austin 1953, writ ref’d n. r. e.); Heisig v. Vaughan & Gardner, 15 S.W.2d 113 (Tex.Civ.App.—Texarkana 1929, writ ref’d). In Heisig, the court said:

The inhabitants of the city were charged with notice of the adoption of that ordinance and of its provisions, whether they had actual notice or not.
To require more would impair the effects of local legislation and seriously handicap the municipality in the exercise of its governmental functions.

Id. at 115. Thus, Mrs. Jones had constructive notice of section 42-35 and was charged with the knowledge of its requirements.

Mrs. Jones cites City of Houston v. Fore, 412 S.W.2d 35 (Tex.1967), as authority for her procedural due process attack on section 42-35. Fore, which involved the assessment of costs of street improvements against abutting landowners, is not in point. Under a Houston ordinance abutting landowners were assessed costs only after an administrative determination by the city of the lands benefited and the amount of benefit to each tract. The Supreme Court held that when this determination was made by the governing body, actual notice was required, but when the assessment is fixed by an inflexible formula, due process does not require hearing or notice. In Fore, the Supreme Court stated:

For the purpose of this opinion then, we begin with the premise that under the United States Constitution an owner ordinarily is not entitled to notice or hearing before assessment of the cost of public improvements in accordance with an inflexible legislative formula. The rule is otherwise, however, where the legislature, instead of prescribing an inflexible formula, authorizes an administrative determination of the lands benefitted and the amount of benefits accruing to each tract, (footnote omitted)

412 S.W.2d at 37. Unlike Fore, sections 42-35 and 42-37(b) establish an inflexible rule for termination when the nonconforming use is not registered. Therefore, actual notice of the ordinance is not required.

The other points raised by appellants have been considered by this court and are overruled.

The judgment of the trial court is affirmed.


author: NYE, Chief Justice.

text:
    Claude C. ROUSE, Jr., Appellant, v. SHELL OIL COMPANY, Appellee.
    No. 1355.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 15, 1979.
    Rehearing Denied March 8, 1979.

      L. Parker McNeill, Barry K. Bishop, Joan Burklin, Clark, Thomas, Winters & Shapiro, Austin, Armond G. Schwartz, Hallettsville, for appellant.
    Ben H. Rice, III, James W. McCartney, Vinson & Elkins, Houston, for appellee.
   OPINION

NYE, Chief Justice.

This is a venue case. Appellant Rouse brought suit in Lavaca County against ap-pellee Shell Oil Company for an accounting, recovery of certain unpaid gas royalties, and a declaration of the rights of the parties under the terms of certain oil and gas leases. Shell filed a plea of privilege to be sued in Harris County, the place of its residence. Appellant Rouse controverted the plea alleging that venue was maintainable in Lavaca County under Subdivision 27 of Article 1995, Tex.Rev.Civ.Stat.Ann. (1964). After a hearing, the trial court granted Shell’s plea of privilege and transferred the case to Harris County. Rouse appeals.

Shell Oil Company produces gas from certain properties located in the “Provident City field” of Lavaca County. Rouse owns a royalty interest in these properties. Rouse’s controverting affidavits stated that Shell has “an agency or representative in Lavaca County” and .

“Plaintiff [appellant Rouse] now states further that such ‘agency or representative’ is personified in Mr. A. S. Didner. Mr. Didner’s official title in his employment with defendant Shell Oil Company is production foreman. His duties in such employment, performable in Lavaca County, Texas, include the supervision of maintenance, production and reconditioning of wells located in Lavaca County. This includes those wells described in plaintiff’s Original Petition and other wells in Lavaca County, Texas, from which defendant Shell Oil Company has actually caused gas to be produced on a more or less regular and permanent basis in excess of ten (10) years.
Plaintiff further states that defendant Shell Oil Company has conferred upon Mr. A. S. Didner a certain amount of discretionary power. Namely, Mr. Did-ner is authorized by defendant to enter into contracts with third parties on behalf of Shell Oil Company. Such discretionary authority extends to as much as Ten Thousand and No/100 Dollars ($10,-000.00).”

At the plea of privilege hearing, the trial court heard evidence without the intervention of a jury and then entered its order sustaining Shell’s plea of privilege and transferring the suit to Harris County. No findings of fact or conclusions of law were requested or filed.

Appellant’s sole point of error in this appeal complains that the trial court erred in sustaining Shell’s plea of privilege because the undisputed evidence established as a matter of law that Shell has an agency or representative in Lavaca County. During oral arguments both parties agreed that the evidence heard by the trial court during the venue hearing was not conflicting or in dispute. The dispute concerns the legal consequences which should be attached to such undisputed evidence.

Where findings of fact and conclusions of law were not requested or filed, the trial court’s judgment should be affirmed if it can be upheld on any legal theory that finds support in the evidence. Bishop v. Bishop, 359 S.W.2d 869 (Tex.Sup.1962); Mobile County Mutual Insurance Co. v. Jacobs, 531 S.W.2d 436, 438 (Tex.Civ.App.—Corpus Christi 1975, no writ); Life & Casualty Insurance Company of Tennessee v. Rivera, 420 S.W.2d 788 (Tex.Civ.App.—Corpus Christi 1967, no writ). In venue cases, we must presume that the trial court resolved every issue of fact raised by the evidence in appellee’s favor. We view the evidence in the light most favorable to such findings, disregarding all evidence that is contrary thereto. James v. Drye, 320 S.W.2d 319 (Tex.Sup.1959); Mobile County Mutual Insurance Co. v. Jacobs, supra; Loyd W. Richardson Construction Corporation v. Corpus Christi State National Bank, 513 S.W.2d 287 (Tex.Civ.App.—Corpus Christi 1974, no writ).

Subdivision 27 of the venue statute provides that a foreign corporation may be sued “in any county where such company may have an agency or representative.” It is undisputed that Shell is a foreign corporation licensed to do business in the State of Texas. Rouse sought to establish “agency or representative” through proof of the authority and activities of Mr. A. S. Didner.

Didner is Shell’s Production Foreman who is in charge of the office which supervises Shell’s production operations in the Sheridan Production Unit. The Sheridan Production Unit is comprised of seven production units located in six counties. Although Didner conducts most of the business of Shell from his office in Colorado County, he periodically drives to the lease locations located in his six county area. Regarding his trips to the lease locations, Did-ner testified:

“I will take a drive through. I don’t say it will be on any regular basis, but I will try to make all the leases in the field in a given month or something, you know, just to get an idea of everything that needs to be done has been done. And other than that, there is seldom any occasion to be in the field for anything.”

