author: AKIN, Justice. GUITTARD, Chief Justice,

text:
    REYNOLDS-PENLAND COMPANY, Appellant, v. HEXTER & LOBELLO et al., Appellees.
    No. 19337.
    Court of Civil Appeals of Texas, Dallas.
    April 24, 1978.
    Rehearing Denied May 28, 1978.

      Robert B. Payne, Ronald G. Houdyshell, Payne & Spradley, Dallas, for appellant.
    John H. McElhaney, Mark G. Magilow, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellees.
   AKIN, Justice.

The principal question on this appeal is whether equity will relieve a lessee, who, without fault on the part of the lessor, forgot to give timely notice of intention to renew an option to extend the lease term for an additional five years. We hold that the neglect of the lessee bars the interposition of equity. Accordingly, we affirm.

The property in question is located in a suburban shopping center and is used by the lessee as a men’s clothing store. The lease was for a term ending on January 31, 1977, and contained the following provision granting the lessee an option to renew the lease:

The lessee shall have, and is hereby given, the right to extend this lease for a further period of five (5) years beginning February 1, 1977, conditioned only that the lessee shall give to lessors written notice of its election to exercise such right of extension at least nine (9) months prior to January 31, 1977. [Emphasis added]

Under this provision, the time for exercising the option of renewal expired on April 30,1976. After the lessee failed to exercise its option of renewal, Hexter, as representative of the lessor, notified Reynolds-Pen-land on June 28, 1976, that the lessor expected Reynolds-Penland to vacate the premises at the end of the lease term. Upon receiving this notice, the lessee’s principal officer, Ed Reynolds, attempted to exercise the renewal option by letter of July 1,1976, slightly more than two months after the time specified in the lease. The lessors declined to accept the attempted late exercise of the option and elected to stand upon the specific condition in the lease and filed this suit seeking a declaratory judgment pronouncing the lease terminated on January 31, 1977. Reynolds-Penland responded, contending that since the delay in exercising the renewal option was slight, and that since the lessor had suffered no damage by the delay, the court should, accordingly, declare Reynolds-Penland’s late exercise of the renewal effective. On these grounds, Reynolds-Penland moved for summary judgment, asserting that no fact issues existed and that it was entitled to summary judgment, as a matter of law, under equitable principles, extending the lease for an additional five years at the rate specified in the lease. The lessors also moved for summary judgment on the ground that, as a matter of law, Reynolds-Penland had no right to renew except as specifically provided in the lease. Prior to hearing on the motions, the parties stipulated that certain relevant exhibits and depositions would be considered as summary judgment evidence, fully authenticated for such purposes, so that the trial court could consider all evidence in ruling on both motions. The trial court denied the motion of Reynolds-Penland, but granted the motion of lessors and rendered judgment accordingly. Reynolds-Penland appeals.

The facts are undisputed. Reynolds, who was charged with the responsibility for exercising the option, testified in his deposition that he simply forgot to exercise the option and admitted that nothing said or done by the lessors misled him. He also testified that the lease containing the option was in the possession of Reynolds-Pen-land’s attorneys, but he thought the lease required a six-month notice, rather than nine. When his attention was called to the matter by the lessor some two months after the time, had expired for exercising the renewal option, he attempted belatedly to exercise the option. Reynolds admitted that he had had years of extensive experience in leasing property, both as a landlord and as a tenant; he understood renewal options and knew that the option was required to be exercised timely in writing. Reynolds-Penland argues that the trial court erred in failing to recognize and apply the “rule of equity” which provides that a lessee’s delay in giving written notice of renewal of the lease option should be excused where the delay was slight, lessor’s loss small, and undue hardship would result to the lessee from the withholding of relief. We cannot agree with this contention because no such equitable rule exists in Texas.

The crucial question is whether mere neglect of the lessee in failing to timely exercise its option, absent other ameliorating circumstances such as fraud, misleading statements or acts by the lessor, or waiver, justifies the interposition of equity to rewrite a lease. We believe the correct rule, supported by the more numerous and better reasoned decisions, is that equity will not intervene in such a situation even though it may result in hardship to the lessee. Koch v. H & S Development Co., 249 Miss. 590, 163 So.2d 710 (1964); McClellan v. Ashley, 200 Va. 38, 104 S.E.2d 55 (1958); Woodrum v. Pulliam, 453 S.W.2d 263 (Ky. App.1970); see, Cattle Feeders, Inc. v. Jordan, 549 S.W.2d 29, 32-33 (Tex.Civ.App.—Corpus Christi 1977, no writ); Forest Park Lanes, Ltd. v. Keith, 441 S.W.2d 920, 932 (Tex.Civ.App.—Fort Worth 1969, no writ); see also Annot., 44 A.L.R.2d 1352 (1955).

The lease provision required a nine-month notice to the lessor of the lessee’s intent to renew for an additional five-year term at the same rental rate. This notice was a condition precedent to the lessee’s right to renew and was for the lessor’s benefit. Since Reynolds-Penland failed to exercise timely its right to renew through mere forgetfulness, that right was lost. The question then becomes whether equity should intervene in such a situation to relieve the lessee from complying with the terms of the lease, absent a waiver of the condition by the lessor. We hold that the neglect of the lessee bars the interposition of equity to grant relief to the lessee under these circumstances. In view of this holding, the common law rule that time is of the essence applies. Since the parties had contracted for a nine-month notice to be given as a condition precedent to the lessor’s obligation to extend the lease for an additional five years, the lessee must strictly adhere to this condition, unless excused by circumstances beyond his control. CLARK, EQUITY, § 144 (1954).

Reynolds-Penland asserts that not only will it be subjected to hardship, but also that a forfeiture of their anticipated renewal term will result. We cannot agree. At the time this suit was filed, Reynolds-Penland had nothing to forfeit. Its only right to occupy the premises beyond the primary term which the lessee had, was contained in the. lease. A mere neglect to comply with the condition precedent gives the lessee no rights in the leased premises beyond the primary term. See WALSH, EQUITY, § 72, pp. 360-61 (1930). Consequently, there can be no forfeiture, as Reynolds-Penland asserts, since no primary right ever came into existence.

Our holding as to when equitable principles apply is supported by the rationale in Barfield v. Howard M. Smith Company of Amarillo, 426 S.W.2d 834, 839 (Tex.1968). In that case, the supreme court held that a party claiming an estoppel must have used diligence to ascertain the truth of the matters upon which he relies in acting to his detriment. Barfield concerned a situation where the lessee had paid a lesser rental than that specified in the lease and asserted an equitable estoppel against the lessor’s action for the difference. In rejecting this argument, the court stated that “[0]ne of the requirements of estoppel is that the party claiming the estoppel was without knowledge, or the means of acquiring knowledge of the facts which the party to be estopped is alleged to have represented by his acts, conduct or silence.” That court concluded that where the facts were open for his convenient ascertainment, he cannot effectively say he was deceived or misled. The same principle applies here. Similarly, Reynolds-Penland had a copy in its possession, and could easily have ascertained the date for exercising the option by simply reading the lease.

Furthermore, in the absence of fraud or misrepresentation, a party is charged with knowing the legal effect of a contract voluntarily made. Barfield at 838. To state the rule differently, absent fraud, a party to a contract who has access to the full information of its contents cannot avoid it on the ground of his own neglect in failing to read it. Indemnity Ins. Co. of North America v. W. L. Macatee & Sons, 129 Tex. 166, 101 S.W.2d 553, 556 (1937); Morrison v. Insurance Company of North America, 69 Tex. 353, 359, 6 S.W. 605, 606 (1887); Womack v. Western Union Telegraph Co., 58 Tex. 176, 179 (1882).

In support of its contention that equity should intervene, Reynolds-Penland cites dicta in Jones v. Gibbs, 133 Tex. 627, 130 S.W.2d 265, 272 (1939); which quoted the following statement from F. B. Fountain Co. v. Stein, 97 Conn. 619, 118 A. 47, 50 (1922):

In cases of mere neglect in fulfilling a condition precedent of a lease, which do not fall within accident or mistake, equity will relieve when the delay has been slight, the loss to the lessor small, and when not to grant relief would result in such hardship to the tenant as to make it unconscionable to enforce literally the condition precedent of the lease. [Emphasis added]

In our view, Texas has not adopted this rule. Jones v. Gibbs, supra, concerned an option to renew a lease to cut timber where the defendants had paid the full consideration for the timber at the time the lease was executed. The Commission of Appeals held that the option was renewed when the lessee timely paid, at the administrator’s direction, the option renewal sum to the attorney for the lessor’s estate.

The dicta in Jones discussing F. B. Fountain, supra, as well as other cases, was not essential to the decision and was predicated upon the assumption by the court that “[I]f it is assumed the plaintiff in error (Jones) did not direct the payment of the rental for 1934 to be made to Wynne (the attorney for Jones), then the facts and circumstances proven by the undisputed evidence . are such . . . as to bring the case within the qualification established by the foregoing authorities to the strict rule generally applied to options. The case is one for the application of “overruling equitable rules”. Jones, 130 S.W.2d at 273. We do not regard this dicta as adopting the rule in F. B. Fountain v. Stein, supra. This is particularly true in light of the fact that the Connecticut court clearly stated that equity would intervene in the case of mere neglect and yet the court in Jones when it discussed by dicta this decision, as well as other decisions not so broad as Fountain, to the assumed facts, stated that equity would intervene where the lessee’s failure to comply was due in part to the conduct of the lessor or was the result of an honest and justifiable mistake on the part of the lessee and equity would not intervene in the case of willful conduct or gross negligence. Jones at 275. The Jones court did not say that equity will intervene in ease of mere neglect. We do not read the language “honest and justifiable mistake” to include within its ambit mere neglect in failing to read a lease. Furthermore, no question of neglect on the part of the lessee existed in Jones; indeed, the lessee in Jones acted both timely and diligently. Consequently, in the absence of a clear statement that equity will intervene in cases of mere neglect, the dicta in Jones, supra, is not authority to hold that equity will intervene when the lessee merely neglected to read its lease and to exercise its option.

Neither does Sirtex Oil Industries, Inc. v. Erigan, 403 S.W.2d 784 (Tex.1966) support Reynolds-Penland’s position. Although that court quoted from the dicta in Jones v. Gibbs, supra, it held that the clause in a lease requiring annual payments was a covenant, not a condition. This holding disposed of the case, but that court noted by dicta that equity abhors a forfeiture and copied the quotation of F. B. Fountain v. Stein, supra, from Gibbs. Since that discussion was not essential to the decision, and since the question of whether neglect justifies the interposition of equity was not before that court nor discussed by that court, we conclude that Sirtex is, likewise, not authority to hold that mere neglect of a lessee condones the intervention of equity.

