author: JAMES, Justice.

text:
    Roger H. STONER, Appellant, v. Joe Glenn THOMPSON et al., Appellees.
    No. 5854.
    Court of Civil Appeals of Texas, Waco.
    Aug. 24, 1978.
    Rehearing Denied Sept. 14, 1978.

      Patrick J. Horkin, Jr., Horkin & Horkin, Corpus Christi, for appellant.
    Hall E. Timanus, Andrews, Kurth, Campbell & Jones, William E. Matthews, Sewell, Junell & Riggs, David J. Beck & Simeon T. Lake, III, Fulbright & Jaworski, Houston, for appellees.
   OPINION

JAMES, Justice.

This is an appeal from a judgment against Appellant Roger H. Stoner, same including a declaratory judgment, a permanent injunction, and a judgment for damages. We affirm the trial court’s judgment.

At all times material to this controversy, Appellant Stoner was the owner of 49% of the common stock of Texas Media Group, Inc., a corporation, the primary asset of which was Radio Station KZFM located in Corpus Christi, Texas. Stoner was also general manager of said radio station. Ap-pellee Joe Glenn Thompson was the owner of three percent of the common stock, with the remaining 48% thereof being owned by Dr. Frank Gerow, Dr. Page Nelson, and Dr. Ray Reid.

In the summer of 1976 the owners of 51% of the common stock, that is, Thompson and the three Doctors hereinabove named, became interested in selling their stock in Texas Media. Appellees Arnold Malkan and wife Audrey Malkan sent a written tender offer to all the stockholders, including Stoner. Stoner did not accept the offer, but Thompson and the three Doctors did accept. However, at the time, Dr. Nelson was hospitalized, and there was some question as to whether he, Dr. Nelson, had actually transfered physical possession of his shares in Texas Media. Before this question could be resolved, on September 2, 1976, Stoner filed the instant litigation in a district court in Harris County seeking specific performance of his alleged prior agreement with Thompson and Nelson to buy their stock. On September 13, 1976, the Malkans intervened in the Harris County suit seeking to protect their alleged agreement to purchase the Texas Media stock in question. Thereafter the Malkans filed a counterclaim against Stoner for interference with the Malkans’ contractual relationship with Thompson. Stoner-answered the Intervention and Counterclaim and cross-acted against the Malkans, Gerow, Reid, Nelson, and Thompson.

Stoner sought a temporary injunction in the Harris County suit, seeking to enjoin the sale of Thompson’s stock to the Mal-kans. After temporary hearing, the trial court denied Stoner this relief; but did, however, order that Stoner be permitted to remain as radio station manager at KZFM conditioned úpon his posting a bond. Stoner never posted a bond, but instead filed a suit in the 148th District Court of Nueces County seeking, among other things, in-junctive relief against Texas Media, Gerow, and Reid, to prevent them from dismissing him as radio station manager at KZFM. Before Texas Media was served in the Nueces County suit, it intervened in the Harris County suit seeking a declaratory judgment as to its rights and liabilities. Texas Media then filed a motion to abate the Nueces County suit; but, before the Court in Nueces County could pass upon that motion, Stoner dismissed the suit in Nueces County.

Meanwhile, on November 23, 1976, the Malkans entered into a written contract with Gerow, Reid, Nelson and Thompson whereby the Malkans agreed to purchase the 51% of the stock belonging to said named stockholders, who in turn agreed to sell their stock at an agreed price.

Texas Media filed an application for in-junctive relief against Stoner in the Harris County suit; and on December 10,1976, the Harris County District Court entered a temporary injunction against Stoner, wherein said court ordered Stoner to vacate the premises of Radio Station KZFM and enjoined him from denying Texas Media and its president, Gerow, control and possession of the books and records of the station. Stoner appealed this temporary injunction, and the First Court of Civil Appeals at Houston, Texas, subsequently on May 12, 1977, reversed the temporary injunction and dissolved same. See Stoner v. Thompson (Houston 1st Tex.Civ.App.1977) 553 S.W.2d 150, NRE).

On February 14, 1977, Stoner filed his second amended original petition in the Harris County suit; then three days later, to wit, on February 17, 1977, he filed a motion nonsuiting all claims for affirmative relief pending in Harris County. Then on that same day, Stoner filed a new lawsuit in the 105th District Court of Nueces County against Thompson and Nelson. Both Thompson and Nelson answered in the Harris County suit before the order on Stoner’s nonsuit was entered; but, neither of them had filed counterclaims against Stoner before he nonsuited them. However, Thompson and Nelson thereafter filed counterclaims against Stoner in Harris County; but no service of process was obtained against Stoner concerning such counterclaims prior to the trial on the merits which began on July 11, 1977.

On June 10, 1977, the Malkans filed a motion for preferential setting of the instant suit on the merits, pursuant to which motion the trial court gave the case a preferential setting for July 11, 1977. On June 30, 1977, Stoner filed an original and then on July 8, 1977, he filed a supplemental motion to set aside the trial court’s order granting preferential setting. After hearing, the trial court overruled both motions. On the day and at the time set for trial, Stoner filed a special appearance under Rule 120a; and at said time, Stoner’s attorney appeared; whereupon the trial court overruled Stoner’s special appearance. At this point Stoner’s attorney advised the court that he declined to proceed further, and left the courtroom, and thereafter neither Stoner nor his counsel participated in the case.

The court proceeded to trial without a jury, after which the trial court entered judgment on July 15,1977, which judgment contained the following:

(1) Texas Media Group, Inc.: was awarded judgment against Stoner in the amount of $50,000.00.

(2) The Malkans were awarded judgment against Stoner for $37,498.32.

(3) The court adjudicated that Stoner never had any valid contract, oral, written, or implied, with either Thompson or Dr. Nelson to purchase their shares in Texas Media.

(4) The court found that Stoner had been discharged as general manager of Radio Station KZFM by corporate action on November 27, 1976, and had thereafter without authority maintained possession and control of the premises of said radio station and also the corporate records of Texas Media, and has wrongfully prevented the corporate offices from exercising control of said premises and records. For these reasons, Stoner was permanently enjoined:

(a) From acting in behalf of Texas Media or the radio station as agent, manager, employee or officer thereof.

(b) From interfering with the officers, agents or employees of Texas Media in the operation of the radio station.

(c) From preventing the officers of Texas Media from taking possession of the radio station and the corporate records.

(d) From interfering with the corporate officers of Texas Media concerning licensing procedures before the Federal Communications Commission or any other governmental agency.

(e) From interfering with the transfer of Texas Media stock from Gerow, Nelson, Reid, and Thompson to the Malkans pursuant to the written contract of November 23, 1976, in which the above named persons were signatories and parties thereto.

(f) From interfering with Texas Media and the Malkans in their efforts to secure governmental approval of stock transfers hereinabove mentioned.

In addition, Stoner was ordered immediately tp vacate the premises of the radio station and never again enter therein without prior written approval of the president of Texas Media, and to deliver up to Texas Media’s corporate officers all of the books and records of the radio station.

Moreover, the trial court further found the contract of November 23,1976, between the Malkans as purchasers and Gerow, Nelson, Reid, and Thompson as sellers, to be valid, binding, and enforceable; that Stoner never had any right to interfere therein; that neither Thompson nor Nelson ever did at any time agree to sell their respective corporate shares in Texas Media to Stoner; that Stoner was properly and legally removed as general manager of the radio station by corporate action taken on November 27, 1976; that thereafter Stoner never had any authority to act as such; that Stoner take nothing against Texas Media and the Malkans; and that Stoner is hereafter barred from asserting any claims against them arising out of transactions and occurrences which are the subject matter of this lawsuit. From this judgment, Stoner appeals upon forty-two points of error. After careful consideration of all of Appellant Stoner’s points, we overrule same as being without merit.

After judgment, on July 18, 1977, Texas Media filed a motion for contempt against Stoner asserting violations of the injunctive relief contained in the trial court’s judgment. After hearing, on July 21, 1977, the trial court adjudged Stoner to be in contempt of court, and imposed punishment therefor.

In Appellant Stoner’s points of error one through five, he complains of the action of the trial court in granting the Malkans’ motion for a preferential setting and in refusing to set aside the order granting a preferential setting. As stated before, on June 10, 1977, the Malkans filed a motion requesting a preferential setting of the case for the week of July 11,1977, which motion the trial court granted. On June 30, 1977, Stoner filed his original motion to set aside the preferential setting, followed by his amended motion therefor filed by him on July 8, 1977. After hearing, the trial court overruled both of Stoner’s motions to set aside, and proceeded to trial on July 11, 1977. Appellant Stoner complains that he had no notice of the Malkans’ motion for preferential setting prior to the court’s signing the order granting same, the Mal-kans had no pleadings on file showing a justiciable interest in the lawsuit, that the local rules of the District Courts of Harris County were violated, and that a suit involving the same controversy concerning the same Texas Media corporate stock was pending in the 105th District Court of Nueces County. We overrule these contentions. The trial court’s action in setting the case for trial was clearly within its power. See Plains Growers, Inc. v. Jordan (Tex.1974) 519 S.W.2d 633; Rule 245, Texas Rules of Civil Procedure.

Appellant asserts that the setting of the case violates the local rules of the District Courts of Harris County. There is no proof in the record as to what these local rules are. Appellant attaches to his brief what he says is a copy of said local rules. Of course the attaching of this matter to his brief does not constitute proof of such local rules. We have no actual knowledge as to what such local rules provide, and in our opinion it would be improper as well as impossible for us to take judicial notice of such local rules of Harris County. See 23 Tex.Jur.2d, “Evidence,” par. 11, pp. 29, 30.