Didner also travels to particular field locations to be present during some “special type of operation,” such as a “frac job” or something more than the usual routine operations.

The “agency or representative” requirement is not satisfied merely because the defendant corporation “does business” in the county where the suit is filed. Colorado Interstate Gas Co. v. MAPCO, Inc., 570 S.W.2d 164, 170 (Tex.Civ.App.—Amarillo 1978, no writ). Compare Tex.Rev.Civ.Stat. Ann. art. 1995 (24) (1965). As a general rule, an “agency or representative” within the meaning of Subdivision 27 must be more than a mere servant. His duties and obligations must relate to commercial or business transactions having something to do with the corporate affairs of the principal, and must be more than matters of manual or mechanical execution. The term connotes some discretionary power conferred upon the employee. South Texas Icee Corp. v. John E. Mitchell Co., Inc., 449 S.W.2d 786, 789 (Tex.Civ.App.—Corpus Christi 1970, writ dism’d). See Milligan v. Southern Express, Inc., 250 S.W.2d 194, 197 (Tex.Sup.1952); Colorado Interstate Gas Co. v. MAPCO, Inc., 570 S.W.2d 164, 170 (Tex.Civ.App.—Amarillo 1978, no writ); Amoco Production Co. v. Mayer, 540 S.W.2d 353, 356 (Tex.Civ.App.—Beaumont 1976, writ dism’d); Mobil Oil Corporation v. Cook, 494 S.W.2d 926, 933 (Tex.Civ.App.—Amarillo 1973, no writ). The leading case on the “agency or representative” venue exception is Milligan v. Southern Express, Inc., 250 S.W.2d 194 (Tex.Sup.1952). In that case, our Supreme Court stated that “agency or representative” within the meaning of the venue exception refers to the following:

“[A] situation in which the business of the defendant is, in more or less regular and permanent form, actually conducted in the county of suit, or one in which a party possessing broad powers from the defendant resides in the county, the one instance being that of ‘agency’ and the other of ‘representative.’ ” Milligan v. Southern Express, 250 S.W.2d at 198.

In other words, in the situation of “agency,” the agent actually conducts the business of the defendant in the county of suit; while in the situation of “representative,” the representative possessing broad powers granted by the defendant resides for corporation venue purposes in the county of suit.

Appellant relies solely upon the authority and business activities of Didner to establish venue in Lavaca County pursuant to Subdivision 27. However, Shell contends that Didner’s activities, which include only brief visits to each field within his multi-county territory, will not sustain venue in Lavaca County because the express terms of Subdivision 27 require that the defendant have an “agency or representative” in the county of suit. Appellant argues that it is sufficient for venue purposes that Didner possesses the requisite discretionary powers and duties of an agent, and that he performs these duties from his office in Colorado County on a regular basis for a multi-county area, including Lavaca County. Appellant contends that venue would be properly maintainable as to Shell in any of the counties for which Didner is responsible.

As a general rule, venue with respect to the activities conducted on behalf of a corporation lies in that county wherein the corporation’s agent or representative performs his duties rather than the county in which he personally resides, or where he resides for business purposes. See: Mobil Oil Corporation v. Cook, 494 S.W.2d 926, 933 (Tex.Civ.App.—Amarillo 1973, no writ); Willis v. Texas Cotton Association, 278 S.W.2d 458 (Tex.Civ.App.—Amarillo 1954, writ dism’d). It is undisputed that Shell conducts a substantial amount of business in a more or less regular and permanent form in Lavaca County through its employees. However, there is no evidence in the record that any of such employees are more than mere servants of Shell. Mere supervisory power over the activities conducted in the county of suit by other employees on behalf of a defendant corporation is not sufficient to constitute an “agency or representative” in the county of suit. See Ideal Baking Co. v. Boyd, 417 S.W.2d 613, 617 (Tex.Civ.App.—Tyler 1967, no writ); Davenport v. Cabell’s, Inc., 239 S.W.2d 833, 835 (Tex.Civ.App.—Texarkana 1951, no writ).

The evidence shows that Didner performs his duties from his office located in Colorado County. His trips to the leases are to inspect general lease operations or to observe unusual drilling operations. Although the record suggests Didner’s duties could be performed in Lavaca County, there is no evidence that he regularly does so. We conclude that an “agency or representative” for Subdivision 27 purposes must, on a more or less regular and permanent basis, discharge his duties and/or exercise his discretionary powers within the county of the suit. Viewing, as we must, the evidence most favorable to the trial court’s implied findings, we cannot say that the evidence conclusively establishes as a matter of law that Didner is that “agency or representative” in Lavaca County as contemplated by Subdivision 27.

Finally, appellant suggests that an af-firmance of the trial court’s order sustaining Shell’s plea of privilege will result in a direct conflict with our prior decision in South Texas Icee Corp. v. John E. Mitchell Co., Inc., 449 S.W.2d 786 (Tex.Civ.App.—Corpus Christi 1969, writ dism’d). We do not agree as it is clearly distinguishable. In that case the alleged “agency or representative” (Valley Icee, Inc.) was a corporation designated by written contracts as the defendant corporation’s “Developer” and “Service Representative.” There, the contracts in question clearly obligated Valley Icee, Inc., to perform numerous duties and to exercise considerable discretion on behalf of the defendant corporation in the county in which the suit was filed. It was undisputed that Valley Icee acted on behalf of the defendant in the county of suit even though it maintained its principal office outside of the county of suit.

The judgment of the trial court is affirmed.


author: YOUNG, Justice.

text:
    Frank STANFORD, Appellant, v. Grady JOHNSON et al., Appellees.
    No. 1361.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 15, 1979.
    Mark A. Salvato, Hittner, Cezeaux & Sal-vato, Houston, for appellant.
    Houston C. Munson, Jr., Paul A. Finley, Gonzales, for appellees.
   OPINION

YOUNG, Justice.

The primary issue in this summary judgment appeal is whether the appellant, plaintiff below, Frank Stanford, met his burden of raising a fact issue concerning fraudulent concealment of a cause of action after the appellees, defendants below, Grady Johnson and Mrs. Harold “Patsy” Johnson, had established that the statute of limitations had run on appellant’s cause of action for conspiracy and for assault and battery. We find that no such fact issue was raised and affirm the trial court’s judgment.