We cannot agree with the dissent’s assertion that the discussion of equitable principles in Jones and Sirtex was an independent or alternative ground upon which each of these decisions rested. In our view, the dissent fails to draw a distinction between a holding predicated upon two separate and distinct grounds (alternative grounds) and dicta. In Casparis v. Fidelity Union Casualty Co., 65 S.W.2d 404, 406 (Tex.Civ.App.—Austin 1933, writ ref’d), the Austin Court of Civil Appeals enunciated the rule that “where an appellate court rests its decision on two or more distinct grounds, each is as much an authoritative determination as the other, and neither can be disregarded as obiter dictum.” Id. 406. In Casparis, the court was concerned with whether it was bound by both grounds of the Commission of Appeals’ decision in Cooper v. United States Fidelity & Guaranty Co., 29 S.W.2d 971, 973 (Tex.Comm’n App.—1930, judgmt. adopted). The Casparis court did not, however, discuss the distinction between alternative holdings of an opinion and obiter dicta. Although we agree with the rule stated in Casparis, it has no application here. In our view, there is a sharp distinction between alternative holdings and obi-ter dictum. The former exists where the appellate court rests its decision under the facts presented on two separate, but equally valid, grounds. For example, a court may rest a decision on the statute of frauds, and, additionally, on the statute of limitations, either of which is determinative. On the other hand, obiter dictum exists where an appellate court decides a case on a specific ground based upon the facts of the case and, then assuming facts not before it, makes statements based upon the assumed facts. Such was the case in both Jones and Sirtex.

If the view advanced by the dissent is accepted, all contracts would be called into question as meaningless and uncertain, dependent upon the whims of a panacean court or a jury. If certainty of rights and obligations is the basic goal of contract law, this goal would be frustrated by making every option contract the subject of equitable discretion by both court and jury. The absurdity of such a rule is even more apparent where, as here, the contract is between experienced and sophisticated businessmen.

Affirmed.

GUITTARD, Chief Justice,

dissenting.

I cannot agree that this is a proper case for summary judgment. In my opinion, the record presents fact issues or, at least a question of equitable discretion that could not properly be decided by the trial court on the summary-judgment proof.

The majority opinion approaches this case as if the principal question were whether neglect of the lessee “justifies” equitable relief. Such a statement of the question assumes a negative answer because, of course, the plaintiff’s neglect is never a ground of relief. As I see it, the question is rather whether the lessee’s forgetfulness bars equitable relief, no matter what grounds for such relief may be shown. More precisely, I would state the question as whether, in cases of merely inadvertent failure to comply strictly with the time requirement for giving notice of renewal of a lease, equity will relieve when the delay has been slight, the loss to the lessor small, and when denial of relief would result in such a hardship to the tenant as to make it unconscionable to enforce literally the time requirement as a condition precedent to renewal. Although I recognize that the authorities are divided on this question, I conclude that the better view allows such relief in a proper case, and I believe that this view has been adopted by the Supreme Court of Texas in Jones v. Gibbs, 133 Tex. 627, 130 S.W.2d 265, 272 (1939) and Sirtex Industries, Inc. v. Erigan, 403 S.W.2d 784, 788 (Tex.1966).

I recognize, of course, that time is of the essence in an ordinary option contract in which the optionee pays a relatively small consideration for the optionor’s promise to keep an offer open for a specified period of time. In such a case, the optionee pays his money for time in which to make a decision as to whether he will purchase the property in question, and, if he fails to exercise the option within the time specified, he is in no position to seek equitable relief because he got everything he paid for. On the other hand, if the optionee has paid the major consideration for his purchase of the property, or has made other expenditures in reliance on the option, the time-of-the-essence rule is not so clearly applicable.

This problem was fully considered by the Supreme Court of Texas in Jones v. Gibbs, 133 Tex. 627, 130 S.W.2d 265, 272 (1939). That case involved a timber deed, executed for a substantial initial consideration, allowing the grantee ten years to remove the timber from the land in question, but granting an option to renew from year to year for not more than five additional years on payment of a small rental. Termination was asserted on the ground that a third party to whom the rental was paid was not authorized to receive it for the grantor’s estate. The court mentioned a possible conflict in the evidence as to whether the grantor’s administrator had authorized payment to the third party, but held that this alleged conflict did not present a material fact issue because even if it were assumed that the third party were not authorized to receive it, special circumstances authorized equitable relief from literal enforcement of the condition prescribed by the deed. The court observed that the option was not like the usual option to buy land, since the full agreed value of the timber had been paid, but was more like a lease with option to extend, and that to consider the grantee’s rights terminated would amount to forfeiture of a valuable property right. Accordingly, the court held that the usual requirement of strict compliance with the condition precedent was excused by “overriding equitable rules” in view of circumstances indicating that the error in making the payment was not due to willful or gross negligence, but was a result of an honest mistake, and that the right to take the timber would result in “unconscionable hardship.” In support of this holding, the court cited authorities from other jurisdictions, inelud-ing F. B. Fountain Co. v. Stein, 97 Conn. 619, 118 A. 47, 50 (1922), from which the following statement was quoted with approval:

In cases of mere neglect in fulfilling a condition precedent of a lease, which do not fall within accident or mistake, equity will relieve when the delay has been slight, the loss to the lessor small, and when not to grant relief would result in such hardship to the tenant as to make it unconscionable to enforce literally the condition precedent of the lease.

I cannot agree that the Jones opinion is obiter insofar as it says that the party claiming equitable relief need not establish that he was misled by the other party. Although the court said that the grantee had shown that he had not paid the wrong party, that is not the main ground on which the decision rests. The case was expressly decided on the broader ground of equitable relief from unconscionable hardship stated by the Connecticut court in the quotation from F. B. Fountain Co. v. Stein, supra. The court used the expression “honest and justifiable mistake” as contradistinguished from “willful or gross negligence,” thus excluding simple inadvertence as a ground for denying equitable relief.

This express adoption of the Connecticut rule in Jones was reaffirmed in Sirtex Industries, Inc. v. Erigan, 403 S.W.2d 784, 788 (Tex.1966). In Sirtex, likewise, another ground was available for the decision, namely that the obligation to pay was a covenant rather than a condition. Nevertheless, the supreme court rested its decision on both grounds. When our highest court gives two grounds for a decision, both of which are carefully developed and supported by authority, an intermediate court cannot justifiably disregard either of these grounds as obiter. Stanolind Oil & Gas Co. v. Edgar, 98 S.W.2d 222, 223 (Tex.Civ.App.—Austin 1936, writ dism’d); Casparis v. Fidelity Union Casualty Co., 65 S.W.2d 404, 406 (Tex.Civ.App.—Austin 1933, writ ref’d).

The majority opinion cites cases from other jurisdictions supporting the view that “neglect” by the lessee in failing to read his lease or in forgetting the deadline for exercise of an option precludes equitable relief no matter how great the resulting hardship. This very line of authorities was rejected in Jones and also in the Connecticut cases cited in Jones and Sirtex. The Connecticut rule has since been followed in other jurisdictions. In Sy Jack Realty Co. v. Pergament Syosset Corporation, 27 N.Y.2d 449, 318 N.Y.S.2d 720, 267 N.E.2d 462, 463 (1971), the renewal notice was mailed in time, but was not delivered, and actual notice was given a month late, though still about two months before expiration of the lease. The New York Court of Appeals held that equitable relief was proper on “the principle that a tenant should be relieved of its default when its failure to give the requisite timely notice of renewal of its lease — or to perform some other condition precedent to renewal — has neither harmed nor prejudiced the landlord and was not due to bad faith.”

Another New York case applying this principle is George W. Millar & Co. v. Wolf Sales & Service Corp., 65 Misc.2d 585, 318 N.Y.S.2d 24, 25-26 (Civ.Ct. of City of New York, 1971), holding that failure of memory as to the time for renewal did not bar equitable relief. Similarly, equitable relief was granted notwithstanding the lessee’s forgetfulness of the deadline in Sosanie v. Pernetti Holding Corp., 115 N.J.Super. 409, 279 A.2d 904, 908 (1971).

Under these authorities, and also under Jones and Sirtex, as I interpret them, the standard governing the lessee’s conduct is not freedom from “neglect”, but excusable fault as distinguished from bad faith or gross negligence, and forgetfulness is excusable if the delay is not harmful to the lessor. Consequently, the lessee need not show that he was affirmatively misled by any conduct of the lessor or that he was otherwise free from fault.

In my view, the standard of excusable fault is sound. The lessor should not reap an unconscionable advantage from an inadvertent delay that has caused no substantial loss. The notion that a party’s claim to relief should be barred by his own slight fault is no longer favored in tort cases, as exemplified by the trend to comparative negligence and disallowance of the defense of contributory negligence in cases of strict liability. See Tex.Rev.Civ.Stat.Ann. art. 2212a (Vernon Supp.1977); Henderson v. Ford Motor Co., 519 S.W.2d 87, 89 (Tex.1975). It is no more appropriate in equity, whose very nature is to afford relief from strict rules of law. The majority opinion goes against this trend in holding not only that slight fault bars equitable relief, but also that simple forgetfulness constitutes inexcusable fault as a matter of law.

If my interpretation of Jones and Sirtex is correct, the summary judgment in this case is erroneous because the question of whether the delay was slight and whether lessee will suffer an unconscionable hardship are fact questions on this record, even though the circumstances are, for the most part, undisputed. Consequently, I would apply the familiar rule that when different fact inferences may be drawn from undisputed evidence, a jury question is presented. Le Master v. Fort Worth Transit Company, 138 Tex. 512, 160 S.W.2d 224, 226 (1942); Commercial Standard Ins. Co. v. Davis, 134 Tex. 487, 137 S.W.2d 1, 2 (1940); Drake v. Walls, 348 S.W.2d 62, 65 (Tex.Civ.App. — Dallas 1961, writ ref’d n. r. e.). Since this is an appeal from a summary judgment, every reasonable doubt must be resolved in favor of the party opposing the motion. Wilcox v. St. Mary’s University, 531 S.W.2d 589, 591 (Tex.1976).

Under these authorities, I conclude that whether the delay of two months was more than slight is a fact issue on this record. “Slight” is a relative term and must be considered with respect to the length of the period remaining and whether the delay caused any inconvenience to lessors. There is evidence indicating that the delay in giving the notice caused no such loss or inconvenience. Thus, the case is like others in which the time when relevant action was taken is undisputed, but the circumstances raise a fact issue as to whether it was taken within a reasonable time. General Acc. Fire & Life Assur. Corp. v. Butler’s Ice Cream Factory, 5 S.W.2d 976, 979 (Tex. Com.App.1928, judgmt. adopted); Sylvester v. Watkins, 538 S.W.2d 827, 831 (Tex.Civ.App.—Amarillo 1976, writ ref’d n. r. e.); Pioneer Casualty Co. v. Blackwell, 383 S.W.2d 216, 219 (Tex.Civ.App.—Waco 1964, writ ref’d n. r. e.).