With reference to Stoner’s contention that the court had no jurisdiction because a companion suit involving the same corporate stock of Texas Media is pending in the 105th District Court of Nueces County: Stoner asserts that because this companion suit was pending between him on the one hand, and Nelson and Thompson on the other, in Nueces County, that the District Court in Harris County lacked jurisdiction over his person and the subject matter of this suit. We disagree.

It is a well-settled rule of law that pendency of a companion suit involving the same issues and subject matter does not preclude a trial on the merits in another case in the absence of an order granted after the filing of a plea in abatement, and in the absence of such plea in abatement, such objection is waived. Cleveland v. Ward (1926) 116 Tex. 1, 285 S.W. 1063 at p. 1070; Mitchell v. Allis-Chalmers Mfg. Co. (Tex.Com.App.1927) 291 S.W. 1099 at p. 1100, judgment adopted; Day v. State (Austin Tex.Civ.App.1972) 489 S.W.2d 368, at p. 371 NRE.

In the case at bar, Stoner never sought to abate the Harris County suit; indeed, he initiated it. As stated before on February 17, 1977, nearly five months before trial in Harris County, Stoner filed a nonsuit of all his claims for affirmative relief in the Harris County suit, and on that same day he filed a suit in the 105th District Court of Nueces County for specific performance of an alleged contract to purchase Texas Media stock, against Nelson and Thompson. Appellant’s contention that the pendency of the Nueces County suit deprived the Harris County District Court of jurisdiction is without merit.

By Appellant Stoner’s points 6 through 9 inclusive, he argues that the trial court lacked jurisdiction over the counterclaims of Nelson and Thompson against him because there had been no service of process of such counterclaims on him. It is true that Stoner had not been served with process concerning such counterclaims. However, this is immaterial, because the final judgment from which Stoner appeals does not award either Nelson or Thompson any relief against Stoner. Since the record shows that Thompson and Nelson did not obtain service of process on Stoner, that he did not answer their counterclaims prior to trial, the case stands as if Nelson and Thompson were not parties, and the failure to mention them in the judgment does not preclude the judgment on behalf of Texas Media and the Malkans against Stoner from being final and appealable. See North East Independent School District v. Aldridge (Tex.1966) 400 S.W.2d 893, 897; Youngstown Sheet and Tube Co. v. Penn (Tex.1962) 363 S.W.2d 230, 232; American Trendex Corp. v. Ultradyne Corp. (Austin Tex.Civ.App.1973) 490 S.W.2d 205, NRE; Liberty Mutual Ins. Co. v. City of Fort Worth (Ft. Worth Tex.Civ.App.1975) 517 S.W.2d 646, no writ; Vol. 4, McDonald, Texas Civil Practice, 1971 Revised Edition, Par. 17.10.3, p. 77.

Throughout Appellant’s points ten through thirty-seven, inclusive, Appellant contends that Appellees’ pleadings are insufficient to support the judgment. We overrule these contentions. Without detailing the evidence, suffice it to say that there is ample evidence to support all of the recovery allowed in favor of Texas Media and the Malkans against Stoner. Stoner never objected to any of this evidence, and therefore we hold these matters were tried by implied consent. Rule 67, Texas Rules of Civil Procedure; Bednarz v. State (1943) 142 Tex. 138, 176 S.W.2d 562; Strong v. Garrett (1949) 148 Tex. 265, 224 S.W.2d 471.

Moreover, the record does not show that Stoner ever urged any special exceptions against the pleadings of Appellees. This being so, Appellant has waived such objections to the sufficiency of such pleadings, and cannot now be heard to complain of same. Rule 90, Texas Rules of Civil Procedure; Texas Osage Co-op Royalty Pool v. Kemper (Galveston Tex.Civ.App.1943) 170 S.W.2d 849, writ refused.

Appellant has other points and contentions, all of which we have carefully considered, and we overrule same as being without merit.

Judgment of the trial court is accordingly affirmed.

AFFIRMED.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    Wilbur L. GINTHER et al., Appellants, v. Henry J. N. TAUB et al., Appellees.
    No. 5829.
    Court of Civil Appeals of Texas, Waco.
    Aug. 24, 1978.
    Rehearing Denied Sept. 21, 1978.

      Thomas M. Phillips and Thomas R. Phillips, Baker & Botts, Houston, Lawrence A. Mann, Mann, Cronfel, Dickinson & Saldana, Nat B. King, Laredo, for appellants.
    George P. Kazen, Mann, Castillon, Freed & Kazen, Laredo, Sam W. Levy, Levy & Levy, Joyce Cox, Cox, Pakenham & Roady, Houston, Julio A. Garcia, Garcia, Morales & Gonzalez, Laredo, for appellees.
   HALL, Justice.

The plaintiffs in this case appeal from a take-nothing summary judgment. We reverse the judgment.

Plaintiffs-appellants Wilbur L. Ginther and Howard C. Warren brought this suit against defendants-appellees Henry J. N. Taub and William A. MacNaughton to establish and recover equitable title to two-thirds, or, alternatively, one-half of Taub’s record interest in a 2716.46-acres oil, gas, and mineral lease in Webb County, Texas, known as the “Alexander lease,” which Taub acquired by assignment from Ginther and Warren; and to secure an accounting and the return of certain other oil and gas properties from MacNaughton under a disputed agreement for payment of legal fees to MacNaughton, an attorney at law, by Ginther and Warren. Appellant George M. Clement is an intervenor in the suit seeking recognition of a V&ith overriding royalty interest in the Alexander lease allegedly assigned to him by Ginther and Warren from their interest.

Ginther and Warren were once the record owners of all the lease. They base their lawsuit against Taub on allegations that their conveyances to him of the interests they now seek to recover were induced by breach of fiduciary relationships, fraud, conspiracy, and undue influence on the part of both Taub and MacNaughton, resulting in Taub’s unjust enrichment at their expense. Alternatively, they pleaded for quantum meruit for the reasonable value of their efforts in developing the lease. They also seek other relief by way of money damages which we need not detail.

It will be developed later in this opinion that during the time critical to this lawsuit Ginther and Warren were petitioners in the Bankruptcy Court for the Southern District of Texas for an arrangement for payment of their creditors commonly known as a “Chapter XI” Plan of Arrangement. Mac-Naughton was their lawyer in that proceeding. His fee was $66,225.00 plus some out-of-pocket expenses. Ginther and Warren base their suit against MacNaughton for an accounting and for the return of certain oil and gas properties assigned to him by them on allegations that they paid him $10,000.00 cash and assigned him the oil and gas properties subject to the condition that he would reassign the properties when he recovered the balance of his fee from income produced therefrom; that he thereafter complied with the agreement for two years by sending them accountings of income received by him on the properties; but that he now claims the assignments were absolute.

Taub answered with a general denial, and with pleadings that the recoveries of title to the lease sought by Ginther and Warren were prohibited by the Texas Trust Act, Art. 7425b-7, Vernon’s Tex.Civ.St.; the Statute of Frauds, V.T.C.A., Bus. & Comm. § 26.01; and the Statute of Conveyances, Art. 1288, Vernon’s Tex.Civ.St. He also alleged in detail that, without knowledge on his part, the conveyance of record title of the lease to him was made by Ginther and Warren to defraud their creditors in their bankruptcy proceeding and that for this reason they were not entitled to equitable relief. Additionally, he alleged that by reason of the provisions of the Texas Real Estate License Act, Article 6573a, Secs. 19 and 28, Vernon’s Tex.Civ.St., and the Texas Securities Act, Article 581-34, Vernon’s Tex.Civ.St., Ginther and Warren could not recover on their claim for quantum meruit.

MacNaughton answered with a general denial, and with pleadings that the conveyances to him for his fee were absolute in their terms and were not made under the condition alleged by Ginther and Warren; that the validity and finality of the assignments for payment of his fee were tried and determined in the Bankruptcy Court and decided by that Court’s order approving the assignments; and that the order of the Bankruptcy Court is conclusive and is not subject to collateral attack by Ginther and Warren. He also alleged that the asserted agreement on his part is unenforcible by reason of the Statute of Frauds.

Taub and MacNaughton separately filed motions for summary judgment. After a hearing, the motions were granted and judgment was rendered on May 4, 1977, that Ginther and Warren and Clement take nothing. They appeal asserting material fact questions exist in the record on the causes of action against both Taub and MacNaughton preventing disposition by summary judgment. We agree and reverse the judgment and remand the case for trial.

It is settled that on review of a summary judgment all conflicts in the evidence are disregarded, the proof which tends to support the position of the party opposing the motion is accepted as true, and all doubts as to the existence of a genuine issue of material fact are resolved against the movant. Farley v. Prudential Insurance Company, 480 S.W.2d 176, 178 (Tex.Sup.1972). The following summary is made under those rules.

Ginther and Warren are independent oil men who have worked together since 1934 in the discovery and production of oil and gas properties. During the 1950⅛ and 1960’s they were quite successful and were well known and respected in the oil and gas industry and in social circles in Houston, Texas, where they office. Clement, a former geologist with a major oil company, has been associated with Ginther and Warren since 1956. For many years they have been active in the development of oil and gas properties in Webb County, Texas. Among their acquisitions in Webb County was the previously mentioned 2716.46-acres oil, gas and mineral lease known as the “Alexander lease” which Ginther and Warren purchased on February 17, 1969. The lease required annual delay rentals of $1.00 per acre, and provided that it would terminate on February 17, 1974, in the absence of paying production, unless on or before that day the lessees paid the lessors the sum of $13,-500.00 as bonus (in lieu of the sixth year’s delay rental of $1.00 per acre), for an extension for five additional years. The lease also called for a cash payment of $6,500.00 to the lessors upon execution, which was paid by Ginther and Warren. They also paid James A. Mayo, the broker through whom they obtained the lease, $1,358.00 cash and assigned him a V32nd overriding royalty interest for his services. The “Mayo override” is not in dispute in this case.

