author: WALTER, Justice.

text:
    Jose SLIM, Trustee, et al., Appellants, v. Lorna E. ZOBEL et al., Appellees.
    No. 5015.
    Court of Civil Appeals of Texas, Eastland.
    June 2, 1977.
    Rehearing Denied June 30, 1977.
    K. Gregory Erwin, Dow, Cogburn & Friedman, Woodrow A. Holland, Wheat, Thornton & Wheat, Houston, for appellants.
    John C. Werner, Werner & Rusk, Houston, for appellees.
   WALTER, Justice.

Loma E. Zobel, Fred J. Zobel and Helene M. Decker filed suit against Jose Slim, Trustee, and Erwin F. Hill, Jr., Trustee, in trespass to try title on five acres of land in Harris County.

Zobel’s motion for an instructed verdict was granted and Slim’s and Hill’s motions for an instructed verdict were overruled. Slim and Hill have appealed.

Reno G. Hartfield testified on direct examination substantially as follows:

I am an attorney for Statewide Title Company. At the request of Mr. Werner, attorney for the plaintiffs, I examined title to the property which is involved in this lawsuit. Plaintiffs’ Exhibit 1 is a certified copy of the patent from the State to the heirs of George W. Childress covering 1920 acres of land in Harris County. The five acres involved in this lawsuit are located within the description.

Plaintiffs introduced 45 exhibits. The defendants objected to each exhibit and Hartfield’s opinions and conclusions regarding each of the exhibits.

On cross-examination, Hartfield testified substantially as follows:

I don’t know where the boundary lines are on the ground to the 1920 acre tract covered by the patent. I have not located the boundaries on the ground. The reason I can testify the five acres is within the 1920 acres is based on 14 years of experience in examining titles. That is 14 years examining documents and not 14 years examining land on the ground.
The judgment which is a part of Plaintiffs’ Exhibit 8 purports to award the title to the plaintiffs in the lawsuit. Based on what I have testified to today I could not say whether there are any other Childress heirs than the ones named in the lawsuit.
Plaintiffs’ Exhibits 10 through 21 are deeds by some of the plaintiffs in the 1894 lawsuit to one or the other Master-sons. I count 28 plaintiffs in the lawsuit. The way I account for the other 16 heirs or plaintiffs is some of those deeds are executed by more than one party. Not all the 28 parties executed a deed.
Plaintiffs’ Exhibit 24 is a deed from the Davises to F. P. Works and J. H. Stanberry and is one of the documents in the chain of title. The deed describes the land as being in Harris County and being the G. W. Childress Survey of 1920 acres patented to the heirs of G. W. Childress May 20, 1846, Patent Number 47, Vol. Ill, Abstract Number 217, Old Number 176, save and except 145 acres heretofore sold to R. W. McCutchen and also 495 acres sold to John T. Clark — I have not been able to find the deed to Clark. The 145 acre tract to McCutchen is in the chain of title but in my opinion “the legal is bad.” I have not seen the Clark deed so I cannot say if said five acre tract was included in it.
There are actually three chains of title in this record as reflected by Plaintiffs’ Exhibits 1 through 45. All three of these chains of title end up in James R. Master-son or H. Masterson.
We have one chain of title that goes in through the lawsuit. We have the two ancillary chains of title that H. Masterson and James R. Masterson purchased and subsequently, those two chains ended up in H. Masterson and is the regular chain of title we are relying on.
We have had “this particular property” surveyed. The property in this suit is contained in Plaintiffs’ Exhibits 1 through 45.

In Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226 (1961), the court said:

“It has long been the rule in this State that in a trespass to try title suit, the plaintiff must recover upon the strength of his own title. Kauffman v. Shellworth, 64 Tex. 179; Hovel v. Kaufman, Tex.Com.App., 1926, 280 S.W. 185; Davis v. Gale, 1960, 160 Tex. 309, 330 S.W.2d 610. If the plaintiff under the circumstances fails to establish his title, the effect of a judgment of take nothing against him is to vest title in the defendant. The rule is a harsh one, but it also has been well established as a rule of land law in this State. French v. Olive, 1887, 67 Tex. 400, 3 S.W. 568; Permian Oil Co. v. Smith, 1934, 129 Tex. 413, 73 S.W.2d 490, 111 A.L.R. 1152.”

Defendants contend the evidence failed to show as a matter of law the identity of the heirs of George W. Childress, the patentees of the original grant from the sovereign. Plaintiffs’ Exhibit No. 1 is a certified copy of the patent from the State to “the heirs of George W. Childress, Dec.” One of the instruments in Plaintiffs’ Exhibit 8 purports to be a judgment from the minutes of the District Court of Harris County. The judgment purports to award the plaintiffs in the lawsuit described in Exhibit 8 title to property described in the patent save and except 100 acres to Louis Knigge and 152 acres to Fritz Schroeder. We fail to find proof of heirship of George W. Childress in the record. Hartfield testified: there were 28 plaintiffs in the lawsuit; Plaintiffs’ Exhibits 10 through 21 are deeds from some of the plaintiffs to J. R. Masterson or H. Masterson; not all the 28 plaintiffs executed deeds. He could not say whether there were any other Childress heirs that the ones named as plaintiffs.

Plaintiffs contend the uncontroverted evidence established the identity of the heirs of George W. Childress as shown in that part of their Exhibit 8 in an instrument entitled “Assignments of Error.”

Said assignments of error relied on by plaintiffs are as follows:

“7th. The Court erred in not excluding the deposition of B. F. Childress in regard to the heirship of Plaintiffs and in regard to transactions with the deceased ances-ter of Defendant, because Defendants were not parties to the suit at the time the depositions were taken and because they were in regard to transaction with the deceased ancestor, the heirs being defendants herein, as shown by bill of exceptions No. 1.”
"12th. The Court erred in his conclusion of fact No. 1, in concluding that George W. Childress was a citizen of the State of Tennessee at the time of his death because there is not a particle of evidence suggesting it, in fact the only evidence bearing on that point, which is the fact that he held a headright certificate, indicates that he was not a citizen of another state than Texas, as shown in conclusion of fact No. 4.
“13th. The Court erred in his second conclusion of fact, in that he concludes the Plaintiffs herein are the sole heirs of B. F. Childress, Mary Benton and Nancy Childress, while the testimony only stated that the Plaintiffs are the heirs of George W. Childress, Deceased, and not that they are the sole heirs of the others, and this testimony is to a conclusion of law, to heirship and not relationship, and is not sufficient to found the conclusion upon.”

They also rely on the first paragraph of the judgment contained in Plaintiffs’ Exhibit 8 which contains the following:

“Case now prosecuted by Order of Court in the names of the heirs at law of George W. Childress, Nancy Childress, B. F. Childress and Mary Benton vs. L. B. Harris, Jr., et al.”

We conclude the plaintiffs failed to establish the identity of the heirs of George W. Childress as a matter of law.

Defendants contend the plaintiffs failed to discharge their burden of identifying the land they claimed by establishing its location with property actually on the ground and by failing to show the extent of their interest in the land claimed.

Plaintiffs claim under a deed from C. W. Hahl Company to Mrs. Bertha Zobel Sheer-an which describes the property as “the South 5 acres out of Block # 2 out of the third Subdivision of the George W. Chil-dress Survey as per plat of same recorded in Vol. 327, page 325 of the deed records of Harris County, Texas.” In plaintiffs’ second amended original petition, they described the property as follows:

“Being the Bertha Zobel Sheeran 5.00 acre tract of land out of Tract Two, Hahl’s Suburban Farms, Third Subdivision, G. W. Childress Survey, Abstract 217, as recorded in Volume 327, Page 325, Deed Records of Harris County, Texas, said 5.00 acres being that same tract of land described in deed to said Bertha Zobel Sheeran dated October 4, 1921 and recorded in Volume 487, Page 564, Harris County Deed Records; said 5.00 acres being more particularly described as follows:
BEGINNING at an iron rod found marking the Southeast corner of said Tract Two and the Southwest corner of Tract One and being in the Northeast right of way line of Grant Road; THENCE N 70° 10' 15" W 531.51 feet along said right of way line to iron rod found marking the Southwest corner of said Tract Two; THENCE North along the West line of said Tract Two and at 266.7 feet passing an iron rod and continuing on a total distance of 345.45 feet to iron rod set for corner; THENCE East 500 feet to iron rod set for corner in the East line of said Tract Two and the West line of said Tract One; THENCE South and at 78.75 feet passing an iron rod and continuing on a total distance of 525.75 feet to PLACE OF BEGINNING and containing 5.00 acres of land.”

The judgment contains the same description of the property as set forth in plaintiffs’ petition.

Hartfield testified substantially as follows:

I have the plat of Hahl Suburban Farms III Subdivision which purports to contain Lot Number 2. There are no calls on the plat. Calls in a survey mean two things. They can either be a direction off north south axis or it can be referring to distance. There are no calls or lot sizes on this plat, but by using the other plat we have in evidence, I can find this property. (Plaintiffs’ Exhibits 44 and 45 are the other plats in evidence which are assessor’s Block books for Harris County.)
I have not been on the ground to locate this plat. I have seen our Lot 2 and I have seen the survey the surveyor did. Based on this plat alone, I could not locate it on the ground. It would not surprise me to know there are 650 some-odd acres shown on the plat. I know we have a discrepancy as to the acreage in our particular lot.