The record indicates that appellant was assaulted in a tavern in Gonzales, Texas, in August of 1956. Appellant alleged in his pleadings that the attack was the result of a conspiracy. He claimed that certain persons agreed to assault him, fed him liquor in a Gonzales bar until he was inebriated, maliciously attacked him, and then later told him that his injuries were due to his own clumsiness while intoxicated. Appellant further stated in his affidavit that many years later a person present at the scene of the attack told him that his injuries were not due to his clumsiness but were planned by several people and were the result of a personal assault.

This suit was filed on March 29, 1977, against six named defendants, two of whom were the appellees herein. Appellees filed general denials and requested answers to interrogatories. One of the answers to interrogatories stated that the alleged incident made the basis of the appellant’s suit took place in August of 1956. Appellees, thereafter, filed a motion for summary judgment claiming that the applicable two-year statute of limitations had run as to both the conspiracy and assault and battery allegations. See Tex.Rev.Civ.Stat.Ann. art. 5526 (1958). The trial court sustained the request for summary judgment. Appellees then moved that the court sever the appellant’s cause against them from the cause against the other four defendants. The court granted this motion and Stanford brings this appeal.

Appellant brings two points of error. The points in general language contend that the summary judgment should not have been granted because genuine issues of fact exist as to whether the statute of limitations defense barred appellant’s cause. Within the text of his argument, however, appellant more specifically argues that the trial court erred in granting the summary judgment because the summary judgment proof showed that the appellees had fraudulently concealed the appellant’s cause of action and that therefore the appellees should be estopped from relying on the limitations defense. We disagree.

We first note that on appeal appellant nowhere attacks the trial court’s determination that his cause is prima facie barred by the two-year statute of limitations defense. Appellant has the burden to call this Court’s attention to any possible fact issue which was not eliminated by the summary judgment proof. Garcia v, Ray, 556 S.W.2d 870, 872 (Tex.Civ.App.—Corpus Christi 1977, writ dism’d); see also B. L. Nelson & Associates v. City of Argyle, 535 S.W.2d 906, 908 (Tex.Civ.App.—Fort Worth 1976, writ ref’d n. r. e.). Because of his failure to call our attention to any fact issue which was not eliminated by the ap-pellees’ limitations defense, for purposes of this appeal, then, we must presume that appellees’ limitations defense was properly established as a matter of law.

Insofar as fraudulent concealment of a cause of action is concerned, “When a defendant is under a duty to make a disclosure but fraudulently conceals the existence of a cause of action from the one to whom it belongs, the guilty party will be estopped from relying on the defense of limitations until the right of action is, or in the exercise of reasonable diligence should be, discovered.” Nichols v. Smith, 507 S.W.2d 518, 519 (Tex.Sup.1974). Because the appellees proved the limitations defense as a matter of law, it was the appellant’s burden to come forward with proof raising an issue of fact with respect to fraudulent concealment. Nichols v. Smith, supra.

The only documents in the record which might support appellant’s position are his pleadings, answers to interrogatories and affidavit in opposition to the motion for summary judgment. Appellant’s pleading however, may not be considered in discharging his burden. Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.Sup.1971). In addition, appellant’s answer to interrogatories may not be considered in meeting this burden in that they may be used only against the party making such answers. Rule 168, T.R.C.P.; Jeffry v. Larry Plotnock Co., Inc., 532 S.W.2d 99, 102 (Tex.Civ.App.—Dallas 1975, no writ); Sprouse v. Texas Employers Insurance Ass’n., 459 S.W.2d 216 (Tex.Civ.App.—Beaumont 1970, writ ref’d n. r. e.). Finally, appellant’s affidavit does not comply with Rule 166-A(e), T.R.C.P., requiring that affidavits be made on personal knowledge and that they show affirmatively that the affi-ant is competent to testify to the matters stated therein. Indeed, nowhere does the affidavit state that the facts therein are made on the personal knowledge of the appellant. Furthermore, all statements even remotely relevant to appellant’s fraudulent concealment argument are clearly hearsay and made on information and belief. Such affidavit may not be considered to discharge appellant’s burden. Pickering v. First Greenville National Bank, 495 S.W.2d 16 (Tex.Civ.App. — Dallas 1973, writ ref’d n. r. e.); Sprouse v. Texas Employers’ Ins. Ass’n, supra.

Even if we were to consider the affidavit, we find that as it concerns the appellees herein it raises no issues as to fraudulent concealment because it nowhere mentions the appellees. It makes only broad assertions concerning a conspiracy among other persons not parties to this appeal. Appellant, thus, failed to discharge his burden and his two points of error are overruled.

The judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    Gabriel CAMACHO, d/b/a Camacho Box Company, Appellant, v. SULLIVAN TRANSFER COMPANY, Appellee.
    No. 5980.
    Court of Civil Appeals of Texas, Waco.
    Feb. 15, 1979.

      Seferino C. Dominguez and Edmund Gomez, Dallas, for appellant.
    Michael W. Anglin, Passman, Jones, Andrews, Coplin, Holley & Co., Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Camacho (tenant) from judgment for plaintiff Sullivan (landlord) for rent.

Plaintiff sued defendant for 3 months rent alleging defendant agreed to pay 30$ per month per square foot as rent; and alternatively for the reasonable value of 3 months rent on the basis of quantum meru-it.

Trial was before the court which found that plaintiff furnished defendant 10,000 square feet of storage area in plaintiff’s warehouse; that the storage space was reasonably worth 15$ per square foot per month; that defendant occupied the space for 3 months for a total reasonable value of $4,500. quantum meruit. The trial court rendered judgment for plaintiff for such $4,500. (plus $675. special damages, not here complained of).

Defendant appeals on one point:

“The trial court was incorrect in holding that the defendant was liable to the plaintiff for the rental fee of 15$ per square foot per month for the period of defendant’s occupancy as a reasonable rate under quantum meruit”.

In September 1976 defendant’s agent contacted plaintiff about defendant renting 10,000 square feet of warehouse space from plaintiff. Plaintiff advised it would rent defendant the space, and on October 7,1976 defendant moved his merchandise into plaintiff’s warehouse. The parties disputed the rent defendant had agreed to pay. Plaintiff asserted it was 30$ per square foot per month; defendant asserted it was 30$ per square foot per year. Defendant paid no rent and on October 29, 1976 plaintiff requested defendant to move. Defendant did not move and plaintiff instituted Forcible Entry and Detainer proceedings in the Justice Court and secured a Judgment for restitution of the premises on November 17, 1976. Defendant did not vacate the premises until January 7, 1977.