Because of confidential geological data they had and other information on Webb County oil properties known by them, Gin-ther and Warren were very optimistic about the future production capabilities of the Alexander lease. They did not have sufficient funds for drilling; and upon acquiring the lease, they began searching for a partner to whom they could “farm-out” an interest in it in exchange for production. They labored toward that end until March, 1974, when through their efforts a farm-out agreement on the lease was concluded with Good Hope Refineries, Inc.

Although unable to develop the lease immediately after its acquisition, Ginther and Warren kept it alive by paying the annual delay rentals of $2,716.46 in 1970 and 1971. By 1972, however, their financial position had severely deteriorated. For this reason and because they thought highly of the Alexander lease, they determined to take in a partner to help defray the cost of maintaining the lease. Accordingly, they offered appellee Taub who was their close friend and long-time business associate a one-third undivided interest in the lease for the price of the annual delay rental due February 17,1972. After Ginther and Warren provided Taub with their confidential geological information Taub accepted their offer, paid the delay rental, and was assigned a one-third interest in the lease subject only to the Mayo override. This one-third interest assignment to Taub in 1972 is not in dispute in this lawsuit.

Ginther’s and Warren’s financial condition continued to worsen. They sought the assistance of and subsequently retained ap-pellee MacNaughton who was knowledgeable as an attorney in both bankruptcy and oil and gas matters. He recommended in a letter to them that they petition for a Chapter XI Bankruptcy proceeding “by which you go into the bankruptcy court, acknowledge that you are not able from your assets in their present condition to pay your creditors in full. You remain in title, possession and control of your properties but liquidate, modify and adjust same under the supervision and orders of the bankruptcy court and ultimately come forward with a program called a plan of arrangement by which you distribute your named and designated assets to your creditors in full satisfaction of the debt owed to them. If the creditors are satisfied that you are not hiding anything or committing any other act in violation of their confidence and faith, having placed in full view to them your assets and your liabilities, they will normally accept the plan . . . Upon such an acceptance, the plan is effectuated, your designated assets are distributed to your creditors in full satisfaction of your debts to them, the case is closed and you go on and continue in business thereafter just as you had before you filed the proceedings. You are not a bankrupt, you have not gone through bankruptcy, you remain in title, possession and control of your affairs until you carry out your plan and it presupposes that you are simply having an interim period of bad financial times and it gives a certain protection and court control to you while you so straighten out your affairs.”

Ginther and Warren followed MacNaugh-ton’s advice and, on October 31, 1972, petitioned for a Chapter XI Arrangement in the Bankruptcy Court for the Southern District of Texas. Each attached a schedule of assets to his petition, listing the Alexander lease first among his non-producing assets in Webb County.

The Tauh-Ginther-Warren Relationship

Taub is a wealthy Houston businessman whose activities include dealings in oil and gas properties. Ginther and Warren became acquainted with Taub in the mid-1950’s when they were at the peak of their prosperity. A close friendship developed. Taub and Ginther became especially close. Taub testified that Ginther was like his brother; and Ginther stated that Taub was his best friend, and like a member of the family. The record evidences those relationships.

Following the establishment of their close social relationship, Taub began to participate with Ginther and Warren in certain oil and gas ventures. Over the years, they invested together in forty to fifty separate transactions. Almost all commitments between them were made orally, and then reduced to writing at a later date. Taub always kept his word with Ginther and Warren and never abused the confidence they reposed in him, and they regarded him as one of their best partners. Their relationship was so close that Ginther and Warren trusted Taub “as much as anybody could.”

Although their percentage of successful ventures was above average for the industry, Taub and Ginther and Warren suffered large losses together on several occasions. One especially costly venture was the North Milton deal in Harris County, which Taub had in fact brought to the parties’ attention. This particular loss was one reason why Ginther and Warren gave Taub “first chance” on the Alexander lease, because they believed that “whoever came in with us had a good chance to do some real good here.”

The MacNaughton-Ginther-Warren Relationship

It is undisputed that MacNaughton was Ginther’s and Warren’s attorney throughout the period material to this lawsuit. There is evidence supporting the conclusion that in the course of the bankruptcy proceeding he gained complete control of the business affairs of Ginther and Warren. In the beginning, he told them they were no longer “masters of their destiny” and that their destiny “would be in his hands and the hands of the court”; and that they “must follow his instructions to the letter.”

Ginther and Warren became “debtors in possession of assets” in the bankruptcy suit, but MacNaughton assumed final authority over their properties, income and expenditures. He told them so in a letter in November, 1972, stating, “I will shepherd the receipt and disbursement of monies and the preservation and transformation of assets.” Ginther and Warren dutifully complied with every instruction MacNaughton gave during the Chapter XI Proceeding. They were totally inexperienced with bankruptcy proceedings and placed absolute trust in their attorney. They never questioned MacNaughton regarding any of the legal documents related to the proceeding; and they did not bother even to read many of the instruments, some very lengthy, he presented to them for their signatures.

It is undisputed that during MacNaugh-ton’s control and “shepherding” of Ginther and Warren and their assets, their record interest in the Alexander lease was reduced in 1973 from two-thirds to one-half and then to nothing, while Taub’s recorded ownership in the lease was correspondingly increased from one-third to one-half and then to 100%; and that during the same period, the Alexander lease was deleted from the list of Ginther’s and Warren’s assets in instruments prepared by MacNaughton and. filed by him in the Bankruptcy Court.

The Taub-MacNaughton Relationship

MacNaughton had performed legal services for Taub since 1957, and Taub was one of his most prestigious and valued clients. The record shows that between December, 1969, and July, 1974, MacNaughton billed Taub 136 times for various legal services, and sent Taub twenty other “no charge” statements for services. Additionally, in February, 1972, they formed a limited partnership, with MacNaughton the general partner and Taub the limited partner, for the purpose of erecting a six-stories office building on land in Houston owned by Mac-Naughton. The venture ran into difficulties because of inflation, labor problems, and material shortages. MacNaughton, whose personal finances were admittedly limited, was required to seek additional funding beyond the $3,000,000.00 originally contemplated. Taub provided this funding by personally guaranteeing several promissory notes made intermittently by the partnership in 1972 and 1973 which totaled more than $300,000.00. In October, 1973, based in part upon the guarantees, Taub’s ownership of the partnership was increased from 60% to 75%; the land was transferred from the partnership to an alter-ego corporation named “MacNaughton Lands, Inc.”; and all shares of stock of the corporation were assigned to Taub. Ginther and Warren assert that those facts reasonably support the inference that “Taub was left in a position to wipe out MacNaughton’s equity in the venture at will,” and we agree.

The March 6th Assignment

MacNaughton erroneously told Ginther and Warren they could not use funds from their debtor-in-possession accounts to pay delay rentals to keep their non-producing leases in force. In truth, they were permitted to do so by order of the Bankruptcy Court which specifically authorized them “to pay and satisfy out of any funds now or hereafter coming into [their] possession all normal and usual costs of operating and maintaining [their] office as oil and gas operators], including the payment of delay rentals . . . ” They were left ignorant of that order. Believing they were without funds usable for payment of delay rentals, they sought help. In a telephone conversation between Ginther and Taub in January, 1973, Taub had said, “By the way, Wilbur, I’m sorry to hear about your plight under Chapter XI, and I want you to know if I can do anything for you, money or anything, just call on me.” Later, acting in reliance on Taub’s past friendship and his recent offer of aid and his interest in the Alexander lease, Ginther, while out of town, asked Warren to contact Taub and arrange for Taub to make the entire delay rental payment due on the Alexander lease in February, 1973. Warren was unable to reach Taub directly, but he did talk twice to Taub’s secretary, Betty Wynn. Through her, Warren secured Taub's promise to pay the $2,717.00 rental which included his and Ginther’s $1,800.00 share. Warren suggested to Mrs. Wynn that a repayment formula similar to the one they had used with the Exxon Company might be employed for repaying Taub. Under the “Exxon formula,” with which all parties were familiar, Exxon paid the entire delay rental and received an assignment of the lease from Ginther and Warren. They reserved an override in the lease and retained the right under a letter agreement to reacquire their entire original interest by paying Exxon their share of the rental within six months. Warren’s mention of the Exxon formula to Mrs. Wynn was “just a suggestion, not an offer,” and no agreement was actually reached concerning Ginther’s and Warren’s obligation to Taub for the payment. Because of their long-standing friendship with Taub and his offer of financial aid, Ginther assumed Taub’s payment for them was in the nature of a loan.

Taub decided to make the payment for Ginther and Warren only after consulting with MacNaughton. Without contacting Ginther or Warren, Taub called MacNaugh-ton a second time and instructed him to prepare documents reflecting his agreement with Ginther and Warren concerning the delay rental payment. On the basis of this conversation, MacNaughton prepared an assignment (the “March 6th Assignment”) by which Ginther and Warren would transfer an additional one-sixth interest in the lease to Taub as consideration for his payment of the rental. The instrument provided that Ginther and Warren assigned to Taub:

“[A] total undivided sixteen and two-thirds (16⅜%) percent leasehold working interest in and to [the Alexander lease], all to the end that upon execution and delivery of this instrument, said Oil, Gas and Mining Lease shall be owned [subject to the Mayo override] by the following named parties in the following proportions, to-wit:
“W.L. Ginther 25%
Howard C. Warren 25%
Henry J. N. Taub 50%.”