The dedication plat of Hahl’s Suburban Farms, Third Subdivision of the G. W. Chil-dress Survey recites:

“. . . Said Subdivision, of the Chil-dress Survey, is that portion of the G. W. Childress Survey, situated in Harris County, Texas, which was conveyed to me by R. T. Adkins and W. A. Roberts, joined by their wives, by Deed dated June 24, 1910. Said deed is recorded in Volume # 250, page # 580 on the Deed Records of said County, to which deed referrence is hereby made for the full description.”

This dedication was signed by C. W. Hahl. The deed referred to in the dedication plat describes by metes and bounds a 960 acre tract and then excepts from the 960 acres 5 tracts. After deducting the acreage contained in the five excepted tracts, the deed recites that 62592/ioo acres are conveyed.

In Jones v. Mid-State Homes, Inc., 163 Tex. 229, 356 S.W.2d 923 (1962), the court said:

“The burden was upon the plaintiff to identify the land which it claimed, to establish its location, and to show the extent of its interest in the land claimed

In Johnson v. Johnson, 275 S.W.2d 146 (Tex.Civ.App., Texarkana 1955, writ ref. n. r. e.), the court said:

“Plaintiffs pleaded a more accurate description of a tract of land, but they did not prove that the more accurately described tract was the same tract as described in Exhibit No. 1. They never did locate the land by extrinsic evidence, or otherwise. The issue of location being an issue of title in such cases, the burden was upon plaintiffs to locate the land upon the ground. See Withers v. Republic National Bank of Dallas, Tex.Civ.App., 248 S.W.2d 271, and the authorities therein cited. The second and tenth points are overruled.”

In Withers v. Republic Nat. Bank of Dallas, 248 S.W.2d 271 (Tex.Civ.App., Beaumont 1951, writ ref. n. r. e.), the court said:

“This issue of location on the ground was an issue of title; the burden was on the plaintiff in No. 4348 to prove that her chain of title to the 1,400 acres covered the three tracts for which she sued, and until she made this proof or the fact to be proved was admitted, she did not prove title to the land for which she sued. Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97; Devine v. Keller, 73 Tex. 364,11 S.W. 379.”

Hartfield’s opinions and conclusions about the location of the land in dispute do not establish material facts as a matter of law.

In Webb v. Liberty Mutual Insurance Company, 501 S.W.2d 350 (Tex.Civ.App., Eastland 1973, writ ref. n. r. e.), the court said:

“Plaintiff acknowledges the general rule that a jury is not bound by opinion testimony and such testimony does not establish material facts as a matter of law. Hood v. Texas Indemnity Inc., Co., 146 Tex. 522, 209 S.W.2d 345 (1948). He argues, however, the general rule is not applicable. The exception, urged by plaintiff, to the general rule was recognized by the Supreme Court in Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943 (1944) where the Court said:
‘The opinion testimony of experts, although persuasive, under most circumstances is not conclusive. It is peculiarly within the province of the jury to weigh opinion evidence, taking into consideration the intelligence, learning, and experience of the witness and the degree of attention which he gave the matter. The judgments and inferences of experts or skilled witnesses, even when uncontroverted, are not necessarily conclusive on the jury or the trier of facts, unless the subject is one for experts or skilled witnesses alone where the jury or the court cannot properly be assumed to have, or be able to form correct opinions of their own based upon the evidence as a whole and aided by their own experience and knowledge of the subject of inquiry.’ See also Broussard v. Moon, 431 S.W.2d 534 (Tex.Sup.1968).”

Appellees say:

“The cases cited by Appellants are simply not in point. They, no doubt, state proper conclusions of law. However, whether or not the location test as set out in the foregoing authorities, Gilbreath v. Yarbrough, supra, [472 S.W.2d 185, Tex.Civ.App.] etc., was met is a fact question to be determined by the Court, Walker v. Maynard, 31 S.W.2d 168 (Tex.Civ.App.,

Austin, 1930, no writ hist.), and, here, the trial court properly found that the test was met and passed.”

We agree the location of the disputed land on the ground was a fact question. This is an instructed verdict case and we hold it was not established as a matter of law.

We hold the court erred in granting plaintiffs’ motion for an instructed verdict because the evidence failed to show as a matter of law the 5 acres in dispute can be located on the ground by the description set out in the pleadings and judgment.

Plaintiffs’ chain of title contains deeds which recite certain tracts of land are excepted.

For example, Plaintiffs’ Exhibit 24 is described by Hartfield as a deed from the Davises to F. P. Works and J. H. Stanberry conveying the G. W. Childress survey of 1920 acres, save and except 145 acres sold to McCutchen and 495 acres sold to John T. Clark. Hartfield testified he had been unable to locate the deed to Clark and that in his opinion, “the legal is bad” in the McCutchen deed. When he was asked, “Can you tell us that the subject property is not in those two conveyances, the McCutchen onto Clark? ”, counsel for plaintiffs made the following objection:

“MR. WERNER: Your Honor, if I may, the burden is on the Defendant. We bring instruments like this into the Court which purport to be the record title to the Plaintiff. It’s for them — their burden to bring in instruments to disprove what we allege concerning that. So the burden is on them to bring in these two instruments that save and except the property from their conveyances. It’s not purported to bring these two instruments in in that regard.”

Another example is Plaintiffs’ Exhibit 36 which is a deed from R. T. Atkins and W. A. Roberts to C. W. Hahl and Company conveying 960 acres out of the Childress survey save and except 5 tracts. After testifying about said Plaintiffs’ Exhibit 36, Hartfield was asked:

“The instruments in evidence, can you tell me whether or not the subject property that we are litigating over is in the property conveyed or one or more of the five tracts that was not conveyed?”

Counsel for plaintiff made the following objection:

“MR. WERNER: As I have said before, if they can contend the property that is the subject of this suit is not a piece described in that instrument, the burden is on them to bring instruments in here to prove that fact.”
In Mills v. Pitts, 121 Tex. 196, 48 S.W.2d 941 (1932), the court said:
“Since a plaintiff in trespass to try title must recover on the strength of his own title, he can never recover by' merely showing a claim under deeds to those parcels of land which remain unsold by the grantors on particular dates without any proof whatever of the specific parcels of land which were unsold.
After reviewing a number of cases announcing this rule, the Supreme Court in an opinion by Mr. Justice Williams said: ‘In these cases the deeds passed title only to land not previously conveyed, and hence the plaintiffs in order to show that the conveyances passed the lands sued for, were required to show that they had not been previously sold.’ Waggoner v. Dodson, 96 Tex. [415] 421, 73 S.W. 517, 518.
The proposition which is decisive here was correctly applied by the Galveston Court of Civil Appeals in the case of Ball v. Carroll, 42 Tex.Civ.App. 323, 92 S.W. 1023, 1025. In the opinion of the court in that case, Mr. Justice Pleasants stated: ‘The grantors in the deed to Stewart (who were the heirs of the Zacharies) only undertake to convey that portion of the Rionda grant which had not been previously conveyed by their ancestors, and in order for appellant to show title to the land in controversy under this deed he must show it was not included in the lands mentioned in the deed as having been previously disposed of by the Za-charies, and which by the express terms of the deed were not conveyed to Stewart. This proof was not made nor attempted to be made. Maxwell Land-Grant Co. v. Dawson, 151 U.S. [586] 604, 14 S.Ct. 458, 38 L.Ed. 279; Corinne Co. v. Johnson, 156 U.S. [574] 575, 15 S.Ct. 409, 39 L.Ed. 537; Waggoner v. Dodson (96 Tex. [415] 421), 73 S.W. [517] 518.”

We hold the evidence failed to show as a matter of law the property awarded to plaintiffs was not included in any of the exceptions from the tracts described in the documents relied upon by them to prove their title.

We have concluded the court erred in granting plaintiffs’ motion for an instructed verdict and in failing to grant defendants’ motion for an instructed verdict.

The judgment is reversed and judgment is rendered that plaintiffs take nothing.

McCLOUD, C. J., not participating.


source: Caselaw Access Project

author: EVANS, Justice.

license: Public Domain

text:
    Robert C. STUART, Appellant, v. COLDWELL BANKER & COMPANY, Appellee.
    No. 16867.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    June 2, 1977.
    Rehearing Denied June 30, 1977.

      Philip C. Koelsch, Robbins & Crowder, Winston P. Crowder, Houston, for appellant.
    Roger R. Wright, Jr., Houston, for appel-lee; Woodard, Hall, McCrory, Henry & Primm, Houston, of counsel.
   EVANS, Justice.

This is an action to recover a real estate commission on the lease of certain property belonging to the appellant. After a nonju-ry trial, judgment was entered in favor of the appellee for the sum of $33,378.50, the amount of its claimed commission, and for an additional sum of $5,000.00, which was awarded to the appellee as attorney’s fees. The trial court’s judgment will be affirmed.

An amended brief was filed by the appellant, just prior to oral submission, in which his points of error were increased from seven to twenty-three, and which, for the first time, sets forth his contentions that the evidence is factually insufficient to support the trial court’s judgment. The appel-lee opposes the filing of this amended brief.

In order to effectuate the cause of justice, an appellate court has the authority to permit an appellant to file an amended brief and to include therein additional points of error, either prior to or after submission, upon such reasonable terms as it may prescribe. Rules 422, 429 and 431, T.R.C.P. Warren Independent School Dist. v. Southern Neches Corp., 405 S.W.2d 100, 104 (Tex.Civ.App.—Beaumont 1965, writ ref’d n.r.e.), 404 S.W.2d 809 (1966). However, litigants are entitled to an expeditious determination of their appeal, and the rules should be given an interpretation which will further, and not impede, the orderly disposition of the cause. King v. Cron, 285 S.W.2d 833, 834 (Tex.Civ.App.—San Antonio 1955, writ ref’d n.r.e.), cert. denied, 352 U.S. 843, 77 S.Ct. 67, 1 L.Ed.2d 59 (1956).