The principle of recovery on quantum meruit is founded on the rule that it is inequitable for a party to refuse to pay for benefits received or for work performed for him with his knowledge and consent by someone who is authorized to expect remuneration therefor. Kramer v. Wilson, CCA (Ft. Worth) 226 S.W.2d 675; Kendall v. Plastic Engineering & Sales Corp., CCA (Ft. Worth) NRE, 350 S.W.2d 661.

Defendant occupied plaintiff’s premises for 3 months without payment of any rent and refused to vacate when requested to by plaintiff after misunderstanding as to the rent surfaced.

There is evidence from a disinterested witness that 25 to 30$ per foot per month for facilities of plaintiff would be a reasonable rental; there is evidence plaintiff is renting its space for 30$ per square foot per month to other tenants; there is evidence that plaintiff’s cost in furnishing its warehouse space for rental amounts to 17$ per square foot per month.

Defendant’s point is overruled.

AFFIRMED.


author: SHANNON, Justice.

text:
    Phil P. O’NEAL, Appellant, v. The COUNTY OF SAN SABA, Appellee.
    No. 16211.
    Court of Civil Appeals of Texas, Austin.
    Feb. 21, 1979.
    James A. Childress, Senterfitt, Adams, Miller & Childress, San Saba, for appellant.
    Warden Terry, County Atty., San Saba, for appellee.
   SHANNON, Justice.

Appellant, Phil P. O’Neal, has filed his fourth motion with the Clerk of this Court to extend time for the filing of the statement of facts in our cause number 12,955. The transcript in that cause was filed with the Clerk on November 2, 1978.

After a three-day trial, the jury returned its verdict on September 17, 1977. On July 1, 1978, the district court signed the judgment. The district court overruled appellant’s amended motion for new trial on September 8, 1978. On the same date, counsel for appellant notified Gary W. Sto-vall, official court reporter for the 33rd Judicial District Court of San Saba County, to prepare a statement of facts.

On February 21, 1979, the date of this order, and 166 days after the date of the request for preparation, the court reporter still has not prepared the statement of facts. In the interim, counsel for appellant requested, and this Court granted, three motions for extension of time to file the statement of facts. The motions for extension were supported by the court reporter’s affidavits setting out reasons for his inability to complete the statement of facts. The affidavit attached to the fourth motion is representative of the several affidavits and is set out below:

“Before me, the undersigned authority, on this date personally appeared Gary W. Stovall, a credible person know to me to be the person whose name is subscribed below, who being by me first duly sworn, upon his oath deposed and said; I am the official Reporter in and for the 33rd Judicial District Court of Texas. I am the Reporter who took the testimony in Cause No. 4944, styled The County of San Saba vs. Phil P. O’Neal
I will be unable to complete the preparation of this Statement of Facts by February 15,1979. My problem is occasioned by the fact that the 33rd Judicial District Court encompasses six counties. I am the only Court Reporter within this district and the current work load, length of this Statement of Facts, demands of other matters now on appeal and duties of my office have denied me time to work solely on this Statement of Facts. I am currently the only person working on this particular Statement of Facts. An additional sixty (60) days will be required in which to timely complete and file the Statement of Facts in this cause.
For such reasons I respectfully request sucn [s/c] an extension of time in which to complete and deliver the Statement of Facts, together with exhibits, for filing with the Court of Civil Appeals. Such an extension of time is necessary and will be sufficient.”

The problem represented by appellant’s motion is one that has occurred with distressing frequency in appeals from the 33rd Judicial District. The Clerk’s records show that five appeals from the 33rd Judicial District have been filed since June, 1978, and are presently pending in this Court. In none of these appeals has the court reporter completed the statement of facts so as to permit the filing of the complete record within 60 days after entry of judgment or order overruling the motion for new trial as contemplated by Tex.R.Civ.P. 386. To date, the statement of facts has been filed in only one of those appeals, McGuire v. Brown, Cause No. 12,877. In McGuire, this Court granted six motions for extension of time for a total of 173 days. The statement of facts, as completed, contained 150 pages. The appellants in Montgomery Ward and Co. v. Marvin Riggs Co., Cause No. 12,895, have filed six motions for extension of time. This Court has granted five of those motions which served to extend the time for filing by 213 days. In Sanderson v. Sanderson, Cause No. 12,974, appellant filed and this Court has granted three motions extending the time for filing by 94 days. The appellant in Austin v. Austin, Cause No. 12,990, has filed and this Court has granted two motions for extension for a total of 46 days. The basis for all of the motions for extensions in the appeals referred to in this paragraph was the inability of the court reporter to prepare the statements of fact. These motions were supported by affidavits from the court reporter very similar to the one quoted above.

This Court is conscious of the need for extensions of time when a court reporter has conflicting duties. Texas R.Civ.P. 21c, of course, empowers the Courts of Civil Appeals to enlarge the time for filing of the statement of facts based upon a reasonable explanation of the need therefor. This Court, by granting in this appeal the several extensions of time in which to file the statement of facts based upon the reporter’s inability to prepare the statement, has recognized and allowed for the reporter’s difficulty in budgeting his time, said to be occasioned by the geographic size of the judicial district in which he works. Nevertheless, there comes a time when the orderly administration of justice requires that the appellate process be not delayed further by the absence of the statement of facts. Setting for submission and oral argument of this cause has already been postponed because the court reporter has not completed the statement of facts.

Other than the daily reporting of a court proceeding in progress, we suggest that the reporter has no professional duty that takes precedence over the prompt completion of statements of fact. Figueroa v. Treece, 331 S.W.2d 250 (Tex.Civ.App.1960, no writ); Modine Manufacturing Co. v. North East Independent School District, 489 S.W.2d 458 (Tex.Civ.App.1972, no writ); Wright v. Wolters, 564 S.W.2d 190 (Tex.Civ.App.1978, no writ).

Appellant’s fourth motion for extension of time is granted in part and the time for filing is extended to and includes March 23, 1979. Should the court reporter fail to complete the statement of facts in time so that appellant may file it by that date, appellant is invited to file in this Court a motion for leave to file a petition for writ of mandamus to compel the court reporter to prepare the statement of facts. Appellant’s failure to seek relief by way of mandamus will be considered in the disposition of further motions for extension to complete the statement of facts.


text:
    Harold H. CARTER, Appellant, v. Robert S. GERALD, Appellee.
    No. 12862.
    Court of Civil Appeals of Texas, Austin.
    Feb. 21, 1979.
    Rehearing Denied March 14, 1979.