Similar considerations apply to the matter of unconscionable hardship, since there is evidence of substantial expenditures made and inventory purchased in reliance on renewal of the lease and also evidence of a potential loss of good will built up for lessee’s clothing store at this particular location. At least some hardship is shown, and whether it is great enough to justify equitable relief is a question of fact. The question is similar to the issue of “manifest hardship and injustice” as a basis for lump-sum settlement in workmen’s compensation cases, which, though a matter of opinion rather than of fact, is routinely submitted to the jury if any factual basis for the opinion is shown, American General Ins. Co. v. Ariola, 187 S.W.2d 585, 588 (Tex.Civ.App.—Galveston 1945, writ ref’d); Texas Indemnity Ins. Co. v. Arant, 171 S.W.2d 915, 919 (Tex.Civ.App. — Eastland 1943, writ ref’d).

This conclusion is supported by Xantha-key v. Hayes, 107 Conn. 459, 140 A. 808 (1928), which was cited with approval by our supreme court in Jones v. Gibbs, supra. In Xanthakey, the trial court granted equitable relief on facts not materially different, except possibly in degree, from those shown in' the present record, and the appellate court held that no error was shown. I cannot escape the conclusion that unless the majority is correct in repudiating the Connecticut rule, the evidence in this case should be presented to a jury.

Lessors argue that questions of slight delay and unconscionable hardship are not jury questions, but matters of equitable discretion which the trial judge resolved in their favor, and that this court is bound by his decision because no abuse of discretion is shown. This argument is novel insofar as it suggests that the scope of the trial court’s discretion in a summary-judgment case is broader than that of the appellate court. Rule 166-A of the Texas Rules of Civil Procedure authorizes summary judgment only when the summary judgment evidence establishes that “the moving party is entitled to judgment as a matter of law.” The authority of appellate courts to determine matters of law is as broad as that of the trial courts. See Southland Life Ins. Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722, 723 (1935); Ford v. Allen, 526 S,W.2d 643, 644 (Tex.Civ.App.—Austin 1975, no writ). On appeal from a summary judgment, any doubt, which in other cases would be resolved in favor of the judgment, must be resolved against the moving party. Wilcox v. St. Mary’s University, 531 S.W.2d 589, 593 (Tex.1976); Womack v. Allstate Insurance Co., 156 Tex. 467, 296 S.W.2d 233, 235 (1957); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952). These authorities allow the trial court no range of discretion that may be exercised in favor of the moving party without a full trial.

Although the concept of equitable discretion has been recognized in many Texas cases, its scope has never been defined. See Texas Indemnity Ins. Co. v. Arant, 171 S.W .2d 915, 919 (Tex.Civ.App.—Eastland 1943, writ ref’d). Under the English equity practice adopted in most states, there is no right to trial by jury and the equitable discretion of the chancellor includes the power to find facts. See Mathews v. First Citizens Bank, 374 S.W.2d 794, 797 (Tex.Civ.App. — Dallas 1964, writ ref’d n. r. e.). This kind of discretion cannot be properly exercised in Texas if a jury is demanded because, under the blended Texas practice, the right of jury trial extends to fact issues in equitable, as well as legal proceedings. San Jacinto Oil Co. v. Culberson, 100 Tex. 462, 101 S.W. 197, 198, 199 (1907); Ex parte Allison, 99 Tex. 455, 90 S.W. 870, 871 (1906). Accordingly, the equitable discretion of the chancellor to find facts cannot properly be exercised in response to a motion for summary judgment, which is proper only where there is “no genuine issue of material fact,” whether the issue asserted bears on legal or equitable relief.

If there is a range of equitable discretion within the authority of the trial judge apart from his authority to find facts, reviewable only for abuse of discretion, the matters which may be so determined are more nearly analogous to fact inferences to be drawn from the entire record than to conclusions of law resulting from application of established rules to undisputed facts. Consequently, such discretion should not be exercised without development of the evidence at a full trial. It cannot properly be exercised on affidavits and other summary-judgment evidence designed to show that the moving party is entitled to judgment as a matter of law. Summary judgment is proper only when the summary-judgment proof shows that no question of equitable discretion exists. In the present case, even if slight delay and unconscionable hardship are not jury issues, they are at least matters of equitable discretion for the trial court to determine on a complete record and cannot properly be decided in response to a motion for summary judgment. Consequently, this summary judgment cannot be upheld as an exercise of equitable discretion.

Since, for the reasons stated, I do not agree with the majority’s rejection of the Connecticut rule, and I conclude that summary judgment cannot be sustained on any of the grounds asserted by lessors, I must respectfully dissent.

AKIN, Justice.

ON MOTION FOR REHEARING

Reynolds-Penland contends that the trial court erred because the question of its failure to timely exercise its option constituted an “honest and justifiable mistake” was a question for the trier of fact rather than a matter that can be determined by the court on summary judgment. Additionally, it asserts that whether the delay is slight, the loss to the lessor small, and whether the denial of the relief would result in such a hardship to the tenant as to make it unconscionable to enforce literally the time requirement for exercising the option in the lease are questions for a jury. We cannot agree. These ultimate determinations which trigger the interposition of equity are made by the court, not the jury. To permit a jury to determine these issues is to permit it to determine whether equitable relief should be granted. This is impermissible in our system. Jones v. English, 268 S.W.2d 686, 690 (Tex.Civ.App. — San Antonio 1954), aff’d, 154 Tex. 132, 274 S.W.2d 666 (1955). The question of whether equity ought to intervene must be determined by the court based upon all of the circumstances of the case and the principles of equity, with which a jury is not presumed to be familiar. Bergstedt v. Bender, 222 S.W. 547, 549 (Tex.Com.App. — 1920, judgmt. approved); Fabra v. Fabra, 221 S.W. 1008, 1009 (Tex.Civ.App. — San Antonio 1920, writ ref’d); Bourland v. Huffhines, 269 S.W. 184, 186 (Tex.Civ.App.— Amarillo 1925), aff’d, 280 S.W. 561 (1926).

In the case at bar, it was, therefore, the court’s function to determine whether established facts authorized equitable intervention to override the explicit agreement of the parties. It has similarly been held that a jury cannot determine issues such as whether a city ordinance is reasonable, City of Austin v. Austin City Cemetery Ass’n, 87 Tex. 330, 28 S.W. 528, 531 (1894), or the “issue of expediency, necessity or propriety of equitable relief.” Alamo Title Co. v. San Antonio Bar Association, 360 S.W.2d 814, 816 (Tex.Civ.App.—Waco 1962, writ ref’d n. r. e.); Codgell v. Fort Worth National Bank, 544 S.W.2d 825, 829 (Tex.Civ.App.— Eastland 1976, writ ref’d n. r. e.). See Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 869, 95 L.Ed. 1137 (1951). Cf. Hanson Southwest Corp. v. Dal-Mac Construction Co., 554 S.W.2d 712, 717 (Tex.Civ.App.—Dallas 1977, writ ref’d n. r. e.) (holding that whether one corporation is the alter ego of a parent is not a jury question).

Although we agree with the dissent that the right to a jury trial extends to disputed fact issues in equitable, as well as legal proceedings, we cannot agree that such questions as whether the delay is slight or whether an unconscionable hardship results are the type of disputed fact issues that may be decided by a jury. A jury could, of course, determine facts such as when the notice to renew was given or the value of the improvements made by either the tenant or the landlord. Our holding is simply that a jury may not determine the ultimate grounds mandating equitable intervention.

Reynolds-Penland seeks to draw a distinction between the exercise of discretion by a trial court in a plenary trial and on motion for summary judgment. In so doing, the dissent, as well as Reynolds-Penland, would have us remand this case on the ground that the trial court could not exercise its discretion on motion for summary judgment where the facts are undisputed. In our view, Reynolds-Penland’s position places form above substance and would be an unwarranted waste of judicial time. In Elias v. Manis, 292 S.W.2d 836, 838 (Tex.Civ.App.—Beaumont 1956, writ ref’d), that court held, in a well-reasoned opinion, that summary judgment may be granted upon the application of equitable principles to undisputed facts.

Consequently, even assuming such a rule as enunciated in F. B. Fountain to be the rule in Texas, we would, nevertheless, hold that the trial court did not abuse its discretion in declining to grant relief. Whether an unconscionable hardship will result or whether the failure to exercise the option was the result of an “honest and justifiable mistake” so as to justify the interposition of equity are matters within the sound discretion of the trial court, subject, of course, to an abuse of discretion standard of review. Mathews v. First Citizens Bank, 374 S.W.2d 794, 797 (Tex.Civ. App.—Dallas 1963, writ ref’d n. r. e.). See Annot., 27 A.L.R. 981, 982 (1922). Since the trial court did not abuse its discretion, the motion for rehearing is denied.


source: Caselaw Access Project

author: ROBERTSON, Justice.

license: Public Domain

text:
    James R. TURTON, Appellant, v. Mr. and Mrs. Jack PYLAND, Appellees.
    No. 19538.
    Court of Civil Appeals of Texas, Dallas.
    May 8, 1978.
    Rehearing Denied June 7, 1978.
    Michael Tibbals, Elliott, Meer, Vetter, Denton & Bates, Dallas, for appellant.
    Jack Pyland, pro se.
   ROBERTSON, Justice.

James R. Turton sued Mr. and Mrs. Jack Pyland to recover rent due under a month-to-month residential lease. The tenants paid the agreed rent through December 31, 1973, but paid no rent for January, 1974. Upon trial to a jury, the jury found that the Pylands had notified Turton that they would vacate the premises, and that this notice was given on November 1,1973. The jury further found that the Pylands vacated the premises on January 4, 1974, and that the premises were not damaged beyond ordinary wear and tear. Based upon these findings, the trial court rendered a take-nothing judgment against Turton, and he now appeals. We reverse and render.

This appeal presents two primary questions: first, we must determine whether Turton’s failure to file his appeal bond within thirty days after the trial court orally overruled his motion for new trial precludes our exercise of jurisdiction over this case; second, we must decide whether the tenants have held over beyond the term of the lease, and if so, whether they were thereby rendered liable for rent during the month in which their holdover occurred.