As appellee correctly points out in its opposition to the filing of the amended brief, the additional points of error included in the amended brief do not raise new assignments which substantially change the contentions advanced by the appellant in his original brief. Thus, this court can perceive no harm, prejudice or delay which will result from the filing of the amended brief, and leave to file is granted.

On January 12, 1973 the appellant, Robert C. Stuart, and a third party, Lister Properties Company, executed a lease option agreement which provided that in consideration of the sum of $11,000 paid to the appellant, Lister Properties Company was granted an exclusive option to lease, for a 51 year term, a tract of eight acres to be surveyed out of a larger tract of land belonging to the appellant. The agreement provided that the option was subject to being exercised by Lister Properties Company within a period of 11 months following the date of the agreement.

On the same day, January 12,1973, but at a later hour, the appellant executed and delivered to the appellee the following commission agreement which constitutes the basis for this suit:

“January 12, 1973
Mr. J. Michael Boyd
COLDWELL, BANKER AND COMPANY
3700 Buffalo Speedway
Houston, Texas 77006
Dear Mr. Boyd:
As consideration for your services in securing Lister Properties, Inc., to lease my property at Bellfort and Telephone Road in Houston, Texas, I agree to pay Cold-well, Banker and Company as a real estate commission Thirty-Five Thousand One Hundred Twenty-Eight and 80/100 Dollars ($35,128.80) which is 1.640% of the total guaranteed annual rental provided for in the lease document. This sum is to be payable over a period of eighteen (18) months at One Thousand Seven Hundred Fifty and No/100 Dollars ($1,750.00) per month, which is to be paid out of the money received from Lister Properties. At the end of the 18-month period, the balance remaining will be paid in one payment. Any part or all of this sum may be prepaid at any time at my option. It is understood and agreed that this commission is payable only if Lister Properties, Inc., executes the option to lease my property. The 18-month payout period will begin on the date Lister Properties exercises its option.
Sincerely,
/s/ Robert C. Stuart
Robert C. Stuart
2510 Inwood Drive
Houston, Texas 77019

Subsequently, on November 1, 1973, Lister Properties Company exercised the lease option agreement and assumed possession of the property under the lease. The appel-lee thereafter brought this action to recover its real estate commission.

The trial court found, among other facts, that the appellant had been introduced to the president of Lister Properties Company by the appellee’s employees; that following such introduction, such employees negotiated and performed services for the appellant, at his request, which led to the execution of the lease option agreement, and thereafter continued to perform services for and at the request of appellant; and that after the exercise of the option by Lister Properties on November 1, 1973, appellant paid the appellee the amount representing the first monthly installment provided in the commission agreement, but had paid no additional monies thereunder. It further found that Lister Properties Company had constructed a retail shopping center on a portion of the property covered by the lease option agreement and had regularly paid the appellant the monthly rentals provided by the lease option agreement, which the appellant had accepted under protest. The court concluded (a) that the commission agreement constituted a clear and unequiv-ocable promise by the appellant to pay the real estate commission to the appellee; (b) that such agreement, when considered with the lease option agreement, sufficiently described the land so that it could be located on the ground; (c) that the appellee had been the procuring cause of the agreement between the appellant and Lister Properties Company; and (d) that appellee was entitled to the amount of its claimed commission and attorney’s fees.

The first contention advanced by the appellant is that his written promise to pay the real estate commission to the appellee is unenforceable because that writing was not executed until after the time he executed the lease option agreement with Lister Properties Company. The appellant also contends that the agreement is invalid in that it does not sufficiently identify the prospective lessee.

Article 6573a § 20(b) Tex.Rev.Civ.Stat. Ann. (Supp.1976-1977) provides as follows:

“An action may not be brought in a court in this state for the recovery of a commission for the sale or purchase of real estate unless the promise or agreement on which the action is brought, or some memorandum thereof, is in writing and signed by the party to be charged or signed by a person lawfully authorized by him to sign it.”

The appellee was required to plead and prove that its claim for a commission was based upon an instrument in writing within the contemplation of this statute. Tobin v. J. D. Blanton Constr. Co., 392 S.W.2d 881, 883 (Tex.Civ.App.—Texarkana 1965, writ ref’d n.r.e.). However it was not required to prove that such writing was in existence at the time it first rendered services on appellant’s behalf, nor that such writing predated the agreement between the appellant and the prospective lessee. 12 Am.Jur.2d, Brokers § 51, p. 811; Bridwell v. Sandefur, 341 S.W.2d 710 (Tex.Civ.App.—Waco 1960, writ dism’d); Maloney v. Strain, 410 S.W.2d 650 (Tex.Civ.App.—Eastland 1966, no writ). The language relied upon by the appellant in Tobin, supra, to the effect that a writing need be in effect prior to the sale or lease, is dictum insofar as it pertains to the case at bar, and that-decision does not constitute authority for the proposition advanced by appellant.

The lease option agreement and the commission agreement were both executed by the appellant on the same date and as part of an integrated transaction involving the prospective leasing of appellant’s land.

In the commission agreement the appellant agreed to pay a commission to the appellee in consideration for its services in securing “Lister Properties, Inc.” to lease “my property at Bellfort and Telephone Road in Houston, Texas” as provided in the “lease document”, such commission to be payable only if Lister Properties, Inc. executes the option to lease “my property.”

The trial court found that the lease option agreement had been executed by the appellant and “Lister Properties Company”; that there was no Texas corporation bearing the name Lister Properties, Inc.; that the entity- mistakenly referred to in the commission agreement as “Lister Properties, Inc.” was in fact Lister Properties Company. It further found that the words “lease document” and “option” in the commission agreement referred to the lease option agreement between the appellant and Lister Properties Company.

The evidence is legally and factually sufficient to support these findings by the trial court. The commission agreement is enforceable notwithstanding that it was executed some hours after the execution of the lease option agreement, and it makes sufficient reference to the lease option agreement and the prospective lessee.

The appellant next complains that the lease option agreement does not specifically describe the eight acre tract which is the subject of the lease.

The lease option agreement provides that the leased premises shall contain eight acres of land, the exact size and dimensions to be determined by a survey furnished at the lessor’s expense. The description contained in the lease option agreement shows that the eight acre tract was to be surveyed out of the appellant’s larger tract of land in the following manner:

“Starting at this said point the boundary of the eight acre tract to be leased is as follows:
On the east by the Telephone Road as now paved measured along a line parallel thereto and eleven feet from the face (east side) of the curb; on the south by the Easement of the Harris County Flood Control District; on the west by the easterly line of the Easement of the City of Houston for Bellfort Street starting at the said Flood Control Easement and extending northerly and westerly to a point on said street easement which when connected by a straight line at right angles to Bellfort and extending northerly to a point on the dividing line between Green-way Park Subdivision which is 460 feet westerly of the point of beginning of this said eight acre tract as tentatively shown by a sketch for Lessee which was prepared by Hoff, Blackstone, Strode Architects (drawn by RMB and dated 26 Oct. ’72): THENCE in an easterly direction along said northerly dividing line of Greenway Park Subdivision to the point of beginning.
In the event exactly eight acres is not enclosed by these described boundaries the westerly line, northerly from Bellfort, is to be moved westerly and parallel thereto to contain eight acres provided the new western boundary does not increase the frontage of this tract on Bell-fort over ten feet.”

The appellant’s position is that this description requires the leased premises to contain exactly eight acres of land, “no more and no less”, and that the western boundary of the eight acre tract must intersect Bellfort Street at “right angles.” The appellant’s surveying witness testified to the effect that a tract of exactly eight acres could not be located on the ground if the west line of the tract was drawn from the northwest corner (460 feet from Telephone Road) so as to intersect Bellfort Street at right angles. Therefore the appellant contends that the description in the lease option agreement is legally insufficient to locate the subject tract of land.

It is obvious that the field note description contained in the lease option agreement was not based upon an actual ground survey, but rather upon data which was intended to serve as a guide to a surveyor in locating the eight acre tract on the ground.

Where an actual ground survey has been made and the footsteps of the surveyor can be followed with certainty, the surveyor’s actual location will control conflicts in calls or ambiguities in the field notes. However, where there is only an “office” survey, as in the case at bar, the intent of the parties must be determined from the terms of the document itself, considered in the light of all surrounding facts and circumstances. Phillips Petroleum Co. v. State, 63 S.W.2d 737 (Tex.Civ.App.—Austin 1933, writ ref’d).

It is clearly apparent from the terms of the lease option agreement that the parties thereto contemplated the leased premises would include exactly eight acres of land. Equally clear is the parties’ understanding that the leased premises would adjoin Telephone Road on the east, Bellfort Street on the south, and that the northwest corner would be located 460 feet from the point of beginning. The one matter left for the surveyor’s determination, using the information contained in the field notes, was the location of the west line of the tract, and particularly its point of intersection with the north line of Bellfort Street. In making this determination, the surveyor was required to place the west line in such location that the tract would contain exactly eight acres of land, subject only to the expressed limitation that the tract’s frontage on Bellfort Street should not be increased by more than ten feet.

The survey plat in evidence demonstrates that the eight acre tract can be located on the ground, using the field note data contained in the lease option agreement. This plat shows that by merely reversing the order of the calls, the west line can be extended from the designated northwest corner of the tract, which corner is 460 feet from the point of beginning, to its point of intersection with Bellfort Street, so that exactly eight acres of land is contained within the boundaries of the surveyed land. Although this construction does not permit the west line of the tract to intersect Bell-fort Street at exact right angles, it does give effect to the intent of the parties as manifest by the terms of the document.