      Keith Woodley, Sudderth, Woodley & Dudley, Comanche, for appellant.
    Clyde Cockrum, Gilliam, Cockrum & Du-ren, Goldthwaite, for appellee.
   SHANNON, Justice.

This is an appeal from a summary judgment entered by the district court of Mills County. The judgment ordered specific performance of a contract for the sale of land entered into by appellant Harold Carter, the seller, and appellee Robert S. Gerald, the buyer. The question, tried out by summary judgment and presented upon appeal, is whether the buyer offered to close the contract within a “reasonable time,” as a matter of law.

The summary judgment proof is that the parties signed a standard Veterans Land Board contract for sale of 40.71 acres of land located in Mills County on June 25, 1977. The form contract provides, as usual, that the buyer can assign the contract to the Veterans Land Board so that the Board may take title and resell the land to the veteran buyer pursuant to the Texas Veterans Land Act, Tex.Rev.Civ.Stat.Ann. art. 5421m (1962), now Natural Resources Code, Chap. 161 (1978). If the contract is assigned to the Board, the Board appraises the land and issues a letter of commitment to the buyer and seller disclosing the conditions under which the title will be accepted and the price the Board will pay for the property. In paragraph fourteen of the contract the following provision appears: “In no event shall this contract be terminated by the veteran [buyer] or seller before the expiration of 120 days from the date hereof except by written consent of both parties and written notice to the Veterans Land Board . . . ” The contract does not otherwise specify a date for closing the sale.

The summary judgment proof shows further that after the contract of sale was executed, it was mailed to the Veterans Land Board. On August 30, the Board designated a Goldwaithe law firm to close the transaction. The Board wrote counsel on October 20 that the buyer should send $750.00 to the Board. The Board notified the buyer on October 28, 1977, that the purchase had been approved by the Board and that a Treasury Warrant would be forwarded to designated counsel to close the sale. The Treasury Warrant was received by counsel on November 11, 1977. On the same date counsel notified the seller that the transaction was ready to close. The seller refused to close the sale.

The motion for summary judgment is defective in two respects. (1) The motion does not specify the grounds therefor. Effective January 1, 1971, Tex.R.Civ.P. 166-A(c) requires that a motion for summary judgment state specific grounds therefor. Moody v. Temple National Bank, 545 S.W.2d 289 (Tex.Civ.App.1977, no writ). (2) Although a copy of the contract of sale was attached to the buyer’s amended petition, no copy of the contract, certified or otherwise, was attached to the motion for summary judgment. The copy of the contract of sale attached to the buyer’s petition is not summary judgment proof, but instead is a part of the pleading. A motion for summary judgment must be supported by its own summary judgment proof. Hidalgo v. Surety Savings & Loan Ass’n, 462 S.W.2d 540 (Tex.1971).

Nevertheless, the seller waived the buyer’s failure to comply with Rule 166-A(c) (failure to state specific grounds in his motion) and also the defect in the summary judgment proof (Hidalgo) by not “placing the problem” before the district court in response to the motion for summary judgment. Westchester Fire Insurance Co. v. Alvarez, 576 S.W.2d 771 (Tex.1978); Youngstown Sheet & Tube Co. v. Penn, 363 S.W .2d 230 (Tex.1963); Texas National Corporation v. United Systems International, Inc., 493 S.W.2d 738 (Tex.1973). Further, the seller does not complain on appeal of either summary judgment defect.

The seller attacks the judgment by one point of error: “The trial court erred in granting appellee’s [buyer’s] motion for summary judgment because a material question of fact existed as to whether ap-pellee was ready, willing and able to consummate the purported contract within a reasonable time from June 25, 1977.”

An examination of the summary judgment proof and the briefs of the parties discloses that the buyer’s theory on summary judgment was that since the contract did not provide a date for closing, the law allowed a “reasonable time” during which the contract could be closed. Cheek v. Metzer, 116 Tex. 356, 291 S.W. 860 (1927). The buyer’s argument continued that November 11 or thereabout was a reasonable time, as a matter of law, for closing. The court by entering summary judgment obviously accepted the buyer’s argument. The seller, on the other hand, claimed in district court, and claims on appeal, that the determination of a “reasonable time” is a question of fact to be resolved by the trier of fact, and accordingly, the order of summary judgment must be reversed.

The affirmance of a summary judgment for the plaintiff depends upon whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact as to any essential element of the plaintiff’s cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970).

The contract prohibited either party from terminating before one hundred-twenty days from the date of its execution. The seller, by not complaining on appeal, has waived appellate consideration of any contention that the contract, by its terms, terminated one hundred-twenty days after date of execution, or that either party could terminate the contract at will after the expiration of such period. One hundred-twenty days after June 25 was October 23. There is no summary judgment proof supporting the assertion in seller’s brief that he notified the buyer on October 1, 1977 “. . . that he would perform no further if the Appellee [buyer] did not consummate the contract on or before November 1, 1977.” The Veterans Land Board sent the Treasury Warrant to the closing attorney on November 10. On November 11 the attorney received the warrant and notified the buyer that the transaction was ready to close.

The issue is whether the period between October 23 and November 11 or thereabout constituted a “reasonable time,” as a matter of law, for the transaction to be closed. The question of what is a reasonable time for performance of a contract not fixing such a time is one of law where the facts are undisputed. If the facts are disputed, the determination of a reasonable time involves a mixed question of law and fact that must be submitted to the fact finder. Hart v. Bullion, 48 Tex. 278 (1877); McGary v. Campbell, 245 S.W. 106 (Tex.Civ.App.1922, writ dism’d w. o. j.); Smith v. Sabine Royalty Corp., 556 S.W.2d 365 (Tex.Civ.App.1977, no writ); Carroll v. Wied, 572 S.W.2d 93 (Tex.Civ.App.1978, no writ).

The facts in the instant case were admitted. Accordingly, what constituted a reasonable time was a question of law which could be determined on summary judgment.