Jurisdiction

The Pylands urge that we have no jurisdiction over this appeal. This argument is based upon their contention that Turton’s appellate timetable commenced when the original motion for new trial was orally overruled on September 23,1977. An amended motion was filed on September 30. According to the Pylands, the original motion for new trial was filed prematurely before the judge signed the judgment, and was overruled on September 23, the date of the judgment, as shown by the judge’s notation on the docket; consequently, they argue, the amended motion for new trial cannot be considered, and the date of the judgment, rather than the date of the order overruling the amended motion, must be used to set the date upon which appellate timing commenced. We cannot accept this argument. Rule 306a of the Texas Rules of Civil Procedure provides, in applicable part:

In determining the periods within which the various steps of an appeal must be taken, the date of rendition of a judgment or order shall be deemed to be the date upon which the written draft thereof was signed by the trial judge as stated therein. [Emphasis added]

Under this rule, a motion for new trial is deemed to have been overruled on the date the written order to that effect was signed. See Washington v. Golden State Mutual Life Ins. Co., 408 S.W.2d 227 (Tex.1966), cert. denied 386 U.S. 1007, 87 S.Ct. 1349, 18 L.Ed.2d 434 (1967); Hernandez v. Baucum, 338 S.W.2d 481 (Tex.Civ.App.—San Antonio 1960, no writ). Under Rule 306a, the notation on the docket sheet cannot be considered a written order for this purpose. Consequently, for the purpose of appellate timing, the original motion had not been overruled when the amended motion was filed. Since the appeal bond and transcript were filed within the proper times if the date of the written order overruling the amended motion is considered as the basis of the appellate timetable, we conclude that we have jurisdiction of this appeal.

The Merits

On the merits, Turton argues that since the evidence shows that the Pylands paid their monthly rent through December 31, 1973, but held over until January 4, 1974, without paying rent, he is entitled to recover the rent due for the month of January. We agree. As a general rule, when a tenant holds over after the expiration of the term of a lease, the holding over constitutes a renewal of the lease for a term identical to the lease which has expired. See Jones v. Winter, 215 S.W.2d 654 (Tex.Civ.App.—Amarillo 1948, writ ref’d n.r.e.); Eckstine v. Webb Walker Jewelry Co., 178 S.W.2d 532 (Tex.Civ.App.—Fort Worth 1944, writ ref’d). Absent an agreement to the contrary, it is presumed that a holdover tenant is liable for the rent for another period, if for one year or less, under the same terms as the original lease. Barragan v. Munoz, 525 S.W.2d 559 (Tex.Civ.App.—El Paso 1975, no writ); Street-Whittington Co. v. Sayres, 172 S.W. 772 (Tex.Civ.App.— Amarillo 1915, no writ). In this case, the original tenancy was from month-to-morth, and hence, the Pylands are liable for $150, the monthly rent under the original lease.

Although the Pylands urge that their liability is negated by the jury’s finding that they gave notice of their intent to vacate the premises, the jury’s finding did not mention a particular vacation date. If the evidence supported the finding of a particular date, we could deem this issue found in support of. the judgment under Rule 279 of the Texas Rules of Civil Procedure. See National Resort Communities, Inc. v. Cain, 512 S.W.2d 367 (Tex.Civ.App.—Austin 1974, no writ). However, the only evidence on this point is Pyland’s statement that he intended to move “at the first of the year.” Pyland insists that this phrase does not mean exactly on January 1, but only approximately on the first day of the year. As so interpreted, this statement is too vague to support a finding of any particular vacation date. Since there is no evidence to support an implied finding that the Pylands gave notice of their intent to vacate on any specific date, we must hold that their notice was insufficient to preclude liability for the January, 1974 rent.

Reversed and rendered.


author: SPURLOCK, Justice.

text:
    STROUD’S CREEK HOMEOWNERS’ ASSOCIATION et al., Appellants, v. Eugene BROWN et al., Appellees.
    No. 17967.
    Court of Civil Appeals of Texas, Fort Worth.
    May 11, 1978.
    Rehearing Denied May 25, 1978.
    Laurance L. Priddy, Fort Worth, for appellants.
    Hooper, Kerry, Chappell & Broiles and R. David Broiles, Fort Worth, for appellees.
   OPINION

SPURLOCK, Justice.

This is a venue case. This lawsuit was originally brought by Stroud’s Creek Homeowners’ Association against Stroud’s Creek Land Company, a Texas limited partnership, for damages allegedly caused by the failure to complete certain improvements in a subdivision located in Hood County, Texas. Robert Newkirk and Eugene Brown were both served with citation as general partners of the land company. The land company then filed its answer in the form of a general denial. Later, the land company filed its first supplemental answer and special exceptions, to the effect that the individual lot owners should be joined as parties. After the trial court-sustained special exceptions directed to the fact that the individual lot owners should be joined, plaintiff filed its second amended original petition, whereby it joined the individual lot owners as plaintiffs and also pled the case as a class action. Additionally, plaintiffs formally named Newkirk and Brown, the two general partners in the land company, as defendants. The land company, Brown and Newkirk each filed pleas of privilege, to which plaintiffs filed a controverting affidavit. Following a hearing, the trial court sustained all three pleas of privilege. Plaintiffs have perfected their appeal.

We reverse and render judgment overruling the defendants’ plea of privilege.

By their fourteenth point of error, plaintiffs contend that “(T)he trial court erred in sustaining appellees’ pleas of privilege for the reason that one, some, or all of such pleas of privilege were waived by appel-lees.” The plaintiffs’ theory is that the land company (a limited partnership) waived its right and the two general partners’ right to be sued in the county of their residence by filing the original answer before filing any plea of privilege.

It is well-established that the failure to file a plea of privilege prior to filing an answer constitutes a waiver of the plea of privilege. 59 Tex.Jur.2d Venue §§ 151, 158 (1964).

With reference to a general partnership, Tex.Rev.Civ.Stat.Ann. art. 6132b, § 15 (1970) provides in part that:

“All partners are liable jointly and severally for all debts and obligations of the partnership . . .”

With reference to a general partner in a limited partnership, Tex.Rev.Civ.Stat.Ann. art. 6132a, § 10 (1970) provides in part that:

“A general partner shall have all the rights and powers and be subject to all the restrictions and liabilities of a partner in a partnership without limited partners,

As these two statutory provisions provide, the general partners are jointly and severally liable when a plaintiff obtains a judgment against a limited partnership.

Newkirk and Brown, both of whom are general partners in the limited partnership, were served with citation at the initiation of the litigation.

Tex.R.Civ.P. 28 (Supp. — 1978), effective January 1, 1971, provides:

“Any partnership, . . . may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or against it a substantive right, but on a motion by any party or on the court’s own motion the true name may be substituted.”

Tex.Rev.Civ.Stat.Ann. art. 6132b, § 46 (1970) specifically saved Tex.Rev.Civ.Stat. Ann. art. 2033 (1964) from being repealed. This latter article provides:

“Citation served upon one member of a partnership or firm shall be sufficient to authorize a judgment against the firm and the partners actually served.”

We hold that the two general partners (Brown and Newkirk) were properly before the court from the time that the original answer was filed. The filing of the answer resulted in a waiver of any venue complaint. We sustain appellants’ fourteenth point of error.

We. reverse the ruling of the trial court and render judgment overruling the defendants’ pleas of privilege.

OPINION ON MOTION FOR REHEARING

Defendants strenuously contend that this court “erred in holding that Defendants Brown and Newkirk were before the Court in their individual capacities at the time the Land Company’s Original Answer was filed.”

Brown and Newkirk were both general partners of the land company. Defendants assert that a judgment “could have been enforced against the assets of the Land Company, the-limited partnership, but not against the individual assets of Brown and Newkirk.” (Emphasis added). It is defendant’s contention that our holding on the waiver of the venue issue thus conflicts with the holdings in these cases: Frank v. Tatum, 87 Tex. 204, 25 S.W. 409 (1894); Glasscock v. Price, 92 Tex. 271, 47 S.W. 965 (1898); McManus v. Cash & Luckel, 101 Tex. 261, 108 S.W. 800 (1908); King v. Monitor Drill Co., 42 Tex.Civ.App. 288, 92 S.W. 1046 (1906); Feldman v. Seay, 291 S.W. 350 (Tex.Civ.App.—San Antonio 1927, no writ); Mims Bros. v. N.A. James, 174 S.W.2d 276 (Tex.Civ.App.—Austin 1943, writ ref’d, 141 Tex. 554, 175 S.W.2d 74); Caliva v. Texas Construction Material Co., 380 S.W.2d 641 (Tex.Civ.App.—Houston 1964, no writ).

We have read each of these cases and note that they were decided between 1894 and 1964. However, as we set forth in our original opinion in this case, there have been some important statutory enactments in the area of Texas Partnership Law; i. e., the Texas Uniform Partnership Act and the Texas Uniform Limited Partnership Act. We particularly rely upon the four statutory provisions cited in our original opinion in this case.

We adhere to our original holding that the two general partners (Brown and New-kirk), both of whom were served with citation, were properly before the court from the time that the original answer was filed, and thus, the filing of the answer resulted in the waiver of any venue complaint.

The motion for rehearing is overruled.


author: ROBINSON, Chief Justice.

text:
    The STATE of Texas For the Interest and Protection of Patsy Rose ELLENWOOD as a mentally ill person.
    No. 8933.
    Court of Civil Appeals of Texas, Amarillo.
    May 15, 1978.

      Jarvis & Biggers, Cecil R. Biggers, Spear-man, for appellant.
    William L. Rivers, County Atty., Perry-ton, for appellee.
   ROBINSON, Chief Justice.

Patsy Rose Ellenwood appeals from an order committing her to a mental hospital for a period of 90 days for observation and/or treatment. She challenges the sufficiency of the evidence to support jury findings that she is mentally ill and requires observation and/or treatment. She also contends that her statutory and constitutional rights were violated. Affirmed.

On December 6, 1977, Thomas O’Dell filed an application for the temporary hospitalization of his sister, Patsy Rose Ellen-wood, pursuant to Section 31 of the Texas Mental Health Code (Tex.Rev.Civ.Stat.Aun. art. 5547-31). On that day, the county judge of Ochiltree County issued an order that (1) required Mrs. Ellenwood to submit to examination by Doctor Waide and Doctor Betty, (2) set a hearing on the application for December 14,1977, and (3) appointed an attorney ad litem for Mrs. Ellenwood. The certificates prepared by Doctors Waide and Betty each stated that on December 6, 1977, they examined Mrs. Ellenwood and diagnosed her condition as paranoid schizophrenia. Both stated that Mrs. Ellenwood had been their patient for the previous nine years, that she was mentally ill, and that she required observation and treatment in a mental hospital. On February 8, 1978, a hearing was held on the application and Mrs. Ellenwood was committed for temporary hospitalization..