The instrument provided blank space for execution on “this _ day of March, 1973”; but recited that it was “effective at 7:00 A_M. on February 1, 1973.” It did not contain any provision for repayment like the Exxon formula, and no written side agreements were made concerning repayment.

MacNaughton also prepared for Ginther’s and Warren’s signatures an application to the Bankruptcy Court for authority to execute the March 6th Assignment. The application recited that Ginther and Warren made the agreement with Taub because they “did not believe that they had sufficient cash funds necessary to bear and pay their proportionate part of the cash cost of said [delay rental] payments.” The Bankruptcy Court records show, however, that they in fact had $12,660.43 in their accounts on February 1, 1973, and $13,680.24 in the accounts on February 28,1973, after adjustments for the month’s income deposits and cash disbursements. If Ginther’s and Warren’s part of the 1973 delay rental had been paid from those funds this lawsuit could never have arisen.

Although MacNaughton was representing Ginther and Warren and Taub in preparation of documentation of their agreement for payment of the delay rental, he talked only with Taub to determine what if anything the parties had agreed; and he never consulted with Ginther and Warren prior to presenting them with the March 6th Assignment. It came as a surprise to them, and they were unhappy with it. However, their complaints to MacNaughton were ineffective. He told them, “This is the way I’ve worked out the deal with Henry [Taub] on the Alexander. You give up sixteen and two-thirds percent, Mr. Taub puts up $1,800.00 for your rental. And that’s the deal. This is the way I’ve got this thing worked out.” Ginther and Warren had recently gained additional information which bolstered their confidence in the Alexander lease, and they were anxious to maintain the lease. Ginther explained their choice in these words: “I trusted Mr. Mac-Naughton and Mr. Taub was an old friend of ours and we couldn’t pay the rental with our funds.” Accordingly, they followed MacNaughton’s advice and executed the assignment and the accompanying application on March 6th.

MacNaughton also prepared an order confirming the March 6th Assignment, which was signed by the judge of the Bankruptcy Court on March 6th. MacNaughton testified that this order would give Ginther and Warren “assurance” in their bankruptcy proceeding that they had acted properly in executing the assignment. The order has never been set aside or superseded in the Bankruptcy Court, and no action to modify it has ever been attempted.

Immediately after execution of the March 6th Assignment, on the same day, MacNaughton sent the assignment to Webb County to be recorded. A copy of the transmittal letter was sent to Taub, and Taub made certain reminder notes on the letter copy concerning the payment of the 1974 rental and the obtaining of recording information. On March 19th, MacNaugh-ton forwarded the original March 6th Assignment, now recorded, to Taub, and Taub again made certain notes to himself on MacNaughton’s transmittal letter. None of Taub’s notes on either letter indicated that the March 6th Assignment was in any way erroneous.

Whether or not Taub believed the March 6th Assignment represented the agreement of the parties when it was executed, he and MacNaughton considered MacNaughton’s legal services relating to the assignment rendered for Taub. On April 4, 1973, Mac-Naughton sent Taub a “no charge” statement for the preparation and recordation of the assignment. Taub wrote, “Thanks, Bill. H.” on the statement and returned it to MacNaughton.

The December 4th Assignment

Until August 13, 1973, Ginther and Warren did not know that anyone questioned the legal effect of the March 6th Assignment. Until then, neither MacNaughton nor Taub had ever suggested to Ginther or Warren that there was any problem concerning the ownership of the Alexander lease, although all had seen each other in cordial fashion throughout the Spring and Summer of 1973. Meanwhile, MacNaugh-ton prepared a preliminary Plan of Arrangement with the creditors, and then a Final Plan. The Plans gave the creditors a V&ith overriding interest in listed non-producing oil and gas properties owned by Ginther and Warren in Webb County. Without Ginther’s and Warren’s knowledge, both Plans excluded the Alexander lease, although MacNaughton had previously represented to the creditors that all non-producing Webb County leases would be included in the Plan. MacNaughton would later explain his exclusion of the Alexander lease in these words: “[T]he matter was beginning to be confused and I simply deleted that lease from the Plan so that the creditors did not participate in any override therein.” The record shows that he and the other parties knew by mid-1973 that the lease was rapidly increasing in value.

The preliminary Plan of Arrangement was sent to the creditors on July 12, 1973. On July 27th, MacNaughton filed the Final Plan with the Bankruptcy Court. Without Ginther’s or Warren’s knowledge or permission, MacNaughton also sent Taub copies of both Plans. Taub placed them in his personal file concerning the Alexander lease.

On August 3rd, the Bankruptcy Court mailed the Final Plan to the creditors. Confirmation by the creditors was set for hearing on August 21st.

Also on August 3rd, MacNaughton wrote a secret letter to Taub, with no copies to Ginther and Warren, stating in part:

“You will recall that on Feb. 15,1972 you paid $2717.46 for [a ⅛ interest in the Alexander lease] and which payment I am sure was used by Ginther-Warren for the delay rental due on or about that date in 1972. Then, on February 17, 1973 another delay rental payment was due in the same sum.
“It is at this point that in my communication with Betty Wynn, you and Ginther-Warren, I became confused. There was an assignment executed by Ginther-War-ren to you of a 16⅜ interest in this lease pursuant to a March 6, 1973 Order of the Referee, a copy of each of which I attach for your ease of reference. However, instead of the end result of that transaction being full ownership in you to the entire lease (a 66⅜% assignment instead of 16⅜% as I actually prepared it) with either an overriding royalty or re-acquiring right vested in Ginther-Warren, I drew the papers based upon such misunderstanding on my part so that Ginther and Warren each still own of record this date a 25% interest each in said lease. I take full responsibility for this ‘foul-up’ because I do not think it reflects the intent of the parties nor is it in keeping with representations heretofore made to the creditors of Ginther-Warren in the Chapter XI proceedings. I do believe that it is imperative that this question be resolved by appropriate documentation prior to the date of the resumed First Meeting of Creditors and for confirmation, which for your information is 2 o’clock P.M., August 21, 1973.
“Please keep me advised.”

On August 13th, Ginther and Warren went to MacNaughton’s office at his request to sign some papers relating to the bankruptcy proceeding. They officed across the street from MacNaughton, and in his words, there was “constant communication back and forth, by telephone or otherwise . . . They would pop into my office with no particular — sometimes with appointments and sometimes not.” In all^ his visits to MacNaughton’s office prior to August 13th, Ginther had never seen Taub there, but Taub and his son, H. Ben Taub, were there when Ginther and Warren arrived on that day. On that occasion, while MacNaughton remained silent, Taub asserted to Ginther and Warren that in exchange for his payment of the delay rental they had agreed to assign him all their interest in the Alexander lease under the Exxon formula, that through MacNaughton’s mistake the March 6th Assignment erroneously conveyed him only 16¾ of their interest rather than all (66⅜ interest), that they had failed to repay him within six months, and that he was therefore sole owner of the Alexander lease. He called upon them to effect a corrected conveyance. They denied that they had agreed to convey their entire interest, and the dispute continued for several months thereafter. During that time Taub twice acknowledged that they still owned one-half of the lease. Nevertheless, Ginther and Warren eventually executed and delivered to Taub on January 9, 1974, an assignment dated December 4, 1973, (the “December 4th Assignment”) which provided in part as follows:

“WHEREAS, by instrument dated on or about March 6, 1973, there was transferred and assigned to HENRY J. N. TAUB an additional 16⅜% interest in the above referred to [Alexander] lease but which assignment, except for a scrivener’s error, should have been for an undivided 66⅜% interest therein; . . . and the parties do here desire to rectify and remedy said scrivener’s error to the end that all of the leasehold interest shall be vested in HENRY J. N. TAUB as originally intended;
“NOW, THEREFORE, . . . we, W. L. Ginther and Howard C. Warren . do hereby . . . ASSIGN and CONVEY unto the said HENRY J. N. TAUB, his heirs and assigns, hereinafter called the Assignee, all of that certain undivided one-half interest in and to the above referred to Oil, Gas and Mineral Lease . to the end that with the undivided one-third interest conveyed to Assignee by instrument of February 15, 1972, that with the 16⅜% interest conveyed to As-signee by the instrument of March 6 1973, and with the undivided one-half interest here conveyed to Assignee, As-signee shall be the owner of the entire leasehold estate in said Oil, Gas and Mineral Lease; but expressly subject to [the Mayo override].”

There is evidence we have not set forth which shows that Ginther and Warren were induced to execute the December 4th Assignment by MacNaughton’s promise and assurance of benefits to them from Taub if they did, and his statements concerning certain detriments to them if they did not. There is also evidence that after the assignment Ginther and Warren continued to develop the lease believing they were co-owners with Taub; and that in 1974, through their efforts, the farm-out agreement was arranged with Good Hope Refineries for drilling the lease, which Taub executed. There is additional evidence that the Alexander lease has become very valuable, and that by the time of judgment in this case Taub had received more than $300,000.00 income from it.

Our Holdings

As we have stated, Ginther and Warren seek relief from the summary judgment on grounds that the March 6th Assignment and the December 4th Assignment were procured from them by conspiracy, fraud, undue influence, and breach of fiduciary relationship by Taub acting individually and with and through MacNaugh-ton, resulting in Taub’s unjust enrichment. Traditionally, the courts of our State have recognized and enforced constructive trusts in those circumstances. E. g. Ward v. Scarborough, 236 S.W. 434 (Tex.Com.App.1922, jdgmt adopted), conspiracy; Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (1951), breach of fiduciary duty; Meadows v. Bierschwale, 516 S.W.2d 125 (Tex.Sup.1974), fraud; and Andrews v. Brown, 10 S.W.2d 707 (Tex.Com.App.1928), undue influence. The Texas Trust Act, the Statute of Frauds, and the Statute of Conveyances, pleaded by Taub, do not prohibit the imposition of constructive trusts under those facts. The Texas Trust Act expressly excludes constructive trusts from its provisions. Article 7425b-2, Vernon’s Tex. Civ.St. The Statute of Frauds and the Statute of Conveyances require that certain agreements concerning the transfer of real estate be in writing to be enforceable. But Ginther and Warren are not suing to enforce an oral agreement, and the Statutes are not applicable.