A reasonable time for performance is said to be such time as is necessary and convenient to do what the contract requires to be done, and as soon as circumstances permit. Hamilton v. Shirley-Self Motor Co., 202 S.W.2d 952 (Tex.Civ.App.1947, writ ref’d n. r. e.). We have set out the summary judgment proof showing the delay in closing was occasioned because the assignment of the contract and the financing of the transaction were required to be approved by the Veterans Land Board. Once approval was secured, counsel immediately notified the seller that the contract was ready to close. The buyer offered to close as soon as circumstances permitted. The time involved was reasonable as a matter of law.

The judgment is affirmed.

Affirmed.


author: PRESSLER, Justice.

text:
    James A. McDONALD, Appellant, v. CITY OF HOUSTON, Appellee.
    No. A1950.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 21, 1979.
    Rehearing Denied March 14, 1979.

      Michael Y. Saunders, Rod V. Steinburg, Helm, Pletcher, Hogan & Burrow, Houston, for appellant.
    Robert M. Collie, Jr., City Atty., Frank L. Mauro, Asst. City Atty., Houston, for appel-lee.
   PRESSLER, Justice.

This is an appeal from a summary judgment granted in favor of appellee on the grounds that appellant’s claim against the City of Houston (hereinafter referred to as the City) lacked verification, as required in the City Charter’s notice provision, and is thus barred.

Appellant filed suit against the City for personal injuries and property damage arising out of an incident in which a tree located on a City right-of-way fell across his pick-up truck. The incident occurred on June 14, 1973, and appellant filed notice of claim for damages on June 21, 1973. The notice was filed pursuant to Article IX, Section 11, of the City of Houston Charter (hereinafter referred to as such Section). The claim was filed and signed on behalf of appellant by his attorney.

The City of Houston filed a Motion for Summary Judgment based upon the alleged failure of appellant to give proper notice of his claim against the City pursuant to the notice provisions contained in such Section. After a hearing, the lower court granted the City’s Motion for Summary Judgment declaring that it was agreed that there was no verification and thus there was no issue of fact. The court ruled for the appellee as a matter of law. Appellant has perfected this appeal from the summary judgment.

Appellant contends that the verification requirement is technical in nature and has been arbitrarily invoked to deprive him of his right to recover adequate damages for real injuries. We must address the question as to whether the state interest furthered by the verification requirement can outweigh the unfairness created by allowing the government to treat those against whom torts have been committed differently from those who have been victimized by private torts. Appellant attempts to show that the verification requirement is so arbitrary and unreasonable that it is violative of the equal protection clauses of the federal and state constitutions and that no legitimate state interest is furthered by the verification requirement.

In order to address the argument set forth by appellant, it is necessary to first look at such Section, which states in part:

Before the City of Houston shall be liable for damages for personal injuries of any kind, or for injuries to or destruction of property of any kind, the person injured, or the owner of the property injured or destroyed, or some one in his behalf, shall give the mayor and city council notice in writing of such injury or destruction, duly verified, within 90 days. . (emphasis added).

The City of Houston became a home rule city in 1905 when the Texas Legislature granted its City Charter. In accordance with the legislative grant, the City of Houston is permitted to incorporate in its charter and enact by ordinance, any provision that is not inconsistent with the Constitution or the general statutes of Texas. Tex.Const. art. XI, § 5; Tex.Rev.Civ.Stat. Ann. art. 1175 (1963). State statutes, home rule charter provisions and city ordinances are presumed to be constitutional. Patterson v. City of Dallas, 355 S.W.2d 838 (Tex.Civ.App.-Dallas 1962, writ ref’d n. r. e.), appeal dismissed, 372 U.S. 251, 83 S.Ct. 873, 9 L.Ed.2d 732 (1963).

Charter notice requirements similar to the one with which we are concerned have been consistently held to be a condition precedent to a right of action by a claimant. City of Terrell v. Howard, 130 Tex. 459, 111 S.W.2d 692 (1938, opinion adopted); Cawthorn v. City of Houston, 231 S.W. 701 (Tex.Com.App.1921, opinion adopted); Cooper v. City of Abilene, 416 S.W.2d 562 (Tex.Civ.App.-Eastland 1967, no writ); Carrales v. City of Kingsville, 393 S.W.2d 952 (Tex.Civ.App.-Waco 1965, no writ); Bates v. City of Houston, 189 S.W.2d 17 (Tex.Civ.App.-Galveston 1945, writ ref’d w. o. m.); City of Houston v. Quinones, 172 S.W.2d 187 (Tex.Civ.App.-Galveston 1943) rev’d on other grounds, 142 Tex. 282, 177 S.W.2d 259 (1944).

Verification requirements in municipal charter notice provisions have been upheld in Texas courts. The requirement of verification has been described in various opinions as a substantive or mandatory requirement, and that under applicable ordinances, notice must be verified in order to be effective. Bowling v. City of Port Arthur, 522 S.W.2d 270 (Tex.Civ.App.-Beaumont 1975, no writ); Cooper v. City of Abilene, supra; Carrales v. City of Kingsville, supra.

Recent cases, however, show that although a requirement might be constitutional, the facts of a particular situation can waive the strict application of the requirement. City of Houston v. Black, 571 S.W.2d 496 (Tex.Sup.1978); City of Texarkana v. Nard, 575 S.W.2d 648 (Tex.Civ.App.-Tyler, 1978) (not yet reported). In a recent Court of Civil Appeals case, the plaintiff was injured in a collision at an intersection in the City of Texarkana and sued the City for its negligence in failing to repair a traffic light at the intersection. City of Texarkana v. Nard, supra. The plaintiff failed to give actual notice to the City within the 60-day time period required by the City of Texarkana’s Charter. The case was tried before a jury which found in part that the City had actual notice at or near the time of the collision. The Tyler court affirmed the jury verdict. Part of the court’s opinion stated that the fact that an investigating police officer had actual notice that the plaintiff had received injuries and damages must be imputed to the City.

Appreciating and understanding the foregoing to be the law of the State of Texas and, therefore, binding upon this Court we must examine how the law should be applied to the circumstances of this case.

Here, several members of various City of Houston departments were on the scene shortly after the incident. City fire and ambulance crews aided in freeing appellant from his truck. Later in the day a City Parks crew removed the tree from the premises. A City employee inspected the tree and determined what caused it to fall on appellant’s truck. Even without the filing of claim against the City by the appellant, the City was on actual notice that appellant had suffered injuries and property damage as a result of this tree’s falling on his truck. Notice, although unverified, was given by the appellant within one week of the incident so the City knew that they were faced with a claim.