I.

Mrs. Ellenwood contends that her statutory rights were violated because a hearing on the application for temporary hospitalization was not timely held. Article 5547-33 of the Mental Health Code provides in part: “When an Application for Temporary Hospitalization is filed, the county judge shall set a date for a hearing to be held within fourteen (14) days of the filing of the Application.” In the instant case, the county judge set a hearing to be held within fourteen days, as required by statute. Before the scheduled hearing, counsel for Mrs. Ellenwood requested, and was granted, transfer to the district court and a jury trial. The district judge set and held a hearing on February 8, 1978. Mrs. Ellen-wood was at liberty between the time the application was filed and the hearing was held.

A prompt hearing on the application is for the benefit of both the proposed patient and society. Nevertheless, the purposes of the Mental Health Code should not be defeated by strict insistence on a hearing within fourteen days. When there is good cause for not holding the hearing as set within fourteen days of the filing of the application, the hearing may be postponed and re-scheduled as soon as feasible. Florence v. Crawford, 351 S.W.2d 77 (Tex.Civ.App.—Texarkana 1961, no writ). After examining the record before us we conclude that the delay in holding the hearing was the result of the motions filed by Mrs. El-lenwood, and the withdrawal of both her own attorney arid the court appointed attorney ad litem. Under these circumstances, we conclude that there was no violation of Mrs. Ellenwood’s statutory rights.

II.

Mrs. Ellenwood challenges the constitutionality of the involuntary temporary hospitalization proceeding. She contends that she was denied due process of law because she was ordered to submit to a medical examination, was not informed of her right to remain silent, and was not represented by counsel during the examinations. Although this point of error is not properly briefed, we will address the contentions because of the significant constitutional issues in civil commitment proceedings.

Two doctors must examine the proposed patient and certify that the patient is mentally ill and in need of care and/or treatment before a hearing may be had on the application for temporary hospitalization. Tex.Rev.Civ.Stat.Ann. art. 5547-32. This statutory requirement safeguards the rights of the proposed patient as provided by Texas Constitution art. I, § 15-a: “No person shall be committed as a person of unsound mind except on competent medical or psychiatric testimony.” The examination also provides a basis for medical opinion, and thus furthers the valid objectives of the Texas Mental Health Code by insuring that involuntary commitments will not be based totally on lay testimony. Requiring the proposed patient to submit to the examination does not offend due process of law.

The Fifth Amendment protections are not applicable to every aspect of a civil commitment proceeding. The privilege against self incrimination protects any disclosures which the patient may reasonably believe could be used in a criminal prosecution, but does not protect the patient from disclosures which would only tend to reveal mental illness. Greene v. State, 537 S.W.2d 100 (Tex.Civ.App.—Houston [1st Dist.], no writ). In a civil commitment proceeding the court is concerned with the present mental condition of the proposed patient rather than any past anti-social activity. To recognize the Fifth Amendment privilege in civil commitment cases would deprive the court of reliable evidence of mental illness. Moss v. State, 539 S.W.2d 936 (Tex.Civ.App.—Dallas 1976, no writ).

Mrs. Ellenwood’s analogy between the required medical examinations and the custodial interrogation of an accused criminal is not persuasive. The due process clause of the Fourteenth Amendment does not require the presence of counsel during a medical examination. As previously stated, the examination serves the dual purposes of protecting the constitutional rights of the proposed patient and providing a basis for competent medical testimony. The Mental Health Code permits counsel for the proposed patient to have complete access to all medical records, thereby affording due process of law. Tex.Rev.Civ.Stat.Ann. art. 5547 -33; Moss v. State, supra.

III.

Mrs. Ellenwood challenges the factual, but not the legal sufficiency of the evidence to support the jury findings. The jury heard testimony from the two examining physicians, appellant and members of appellant’s family. The two physicians, who had treated Mrs. Ellenwood for over nine years, testified that it was their opinion that she suffered from paranoid schizophrenia and required observation and treatment. The doctors described the symptoms of paranoid schizophrenia and testified that a person with this illness would be dangerous to others. Appellant’s mother and sister-in-law testified concerning violent outbursts by Mrs. Ellenwood and her frequent unfounded complaints of harassment by her family and strangers. We have considered all of the evidence and conclude that under the circumstances of this case, the evidence was factually sufficient to support the jury findings.

Mrs. Ellenwood relies on the case of Moss v. State, supra, wherein the court held that the evidence was insufficient to support the jury findings of mental illness and need for treatment, because the two physicians did not provide the factual basis on which their medical opinions were based. The court stated: “A person suspected of mental illness ought not to be deprived of liberty on the basis of expert opinion alone.” Id. at 949. In Moss, only the two doctors and the proposed patient’s mother testified. In the instant case, there was extensive lay testimony, which when coupled with the expert medical testimony is sufficient to support the jury findings.

The prehearing examination of the proposed patient cannot take the place of the observation during temporary hospitalization. We do not agree with language in Moss to the effect that the doctors must in every instance testify to a factual basis for their opinion. We agree with the holding of Moss insofar as it states that a proposed patient should not be temporarily hospitalized solely on the basis of the opinion of two doctors, unsupported by factual information; however, we decline to hold that expert opinion, when coupled with extensive lay testimony such as was heard in the instant case, can never provide the basis for temporary hospitalization.

We conclude that Mrs. Ellenwood was not deprived of her statutory or constitutional rights in this case. Further, we find that under the facts and circumstances of this case, the evidence was factually sufficient to support the jury findings that Mrs. Ellenwood was mentally ill and required temporary hospitalization for observation and/or treatment. The judgment of the trial court is affirmed.


author: NYE, Chief Justice.

text:
    Salvador SANCHEZ, Appellant, v. Ben L. BRANDT, Jr., Appellee.
    No. 1275.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 18, 1978.
    Rehearing Denied June 8, 1978.

      George P. Powell, Texas Rural Legal Aid, Inc., Edinburg, for appellant.
    Cornelius B. Marsh, IV, McAllen, for ap-pellee.
   OPINION

NYE, Chief Justice.

Salvador Sanchez, a purchaser of unimproved real estate, brought suit against the seller, Ben L. Brandt, Jr., seeking specific performance of an executory contract on the basis that the seller’s notice of forfeiture had failed to comply with the notice requirements of Article 1301b and that the seller had therefore wrongfully refused the purchaser’s timely tender of the outstanding indebtedness due under the contract. The defendant, seller, defended on the basis that Article 1301b was not applicable to the particular contract of sale in question. At trial, the parties entered into numerous stipulations limiting the scope of the trial to one issue which was ultimately submitted to the jury and answered favorably to the plaintiff purchaser. After the jury’s verdict was received and filed, the court granted defendant seller’s motion for judgment notwithstanding the verdict. The purchaser perfected his appeal to this Court. We reverse.

In January of 1970, Salvador Sanchez entered into a contract for the purchase of approximately ten (10) acres of unimproved realty, located in Lot 44-10 in the west addition to Sharyland, Hidalgo County, Texas, from the owner, Mr. Ben L. Brandt, Jr. The purchase price was $5,000.00 payable in 120 equal monthly installments of $52.18, plus interest at the rate of 8% per year. An initial required down payment of $750.00 was paid. It was further agreed that the purchaser would pay all taxes and assessments commencing with the 1970 tax year. The contract provided that title to the property and title to any improvements erected thereon by the purchaser, would remain in the seller until the purchase price was paid in full. The contract finally provided that in the event purchaser defaulted in his payments or otherwise failed to comply with any of the terms and conditions of the contract, the seller would have the option to declare the contract at an end and retain all amounts previously paid by the purchaser. The contract provided that the only notice required to effectuate such a forfeiture was a letter written by the seller or his designated attorney addressed to the purchaser at a specified address.

The record indicates that at the time the contract was signed, Mr. Sanchez was working in Bartlett, Illinois, because he could not obtain comparable work in the Rio Grande Valley. As is the custom among many unskilled and semi-skilled workers in the Rio Grande Valley who seek seasonal work in the north, Mr. Sanchez saved his earnings and planned to move back to the Valley upon retirement. He then intended to build a small ranchhouse on the Sharyland acreage and supplement his retirement by raising a few animals and planting a garden.

On July 2, 1974, the seller, through his attorney, mailed a letter of forfeiture to Mr. Sanchez at his Illinois address. At the time this letter was mailed, Mr. Sanchez had decided * to retire and was travelling from Illinois to his home in Texas. He arrived July 5, 1974, and was informed shortly thereafter by relatives in Illinois that they had received the forfeiture letter and that they would forward it to Mr. Sanchez in Texas. Immediately thereafter Mr. Sanchez tendered the full balance then owed on the contract. The money was refused by Brandt. Sanchez then instituted this suit.

The parties made numerous stipulations at trial. The essence of the relevant stipulations are that: 1) as of June 1974, a total of 53 monthly payments should have been made; 2) in June 1974, Sanchez tendered payments number 47 and 48 which were refused by the seller; 3) Sanchez would have been only four payments behind had the seller accepted the two tendered payments in June 1974; 4) some of the tax payments due on the property had been paid by Sanchez after they became delinquent but prior to the time he received notification of forfeiture; 5) some of the tax payments were not made until after Sanchez received notification of forfeiture; 6) Sanchez had been unaware of the tax liabilities for the period 1970-1974 because he had not personally received tax .statements; and 7) the seller’s forfeiture letter did not comply with the notice provisions of Article 1301b. In addition, it is undisputed that Sanchez tendered the balance due under the contract immediately upon receipt of the forfeiture letter, and that he remains able and willing to pay at this time.

In response to the sole special issue submitted, the jury found that at the time Sanchez executed the contract, he intended to use the property for the purpose of establishing a residence. The trial court, granted defendant’s motion for judgment notwithstanding the verdict on the basis that: 1) there was no evidence to support the jury’s answer to this special issue; and 2) the notice requirements of Article 1301b do not apply to executory contracts for the sale of unimproved realty.

On appeal, Sanchez first contends that the trial court erred in ruling that there was no evidence to warrant the submission of the special issue to the jury. In considering a no evidence point it is the duty of this Court to view the evidence in its most favorable light, considering only the evidence and reasonable inferences drawn therefrom in support of the jury’s answer and to disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); Transport Insurance Company v. Mabra, 487 S.W.2d 704 (Tex.Sup.1972).