The construction to be given the description in the lease option agreement was a matter for the trial court. In making this determination, the trial court was not bound to give controlling effect to every call in the field notes, or even to strictly follow the ordinary priority of calls. Wheeler v. Stanolind Oil & Gas Co., 151 Tex. 418, 252 S.W.2d 149 (1952); Giles v. Kretzmeier, 239 S.W.2d 706 (Tex.Civ.App.—Waco 1951, writ ref’d n.r.e.). Circumstances may vary their usual order of dignity. Stafford v. King, 30 Tex. 257 (1867); Huff v. Crawford, 89 Tex. 214, 34 S.W. 606 (1896).

In order to give a reasonable construction to the description, the trial court was required to disregard only the one call in the field notes indicating the west line to have a right angle intersection with Bell-fort Street. In locating a survey pursuant to the expressed intent of the parties, it is not unusual to deviate from the called degree of declination. Wyman v. Harris, 222 S.W.2d 297 (Tex.Civ.App.—Beaumont 1949, writ ref’d n.r.e.); Parker v. T. O. Sutton & Sons, 384 S.W.2d 433 (Tex.Civ.App.—Beaumont 1964, no writ).

“As a rule a specific and definite call for an angle must be observed; but where the call is general and descriptive merely, the line may be deflected from the angle called for, if thereby the intention shown in the language of the instrument, in the light of the situation of the land, and the circumstances of the case, will be best subserved . . . ” 11 C.J.S. Boundaries § 9, p. 549.

The description contained in the lease option agreement affords a sufficient basis for locating a tract of eight acres on the ground. The trial court did not err in harmonizing the calls in the description in such manner as to give effect to the parties’ intent, as manifest by the terms of the document, and in concluding the description to be legally sufficient.

In his last point of error the appellant contends that the trial court erred in refusing to consider the appellee’s answers in response to the appellant’s request for admissions. The appellee had admitted, in compliance with appellant’s request, that it had received certain letters in which the appellant had stated his position regarding the controversy. The subject matter of the letters was hearsay insofar as appellee was concerned, and the trial court properly refused to consider the letters as evidence against the appellee. No reversible error is presented by this point. Rule 434, T.R.C.P.

The judgment of the trial court is affirmed.


author: CHADICK, Chief Justice.

text:
    NORTON REFRIGERATED EXPRESS, INC. and Ray Norton, Appellants, v. RITTER BROTHERS CO., INC., et al., Appellees.
    No. 8435.
    Court of Civil Appeals of Texas, Texarkana.
    June 7, 1977.
    Rehearing Denied July 5, 1977.

      Victor Hlavinka, Atchley, Russell, Wal-drop & Hlavinka, Texarkana, for appellants.
    Charles Morgan, Smith, Stroud, McCler-kin, Conway & Dunn, Texarkana, Ark., for appellees.
   CHADICK, Chief Justice.

This is a suit to recover compensatory and exemplary damages for the alleged conversion of a truckload shipment of citrus fruit — a common law trover action. Plaintiffs below and appellees here, Ritter Brothers Co., Inc., A. M. Gilardi & Sons, Inc. and W. R. Hackett Fruit Company, recovered judgment for $4,492.13 actual and $3,500.00 exemplary damages, together with costs, etc., in the trial court. The defendants below and appellants here, Norton Refrigerated Express, Inc. and Ray Norton, have perfected an appeal. Judgment of the trial court is affirmed.

It is acknowledged by all parties that the shipment in suit was not delivered; that it was sold by the express company for $3,400.00 and no accounting therefor made to the appellees. Also, it appears without question that Ray Norton is President of Norton Refrigerated Express, Inc. and so far as pertinent here was active in the management of its affairs. Other material facts will be detailed as discussion of the issues may require.

Appellants’ first point of error is as follows:

“POINT OF ERROR NO. 1: THE TRIAL COURT ERRED IN SUBMITTING SPECIAL ISSUE NOS. 1, 2, and 3, OR ANY ONE OF THEM, TO THE JURY INSOFAR AS THEY RELATE TO APPELLANT, RAY NORTON, BECAUSE THERE IS NO EVIDENCE THAT APPELLANT, RAY NORTON, COMMITTED ANY TORT IN HIS INDIVIDUAL CAPACITY OR WAS LIABLE FOR ANY TORTIOUS CONDUCT IN HIS INDIVIDUAL CAPACITY.”

The special issues referred to in the point and the jury’s answer thereto are as follows:

“SPECIAL ISSUE NO. 1: What do you find from a preponderance of the evidence to have been the reasonable cash market value of the citrus fruit in question at the Plaintiffs’ place of business at the time the same would have been delivered to them but for its diversion?
Answer in Dollars and Cents ' Answer: $4,492.13
“SPECIAL ISSUE NO. 2: Do you find from a preponderance of the evidence that the failure and refusal of the Defendants to deliver the citrus fruit to the Plaintiffs and subsequent sale thereof without reimbursing the Plaintiffs for the cost thereof, was done so with malice?
Answer ‘Yes’ or ‘No’
Answer: Yes
‘If you have answered the preceding Special Issue ‘Yes’, then answer the following Special Issue.
“SPECIAL ISSUE NO. 3: What sum of money, if any, do you find from a preponderance of the evidence should be assessed against the Defendants by way of punitive damages?
Answer in Dollars and Cents
Answer: $3,500.00”

A corporation, such as Norton Refrigerated Express, Inc., by its nature must act through agents. All corporate action of the express company material to this case was at the direction of its president, Ray Norton. The evidence is of a stamp from which a jury might infer and find that Norton spoke and acted both for himself and the corporation and that all corporate activity was under Norton’s direction and control. The evidence permits a jury to conclude that Norton personally ordered employees of the corporation to convert the fruit shipment when he knew or reasonably should have known in his individual capacity as well as an officer of the company that the fruit was the property of the appellees.

Under the circumstances, Norton is liable for the consequences of his conduct and acts and it is no excuse that he was acting as an officer of the express company. Lone Star Mining Company v. Texeramics, Inc., 363 S.W.2d 868 (Tex.Civ.App. Eastland 1962, writ ref’d n. r. e.); Alamo Downs v. Briggs, 106 S.W.2d 733 (Tex.Civ.App. San Antonio 1937, writ dism’d); Western Rock Company v. Davis, 432 S.W.2d 555 (Tex.Civ.App. Fort Worth 1968, no writ). See also K & G Oil Tool & Service Co. v. G & G Fishing Tool Serv., 158 Tex. 594, 314 S.W.2d 782 (1958); Mayflower Investment Company v. Stephens, 345 S.W.2d 786 (Tex.Civ.App. Dallas 1960, writ ref’d n. r. e.); 19 Am. Jur.2d, Corporations, See. 1382, p. 779; 18 Am.Jur.2d, Conversion, Secs. 126 and 127, pp. 234, 235.

Appellants’ second, third and fourth points of error raise issues that no evidence supports the jury’s answer to the malice issue (Special Issue No. 2 quoted earlier) as it pertains to the express company, and separately, as it pertains to Ray Norton individually and that the answer to the malice issue is contrary to the overwhelming weight and preponderance of the evidence. The trial court’s charge to the jury defined malice as including “such gross indifference to the rights of another as will amount to a willful or wanton act done intentionally and without just cause or excuse.” The appellants have not questioned the definition and it appears to be correct. See Rodman Supply Company v. Parker, 363 S.W.2d 838 (Tex.Civ.App. El Paso 1962, writ ref’d n. r. e.); Holland v. Lesesne, 350 S.W.2d 859 (Tex.Civ.App. San Antonio 1961, writ ref’d n. r. e.); 17 Tex.Jur.2d, Damages, Sec. 178.

Relevant to malice and Norton’s state of mind, individually and as agent for the corporation, is this extract from his examination:

“Q You assumed that Sunkist was the legal owner?
A Right.
Q But regardless of who the legal owner was, it really didn’t make any difference to you once that fruit left Ohio, and you were going to sell it?
A My intention was to collect the money that Sunkist owed me.
Q Once the fruit left Ohio, you intended to sell the fruit?
A Yes, sir.
Q And you assumed Sunkist owned it, but you did not know?
A I had no way of knowing . otherwise ... I assumed it was . . . yes.”

There is direct and inferential proof that Ray Norton expended considerable effort to secure the shipment in suit from the packing house of Sunkist Growers, Inc. in order to use it as the stake in a stratagem to force Sunkist to pay alleged delinquent freight charges unconnected with this particular shipment. Uncontroverted evidence establishes that title to the citrus fruit was in appellees, not Sunkist Growers, Inc., at the time the shipment was loaded onto the express company’s truck. Each of the ap-pellees, as well as Sunkist, advised Norton that the appellees owned the fruit that he accepted for transportation. The appellees went so far as to offer to pay transportation charges in advance to obtain delivery. From the record as a whole, ample evidence may be found to support the jury’s verdict on the malice issue and evidence to the contrary is not of overwhelming weight and preponderance. See Courtesy Pontiac, Inc. v. Ragsdale, 532 S.W.2d 118 (Tex.Civ.App. Tyler 1975, writ ref’d n. r. e.), holding that malice may be inferred from conscious conversion of another’s property.