The record in this case is voluminous, containing the statement of facts of a lengthy prior trial before a jury, many depositions, and multitudinous exhibits. The facts are involved and greatly detailed. Our recitation of the evidence relating to every issue between the parties would render this opinion unbearably long, and we shall not do so. It is sufficient to say that our review of the record convinces us that there is evidence supporting every theory upon which Ginther and Warren seek to avoid the two assignments to Taub. In fairness to Taub, and to MacNaughton, it should also be stated that there is proof in the record refuting those theories. But that proof only raised questions of fact on the issues, and did not entitle Taub to summary judgment.

Particularly, the small amount of the evidence we have recited establishes that the relationship between Taub and Ginther and Warren was that of fiduciaries when the March 6th Assignment and the December 4th Assignment were executed. A fiduciary relationship can arise from a technical business association between persons or “informally from purely personal relationships,” where trust and confidence have been reposed by the parties by reason of the relationship. MacDonald v. Follett, 142 Tex. 616, 180 S.W.2d 334, 337 (1944); Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex.Sup.1963); Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 560 (1962); Holland v. Lesesne, 350 S.W.2d 859, 861-62 (Tex.Civ.App.—San Antonio 1961, writ ref’d n. r. e.). Our record shows both the technical and the informal relationships of trust between Taub and Ginther and Warren.

Under disputed proof, whether the parties’ relationship is actually a fiduciary relationship is a question of fact. Schiller v. Elick, 150 Tex. 363, 240 S.W.2d 997, 999 (1951).

Where the plaintiff establishes that the transaction which he seeks to avoid was executed when a fiduciary relationship existed between him and the defendant, equity indulges the presumption of unfairness and invalidity, and casts upon the defendant claiming validity and benefits of the transaction the burden of proving that it is fair, honest, and reasonable. Stephens County Museum, Inc. v. Swenson, 517 S.W.2d 257, 260 (Tex.Sup.1975); Archer v. Griffith, 890 S.W.2d 735, 740 (Tex.Sup.1965); Popperman v. Rest Haven Cemetery, Inc., 162 Tex. 255, 345 S.W.2d 715, 718 (1961). Evidence adduced by the defendant to meet his burden simply presents a question of fact. Stephens County Museum, Inc. v. Swenson, supra, at 517 S.W.2d 261. Accordingly, Taub’s proof of fairness did not entitle him to summary judgment.

Ginther’s and Warren’s alternative action for quantum meruit is based upon their efforts developing the Alexander lease and finding a driller. They say the work was performed by them as owners of the lease. If it was, Taub’s interposition of the Real Estate License Act and the Texas Securities Act to defeat that claim is without merit. The Real Estate License Act expressly excludes transactions by owners from its operation. Article 6573a, Sec. 6(4). And, isolated dealings by owners of oil, gas and mineral interests do not fall within the operation of the Securities Act. Article 581-5, Sec. Q. Additionally, the record sho\,s that Good Hope Refineries was assigned an undivided working interest in the Alexander lease for producing oil on the lease, as the result of Ginther’s and Warren’s efforts. It is well settled that the Securities Act does not apply to transactions between joint adventurers and partners. Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704, 709 (1956).

It is undisputed that the fiduciary relationship of attorney-clients existed between MacNaughton and Ginther and Warren when they assigned the oil and gas properties to him to which they now claim equitable title. Although the transfers were absolute in their terms, Ginther and Warren testified they were made with the understanding that MacNaughton would reassign the properties when he had collected the full amount of his fee from the income produced by the properties. Under the rules set forth above relating to transactions between fiduciaries, it was Mac-Naughton’s burden to establish that the assignments were unconditional and that the transaction was fair and reasonable in order to defeat Ginther’s and Warren’s claim of equitable title. His proof in that regard did not entitle him to summary judgment.

Ginther’s and Warren’s contention that MacNaughton agreed to reconvey the property is supported in the record by a letter from him to them dated August 2,1973, and signed by him, discussing the arrangement. Therefore, the Statute of Frauds, Y.T.C.A., Bus. & Com. § 26.01, does not support the summary judgment in MacNaughton’s favor.

Apparently relying upon the doctrines of res judicata and estoppel by judgment, MacNaughton contends that the order of the Bankruptcy Court approving Ginther’s and Warren’s application to assign the properties to him is a bar to their suit to establish their equitable title and obtain reconveyance. We disagree. Mac-Naughton and Ginther and Warren were not adversaries in the Bankruptcy Court, and the differences now raised between them were not tried and determined there. In an affidavit attached to the application, MacNaughton stated that he would “be paid his fees for services ... by either payment in monies that may be hereafter earned or in conveyance of property interest reverted in each of said Debtors-in-Possession, or both, as the case may be.” Insofar as the record shows the Bankruptcy Court’s order was based solely upon that representation without any knowledge or determination by the Court of the actual agreement between the parties. The order simply approves “that certain agreement” between the parties for payment of Mac-Naughton’s fees. It does not purport to interpret the terms of the agreement. The elements of res judicata and collateral es-toppel are not established in the record. See Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 362 (Tex.Sup.1971); Swilley v. McCain, 374 S.W.2d 871, 874 (Tex.Sup.1964); Lozano v. Patrician Movement, 483 S.W.2d 369, 371 (Tex.Civ.App.—San Antonio 1972, writ ref’d n. r. e.).

Taub and MacNaughton bring forward cross points in which they question the trial court’s order overruling their motions to reinstate a prior judgment in this case. The prior judgment was rendered after a jury trial, but it was set aside on motion for new trial. The cross points are without merit, and they are overruled without further discussion.

The summary judgment is reversed, and this case is remanded for trial.


author: McDONALD, Chief Justice.

text:
    VAN’S CRANE AND ERECTION SERVICE, INC., Appellant, v. Paul CORN et al., Appellees.
    No. 5918.
    Court of Civil Appeals of Texas, Waco.
    Aug. 24, 1978.
    Rex D. Davis, Ñaman, Howell, Smith, Lee & Muldrow, Waco, for appellant.
    Ernest H. Cannon and John M. O’Quinn, Riddle, Murphrey, O’Quinn & Cannon, Houston, Mac L. Bennett, Jr., Bennett & Bennett, Normangee, Jack B. Ellison, Bennett & Bennett, Buffalo, for appellees.
   OPINION

McDONALD, Chief Justice.

Defendant Van’s Crane appeals from an order overruling its plea of privilege.

Plaintiffs Corn and Langston sued defendants Van’s Crane, R. B. Butler, Inc. and Nucor Corporation alleging plaintiffs on February 14, 1975, in Leon County, fell 65 feet and sustained serious bodily injuries; that the fall and injuries sustained were proximately caused by the negligence of defendants.

Defendant Van’s Crane filed plea of privilege to be sued in Dallas County, the County of its residence.

Plaintiffs controverted asserting venue maintainable in Leon County under Subdivision 9a, Article 1995 VATS.

The trial court after hearing overruled defendant Van’s Crane’s plea of privilege.

Defendant Van’s Crane appeals on 18 points principally contending:

1) The trial court erred in overruling its plea of privilege because there is no evidence of any negligent act or omission on part of defendant.

2) The trial court erred in overruling its plea of privilege there is insufficient evidence of any negligent act or omission on the part of defendant, and any implied findings of negligent acts or omissions are so against the great weight and preponderance of the evidence as to be manifestly unjust.

The parties stipulated plaintiffs were injured in Leon County when they fell from the roof of a steel and sheet metal building being constructed. Plaintiffs worked for the subcontractor hired to put on the sheet metal. Defendant is the subcontractor that erected the steel structure. The sheet metal was to be put on the building after the steel work was completed. One section of the roof consisting of 12 joists came loose and fell. Plaintiffs were on this section and fell with it. Defendant was supposed to complete the welding before plaintiffs put down the sheet metal. The work did not hold up and plaintiffs were injured when it fell.

We think the foregoing ample to sustain the trial court’s implied finding of negligence and proximate cause, and sustain venue in Leon County under Subdivision 9a. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Negligence and proximate cause, like any other ultimate fact, may be established by circumstantial as well as direct evidence. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273; Davis v. Anderson, (Texarkana, Tex.Civ.App.) NWH, 501 S.W.2d 459; East Texas Motor Freight Lines, Inc. v. Neal, (Texarkana, Tex.Civ.App.) NRE, 443 S.W.2d 318; Sam White Oldsmobile Co. v. Jones Apothecary, Inc., (1 Houston, Tex.Civ.App.) NRE, 337 S.W.2d 834; Bock v. Fellman Dry Goods Co., Tex.Com.App., Adopted, 212 S.W. 635.

Defendant’s contentions supra are overruled.

AFFIRMED.


author: DODSON, Justice.

text:
    Juanita Brittian REESE et al., Appellants, v. Lewis Vincent BRITTIAN, Jr., et al., Appellees.
    No. 8897.
    Court of Civil Appeals of Texas, Amarillo.
    Aug. 28, 1978.
    Rehearing Denied Sept. 25, 1978.