Sanchez testified that from the inception of the contract, he intended to build a small ranchhouse on the property in question and reside there with his family. Sanchez visited the land every time he came to Texas. He was acquainted with the neighbors who were residing within one-half mile of the location of the land in question. Sanchez testified at great length concerning how he planned to develop the property and what improvements he intended to make. The testimony of an interested party, although not generally conclusive, has probative force and is sufficient to raise a jury question. Owen Development Company v. Calvert, 157 Tex. 212, 302 S.W.2d 640 (1957); Pundt v. McNeill, 500 S.W.2d 559 (Tex.Civ.App.—Corpus Christi 1973, no writ); Prince v. North State Bank of Amarillo, 484 S.W. 2d 405 (Tex.Civ.App.—Amarillo, 1972, writ ref’d n. r. e.); Clark v. Brewer, 471 S.W.2d 639 (Tex.Civ.App. — Corpus Christi 1971, no writ). Appellant’s point of error one is sustained.

This brings us to the next question of whether the Legislature intended to limit the applicability of Article 1301b to only improved realty. Article 1301b provides as follows:

“Section 1. A forfeiture of the interest and the acceleration of the indebtedness of a purchaser in default under an executory contract for conveyance of real property used or to be used as the purchaser’s residence may be enforced only after notice of seller’s intentions to enforce the forfeiture and acceleration has been given to the purchaser and only after the expiration of the periods provided below:
* * * * * *
(e) Such notice shall be conspicuously set out; and shall be printed in 10 point bold face type or upper case typewritten letters; and shall include the following:
NOTICE
YOU ARE LATE IN MAKING YOUR PAYMENT UNDER THE CONTRACT TO BUY YOUR HOME. UNLESS YOU MAKE THE PAYMENT BY (datel THE SELLER HAS THE RIGHT TO TAKE POSSESSION OF YOUR HOME AND TO KEEP ALL PAYMENTS YOU HAVE MADE TO DATE.
Sec. 2. A purchaser in default under an executory contract for the conveyance of real property used or to be used as the purchaser’s residence, may at any time prior to expiration of the period provided for in Section 1, avoid the forfeiture of his interest and the acceleration of his indebtedness by complying with the terms of the contract up to the date of compliance notwithstanding any agreement to the contrary.” (emphasis supplied)

The seller’s contention, in which the trial court agreed, is that the Legislature intended Article 1301b to apply to only executory contracts for the sale of improved property. Sanchez, on the other hand, argues that the statute covers any property which the purchaser has an intention to use as a residence, present or future, irrespective of whether or not there is an existing dwelling at the time the contract is executed. In support of his contention that the statute does not apply to unimproved property, the seller argues that the notice provision in which the Legislature used the word “home” shows that the statute was intended to cover only real estate on which there is a presently existing dwelling suitable for habitation or a dwelling in the process of construction.

In addressing these contentions, we shall keep in mind the familiar rules of statutory construction. The fundamental and dominant rule controlling the construction of a statute is to ascertain and effectuate the intention of the Legislature. Calvert v. Texas Pipe Line Company, 517 S.W.2d 777, 780 (Tex.Sup.1975); Art. 10 § 6, Tex.Civ.Rev.Stat.Ann. (1969). The intention of the Legislature should not be determined or derived from isolated portions of the Act, but may be decided upon by looking not only to the body of the Act and its caption but also to the emergency clause. Calvert v. Texas Pipe Line Company, supra at 781; City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273 (1951); Maddox v. Flato, 423 S.W.2d 371, 375 (Tex. Civ.App.—Corpus Christi 1968, writ ref’d n. r. e.).

At the outset, we note the familiar rule of law that forfeitures in conjunction with contracts for the sale of real property are looked upon with disfavor by our courts. See e. g. Hill v. Still, 19 Tex. 76 (1857); 59, Tex.Jur.2d § 553 (1964) and cases cited therein. Where the purpose of a statute is to prevent forfeiture, it will be liberally construed to accomplish that purpose. Lovett v. Simmons, 29 S.W.2d 1021, 1022 (Tex.Com.App.1930, jdgmt adopted); 53 Tex. Jur.2d § 200 (1964). Article 1301b is a remedial statute. The general purpose of this article is to provide fair and equitable procedures which the seller must follow pri- or to enforcing forfeiture because of default of a purchaser under an executory contract for the sale of real property used or to be used for the purchaser’s residence. Pratt v. Story, 530 S.W.2d 325 (Tex.Civ.App. — Tyler 1975, no writ). (Emphasis added). Section 2 of this article specifically allows a defaulting purchaser to prevent forfeiture by complying with the terms of the contract prior to the expiration of the applicable notice period.

The general language of the statute is broad. By its express terms the article encompasses real property which is presently being used as the purchaser’s residence as well as real property which will be so used in the future. The statute in question does not expressly limit its applicability to improved real property, nor does it define residence or any other term contained therein. Where the meaning of particular words contained in the statute are not defined by the Legislature, we must follow the rules of statutory construction which requires us to give the words in such statute their common and ordinary meaning. Satterfield v. Satterfield, 448 S.W.2d 456 (Tex.Sup.1969); Clements v. City of Corpus Christi, 471 S.W.2d 83, 86 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.).

The term “real property”, as it is commonly understood, includes land, and generally whatever is erected upon or affixed, to land. Black’s Law Dictionary. “Residence” generally means “the factual place of abode” or the “place in which a person resides”. Black’s Law Dictionary; Webster’s New World Dictionary (2d College Ed. 1974). The language of the statute, addresses itself then, to real property, which is used or which will be used, as a place to live. All of the language, in the body of the statute, other than the notice provision, excludes any reference to a present “home”, “house” or “dwelling place”. The type of notice suggested to be used in the statute, does not follow the broad language of the statute itself. For instance, the requirements of the statute would be met if a purchaser actually used the unimproved real property as his residence with a travel trailer or mobile home without the benefit of a conventional permanent structure or house.

The seller principally relies upon the term “home” found in the notice provision to support his contention that Art. 1301b applies only to improved real property. The common meaning of the term “home” means “the place where a person (or family) lives; one’s dwelling place”. Although “home” can refer to a specific dwelling structure, “the place where one lives” is not necessarily that narrow. In any event, the seller’s argument is not persuasive. The notice provision considered above, .is an isolated portion of the statute. This provision, unlike the remainder of the statute, addresses itself solely to the present tense as though the purchaser already lived on the property. The statute in its entirety clearly encompasses executory contracts of sale of real property which the purchaser may use as a residence in the future. The statute requires written notice whenever the purchaser has made any payment if the property is used or to be used as the purchaser’s residence.

It is a matter of common knowledge, of which we can take judicial notice, that many poor people are unable to obtain conventional financing when they wish to purchase residential property. Frequently it is necessary for them to pay out the entire purchase price of a tract of land prior to procuring title and prior to securing a mortgage on the property with a lending agency in order to finance any improvements. These facts were presumptively within the contemplation of the Legislature when the statute in question was enacted. See 53 Tex.Jur.2d § 183 (1964) and authorities cited therein. If we were to construe the statute as narrowly as the seller suggests, we would frustrate the legislative intent as evidenced throughout the remainder of the statute. This we cannot do. Any apparent conflict between the notice provision and the remainder of the statute must be resolved in favor of effectuating the legislative intent expressed in the remainder. The only harm, if any, in applying Article 1301b to the facts and circumstances of this case is to require the seller to give to the purchaser the statutory notice. If a purchaser fails to pay the outstanding balance prior to the expiration of the applicable notice, the seller is entitled to enforce forfeiture and take possession of the property. On the other hand, if the purchaser pays the outstanding balance within the time prescribed, the seller will still get the benefit of his bargain. We hold that Article 1301b is applicable to the facts in this case. The trial court therefore erroneously granted defendant’s motion for judgment notwithstanding the verdict.

The judgment of the trial court is reversed and judgment here rendered in favor of the purchaser.

REVERSED AND RENDERED.

      . The letter stated in relevant part as follows: “Please be advised that I have been employed by Mr. Ben L. Brandt, Jr. to inform you of the fact that Mr. Brandt has declared the above referenced contract null and void and fully at an end and has forfeited all amounts of money heretofore paid by you on said contract as liquidated damages and has taken possession of the premises described therein as provided in paragraph VII of said contract.
      Mr. Brandt has exercised this option because of your failure to make the installments as provided for in the contract and to pay the taxes on said property. He is herewith enclosing your checks numbered 117 and 118 in the respective amounts of $52.18 each.”


author: KLINGEMAN, Justice.

text:
    J. A. VILLARREAL, Appellant, v. The DUVAL COUNTY CONSERVATION AND RECLAMATION DISTRICT, Appellee.
    No. 16039.
    Court of Civil Appeals of Texas, San Antonio.
    May 19, 1978.
    Rehearing Denied May 30, 1978.

      L. Javier Cavazos, Kingsville, for appellant.
    Canales & Barrera, San Diego, for appel-lee.
   KLINGEMAN, Justice.

This case involves the proposed construction of a sewage treatment plant by the Duval County - Conservation and Reclamation District. Appellant J. A. Villarreal filed an action in the District Court of Duval County, seeking to permanently enjoin Appellee, Duval County Conservation and Reclamation District, from constructing a proposed sewage treatment plant in San Diego, Texas. Both sides filed motions for summary judgment. The trial court granted appellee’s motion for summary judgment and overruled appellant’s motion for summary judgment and refused to enjoin the construction of such sewage treatment plant. The trial court found in its judgment that appellee had lawful authority to construct such sewage treatment plant.

Appellant’s sole point of error is that the trial court erred in failing to rule that ap-pellee exceeded the authority granted to it by the Legislature in purchasing property outside its boundaries for the purpose of constructing a sewage treatment plant.

It is undisputed that the proposed sewage treatment plant is to be located in San Diego, Texas, and in both Duval and Jim Wells Counties.

The pleadings before the court at the time of the hearing were: (1) Plaintiff’s Petition asking that appellant be permanently enjoined from constructing the proposed sewage treatment plant; (2) Defendant’s Original Answer, asserting no affirmative relief against Plaintiff; (3) Plaintiff’s Motion for Summary Judgment alleging that plaintiff is entitled to a summary judgment against defendant as a matter of law; (4) Defendant’s Motion for Summary Judgment alleging that defendant is entitled to a summary judgment against plaintiff as a matter of law.

On the basis of the pleadings before the trial court, the relief sought by the parties, and the record before us, we affirm the judgment of the trial court.