Appellants moved for a new trial on the ground that Special Issue Nos. 2 and 3 were multifarious. A multifarious issue is one that has two or more questions susceptible to different answers. The motion was overruled. The appellants’ objection to the charge is not found in the transcript and it is questionable whether the alleged vice in the charge was adequately brought to the attention of the trial judge. The complaint is that the malice (No. 2) and exemplary damage (No. 3) issues should have been submitted separately as to each appellant, and not as to the two parties in combination by referring to them simply as “defendants.” The appellees’ trial petition alleged that the appellants willfully, maliciously and wantonly converted and sold the citrus fruit in question and kept the pro-eeeds therefrom. Such allegation constitutes a pleading that the express company and Norton were joint tort-feasors. Persons acting together in effecting a conversion may be held jointly and severally liable. Ward v. Odem, 153 S.W. 634 (Tex.Civ.App. San Antonio 1913, no writ); Hazleton v. Holt, 285 S.W. 1115 (Tex.Civ.App. Amarillo 1926, writ dism’d); Grabes v. Fawcett, 307 S.W.2d 311 (Tex.Civ.App. Texarkana 1957, no writ); 14 Tex.Jur.2d, Conversion, Sec. 52; 18 Am.Jur.2d, Conversion, Secs. 120, 125 and 126. In many instances it would be necessary to separate the parties in determining malice and exemplary damages as the evidence may be very different as it affects each party. However, under the unusual facts of this case, error is not shown. The acts, conduct and intent of Ray Norton, whether as president of the express company or as an individual, were the subject of jury determination. In this instance he spoke and acted for both and his intention, conduct and acts were attributable to both. Had separate issues been submitted as to each appellant, it would have been Norton’s conduct, acts and intentions that governed the issue. There is no rational interest to be served by requiring a jury to go through this needless repetition.

Exemplary damages must be reasonably proportional to the actual damages that are sustainable on appeal. Southwestern Investment Company v. Neeley, 452 S.W.2d 705 (Tex.1970). An analysis of the record does not show that the $3,500.00 exemplary damages is out of proportion to the actual damage award of $4,492.13. See Bank of North America v. Bell, 493 S.W.2d 633 (Tex.Civ.App. Houston-14th 1973, no writ); Bisso v. Southworth, 71 Tex. 765, 10 S.W. 523 (1888); Pan American Petroleum Corporation v. Hardy, 370 S.W.2d 904 (Tex.Civ.App. Waco 1963, writ ref’d n. r. e.). Necessarily, the excessiveness point must be overruled.

Having found no reversible error or ex-cessiveness in judgment, it becomes the duty of this Court to affirm the judgment of the trial court. It is so ORDERED.


author: BARROW, Chief Justice. CADENA, Justice,

text:
    Robert INGRUM, Appellant, v. Allen INGRUM, Appellee.
    No. 15839.
    Court of Civil Appeals of Texas, San Antonio.
    June 8, 1977.
    Rehearing Denied July 6, 1977.

      John T. Anderson, Robert J. Hearon, Jr., Graves, Dougherty, Hearon, Moody & Gar-wood, Austin, for appellant.
    Elwood Cluck, Cluck, Rutherford & Wol-verton, San Antonio, for appellee.
   BARROW, Chief Justice.

Appellant has perfected his appeal from a summary judgment which ordered that ap-pellee, as Independent Executor and Trustee of the Estate of Addiebel Allen Ingrum, Deceased, recover title to and possession of a 4,588.14-acre ranch in Uvalde County. Appellant claims possession as lessee of ap-pellee.

This is the second appeal of a family controversy growing out of appellee’s decision to sell the ranch to pay debts owed by the estate. Appellant’s father had operated the ranch for about 47 years under a series of lease agreements, first with Addiebel Allen Ingrum and, following her death, with appellee. Appellant’s father died on April 22, 1973 and appellant continued in possession of the ranch with the approval of appellee and under the terms of a written lease agreement which expired on August 31, 1975. The estate owes extensive debts and a controversy arose because of appel-lee’s desire to sell the ranch to pay these debts. In Ingrum v. Ingrum, 520 S.W.2d 535 (Tex.Civ.App.—San Antonio 1975, writ ref’d n.r.e.), we held that appellee is authorized and empowered to sell the ranch to pay and discharge the debts.

Appellant refused to vacate said premises at the expiration of the lease as demanded by appellee. On December 15, 1975, appel-lee filed this trespass to try title suit against appellant whereby he sought to recover title to and possession of the ranch together with the reasonable rental value of the premises after the expiration of the lease. On April 12, 1976, appellee filed an amended petition wherein he reurged in Count I his claim for title, possession, and rental value of the premises. He also asserted an additional claim for damages on the following counts: (1) The sum of $37,-000.00 for failure of lessee to maintain the fences in good repair as required by the lease agreement; (2) reimbursement for taxes owed by lessee under the lease agreement; (3) failure of lessee to properly utilize the land for ranching purposes by not overgrazing the land; and (4) fraudulent acquisition by appellant of the proceeds of a hunting lease and his refusal to deliver the proceeds to appellee.

On August 31, 1976, the trial court entered a summary judgment that appellee recover title to and possession of the land. The trial court granted appellee a writ of possession but same has never been executed. Appellee was not allowed any sum for the rental value of the land after the expiration of the lease, nor was any disposition made of appellee’s claims for damages. An appeal was perfected by appellant from this summary judgment and on December 29, 1976, we dismissed the appeal because the judgment was interlocutory. In the meantime, on November 23, 1976, the trial court granted appellee’s motion for severance and severed appellee’s cause of action in trespass to try title from his claims for damages. Appellant perfected his appeal from this order and the record was filed on February 18, 1977.

Appellant asserts four points of error on this appeal. Appellant’s first three points all relate to the basic complaint that the trial court erred in entering the order of severance and therefore the summary judgment is an interlocutory and non-appealable judgment. Appellant urges by his fourth point that the summary judgment was improperly granted.

It must be recognized at the outset that the order of severance entered pursuant to Rule 41, Tex.R.Civ.P., severed the original suit into two separate suits. The summary judgment thereby became a final judgment and appealable. Continental Bus Systems, Inc. v. City of Corpus Christi, 453 S.W.2d 470 (Tex.1970); Parker v. Holland, 444 S.W.2d 581 (Tex.1969); Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76 (1959).

A more difficult question is raised by appellant’s contention that the trial court erred in granting the order of severance. It is urged that the trial court thereby erroneously attempted to split one cause of action into two parts. In Kansas University Endowment Ass’n v. King, 162 Tex. 599, 350 S.W.2d 11 (1961), the Supreme Court held that severance is proper only where the suit involves two or more separate and distinct causes of action and that each of the causes of action into which the action is severed must be such that the same might properly be tried and determined if it were the only claim in controversy. See also Angerstein v. Angerstein, 389 S.W.2d 519 (Tex.Civ.App.—Corpus Christi 1965, no writ).

Appellee concedes that he has waived his claim for the rental value of the land from the expiration of the lease to the entry of the judgment. He urges, however, that the claims for damages which were alleged in his amended petition are separate and distinct from the trespass to try title cause of action. It is seen that the claims for damages from overgrazing, failing to keep the fences in good repair, and failure to pay certain taxes all relate to the lease agreement. Appellee alleged that appellant breached the lease in these respects. Clearly these claims are separate and distinct from appellee’s trespass to try title action which did not arise until after expiration of the lease.

Appellee also sought to recover the amount appellant received for the hunting rights on the ranch for the 1975-1976 hunting season. No such rights were conferred by the lease agreement which permitted residential grazing, and general agricultural purposes, nor is there any evidence that the hunting rights had been theretofore leased. The record has not been developed and the pleadings do not disclose the basis for appellant’s assertion of the right to sublease the hunting rights. It is not urged by anyone that this right was one that flowed with the possessiqn of the ranch. Appellee seeks to impose a constructive trust upon and recover the money received and appropriated by appellant by his unauthorized leasing of the hunting rights on the ranch. It is apparent that the issues to be resolved will differ from those involved in the trespass to try title suit and this claim could be tried as if it was the only claim in controversy.

Irrespective of the nature of appellee’s claim for the sum received by appellant for the hunting rights, the clear intent of ap-pellee’s motion for a severance and the order of the trial court granting same was to sever out all claims based on appellee’s trespass to try title cause of action. Accordingly, if it should be developed at the trial of the severed suit that appellee’s claim to recover the sum paid appellant for the hunting lease was a part of his trespass to try title action, the result would be that such claim would have been extinguished by entry of the final judgment in the trespass to try title suit.

We therefore conclude that the trial court was authorized under Rule 41 to sever the trespass to try title claim from appel-lee’s claims for damage. Cox v. Medical Center National Bank, 424 S.W.2d 954 (Tex.Civ.App.—Houston [14th Dist.] 1968, no writ); Hayes v. Norman, 383 S.W.2d 477 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n.r.e.).

Appellant urges in his reply brief that the order of severance was an abuse of discretion. Rule 41 authorizes the trial court on motion of either party or on its own initiative to grant a severance. 3 McDonald, Tex.Civ.Prac. § 10.25 (1970). Furthermore, the trial court is vested with broad discretion in the matter of severance of multiple causes of action. Pierce v. Reynolds, supra; Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588 (1955); Hanover Insurance Co. v. Hoch, 469 S.W.2d 717 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n.r.e.). Here the trial court properly exercised its discretion to sever the trespass to try title action in that it was determinable by summary judgment evidence whereas the claims for damages will undoubtedly require a full trial on the merits. Already the appellee has been deprived of possession, and his efforts to sell the ranch have been thwarted, for nearly two years.