      LaFont, Tunnell, Formby, LaFont & Hamilton, Larry W. McEachern, Plainview, for appellants.
    W. Frank Gaston, Day, Owen, Lyle & Voss, Plainview, for appellees.
   DODSON, Justice.

In this will contest, contestants Juanita Brittian Reese and Daurice Kathleen Brit-tian Francis appeal from a judgment admitting to probate the purported last will and testament of Lewis V. Brittian, Sr., dated 11 May 1976. Contestants challenged the purported will, offered for probate by proponents-appellees Lewis Vincent Brittian, Jr., Cleora Brittian and David LeRoy Brit-tian, on grounds that the deceased was unduly influenced and lacked testamentary capacity to make and execute the will. The jury found against contestants on these issues.

Contestants now maintain that the trial court erred in refusing to grant a new trial because the jury committed misconduct resulting in harm to contestants. Proponents contend, however, that the judgment should be affirmed because the alleged jury misconduct amounts to no more than the jury misconstruing the court’s charge, and that in any event, the evidence is neither legally nor factually sufficient to support a finding favorable to the contestants on the undue influence issue. We reverse the judgment and remand the cause for a new trial.

Mr. Brittian’s only marriage was to Myrtle Brittian, who preceded him in death. Vincent, Juanita and Kathleen are the Brit-tian’s children. Cleora Brittian is the wife of Vincent and David LeRoy Brittian is a nephew of Mr. Brittian.

Mr. and Mrs. Brittian owned, as community property, three separate farms located in Hale County, Texas. Prior to April 1972, the Brittians gave Vincent an undivided interest in tracts comprising 650 acres and Juanita received an undivided interest in a 315 acre tract.

On 8 April 1972, Mr. and Mrs. Brittian made and executed separate wills containing identical provisions. After Mrs. Brit-tian’s death in 1972, her last will and testament was admitted to probate. Under this will Mr. Brittian received an undivided one-third of Mrs. Brittian’s interest in the three farm properties, Vincent received an undivided two-thirds of her interest in the tracts comprising 650 acres, and Juanita and Kathleen received an undivided two-thirds of her interest in the 315 acre tract and the 425 acre tracts, respectively. The rest of Mrs. Brittian’s property was devised to the three children equally. Mr. Brit-tian’s 1972 will was to the same effect.

On 11 May 1976, Mr. Brittian made and executed the will offered for probate in this cause. In this will he disinherited his two daughters, Juanita and Kathleen, and directed that Vincent receive his interest in the 650 acre tracts, Cleora Brittian receive his interest in the 315 acre tract and David LeRoy Brittian receive his interest in the 425 acre tracts. The rest of Mr. Brittian’s estate was devised to his son Vincent.

We consider first the legal and factual sufficiency of the evidence to raise the issue of undue influence. Certain basic principles merit consideration in this regard. First, the contestants must prove by a preponderance of the evidence “the existence and assertion of an influence” which operates “to subvert or overpower the mind of the testator at the time of the execution of the testament . . . which the maker thereof would not have executed but for such influence.” Estate of Woods, 542 S.W.2d 845, 846-47 (Tex.1976). Secondly, undue influence is a question of fact, and from its very nature the proof usually must be by circumstantial rather than direct evidence. Hassell v. Pruner, 286 S.W.2d 266, 268-69 (Tex.Civ.App.—Amarillo 1956, writ ref’d n. r. e.).

Circumstantial considerations bearing upon the issue of undue influence include the condition of the testator’s mind, his age, weakness, infirmities and his surroundings; the selection of and directions to the attorney who drafted the will; the circumstances attending the execution of the will; the opportunity of a proponent to unduly influence the testator; the consistent association of a proponent with a testator and attending to his business for him; and the unnaturalness of the dispositions made in the will which, by its terms, makes a difference between those who, according to the natural law, ought to stand as objects of the testator’s bounty; and any other pertinent factors having probative force that show the exertion of undue influence. Long v. Long, 133 Tex. 96, 125 S.W.2d 1034, 1036-38 (1939); Rothermel v. Duncan, 369 S.W.2d 917, 922-24 (Tex.1963); Hassell v. Pruner, supra.

In the case at bar, Mr. Brittian was 82 years of age when he executed the will of 11 May 1976, which was admitted to probate. As early as 1972 he was treated for dizzy spells, periods of confusion and possible light strokes. In 1976 his health began to deteriorate, beginning with a severe stroke in February followed by a more severe stroke in April. The April stroke resulted in one of his legs becoming paralyzed, thus causing Mr. Brittian to be more or less confined to Vincent’s home.

Following his illness, Mr. Brittian hired a male helper to take care of him and to be his “legs.” With the approval of Mr. Brit-tian, Vincent obtained the services of the helper. The helper was later instructed not to leave Mr. Brittian alone with the two daughters.

In the latter part of April 1976, Vincent, with the support and encouragement of the nephew, David LeRoy, began to take control of his father’s business affairs under a power of attorney executed by Mr. Brittian. Vincent attempted to sell grain held in storage at United Farm Industries in Plain-view, Hale County, Texas, and to have the proceeds delivered to him as his father’s agent. However, a part of the grain was jointly owned by Mr. Brittian and Juanita. Mr. Brittian had also previously notified the grain elevator company to place Juanita’s name on the account carried with the company. Thus, the grain company, on advice of its legal counsel, filed an interpleader action in the district court of Hale County, Texas, concerning the grain and joined all of the parties’ interest in the action, including Mr. Brittian and Juanita. Mr. Brittian was led to believe and became convinced from this matter that the two daughters were trying to take his property.

The evidence further shows that ill will existed between Vincent and David LeRoy on one side and Juanita and Kathleen on the other, evidenced by an altercation which occurred approximately three days before the 11 May 1976 will was executed. On this occasion the two daughters, accompanied by Kathleen’s son, went to the farm partially owned by Juanita to obtain some vegetables from a garden and to retrieve a sideboard owned by Kathleen. By prior instructions, their presence was reported by a member of the farm tenant’s family. Soon thereafter David LeRoy arrived at the farm. The uncontroverted evidence shows an exchange of words and an attempt by David LeRoy to strike Juanita ensued. In the exchange of words, David LeRoy ordered the two daughters and the son off the premises, saying they had no business to be out there.

Later this same day, Kathleen, accompanied by her son, reported this matter to Mr. Brittian. He responded by indicating “We’ll just send them home” (referring to David LeRoy and his wife). However, when confronted with the situation in the presence of Vincent and David LeRoy, Mr. Brittian simply hung his head and remained silent. Vincent, in the presence of Mr. Brit-tian, told Kathleen that “Juanita would be cut out of the will if she didn’t sign the power of attorney” to him “[a]nd you will be, too, ... if you don’t sign.” Vincent further told Kathleen, “If you don’t sign it, it will be a black, black day for you.” Kathleen was also told that Juanita “couldn’t talk, see, write, visit or even come to the funeral of” Mr. Brittian.

On 10 May 1976, Vincent and David Le-Roy went to Lubbock to see the attorney who had originally prepared the 1972 wills for Mr. and Mrs. Brittian. They desired an interpretation of a particular paragraph in Mrs. Brittian’s will concerning the right of Mr. Brittian to control the jointly owned farm properties, and apparently sought advice concerning Vincent’s authority in connection with these properties under the power of attorney given him by Mr. Brit-tian.

Vincent and David LeRoy returned to the lawyer’s office early on the morning of 11 May 1976, where they talked to a partner in the law firm who had not prepared the 1972 will. They instructed this attorney to prepare a will for Mr. Brittian. The attorney then drafted the will according to the terms given to him by Vincent and David LeRoy. Later that day, the attorney took the will to Mr. Brittian for execution. Vincent obtained three witnesses, all tenant farmers on the property of Mr. Brittian. The will was executed in the home of Vincent in the presence of the three witnesses, the attorney and his secretary. Vincent, David Le-Roy, Cleora Brittian and the male helper were also present.

On the same day, Kathleen attempted to speak to her father by phone at Vincent’s residence on three different occasions. Each time she called she was informed that Mr. Brittian was unavailable to come to the phone.

On the other hand, the proponents presented evidence that Mr. Brittian was of sound mind, knew the nature and extent of his property, knew the persons who were the natural objects of his bounty, that he intended to disinherit his two daughters, that he was a very astute businessman and of strong will, and that no one could influence him to do anything he did not desire to do.

We have not attempted to detail all of the evidence, both favorable and unfavorable, to support the various positions of the parties. However, the evidence detailed, together with the other evidence introduced at the trial and reviewed to us, leads to the conclusion that such evidence was sufficient to raise the issue of undue influence and that the issue was properly submitted to the jury.

We next consider the issue concerning alleged jury misconduct. Whether or not jury misconduct occurs is a question of fact, but whether or not injury probably resulted therefrom is a question of law to be determined by the appellate court. City of Houston v. Quinones, 142 Tex. 282, 290, 177 S.W.2d 259, 263 (1944).

Five jurors testified at a hearing on the contestants’ motion for a new trial. All of the jurors testified to certain overt acts committed by some of the jurors during the jury’s deliberation. From the evidence presented and on request of the contestants, the trial court found, in summary, that:

(1) Many statements were made by at least two jurors that the law required direct evidence of a conversation that proponents tried to convince Mr. Brittian to change his will before the jury could write a verdict of undue influence.

(2) Statements were made by at least three jurors that, under the law, the burden of proof in this kind of case had to be beyond a reasonable doubt.

(3) Statements were made by at least two jurors that any doubt in the case was to be resolved in favor of upholding the will.