Appellant, in his petition for permanent injunction, alleges: (1) that he is a private citizen whose mailing address is San Diego, Texas; there is no allegation that he is a resident or taxpayer in the Duval County Conservation and Reclamation District; (2) that defendant proposes to initiate construction of a sewage treatment plant within the city limits of San Diego, but within Jim Wells County; (3) that the Duval County Conservation and Reclamation District is located solely in Duval County, and that in purchasing land in Jim Wells County, the defendant acted completely without authority; (4) that plaintiff owns 20 acres adjacent to the proposed construction site and that plaintiff will suffer harm, damages, and injury because of the close proximity of the plant which will permanently damage the value of his property and destroy the quiet enjoyment of such property and his home.

Plaintiff does not allege any taking of his property.

We hold that the trial court did not err in refusing to grant a permanent injunction sought by appellant. The threatened acts which appellant seeks to enjoin constitute, at most, a threatened “injury or damage” of plaintiff’s property and not a threatened “taking of it,” and an injunction will not lie to enjoin the construction of the proposed sewage treatment plant which only threatens damages, which if realized, may be adequately compensated by the recovery of damages. Nueces County Drainage & Conservation District No. 2 v. Bevly, 519 S.W.2d 938 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d, n. r. e.). See also City of Abilene v. Downs, 367 S.W.2d 153 (Tex.1963); Scott v. City of Robinson, 404 S.W.2d 330 (Tex.Civ.App.—Waco 1966, writ ref’d, n. r. e.); Webb v. Dameron, 219 S.W.2d 581 (Tex.Civ.App.—Amarillo 1949, writ ref’d, n. r. e.).

The distinction between “taking” and “damaging” is important where equitable relief is sought, because an injunction will not issue to restrain a threatened “damaging.” Kahn v. City of Houston, 121 Tex. 293, 48 S.W.2d 595 (1932); Nueces County Drainage & Conservation District No. 2 v. Bevly, supra; Scott v. City of Robinson, supra; Webb v. Dameron, supra.

. In Scott v. City of Robinson, supra, the court said:

An injunction will issue to restrain a threatened taking, (where compensation has not been made in advance). But an injunction will not issue to restrain a threatened ‘damage’ or ‘injury,’ as such may be repaired by damages, for the recovery of which an adequate remedy at law exists [citations omitted].
The threatened acts which plaintiff seeks to enjoin, constitute at most a threatened ‘injury’ or ‘damaging’ of plaintiff’s property, and not a threatened ‘taking’ of it. [citations omitted].
We think plaintiff is relegated to a suit for his damages after they occur. . 404 S.W.2d at 332.

Nueces County Drainage & Conservation District No. 2 v. Bevly, supra, was a suit for permanent injunction by Bevly against the Nueces County Drainage & Conservation District No. 2 to restrain the district from enlarging an existing drainage ditch, located partly within and partly without the district. Bevly owns land outside the boundaries of the district. The trial court entered judgment permanently enjoining the district from enlarging the ditch. The Court of Civil Appeals reversed and rendered, holding: that the permanent proposed enlargement of the ditch did not constitute a threatened taking of Bevly’s land; that the matter of public convenience and general welfare is of paramount importance in the situation where an individual seeks to enjoin a governmental agency from constructing public works that affect a large segment of the public greatly; that where a governmental agency in exercise of governmental functions constructs permanent improvements that benefit a large segment of the public which does not amount to a physical invasion or appropriation of a person’s land, but is so situated with reference to the improvements that it will suffer injury by operation of the improvements, a claim for such injury is one for “damaging,” for which injunctive relief is not available, rather than a claim for “taking.”

The threatened acts which plaintiff seeks to enjoin constitute at most a threatened “injury” or “damaging” of plaintiff’s property and not a threatened “taking” of it. Under the record before us, plaintiff is relegated to a suit for his damages after they occur.

The judgment of the trial court is affirmed.

      . There is nothing in the record showing when the property involved was purchased. The present Duval County Conservation and Reclamation District is composed of lands in Duval County only, but at one time it was composed of lands in both Duval and Jim Wells Counties.


author: HUGHES, Justice.

text:
    Dr. Victor LYDAY et ux., Appellants, v. Michael Jon MOORE et ux., Appellees.
    No. 18025.
    Court of Civil Appeals of Texas, Fort Worth.
    May 25, 1978.
    Shannon, Gracey, Ratliff & Miller and Bill E. Bowers, Fort Worth, for appellants.
    John Linebarger, Fort Worth, for appel-lees.
   OPINION

HUGHES, Justice.

Victor and Paula Lyday, husband and wife, have appealed the order of the trial court overruling their plea of privilege to be sued in the county of their residence, Nac-ogdoches. Michael Jon Moore and Pamela Moore, husband and wife, had sued them in Tarrant County under Tex.Bus. & Comm. Code Ann. § 27.01 (1968), for water damage occurring to a house in Fort Worth, Tarrant County, Texas, which they had bought from the Lydays. We shall refer to the Lydays as Sellers and the Moores as Buyers.

We affirm.

Pertinent to this appeal is:

“Section 27.01. Fraud in Real Estate and Stock Transactions “(a) Fraud in a transaction involving real estate or stock in a corporation or joint stock company consists of a
“(1) false representation of a past or existing material fact, when the false representation is
“(A) made to a person for the purpose of inducing that person to enter into a contract; and
“(B) relied on by that person in entering into that contract; or
U »

and Tex.Rev.Civ.Stat.Ann. art. 1995 (1964), • which provided in pertinent part:

“Art. 1995 (1830) (1194) (1198) Venue, general rule
“No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases:
“1. . . .
“7. Fraud and defalcation. — In all cases of fraud, and in all cases of defalcation by public officers, suit may be brought in the county where the fraud was committed or where the defalcation occurred, or any of such suits may be brought where the defendant has his domicile.

Buyers pleaded § 7, above, in contravention of Sellers’ plea of privilege and relied on the following direct testimony of Michael Moore, Buyer, to establish the representation required by § 27.01:

“Q I ask you whether or not you asked Doctor Lyday specific questions regarding the condition of the home or any problems?
“A Yes, Sir. I asked him if he had any problems with the drain in the back, water backing up into the lower level, or if the basement leaked or seeped water. I asked him if he had any roof problems, you know, things in general that might be wrong with the home.
“Q What did he reply as to the seepage of water and the water problems?
“A He said he had never had any problems with water seepage.” (S.F. p. 7).

Sellers, who had lived in the house here involved for three and one-half years as of October 1, 1976, advertised it for sale by a sign in their front yard. Buyers inspected the house the morning of October 1 with Mrs. Lyday. They again inspected it that afternoon in company with Dr. Lyday, who, at that time made the representation here in issue when “He said he had never had any problems with water seepage.” Buyers were particularly interested in the seepage angle because the 600-650 square feet den was below the soil surface and stated that they relied on Dr. Lyday’s statement above quoted. Michael Moore said they would not have bought the house if they thought it seeped. Buyers bought and moved in around December 3, 1976. On March 27, 1977, after a steady, all night rain, Mr. Moore saw water coming into the lower level where the wall met the floor (in several places). Water appeared to be coming up under the floor and reached a depth of two inches, soaking the carpet, walls, paneling, and sheetrock. Mr. Moore said he had lived about a mile and a half to two miles from this house and had seen greater or lesser rainfalls in the last few years.

Mr. McMenamy, a waterproofer-sand blaster, called by Buyers, testified to having waterproofed the house for Buyers. He said water had come through the cracks in the walls and through the “cold joint” between the walls and floor.

McMenamy testified to finding rotten two by fours in the base of the wall and estimated it would take ten years for them to get in their rotten condition. He opined that such wall had leaked for seven years and that with rainfall similar to Fort Worth’s over that time period it would be sufficient to cause water to come in the house. He could not determine whether or not the “cold joint” had been waterproofed before his inspection.

Mr. Moore testified to Dr. Lyday’s having told him he had lived in the house about three and a half years.

Sellers, in their three points of error, contend there is no evidence and insufficient evidence to support a finding that Sellers’ statement to Buyers that they had never had any problems with water seepage was false. Further, that there is no evidence that Sellers knew they had water seepage.

There being no findings of fact or conclusions of law we must view the evidence in the light most favorable to the judgment of the trial court. Miller v. Cozart, 394 S.W.2d 22 (Tex.Civ.App.—Dallas 1965, no writ). We must disregard all adverse evidence and give credit to evidence favorable to the successful party and indulge every reasonable conclusion that is favorable to same. Kirby Lumber Corporation v. Treadway, 382 S.W.2d 316 (Tex.Civ.App.—Beaumont 1964, writ dism’d). Every reasonable in-tendment must be resolved in favor of trial court’s judgment. James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959).

In ,A?iew of McMenamy’s opinion testimony of the seven years of seepage, based on the physical facts that he found, we hold that Buyers established by competent testimony, in part circumstantial, that seepage did occur in the time Sellers owned and lived in the house. Patane v. Sartin, 540 S.W.2d 422 (Tex.Civ.App.—Waco 1976, writ ref’d n. r. e.). This would establish the material representation of Sellers that they never had any problems with water seepage as false. Obviously, under the circumstances in this case, Sellers intended to induce Buyers to enter the contract of purchase. Buyers testified to their relying on the representation and to their resultant damage.

McMenamy’s opinion testimony that the house had leaked for seven years prior to his inspection, that the rainfall in Port Worth over that time period would be sufficient to cause water to come in the house, coupled with the undisputed testimony that Sellers lived in the house the last half of such seven year period, give rise to an inference that Sellers knew they had water seepage.

We overrule all three points of error and affirm the order of the trial court.


author: McCLOUD, Chief Justice.

text:
    D. C. MUSICK, Chief of the Abilene Fire Department, Appellant, v. George BLACK, Appellee.
    No. 5151.
    Court of Civil Appeals of Texas, Eastland.
    May 25, 1978.
    Rehearing Denied June 22, 1978.
    Harvey Cargill, Jr., City Atty. (Deke Austin, Asst. City Atty. and Gary Hacker, Asst. Dist. Attys., Abilene, for appellant.,
    Glenn E. Heatherly and Jane V. Elmore, Rhodes, Doscher, Chalk & Heatherly, Abilene, for appellee.
   McCLOUD, Chief Justice.

At issue is whether the trial court had jurisdiction to entertain a suit for mandamus filed by a fireman seeking reinstatement after having been removed from his position of firefighter by the fire chief, who apparently' determined that the fireman was unable to continue his duties.

George Black filed a petition for mandamus urging that D. C. Musick, Chief of the Abilene Fire Department, be ordered to reinstate Black as a senior firefighter with the Abilene Fire Department. The Fire Chief answered that the City of Abilene had adopted the provisions of Tex.Rev.Civ. Stat. Art. 1269m, the Firemen’s and Policemen’s Civil Service Act, and that Section 9 of the Act gave the Fire Chief the admin is-trative discretion to determine whether or not a fireman was physically able to continue his duties, and the Act expressly provided that the Fire Chief shall be the sole judge of the matter and the Act did not provide any appeal to either the Civil Service Commission or the district court. The Fire Chief further alleged that Black’s suit should be dismissed because it was an attempt to appeal the decision of the Fire Chief by judicial review when no judicial review is provided for, and the trial court had no jurisdiction to review the Fire Chief’s decision.