The City had the claim, knew it was unverified, knew they would fail to consider it on this basis, and gave no notice to the appellant that they would do so until well after the eighty-three day period had passed and the appellant could no longer correct his inadvertent mistake.

The cases which have upheld the validity of the requirement of verified notice indicate that it is a legitimate requirement when it eliminates spurious and unfounded claims through making the claimant swear to the legitimacy of his allegations. Given the facts in this case the usual justification for verified notice does not apply. The City already knew what had happened and knew more about the causes of the incident than did the claimant. Therefore, what purpose would be served by the requirement of verification in this case? Under these circumstances the requirement of verification becomes merely a trap to deny the claimant what could be his legitimate recovery for real injury.

The law should not be a set of technical rules whereby the calculating can trap the unwary, but the composite of principles of right providing for the orderly conduct of society for the maximum and equal protection of the rights and liberties of all. When the application of an otherwise constitutional requirement serves no purpose other than to trap the unwary, it should be unenforceable in that limited situation.

It is therefore, held that since the City had actual notice of the incident, received a claim within seven days of its occurrence which was sufficient and proper in every respect except for the verification requirement, and did nothing to let the appellant know that it would reject the claim on this technical basis during the eighty-three days when this matter could have easily been corrected by the appellant, the City was estopped from later raising the technicality as a bar to appellant’s claim.

The order of the trial court granting the summary judgment is reversed and case remanded to trial court for further proceedings.

Reversed and remanded.


text:
    Maybelle S. RENOUF, Appellant, v. Michael S. MARTINI et al., Appellees.
    No. A1970.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 21, 1979.
    Milton Schwartz, Schwartz, Judice, Farrell, Laviage & Williams, Raymond W. King, Houston, for appellant.
    M. Harris Greenwood, 0. William Bussey, Jr., Greenwood, Koby, Symonds & Bussey, Houston, for appellees.
   PRESSLER, Justice.

This is an appeal from a summary judgment granted in favor of appellees, plaintiffs below, for specific performance of an earnest money contract entered into with appellant, defendant, below.

On or about April 10, 1976, appellant, as seller, and appellees, as purchasers, executed and entered into an earnest money contract (hereinafter sometimes referred to as the contract) for the sale and purchase of appellant’s residence at a sales price of $49,-900.00.

A provision (hereinafter referred to as the Financing Provision) in the earnest money contract stated as follow:

“Purchaser will make a good faith effort to secure a conventional loan in the amount of $44,900.00 for a period of 30 years, at the current rate of interest, plus mortgage insurance. If, after Purchaser has made a reasonable attempt, said loan is not attained Purchaser’s earnest money is to be returned.”

The closing date in the contract was August 16, 1976. Although appellees were unable to obtain a conventional loan, by the first week of June, 1976, they did obtain a promise from Ms. Church’s father to loan the purchase money. This fact was substantiated by Mr. Church’s affidavit which was attached to appellees’ Motion for Summary Judgment. Appellees then notified appellant verbally and by mail that financing had been obtained and that they were ready, willing and able to close and would pay the purchase price in cash. The appellant, in response, stated that she did not intend to close or to perform further contending that the contract was “null and void and of no force and effect.”

After making demand on appellant, appellees filed suit for specific performance on July 16, 1976. Appellees also filed a lis pendens against the appellant’s property. The appellant now contends that the contract is unenforceable and in violation of the Statute of Frauds. There is no merit to this contention. This contract meets the requirements of such statute in that it is in writing and signed by the person to be bound. Tex.Bus. & Comm.Code Ann. § 26.-01 (1968).

Appellant contends that the Financing Provision contained within the contract should be construed as a condition precedent to the closing. If such were correct, we would be compelled to hold for the appellant. However, the law is well established in Texas that such Financing Provisions in earnest money contracts are solely for the benefit of the purchasers. If, after reasonable attempts are made, the purchaser is unable to obtain the necessary loan, this provision allows the purchaser to recover his earnest money. The provision is not to be used by the seller for his own benefit if the purchaser can perform under the contract.

A recent case before the Texarkana Court of Civil Appeals dealt with this type of situation. Smith v. Nash, 571 S.W.2d 372 (Tex.Civ.App.—Texarkana 1978, no writ). In such case, the Smiths, as purchasers, and the Nashes, as sellers, entered into an earnest money contract for the sale of real estate. This contract contained a Financing Provision which stated that it was subject to purchasers’ obtaining a conventional loan. No deadline for performance was contained in this contract. The purchasers were initially unable to secure a loan for the entire purchase price, but later secured a commitment for the amount called for in the contract. When the sellers were informed that the conventional loan could not be obtained, they assumed that the purchasers were relieved from the contract and arranged for another sale to another purchaser. The Smiths then sued for specific performance.

In its holding, the Texarkana court stated that:

“The provision in question here, conditioning the sale upon the availability of a $10,000.00 loan, was placed in the contract for the benefit of the purchasers. The sellers cannot take advantage of that condition to defeat the sale if the purchasers elect to waive it and proceed with their purchase according to the other terms of the agreement.” 571 S.W.2d 372 at 375.

The purchasers herein clearly waived the terms of the Financing Provision two months prior to the time of closing. Their actions were timely and within the terms of the contract. At all times thereafter they were ready, willing and able to perform under the contract. They are therefore entitled to specific performance under the terms of the contract.

The judgment of the trial court is affirmed.

Affirmed.


author: J. CURTISS BROWN, Justice.

text:
    Randy SLOCUM, Appellant, v. UNITED PACIFIC INSURANCE COMPANY, Appellee.
    No. B1964.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 21, 1979.
    John L. Moore, Stephenson, Moore & Associates, Bellaire, for appellant.
    Jack R. Martin, Martin, Sperry & Le-boeuf, Houston, for appellee.
   J. CURTISS BROWN, Justice.

Plaintiff brought this suit to recover lost income based on the coverage afforded by the personal injury protection clause of an automobile insurance policy. The defendant insurance company’s motion for summary judgment was granted on the sole ground that the plaintiff was not a wage earner or income producer.

Appellant, Randy Slocum (Slocum or appellant), an engineering student, accepted an offer of summer employment and was to begin work as an offshore “roustabout” on the Tuesday following the Memorial Day weekend. However, he was involved in an automobile accident over that weekend and did not report to work as planned due to the injuries received. His claim was denied by the insurer, the United Pacific Insurance Company (appellee or United).