Appellant urges by his final point that a fact issue was raised from the pleadings, admissions, and affidavits on file regarding appellee’s right to possession. Ap-pellee’s claim of title is uncontroverted and appellant’s right to possession is based on his purported right as a lessee of appellee. It is undisputed that the written lease agreement was executed by appellant’s deceased father and appellee on April 13,1972 for a term commencing September 1, 1972 and ending August 31, 1975. Appellant’s father died on April 22,1973, and appellant was permitted to remain in possession as heir and executor of his father’s estate. Appellant, in reply to the motion for summary judgment, averred that his father and appellee had an “understanding” between them that appellant’s father “should have' the right to renew his lease on these lands, or that he would have a right of first refusal to match any offer to lease the lands made to Allen Ingrum.” Appellant further averred that by letter of May 12, 1973, appellee acknowledged that appellee would have the same “understanding” with appellant. Appellant therefore urged that he was entitled to possession.

This contention is wholly without merit even if we assume that such “understanding” was a binding agreement. The letter of May 12, 1973, relied on by appellant, does not acknowledge, or even mention, a right of refusal granted appellant’s father by appellee, nor does appellee acknowledge therein that he would grant such a right to appellant. The only agreement mentioned in this letter was an agreement by appellant’s father to spend on improvements to the ranch the money owed by appellant’s father for taxes under the lease agreement. Furthermore, appellee has not failed to give appellant a right of first refusal to match any offer to lease the ranch. To the contrary, appellee has not offered to lease the ranch to anyone but has steadfastly insisted upon the right and need to sell the ranch. The record before us shows that a binding sales agreement is now pending and awaiting appellee’s ability to deliver possession.

The summary judgment record establishes appellee’s right to title to and possession of the ranch upon expiration of the written lease agreement on August 31, 1975. The trial court did not err in granting appellee’s motion for summary judgment. The trial court properly exercised its discretion under Rule 41 to sever appellee’s trespass to try title action from his claims for damages to enable the ranch to be sold and debts paid without awaiting disposition of the appel-lee’s claims for damages.

The judgment is affirmed.

CADENA, Justice,

concurring.

I cannot agree with the majority opinion insofar as it holds, or gives the appearance of holding, that in a trespass to try title suit the issues of title or right to possession and damages are severable.

Here, appellee seeks to recover damages and rents, which are “constituent elements of a cause of action in trespass to try title.” Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69 (1945). The cause of action in trespass to try title asserted by plaintiff in this case, then, is a unit composed of the elements of title and damages. The conclusion that damages is a constituent element of the cause of action in trespass to try title compels the inference that there is but one cause of action, and that damages is but a part of that single cause of action. The severance in this case is nothing more than an attempt to try, as separate cases, different elements of a single cause of action.

Nor do I agree that appellee’s announcement in oral argument before this Court of his waiver of the right to recover damages resulting from the unlawful withholding of possession by appellant, has any effect on the propriety of the severance. There is nothing in the papers on file in the trial court which even suggests that appellee has waived any claim asserted in his pleadings. A plaintiff who, in a tort action, obtains a “partial” summary judgment on the question of liability and then induces the trial court to sever the damage issue for trial in a separate proceeding cannot be said to have waived his right to recover damages.

However, I agree with the judgment of affirmance. The order of severance was entered on November 23, 1976. Appellant had notice of the filing of appellee’s motion to sever. He gave notice of appeal on November 29, 1976, and this instrument expressly refers to the order of severance of November 23. At no time did appellant object to the action of the court in ordering the severance, although it is clear that he had notice of the severance at a time when he could have moved that it be set aside. He cannot now “complain of a mere error in granting the same.” Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76, 78 (1959). The Supreme Court expressly held in Reynolds that a court has the power to sever one entire cause of action into two or more parts and render separate final judgments disposing of both parts. The Supreme Court there expressly disapproved of holdings to the effect that an order severing a single cause of action into two parts is wholly ineffective. The result is that the order of severance, albeit erroneous, made the judgment as to the title portion of the cause of action final and appealable.

      . This Court granted appellant’s application tion of this appeal. to enjoin execution of the writ pending determina-

      . It is unnecessary for us to consider or decide appellee’s contention that such a verbal understanding would violate the Statute of Convey-anees, the Statute of Frauds, or the Parol Evidence Rule as well as the Dead Man’s Statute.

      . The question of severability of the two issues was noted, but not decided, in Zambrano v. Olivas, 477 S.W.2d 299, 300 (Tex.Civ.App.—El Paso 1972, no writ).


author: YOUNG, Justice.

text:
    The VENTURA, Appellant, v. HUNTER BARRETT & COMPANY, Appellee.
    No. 1154.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 9, 1977.
    Rehearing Denied June 30, 1977.

      David B. Connery, Jr., Rockport, for appellant.

      Charles L. Stephens, Fort Worth, for ap-pellee.
   OPINION

YOUNG, Justice.

This venue case arose from a suit brought in Aransas County by The Ventura against Hunter Barrett & Company. Ventura, a condominiums regime, sought through injunction to have Barrett, one of the apartment owners, remove a boat dock and fish cleaning stand from a wooden sundeck area which was a part of the common elements of the condominium. Barrett filed a plea of privilege to be sued in Tarrant County, the county of his residence. Ventura controverted the plea and sought to maintain venue in Aransas County under Tex.Rev. Civ.Stat.Ann. art. 1995, §§ 9, 12 and 14 (1964). After a hearing, Barrett’s plea of privilege was sustained. Ventura has appealed.

In its appeal Ventura is not urging the applicability of Section 12 of Article 1995, but does rely on Sections 9 and 14 to hold venue in Aransas County.

Of Ventura’s two points of error we will first consider its point 1 which is about Section 14. This section provides as follows:

“Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”

To establish venue in Aransas County Ventura had the burden of establishing that the nature of the suit concerned land as contemplated by Section 14 and that the land was located in Aransas County. Piazza v. Phillips, 153 Tex. 115, 264 S.W.2d 428 (1954); Noel v. Griffin & Brand of McAllen, Inc., 478 S.W.2d 633 (Tex.Civ.App.—Corpus Christi 1972, no writ). Ventura alleged and the evidence shows that the land is situated in Aransas County. The present dispute involves the nature of the suit brought by Ventura. In that regard, our Supreme Court has determined that where venue depends on the nature of the suit, the venue will be determined by the nature of the principal right asserted in plaintiff’s petition and the relief sought therein. Brown v. Gulf Television Company, 157 Tex. 607, 306 S.W.2d 706 (1957).

All of which brings us to an examination of Ventura’s petition. There Ventura alleged that it was a condominium regime located in Aransas County and that Barrett was owner of Apartment No. 6 of The Ventura. It was there further alleged that Barrett’s ownership of Apartment No. 6 entitled him to the airspace therein and an undivided interest in the general common elements of Ventura. The common elements included a wooden sundeck which bordered on Little Bay. Then Ventura alleged that Barrett had in August and September of 1975 caused to be erected a boat slip and fish cleaning stand extending into Little Bay which were attached to the sundeck, a part of the common elements of Ventura. This action, Ventura alleged, constituted an encroachment upon, an alteration of, an appropriation of legal and equitable rights of, and a'trespass to the undivided interests in the common elements of the remaining Ventura owners. It was further alleged that no adequate remedy at law existed for this action and that if Barrett was not enjoined The Ventura would suffer irreparable injury.

Barrett counters that the true nature of this suit is not one which concerns land as contemplated by Section 14 because the only relief sought is injunctive. Therefore, Barrett urges, venue lies in the county of defendant’s residence under Tex.Rev.Civ. Stat.Ann. art. 4656 (1940) and Section 30 of Article 1995. Article 4656 states that writs of injunctions shall be tried in the county where the party against whom it is sought is domiciled. Section 30 provides that where a law governing a type of action prescribes venue then such venue is controlling.

Barrett relies primarily on the Supreme Court decision of Brown v. Gulf Television Co., supra, to support its position. We do not find this case controlling, however, under the facts of this case. In Brown, petitioners in their suit against Gulf asked, among other things, for the forced removal of a television antenna located on Gulf’s land because it interfered with air traffic to a runway located on Brown’s land. The Supreme Court held that the primary nature of the suit was injunctive and hence venue was not controlled by Section 14. The basis of this decision was that plaintiff’s petition did not show that he was seeking an adjudication of any question involving title to or any right or interest in his land. Rather, he was seeking damages for loss of profits to a business located on real property or losses occasioned by a decrease in market value of land used for business purposes; thus there was no invasion of the land itself or right appurtenant thereto. His damages did not, therefore, arise from injury to the possession or the freehold of the estate.

Section 14 and Article 4656 have been construed to be consistent. The test as to which controls is that whenever it can properly be said from the pleadings that the issuance of the injunction is ancillary to a judgment awarding recovery of land or quieting title thereto, Section 14 controls. But where the petition discloses that the primary relief sought is injunctive then Art. 4656 controls. Brown v. Gulf Television Company, supra; Uvalde Rock Asphalt Co. v. Asphalt Belt Ry. Co., 267 S.W. 688 (Tex.Com.App.1925 opinion adopted).

In the present case Ventura is seeking to protect the interests of the owners other than Barrett in the common elements of the condominium. We hold that the common elements of a condominium are interests in land held by the owners as tenants in common. See 15A Am.Jur.2d, Condominiums, § 33 (1976). Thus, clearly this suit is one brought to restrain encroachment or interference with the possession of land or claimed right or interest therein as contemplated by Section 14.