The following summary of events is reflected in the pleadings of the parties. There was no trial. There is no statement of facts. On August 6,1975, the Fire Chief wrote Black and informed' him that after reviewing a physician’s medical report regarding Black’s physical condition, he had no choice, in accordance with Section 9 of Article 1269m, but to remove him from his duties as a firefighter. Black filed the instant mandamus suit against the Fire Chief on June 8,1976, alleging that the fire Chief abused his discretion in removing Black as a firefighter. On July 8, 1977, at the Fire Chief’s request and pursuant to an order of the trial court, Black was examined by a different physician who found that Black was “fully fit and capable of functioning in the role of firefighter”. The Fire Chief wrote Black on July 18, 1977, and informed him that in view of the favorable physical examination report, he was willing to reinstate Black as a senior firefighter with the Abilene Fire Department. On that same date, the Fire Chief filed a motion to dismiss Black’s petition for mandamus asserting that the matter was moot since Black sought only reinstatement and the Chief now agreed that reinstatement was proper and had ordered Black to return to work on July 26, 1977. Black opposed the Chief’s motion to dismiss and contended the matter was not moot because he was illegally removed from his duties and he sought reinstatement as of August 6, 1975, with the compensatory and other benefits that would accrue to him resulting from reinstatement as of August 6,1975. The court’s judgment recites that at “pre-trial”, it appearing to the court, after considering the pleadings and other documents on file and hearing from the parties through their attorneys, “that all of the matters in controversy have been resolved” and Black is entitled to be reinstated as a senior firefighter as prayed for in his petition. The court ordered and decreed that Black be reinstated as a senior firefighter with the Abilene Fire Department as of August 6,1975. The Fire Chief appeals. We affirm.

In a single narrow point of error, the Fire Chief contends the trial court erred in that it did not have jurisdiction to entertain the mandamus suit seeking reinstatement of Black. We disagree.

The Fire Chief argues that on August 6, 1975, when Black was removed, Tex.Rev. Civ.Stat. Art. 1269m did not provide for judicial review of a fire chief’s decision that a fireman was unable to continue his duties. Section 9 of Article 1269m provided at that time:

“When a Fireman or Policeman is given a physical examination to determine if he is physically able to continue his duties, the physician appointed by the Commission to make such examination shall submit a complete physical report to the Chief of the Fire Department if the person so examined is a Fireman, and to the Chief of the Police Department if the person so examined is a Policeman. The Chief of each respective Department shall be the sole judge as to whether or not such Fireman or Policeman is able to continue his duties.”

The Fire Chief relies upon Fireman’s and Policemen’s Civil Service Commission of City of Fort Worth v. Kennedy, 514 S.W.2d 237 (Tex.1974) and City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788 (1951) to support his contention that the trial court had no jurisdiction. The cases are distinguishable. In both Kennedy and Hancock, the court was concerned with an attempted appeal of the decision of an administrative agency when the statute creating the administrative agency failed to provide for an appeal of the particular action by the agency and the administrative action did not violate a constitutional provision. In each case, the court held that the action of the administrative body was not subject to judicial review by appeal and the court had no jurisdiction of the appeal. Hancock involved a demotion and Kennedy discussed regrading of an examination. Neither case involved removal or dismissal of an employee. Neither Hancock nor Kennedy discussed mandamus.

Black relies upon Pruitt v. City of Houston, 548 S.W.2d 90 (Tex.Civ.App.—Houston (1st Dist.) 1977, no writ) and Cash v. City of Houston, 426 S.W.2d 624 (Tex.Civ.App.—Houston (14th Dist.) 1968, writ ref. n.r.e.), each of which recognized the distinction between mandamus and appeal. In each case, the court recognized that the remedy of mandamus was available under certain circumstances even though there was no right to appeal the decision of the Civil Service Commission to the district court.

The Fire Chief urges that under Section 9 of Article 1269m, as then enacted, his dismissal of Black based upon his decision that Black was not able to continue his duties was not subject to judicial review by either appeal or mandamus. We disagree.

• The statute expressly provided that the Fire Chief would be the sole judge, and thus have the discretion, to determine whether Black was able to continue his duties. The rule is well established, however, that mandamus may issue in a proper case to correct a clear abuse of discretion by a public officer. Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677 (1956); Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959); Dykes v. City of Houston, 406 S.W.2d 176 (Tex.1966); State v. Sewell, 487 S.W.2d 716 (Tex.1972). We are not concerned in the instant case with whether Black showed by proper evidence that he was entitled to a writ of mandamus. There was no trial of the issue of clear abuse of discretion. The trial court, after finding the matter in controversy had been resolved, entered its judgment reinstating Black as of April 6, 1975. We must decide only if the trial court had jurisdiction to entertain Black’s suit for mandamus. We hold the court did have such jurisdiction. Tex.Rev.Civ.Stat. Art. 1914 provides:

“Judges of the district courts may either in term time or in vacation, grant writs of mandamus, injunction, sequestration, attachment, garnishment, certio-rari and supersedeas, and all other writs necessary to the enforcement of the jurisdiction of the court. Acts 1846, p. 200; P.D. 1407; G.L. vol. 2, p. 1507.”

This court in City of Garland v, Dittrich, 517 S.W.2d 839 (Tex.Civ.App.— Eastland 1974, no writ) held that mandamus was not available to “review the decision” of a Firemen’s and Policemen’s Civil Service Commission regarding promotion. The case should not be construed to hold that a district court would have no jurisdiction to issue a writ of mandamus, where there is no adequate remedy at law, to correct a clear abuse of discretion by a public official. Judgment of the trial court is affirmed.


author: MOORE, Justice.

text:
    Johnnie HORN, Appellant, v. STATE FARM INSURANCE COMPANY et al., Appellees.
    No. 1130.
    Court of Civil Appeals of Texas, Tyler.
    May 25, 1978.

      Richard L. Reedy, Kain & Reedy, Houston, for appellant.
    Marc A. Sheiness, Hicks, Hirsch, Glover & Robinson, Houston, for appellees.
   MOORE, Justice.

Appellant, Johnnie Horn, brought suit against appellees, Joseph Edmond and State Farm Insurance Company, seeking damages for personal injuries allegedly sustained by her as the result of an automobile collision. State Farm Insurance Company, the liability carrier on Edmond’s automobile, was joined as a party defendant under the terms of the Uninsured Motorist Clause of the policy. In answer to the special issues, the jury found both parties liable for negligence proximately causing the collision. The jury further found that the negligence attributable to each driver was 50%. In response to the damage issues, the jury found that the reasonable cost of the medical and hospital care furnished appellant, Johnnie Horn, amounted to $686.20, and that she suffered a loss of past earnings in the amount of $950. The jury, however, found that she suffered no damages as a result of past or future physical or mental pain. Pursuant to the verdict, the trial court entered judgment against State Farm Insurance Company in the amount of $1,118.10, and granted State Farm an indemnity in such an amount over and against Joseph Edmond, the uninsured motorist. Appellant, Johnnie Horn, perfected this appeal.

We reverse and remand.

Appellant presents only two points of error in which she contends that the trial court erred in overruling her motion for new trial based on the jury’s finding that she was not entitled to any damages for physical pain or mental pain and suffering. Appellant’s contention is that the jury’s answers to these issues are contrary to the undisputed evidence, or, in the alternative, are against the great weight and preponderance of the evidence.

The collision made the basis of this suit occurred on November 30, 1973. While attempting to make a left turn into her driveway at her home, appellant’s automobile was struck on the right side by the oncoming automobile driven by Edmond. As a result of the impact her automobile was knocked into a ditch. Immediately thereafter she testified that she was bleeding in the area near the right eye. She testified that when she was able to get out of the automobile she had pain in her right cheek bone, neck, left shoulder and knees. Shortly thereafter she was taken in an ambulance to the hospital where she was confined for a period of four days. She testified that during the time she was in the hospital she had blurred vision; her right cheek and eye were severely bruised and her right eye was swollen to the extent that it was closed; she had severe bruises in the area of her neck, right shoulder and knees and was given medication to relieve her pain. After she left the hospital she testified that she continued to have pain in the neck, right shoulder and knees and continued to have headaches until the time of trial. She testified that the treating physician prescribed a soft collar which she wore around her neck for several weeks in order to alleviate her neck problem. It is undisputed that she lost forty days from work and thereafter returned on a half-day basis for two weeks.

Dr. A. Burton Anderson, who examined and treated appellant on December 21, 1973, testified that he was of the opinion that she suffered a sprain of the neck and cervical spine and suffered from some pain in the area of her pelvis and pain in the neck as a result of muscle spasms. His diagnosis was: “One, cerebral concussion, moderately severe; two, musculofacial strain and sprain of the posterior muscala-ture of the neck and sprain of the cervical spine at the level of C-4 and C-5.”

Rule 328, Tex.R.Civ.P., provides inter alia that “[n]ew trials may be granted when the damages are manifestly too small or too large . . . .”

Although the amount of damages is ordinarily left to the discretion of the jury under the evidence before them, the jury cannot ignore the undisputed facts and arbitrarily fix an amount neither authorized nor supported by the evidence. Lowery v. Berry, 153 Tex. 411, 269 S.W.2d 795 (1954).. In the instant case, there is nothing in the record indicating that appellant was not injured or that she did not suffer any pain. The undisputed facts disclose that appellant did suffer pain. Thus, the finding of the jury that appellant suffered no damages is not only unsupported by any evidence, but directly contrary to all the evidence. In our view the verdict was manifestly wrong and the trial court should have granted a new trial. Lowery v. Berry, supra; Bolen v. Timmons, 407 S.W.2d 947 (Tex.Civ.App.—Amarillo 1966, no writ history). Therefore, appellant’s first point of error is sustained.

In view of our conclusion that the verdict and the judgment based thereon are contrary to the undisputed evidence, we do not reach appellant’s second point of error. However, if such point were reached, we would hold that the jury’s answers to the issues in question are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Carrico v. Busby, 325 S.W.2d 413 (Tex.Civ.App.—Houston 1959, writ ref’d n.r.e.); Bazzano v. Ware, 530 S.W.2d 650 (Tex.Civ.App.—Beaumont 1975, writ ref’d n.r.e.).

The judgment of the trial court is reversed and remanded.