We do not agree with the proponents’ contention that the jury simply misconstrued the court’s charge in this case. Our review of the charge does not reveal any language from which the jury could reasonably have inferred that the burden of proof in the case was beyond a reasonable doubt, or that any doubt in the case was to be resolved in favor of upholding the will, or that the law requires direct evidence of a conversation wherein the proponents tried to convince Mr. Brittian to change his will. The court’s charge correctly stated the burden of proof to be by “a preponderance of the evidence” and properly defined that term. The trial court also charged on circumstantial evidence. After reviewing the entire record in the case, we conclude that the jury simply ignored the court’s charge on the law applicable to the case and substituted the self-styled pronouncements on the law made by some of the jurors.

In determining whether or not overt acts of jury misconduct probably caused harm to the contestants, we may consider such matters as the nature of the conduct; the significance of the conduct; the presence or absence of a rebuff; whether or not misconduct statements were asserted as fact or opinion; the time the misconduct occurred; whether there was a change in the vote after the misconduct; the duration of the deliberations; and any other matters occurring during the trial that might have a bearing on the subject. Pope, The Mental Operations of Jurors, 40 Texas L.Rev. 849, 865-66 (1962).

The evidence at the hearing on contestants’ motion for new trial further shows that the jury’s first vote on the undue influence issue was either split about even as several jurors testified, or as one juror testified, nine for undue influence and three against. After this vote the jury continued to deliberate for approximately four hours. Throughout these deliberations, at least one juror was adamant that there must be direct evidence of a conversation by the proponents attempting to convince Mr. Brit-tian to change his will. Three jurors consistently stated that the burden of proof was beyond a reasonable doubt. At least two of the jurors likewise consistently maintained that any doubt in the case had to be resolved in favor of upholding the will. There is no evidence that during the deliberations any juror rebuffed these incorrect statements of the law. After these statements were made by some of the jurors, at least four or more of the jurors changed their votes from undue influence to no undue influence. The jury’s verdict was signed by only ten jurors.

We have reviewed and considered all of the record in this case, including both the evidence at the hearing on motion for new trial and the evidence on the trial of the merits, and from such evidence we conclude that the overt acts of jury misconduct were material and probably did cause harm to the contestants. Thus, we sustain contestants’ points of error one through four. This determination requires us to reverse the judgment of the trial court and remand the cause for a new trial.

Because of our remand, we shall address two other matters presented by the contestants which could reoccur in further proceedings in this case. The contestants offered evidence of four friendly law suits in 1965 wherein Mr. and Mrs. Brittian desired to extinguish written trusts made by them in that same year. In these trusts the Brittians granted to each of their three children and to one grandchild an undivided interest in three farm properties owned by them. The purpose of the lawsuit was to place full legal title of these undivided interests in the four beneficiaries of the trust to enable the beneficiaries to exchange deeds and “wind up with one particular tract of the land” rather than an undivided interest in all three tracts of land.

The contestants also offered evidence of an unexecuted will prepared for Mr. Brit-tian under date of 23 March 1972. This purported will contained provisions granting each child an undivided interest in a particular tract of farm land. The particular tract that each child was to receive an undivided interest in was the same tract that each had previously received an interest in under the trust.

This evidence was offered, in each instance, to demonstrate the testator’s state of mind in regard to extensive estate planning, how he desired his estate to be divided among his children, and the particular properties he desired to devise to each specific child. The proponents objected to the admission of this evidence in each instance on the grounds that the same was too remote in time from the 11 May 1976 will.

In a will contest case the testator’s state of mind is material to the ultimate issues to be determined, i. e., testamentary capacity and undue influence. Whether or not the evidence is offered is too remote to be material to this determination, generally, will be determined on a case by case basis. Singleton v. Carmichael, 305 S.W.2d 379, 384 (Tex.Civ.App.—Houston 1957, writ ref’d n. r. e.). However, the proffered evidence here, in each instance, forms a link in the chain of circumstances intending to show a design of Mr. Brittian to provide for all of his children and a desire to devise each child a particular tract of his farm land. Under the circumstances, we conclude that the remoteness in time goes to the weight to be given the testimony rather than its admissibility. See Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138 (1914); Brown v. Mitchell, 88 Tex. 350, 31 S.W. 621 (1895); Anderson v. Clingingsmith, 369 S.W.2d 634 (Tex.Civ.App.—Fort Worth 1963, writ ref’d n. r. e.). The excluded evidence should have been admitted over the remoteness objection.

In summary, we sustain contestants’ points one through four. The judgment of the trial court is reversed and the cause is remanded for a new trial.

      . Lewis V. Brittian, Sr., the deceased, will be referred to in this opinion as Mr. Brittian.

      . Mr. Brittian also received three separate lots in the Hillcrest Addition of Plainview, Hale County, Texas.

      .Cleora was also devised three separate lots in the Hillcrest Addition of Plainview, Hale County, Texas.


author: NYE, Chief Justice.

text:
    Billy WALKER, Sr., et al., Appellants, v. Leonard C. HANES et al., Appellees.
    No. 1288.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1978.
    Rehearing Denied Sept. 21, 1978.

      Neil Norquest, Stephen P. Dietz, Ewers, Toothaker, Ewers, Abbott, Talbot, Hamilton & Jarvis, McAllen, for appellants.
    Thomas W. Wilkins, Wilkins & Phillips, McAllen, D. A. VanDressar, Caldwell, for appellees.
   OPINION

NYE, Chief Justice.

This is a summary judgment case. Appellants, Billy Walker, Sr., and Billy Walker, Jr., brought a writ of certiorari to review an order of the probate court of Hidal-go County, Texas, refusing to admit to probate the September, 1969 will of Letha L. Bourland, Deceased. The district court granted summary judgment for the beneficiaries of the earlier March will cited by publication because the Walkers had failed to commence this cause of action within the applicable statute of limitation period. Thereafter, the district court entered a second judgment which dismissed the remaining parties, including Hanes and the Rio Grande Bible Institute. Walkers perfected their appeal to this Court.

This case has been before our Court in two previous appeals. The last time was from an order of the district court “dismissing for lack of jurisdiction” the Walkers’ petition for writ of certiorari. We held then that the trial court erred in dismissing the writ of certiorari and remanded the cause for trial on the merits. See In re Estate of Bourland v. Hanes, 526 S.W.2d 156 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.).

The merits of this controversy arose over two purported wills of the decedent, Letha L. Bourland, one dated March 4, 1969, and the other dated September 4, 1969. The March will was admitted to probate on January 5, 1970, by Leonard C. Hanes, the named independent executor, duly qualified as such, and letters testamentary were issued to him. On March 5, 1970, Billy L. Walker, Sr., the named executor and a beneficiary of the September will, filed an application requesting, among other things, the admission to probate of the September will and the revocation of Hanes’ letters testamentary. The probate court on November 8, 1972, denied probate of the September will and confirmed its prior order of probate of the March will. Our mandate of January 14, 1976, which reversed the district court’s dismissal of the motion for writ of certiorari for lack of jurisdiction, remanded the cause for a trial on the merits. To date, however, the district court has not heard the merits of the issue of whether appellants should prevail in attempting to probate the September will.

After the cause was returned from this Court to the district court, Hanes again filed a plea to the jurisdiction of the district court alleging that the Attorney General and all of the named beneficiaries of the March will were necessary and indispensable parties to the writ of certiorari proceedings. Thereafter, on May 14, 1976, the Walkers filed an affidavit requesting service by publication on the remaining beneficiaries under the March will. Citation by publication was published four consecutive weeks, ending on June 10, 1976.

On August 26, 1976, the trial court entered an order appointing an attorney ad litem for the beneficiaries cited by publication. Later, the appointed attorney filed an answer on behalf of the beneficiaries cited by publication. This pleading contained a plea to the court’s jurisdiction alleging that the trial court lacked jurisdiction to hear the case on the merits because the Walkers failed to timely join the March will beneficiaries so cited by publication. This pleading also contained an answer, subject to the plea to the court’s jurisdiction. The answer contained a general denial and specifically pled that Sections 30, 73 and 93 of the Probate Code, as well as Article 5526, barred Walkers’ action because they failed to proceed against the respondents cited by publication in a timely fashion as required by these sections. In addition, the March will beneficiaries cited by publication filed a motion for summary judgment on the basis that Walkers’ cause of action was barred by limitations as pled in their first amended original answer.

This summary judgment motion was supported by the affidavits of the county and district clerks of Hidalgo County, Texas, which stated that no citation of process was ever requested or issued to serve the beneficiaries of the March will during the entire time the cause remained in the county court at law, or from December 14,1973, the date of the filing of the amended petition for writ of certiorari in district court, until May 16, 1976, the date the affidavit for service of citation by publication was filed. In addition, the motion was supported by the May 14,1976 Affidavit for Citation by Publication filed by Walkers’ attorney, requesting service by publication because the residences of the beneficiaries of the March will were unknown and that after due diligence to find the whereabouts of such beneficiaries, they could not be found. The publisher’s affidavit was attached stating the dates of the citation by publication.

On November 19, 1976, Walkers filed an answer to the respondents’ motion for summary judgment and filed affidavits in support of their answer. Walkers’ reply alleged, among other things, that service was not immediately issued upon the respondents alternately cited by publication because:

“. . . when petitioners commenced to determine the whereabouts of the parties, Leonard Hanes and his attorneys represented that they would furnish to petitioners the addresses and whereabouts of the parties so that they could be served. Petitioners waited some time for this information, which was never forthcoming, and this court entered an order of dismissal before service could be had and the suit then spent many months on appeal. After the suit was remanded for trial, Petitioners then served the parties by publication pursuant to an affidavit made by Morgan Talbot.”