It is also true, however, that the sole remedy sought by Ventura is injunctive relief. But this fact alone is not controlling. There are numerous decisions holding that suits which require the determination of a question concerning title to land, or the right to interest in land, are suits involving title to land as contemplated by Section 14 even though the only relief sought is in-junctive. Uvalde Rock Asphalt Co. v. Asphalt Belt Ry. Co., supra; Marshall v. Ballard, 314 S.W.2d 368 (Tex.Civ.App.—Eastland 1958, writ dism’d); Magnolia Pipe Line Company v. Moore, 292 S.W.2d 142 (Tex.Civ.App.—Fort Worth 1956, writ dism’d); Lower Colorado River Authority v. Camp Warnecke, 267 S.W.2d 840 (Tex.Civ.App.—San Antonio 1954, no writ); Carleton v. Dierks, 195 S.W.2d 834 (Tex.Civ.App.—Austin 1946, no writ); Posey v. Williamson, 134 S.W.2d 335 (Tex.Civ.App.—Austin 1939, no writ); Walter v. Hammonds, 42 S.W.2d 1084 (Tex.Civ.App.—Texarkana 1931, no writ).

In his last contention urging our affirmance of the trial court’s action in sustaining his plea of privilege, Barrett urges that he has successfully challenged Ventura’s good faith in its allegations to hold venue in Aransas County. Barrett, in his special exceptions, raised the question of fraud on the jurisdiction for venue purposes. At the venue hearing evidence was elicited that Barrett received consent in 1968 from the Council of Co-Owners of Ventura for the construction of dock facilities. He constructed those facilities soon thereafter.

The rule of law in that regard is set out in Gold v. Simon, 424 S.W.2d 32 (Tex.Civ.App.—Fort Worth 1968, no writ). The rule is: if in a plea of privilege case wherein defendant has affirmatively alleged fraud on the jurisdiction, defendant is entitled to introduce proof that the cause does not fall within exceptions to the general venue statute and incident to such proof establishes that plaintiff has no maintainable action, then the trial court is required to remove the cause of action to defendant’s county of residence. The defendant has the burden of proof on the fraud or good faith issue.

Here the evidence did show that Barrett had received consent in 1968 to build dock facilities in front of his apartment. Barrett constructed the dock 30'6" wide pursuant to the consent. Then in 1975 • he remodeled or reconstructed those facilities. But undisputably he widened the facility to extend at least 23" more along and attached to the sundeck, a part of the common element of the condominium.

This evidence does not show that Ventu-ra’s action is not maintainable and thereby making his allegation for venue purposes a fraud on the jurisdiction. The evidence only shows encroachment by Barrett and tends to support Ventura’s allegations. Therefore Ventura’s first point is sustained.

In its other points, Ventura urges Section 9 to hold venue in Aransas County. In that we have sustained its first point thereby requiring us to reverse the trial court’s action in sustaining Barrett’s plea of privilege, we do not deem it necessary to resolve Ventura’s second point.

The judgment of the trial court is reversed and it is here rendered that Barrett’s plea of privilege is overruled.


author: BISSETT, Justice.

text:
    Alicia DE LEON, Adriana Castillo, and Olga Garza, Appellants/Cross-Appellees, v. HARLINGEN CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Appellee/Cross-Appellant.
    No. 1177.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 9, 1977
    Rehearing Denied June 30, 1977.

      James A. Herrmann, Texas Rural Legal Aid, Inc., Harlingen, for appellants/cross-appellees.
    Orrin W. Johnson, Johnson & Davis, Har-lingen, for appellee/cross-appellant.
   OPINION

BISSETT, Justice.

This is a school admissions case. The minors, Olga Garza, Adriana Castillo, and Alicia de Leon, by and through their next friends, filed suit in the 197th District Court of Cameron County, Texas, against the Harlingen Independent School District, hereinafter referred to as the “District,” seeking to permanently enjoin the District from refusing to enroll them as tuition-free students.

The District answered with a plea to the jurisdiction and a general denial. It was asserted in the plea to the jurisdiction that the trial court did not have any jurisdiction to hear and determine the issues presented by plaintiffs’ petition because plaintiffs failed to exhaust their administrative remedies before filing suit. Temporary restraining orders were issued by the trial court which restrained the District from refusing to admit the plaintiffs as tuition free students. The trial court later dissolved the temporary restraining orders previously issued in favor of Alicia de Leon and Adriana Castillo, subject, however, to a stay of time pending appeal, and denied their applications for temporary injunction. The trial court also overruled the District’s plea to the jurisdiction, and further converted the temporary restraining order theretofore granted Olga against the District into a temporary injunction, pending final hearing of the cause. Alicia de Leon, Adriana Castillo and the District have perfected appeals to this Court from those portions of the judgment which were adverse to them.

Two questions are presented by this appeal. The first is whether the interpretation and application of Tex.Educ.Code Ann. § 21.031 (Supp.1976), to the plaintiffs by the District is constitutionally permissible. The second is whether the plaintiffs were required to first exhaust their administrative appeals before filing suit against the District to compel the District to enroll them as students in its school system.

It was the policy of the District to admit tuition-free only those students who: 1) resided with their parents within the District; or 2) resided with a legally-appointed guardian within the District; or 3) resided with a person within the District who had lawful control over the prospective student pursuant to orders of the juvenile court or a child welfare agency. In determining the question of whether the applicant was entitled to tuition-free education, initially, the school admissions officer decided whether the child was a bona fide resident of the District, or whether the residence in the District was “ostensibly purely for the purpose of going to school.” Each individual case was decided strictly on the particular facts pertaining to the “residence” of the applicant. It was the further policy of the District for anyone who was dissatisfied with the decision of its admissions officer to provide for an appeal to the Superintendent of Schools and then to the Board of Trustees of the District.

It is conclusively established by the record that at the time applications were made, the three children lived in the District, but that their parents resided elsewhere. Olga’s mother resided in Houston, and her father was a patient in a state hospital which was situated outside the boundaries of the District; she resided with her grandfather, who was a bona fide resident of the District. Alicia’s parents resided in Matamoros, Mexico; she lived with her aunt, who was a bona fide resident of the District. Adriana’s parents resided in Reynosa, Mexico; she lived with her uncle, who was a bona fide resident of the District. None of the children had legally-appointed guardians who resided in the District. There is no evidence that the relative with whom each child lived had lawful control of the particular child at the time in question.

Tex.Educ.Code Ann. § 21.031 (Supp.1976) reads:

“(a) All children who are citizens of the United States or legally admitted aliens and who are over the age of five years and under the age of 21 years on the first day of September of any scholastic year shall be entitled to the benefits of the Available School Fund for that year.
(b) Every child in this state who is a citizen of the United States or a legally admitted alien and who is over the age of five years and not over the age of 21 years on the first day of September of the year in which admission is sought shall be permitted to attend the public free schools of the district in which he resides or in which his parent, guardian, or the person having lawful control of him resides at the time he applies for admission.
(c) The board of trustees of any public free school district of this state shall admit into the public free schools of the district free of tuition all persons who are either citizens of the United States or legally admitted aliens and who are over five and not over 21 years of age at the beginning of the scholastic year if such person or his parent, guardian or person having lawful control resides within the school district.”

Under existing law in this State, except under extraordinary circumstances, the residence of a minor child is that of his parents. While we recognize that there are some situations whereby a minor child may acquire a residence separate and apart from that of his parents which will entitle him to a tuition-free education, we do not think that a residence for free education is established by the mere presence of the child in another district for the sole purpose of attending school. There must be other cogent reasons. Such, in effect, was one of the holdings of this Court in Brownsville Independent School District v. Gamboa, 498 S.W.2d 448 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.).

The Attorney General of Texas has taken the position that the sending of a child from one school district to another for the sole purpose of participating in the advantages offered by that school district is not sufficient for the furnishing of tuition-free education. Tex.Atty.Gen.Op.Nos. 0-586 (1939), H-63 (1973). It was clearly set out in those opinions that the residence of a child for the purpose of determining his eligibility for free public education under the statute (Sec. 21.031 of the Code) is normally that of his parents, and whether residence elsewhere will qualify the minor to tuition-free education will depend upon whether the residence is bona fide or is merely for the sole purpose of attending a different school.

The state has a legitimate interest in protecting and preserving the quality of education within its school system. See generally Dunn v. Blumstein, 405 U.S. 330, 343, 92 S.Ct. 995, 31 L.Ed.2d 274 (1962). This includes the setting of reasonable residency or status requirements to insure that those who come within the bounds of that district solely for educational purposes cannot take advantage of the lesser tuition rates. Vlandis v. Kline, 412 U.S. 441, 452-3, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973). The variability of student population is a serious impediment to the effective planning of virtually all phases of the educational process. There is no justification for a requirement that a school system educate in tuition-free manner those children whose only indicia of residence is mere presence within the district, accompanied by the student’s desire (or that of his parents) to attend school therein. It is reasonable to draw the line of residency, at least for school admission purposes, between those who come within a school district because they had to move into the district for some valid reason other than for educational purposes, and those who have come there for the sole purpose of getting tuition-free education within the district. There is no reason to add to the burdens of a school district by freely admitting to its schools anyone who has previously resided outside the district simply because they want to attend the schools in the district.

The evidence reveals that the District does admit all students to its schools who are bona fide residents of the District, and that its admissions policies and practices are applied uniformly and without discrimination. The evidence further shows that the District has attempted to follow the mandate of Section 21.031 of the Texas Education Code, as well as the guidelines set out in the opinions of the Attorney General.