Personal injury protection coverage is regulated by article 5.06-3 of the Texas Insurance Code. The relevant portion of that article provides

in the case of an income producer, payment of benefits for loss of income as the result of the accident; and where the person injured in the accident was not an income or wage producer at the time of the accident, payment of benefits must be made in reimbursement of necessary and reasonable expenses incurred for essential services ordinarily performed by the injured person for care and maintenance of the family or family household. .

Appellant’s insurance policy contained endorsement 243, the standard personal injury protection provision, which defines a wage earner or income producer as “a person who at the time of an accident was in an occupational status where such person was earning or producing income. . . . ” (emphasis added).

Since this is an appeal from an order granting a summary judgment, the burden was on the appellee to establish by undisputed summary judgment evidence that no material fact issues existed and that it was entitled to judgment as a matter of law. Estrada v. River Oaks Bank & Trust Co., 550 S.W.2d 719, 729 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ ref’d n. r. e.); Tex.R.Civ.P. 166-A(c).

In his response to appellee’s motion for summary judgment appellant presented summary judgment evidence that he had accepted an offer of definite employment to begin on the first working day after the accident. The affidavit of the employer set forth the conditions of the employment and showed the minimum wage appellant would have earned. Slocum had worked for a different employer the previous summer and had earned a scholarship paying him $500.00 a semester for each of the two intervening semesters.

The personal injury protection outlined in article 5.06-3 is a type of no-fault insurance designed to provide benefits to the insured and family for injuries sustained in automobile accidents. Neither the statute nor the policy definition of income producer can be so strictly construed as to deny recovery of lost income by one who, like appellant, had accepted a firm offer of employment, was to report for work at a definite time and at a set rate of compensation, but was prevented by injuries sustained in automobile accident from enjoying the fruits of his labor. It was error for the trial court to hold, as a matter of law, that appellant, because he had not yet reported for work, was not in an “occupational status” at the time of the accident. In light of our holding that at least a fact question was presented as to whether appellant was a wage earner or income producer as defined in the policy, it is unnecessary to decide whether the policy definition of “wage earner” or “income producer” is in conflict with article 5.06-3. The judgment appealed from is reversed and the cause is remanded.

Reversed and remanded.


author: PHILLIPS, Chief Justice.

text:
    Dennis BOETTCHER et al., Appellants, v. Curtis GOULD et al., Appellees.
    No. 12858.
    Court of Civil Appeals of Texas, Austin.
    Feb. 28, 1979.
    Rehearing Denied March 14, 1979.

      William H. Shireman, La Grange, for appellants.
    Allen I. Schneider, Giddings, for appel-lees.
   PHILLIPS, Chief Justice.

The plaintiffs below, appellees here, brought suit against appellants in trespass to try title claiming land that once comprised an old roadway, since abandoned, lying between their respective properties. Trial was to the court which rendered judgment for the plaintiffs/appellees. We reverse and render judgment.

Appellees and appellants are adjoining property owners. The property line depicted in the record titles of the parties hereto runs approximately north and south. The appellees, Brown, the Goulds, and the Par-kers, own property to the east of this line and appellants, two Boettcher brothers, own property to the west of the line. The abandoned roadway in question is a narrow strip with its eastern edge more or less following the boundary line between appellants and appellees and the western edge of the road extending into appellants’ land. The boundary between appellants’ and ap-pellees’ properties is also the dividing line between four different original surveys in Lee County.

Appellees contended that they owned the 4'/2-acre tract in controversy by adverse possession. Their claim was based on the fact that the roadway had been under fence along its west side in excess of forty years, thereby including the disputed tract with appellees’ land. The court found that ap-pellees adequately established adverse possession. The court then rendered judgment for a portion of the strip in question (approximately 3V2 acres of land in all) in favor of the respective appellees whose land abutted the roadway. Ernest Boettcher was held to have adversely possessed a one-acre portion of the roadway, based upon his actions in moving part of the fence to the east side of the roadway. Appellants by appropriate points of error have challenged the court’s judgment.

The record is in conflict as to who first built the fence along the west side of the road and for what purpose. Appellee Brown testified as follows:

“. . . according to reliable information, that fence was there when the road was put in in 1930. That road was grubbed out and put in in 1930 is when it was put in. That was the lane that you have had reference to.
“That fence was always on the west side of that lane. Now, I’m talking about this 436 feet here, which involves my dispute with Dennis Boettcher over this. This area has never been under Boettcher fence. It has either been under—it has been under the Brown or the Brown family fence for how many, 45 years or longer.”

This testimony was hearsay and as such could not be used to prove who erected the fence. The record discloses that appellee Brown was less than two years old when the road was built. See Southern Pine Lumber Co. v. Hart, 161 Tex. 357, 340 S.W.2d 775 (1960); Radford v. Hill, 185 S.W.2d 129 (Tex.Civ.App.1944, writ ref’d w. o. m.). There are no facts bringing this testimony within an exception to the hearsay rule.

The only other testimony concerning the origin of the fence was also hearsay. The appellants stated that the county built the fence at the time the road was created. Appellants received this information from their father, who had been so informed by a local bank when he purchased the land.

Hearsay is incompetent evidence and can never form the basis of a judgment of the court, and this is true even though there was no objection. See, e. g., Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628 (1941); Covault v. Texas Instruments, Inc., 531 S.W.2d 441 (Tex.Civ.App.1975, no writ).

The record thus discloses that the fence along the west side of the roadway was built by people unknown. The appel-lees maintained the fence. Appellees never paid any taxes on the land in controversy. They never indicated to anyone (until relatively recently when the dispute erupted) that they were holding the land adversely to appellants’ rights of ownership. The only evidence of adverse use of the property was the assumption by all of the parties hereto that appellees’ cattle had grazed on the strip at some times in the past. Appel-lees had run cattle from time to time in their fields adjoining the strip in controversy, and as there was no fence to stop them, a cow or two must have wandered into the strip and nibbled some grass.

These facts are inadequate to ripen the claim of adverse possession under any statute. See McDonnold v. Weinacht, 465 S.W.2d 136 (Tex.1971); Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781 (1954). See also this Court’s opinion in Cunningham v. Ott, 564 S.W.2d 413 (Tex.Civ.App.1978, no writ).

The judgment of the trial court is reversed and we herewith render judgment that appellees take nothing by their suit.

Reversed and Rendered.

      . Appellee Parker was not claiming any part of east side of the lane. the roadway, but only a narrow strip on the