Alicia and Adriana each assert that the word “reside,” as used in Section 21.031 of the Texas Education Code, means merely that the child must be living in the District on the day application for enrollment is made. The word “reside” is not defined in the Code, and, therefore, its meaning must be determined by considering the object and purpose of the statute in which the word is employed. Prince v. Inman, 280 S.W.2d 779, 781-2 (Tex.Civ.App.—Beaumont 1955, no writ); Switzerland Gen. Ins. Co. v. Gulf Ins. Co., 213 S.W.2d 161 (Tex.Civ.App.—Dallas 1948, writ ref’d n. r. e.); 77 C.J.S. Residence p. 290 (1952).

The word “reside,” as used in the statute, can only be given the meaning ascribed by the Attorney General. Such a meaning is essential if the quality of education within a particular school district is to be preserved. Any different meaning would certainly cause chaotic conditions in many school districts of this State, particularly those along the Rio Grande River. The mere fact that a child lives in a school district, without more, will not satisfy the residence requirement of the statute. The contentions of Alicia and Adriana, if sustained, would render the statute ineffective as a means of imposing reasonable and workable residency requirements upon those children who are physically present in the District, but who do not reside with parent, guardian or other person who has lawful control of them at the time they apply for admission. This, we refuse to do. The trial court did not err, as contended by Alicia and Adriana in their second point of error, in ruling that the admission policies of the District do not contravene either the Fourteenth Amendment of the United States Constitution or Tex.Const. Art. I, § 3. Their second point is overruled.

We have carefully considered the first point of error asserted by Alicia and Adriana, wherein it is stated that the trial court’s dismissal of their application for a temporary injunction constituted error “as a matter of law” because such dismissal “was a misapplication of law to undisputed facts.” The point has no merit, and is overruled.

We now consider the District’s fifth, sixth and seventh points of error that it was error to deny its plea to the jurisdiction. In that connection, it is necessary that we discuss the evidence concerning the reasons why the children attempted to enroll as tuition-free students in the District.

Olga, at the time in question, was 13 years of age, and was a United States citizen. She had moved from her mother’s home in Houston and was living with her grandfather, Miguel Garcia, within the District. There is evidence that in some of the preceding years, Olga attended schools other than those in the District. There is also some evidence that she had “always gone to Harlingen schools,” which were in the District. There is evidence that Olga had theretofore resided with her grandfather at various intervals for long periods of time. The admissions officer for the District testified that upon application by Olga to attend the District’s schools, he had a conference with Miguel Garcia, who told him that the reason for Olga’s coming to live with him in the summer of 1975 “was for the purpose of going to school.”

Alicia was 6 years old when she sought to enroll in a school in the District. She is a United States citizen, although her parents reside in Matamoros, Mexico. In August, 1975, approximately two weeks prior to the beginning of the next succeeding school year, she moved from the home of her parents in Matamoros to the home of her aunt, Mrs. Luisa Banda, a Mexican citizen, who, at all times material to this appeal, was a resident alien who was legally residing within the District. Mrs. Banda testified that she cared for Alicia, and furnished her clothes and other necessaries; that Alicia’s parents wanted the child to live with her; that she was better able to take care of the child than were Alicia’s parents; that Alicia had come up to Harlingen several weeks before the effort was made to enroll her in one of the schools in the District; and that it was the child’s intention and the intention of her parents that she remain with her until Alicia’s parents could immigrate to the United States. The school admissions officer testified that Mrs. Banda informed him that the reason for Alicia’s moving to Harlingen was because her parents wanted her “to go to school to get an education.”

Adriana, who was 6 years old in August, 1975, is a United States citizen whose parents reside in Reynosa, Mexico. She had always resided with her parents in Reynosa until August, 1975, when she, with the consent of her parents, came to Harlingen, and began living with her uncle, Jose Lopez, who resided in the District. Jose Lopez did not testify at the hearing on the petition of injunctive relief. The school secretary, who registered the child, testified that she had been informed that Adriana’s mother resided in the District when the child was registered. Her teacher testified that on the first day of school her uncle (Jose Lopez) told her that the child was living with him because “he wanted the child to go to school.” Adriana told her teacher that she spent each weekend with her parents in Reynosa. The school admissions officer testified that his investigation revealed that Adriana had been in Harlingen for approximately a week at some point during the summer of 1975, but later returned to Rey-nosa, and did not come back to Harlingen until just prior to the opening of the school, and that she thereafter spent her weekends in Reynosa.

Apparently, all three children were registered by the school authorities under the belief that they were bona fide residents of the District at the time applications were made for enrollment. Later, the District determined that they did not meet the residency requirements for tuition-free education. The children and the relatives with whom they lived were then informed that the District would not furnish tuition-free education. Suit was filed shortly thereafter.

Concerning Olga, the trial court found that one reason for her “taking up residence with her grandfather” was to attend a school in the District, but that there were other reasons, such as her family felt that her grandfather was better able to care for her. With respect to Alicia and Adriana, the trial court found that each moved into the District for the sole purpose of “obtaining an education within the Harlingen Public School System.”

With reference to all three children, the trial court found:

“ . . . There was no controverted fact issue before the School District or governing its actions and its refusal to admit the child was solely upon the School District policy based upon its construction of the statutes.”

With respect to the District’s points of error now under consideration the trial court concluded that none of the children was required to exhaust any administrative remedies available to them in that their admission as tuition-free students to the schools in the District was denied by the District “upon a policy of such District based on its construction of the law and not of fact.”

The District, in summary, contends that the trial court erred in denying its plea to the jurisdiction because the factual findings were premature in that the court did not have jurisdiction to make any fact findings or to render any judgment on the claims asserted by the children until the children had first exhausted their administrative remedies. It is undisputed that none of the children (plaintiffs) appealed the ruling by the school admissions officer to any administrative official, board or agency.

Cases which have involved disputes arising under the school laws of Texas, or which involved a complaint as a result of actions or decisions by school district authorities clearly lay down the rule that in all such cases involving factual determinations, as distinguished from cases involving pure questions of law, the party complaining of the action by school authorities must exhaust all administrative appeals before resort may be had to the courts for relief. Mission Independent School Dist. v. Diserens, 144 Tex. 107, 188 S.W.2d 568 (1945); Palmer Pub. Co. v. Smith, 130 Tex. 346, 109 S.W.2d 158 (Tex.Com.App.1937, opinion adopted);. Ector County Independent School District v. Hopkins, 518 S.W.2d 576 (Tex.Civ.App.—El Paso 1974, no writ); Garcia v. Pharr, San Juan, Alamo Independent School District, 513 S.W.2d 636 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.); McIntyre v. Hoblinski, 333 S.W.2d 697 (Tex.Civ.App.—Waco 1960, writ ref’d.).

There is a factual uncertainty in the case of Olga as to the real reason (or reasons) for her move from Houston into the District. Although the trial court found that there existed other reasons for Olga’s relocation in Harlingen in addition to that for tuition-free purposes, it is undisputed that at the time Olga and her grandfather presented her request for enrollment to the admissions officer of the District, they assigned no reason other than the fact that she wanted to go to school in Harlingen. The admissions officer was not advised of any other reason which required her to leave her mother’s home.

Considering all of the evidence presented by the record, there is evidence that the principal reason for Olga’s request for admission to a school in the District was to go to school in the District; however there is some evidence that her presence in the District was caused by other reasons as well. A fact issue concerning the real reason for Olga’s residing in the District is presented.

The factors which appear in the record that affect the issue of residency of Alicia and Adriana are: the period of time each child has been living within the District; the future plans of the parents as to where they and their child shall live; the justification from a standpoint of the health and welfare of each child, excluding the educational aspects of the problem; the presence of family difficulties as a motivating factor in the child's moving into the District; residence on weekends; and, finally, the stated purpose of residency in the District by the relatives of each child. A fact issue relating to the primary reason for both Alicia and Adriana residing in the District is also presented.

Certain factual issues had to be resolved before there could be a determination of whether each of the plaintiffs was a bona fide resident of the District at the time pertinent to this appeal. Those issues do not constitute purely questions of law, but constitute factual determinations. They should have been resolved by the appropriate administrative agencies through appeals provided by law before relief was sought in the courts. Neither Olga, Alicia nor Adriana exhausted their administrative remedies before they filed suit. Consequently, judicial review was premature. The District’s plea to the jurisdiction should have been sustained and the cause should have been dismissed. The trial court was without jurisdiction in the case, save and except to render a judgment of dismissal of plaintiffs’ asserted cause of action for want of jurisdiction. Therefore, it becomes the duty of this Court to set aside the judgment of the trial court and to dismiss plaintiffs’ case. C. E. Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823 (1961); Jones v. Bass, 49 S.W.2d 723 (Tex.Com.App.1932, opinion approved); Atlantic Richfield Company v. Liberty-Danville Fresh Water Supply District No. One of Gregg County, 506 S.W.2d 931 (Tex.Civ.App.—Tyler 1974, writ ref’d n. r. e.); Travelers Express Company, Inc. v. Winters, 488 S.W.2d 890 (Tex.Civ.App.—El Paso 1972, writ ref’d n. r. e.); Matlock v. Williams, 281 S.W.2d 229 (Tex.Civ.App.—Beaumont 1955, no writ); Dula v. Bush, 136 S.W.2d 898 (Tex.Civ.App.—Dallas 1939, no writ).

The District’s fifth, sixth and seventh points are sustained. The disposition which we make of this appeal renders it unnecessary for us to pass on the District’s remaining points or on its cross points.

The judgment of the trial court is REVERSED and judgment is here rendered that the cause be DISMISSED.