Walkers’ reply also alleged that the affidavit by Morgan Talbot (Affidavit for Citation by Publication) raised an issue of fact as to whether the Walkers knew of the whereabouts of the March will beneficiaries. The trial court’s docket includes a notation dated November 22, 1976, that the respondents’ motion for summary judgment was taken under advisement pending submission of briefs from both sides which were due by December 6, 1976. Apparently, a hearing was held by the trial court on November 22,1976. Subsequently, the trial court made a decision; however, no formal order was signed or entered at that time. On January 14, 1977, Walkers filed a “Motion to Reconsider Summary Judgment” requesting the trial court to reconsider its unentered decision granting respondents’ motion for summary judgment in light of stipulations made by the parties which were attached to Walkers’ motion. The trial court entered an order setting a March 7, 1977 hearing date on Walkers’ motion to reconsider.

At this hearing, the record indicates that the trial court considered Walkers’ motion and the parties’ authorities in support of and against the motion. The trial court then ruled that Walkers’ motion to set aside the summary judgment would be overruled. On March 9, 1977, the trial court entered an undesignated “order” or “judgment” which recited in part as follows:

“That the copy of the will of the decedent dated March 4, 1969, attached to and made a part of petitioners’ pleadings in this cause, shows conclusively as a matter of law that such respondents cited by publication are necessary and indispensable parties whose interests are adverse to the petitioner’s; and
That the pleadings and documents on file, together with the supporting affidavits and instruments show, as a matter of law, that no action was commenced against such parties cited by publication within the period of limitation provided by law; that there is no genuine issue as to any material facts; that the moving parties are entitled to judgment as a matter of law.”

On July 28, 1977, the trial court entered a “final judgment” dismissing the remaining respondents, Hanes and Rio Grande Bible Institute, Inc. Walkers then appealed to this Court.

The appellees filed a motion in this Court to dismiss this appeal on the grounds that this Court lacked jurisdiction. The question seemed so serious that we had the attorneys prepare briefs and we heard oral arguments on the motion. On April 20,1978, we handed down an opinion overruling the motion to dismiss, whereupon briefs on the merits of this appeal were ordered filed and oral arguments were then heard on June 22, 1978. (See Appendix, Opinion on Motion).

The appellants (Walkers) bring forward on appeal points of error complaining of the trial court’s action in granting the motion for summary judgment filed on behalf of the respondents cited by publication and of dismissing Hanes and the Rio Grande Bible Institute. Appellants’ six points of error can be reduced to two major categories. In points of error one through four and six, the appellants complain of that portion of the March 9th “order” in which the trial court stated that the respondents cited by publication were “necessary and indispensable parties.” These points of error have been considered and are overruled. The central point of this appeal, however, concerns appellants’ fifth point of error which directly attacks the propriety of the trial court’s action in granting the motion for summary judgment in favor of the publication respondents. This point of error is dispositive of the appeal.

In passing upon this point of error, we are guided by the familiar rules concerning summary judgments established by our Supreme Court. Rule 166-A, Texas Rules of Civil Procedure, provides that summary judgment shall be rendered where the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden of proof is on the movant, and all doubts as to the existence of a material fact issue are resolved against him. Great American Reserve Ins. Co. v. San Antonio Plumbing Sup. Co., 391 S.W.2d 41 (Tex.Sup.1965). When summary judgment is sought on the basis that limitations have expired, it is the movant’s burden to conclusively establish the bar of limitations. Where the non-movant interposes a basis for tolling the statute or pleads diligence in requesting issuance of citation, the limitation defense is not conclusively established until the movant meets his burden of negating the applicability of these issues. Zale Corporation v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.Sup.1975).

This cause arose prior to the 1975 repeal of Section 30 of the Probate Code. Section 30 (then in effect) provided, in part, that “[a]ny person interested in proceedings in probate may have the proceedings of the county court therein revised and corrected at any time within two years after such proceedings were had, and not afterward.” The proceeding by certiorari as authorized under Probate Code Section 30 is both direct and appellate in nature. The district court conducts a trial de novo, but but the issues are confined to errors of the county court specifically set forth in the application for the writ. McDonald v. Edwards, 137 Tex. 423, 153 S.W.2d 567, 570 (1941); Schwind v. Goodman, 221 S.W. 579 (Tex.Comm’n App.1920, jdgmt app.); Newsom v. Newsom, 398 S.W.2d 329, 334 (Tex.Civ.App.—Eastland 1965, writ ref’d n. r. e.), 403 S.W.2d 334 (Tex.Sup.1966). Section 30 of the Probate Code has been called a statute of limitations and, as provided, the application for the writ must ordinarily be made within two years from the time the county court enters the particular orders of which complaint is made. Ludewig v. Rauch, 301 S.W.2d 493 (Tex.Civ.App.—Austin 1957, writ ref’d n. r. e.); Payn v. Caldwell, 267 S.W. 280 (Tex.Civ.App.—El Paso 1924, error ref’d); Heaton v. Buhler, 60 Tex.Civ.App. 423, 127 S.W. 1078 (1910, no writ).

Rules 344-351, Texas Rules of Civil Procedure, govern the writ of error proceedings. Rule 344 provides that the application for writ of certiorari “shall state the name and residence of each party adversely interested . . .” (Emphasis supplied). All parties in interest, and those whose rights will be directly affected by the decree rendered by the district court, must be made parties defendant in the petition. McDonald v. Edwards, 137 Tex. 423, 153 S.W.2d 567, 569 (1941). Stated another way, a party “adversely interested” within this rule is one who has an interest in opposing the object sought to be accomplished. Roberts v. Roberts, 405 S.W.2d 211 (Tex.Civ.App.—Waco 1966, writ ref’d n. r. e.), 407 S.W.2d 772 (Tex.Sup.1967). Walkers’ amended application for writ of certio-rari filed December 26, 1973, named the March will beneficiaries as adversely interested parties. We implicitly recognized these beneficiaries to be parties adversely interested within the meaning of Rule 344. See In re Estate of Bourland v. Hanes, 526 S.W.2d 156, 159 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.). Rule 349 provides that when the writ of certiorari has been issued, the clerk shall issue a citation for the party named in the application as being adversely interested in the proceedings sought to be revised.

Most of the statutes of limitation contained in the Texas Revised Civil Statutes require that the action be “commenced and prosecuted” or “brought” within a designated time after the accrual of the cause of action. See e. g., Arts. 5524-5529 Tex. Rev.Civ.Stat.Ann. (1958). It is well settled in Texas that, pursuant to the express language of these statutes, the mere filing of a suit will not interrupt the running of statute. To interrupt the running of the statute, not only must the petition be filed, but the use of diligence in procuring issuance and service of citation is required. Rigo Manufacturing Company v. Thomas, 458 S.W.2d 180, 182 (Tex.Sup.1970); see also Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645 (1891).

Section 30 does not specifically require that an action be “commenced and prosecuted” or “brought” within two years. That section, however, does implicitly require writ of certiorari proceedings to commence within two years after the entry of the particular probate order of which complaint is made. Generally, the district court lacks jurisdiction to correct any probate order that was entered more than two years prior to filing the application for writ of certiorari pursuant to Rule 344. Ripley v. Dearing, 153 S.W.2d 243, 246 (Tex.Civ.App.—Texarkana 1941, writ ref’d w. o. m.); Pearson v. Holland, 136 S.W.2d 920, 922 (Tex.Civ.App.—Dallas 1940, writ ref’d). The question remains, however, whether the mere filing of the petition within the two-year period is sufficient to suspend the running of the limitation period prescribed in Section 30? Rules 344-349, Texas Rules of Civil Procedure, govern the procedural requirements for writ of certiorari proceedings. Rule 345 provides that the writ shall be granted upon receipt of the required bond. Rule 347 provides that the district clerk shall issue the writ upon the applicant’s compliance with the order of the judge and Rule 349 provides that citation shall issue for the adverse parties. No specific time limit is specified by any of these rules for giving bond or doing any of the above mentioned acts. Even though Section 30 of the Probate Code does not specifically state that the writ of certiorari proceedings must be “commenced and prosecuted” or “brought” within two years, we hold that the general rules applicable to other statutes of limitation are applicable and should be applied in this case. Cf. Ludewig v. Rauch, 301 S.W.2d 493, 495 (Tex.Civ.App.—Austin 1957, writ ref’d n. r. e.).

The applicable statute of limitations began to run on November 8, 1972, the date the probate order in question was entered. Walkers started service by publication to the March will beneficiaries by filing an affidavit for such service on May 14, 1976, and citation was issued on May 17, 1976. The first date of publication occurred on May 20, 1976, and the last of the four publication dates was June 10, 1976. The last date of service by publication was over three and one-half years after the entry of the probate order in question, and over two and one-half years after Walkers filed their amended petition for writ of certiorari.

However, the limitation time period was tolled during the time this case was on appeal in this Court the last time. As a general rule, where a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right. Cavitt v. Amsler, 242 S.W. 246, 249 (Tex.Civ.App.—Austin 1922, writ dism’d). The time period during which this cause was pending in this court during the original appeal (In re Estate of Bourland v. Hanes, 526 S.W.2d 156 [Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.]) should not be counted in determining whether Walkers effectively served the March beneficiaries within the two-year limitation period. Cf. Orndorff v. State, 108 S.W.2d 206, 211 (Tex.Civ.App.—El Paso 1937, writ ref’d); Limitation of Actions, 37 Tex.Jur.2d § 150 (Appeal) (1962).

In this case, 741 days elapsed from November 8, 1972, the date the probate court order was entered, until June 10, 1976, the date service by publication was completed (excluding the period of time during which the case pended on appeal). Even so, the Walkers still failed by eleven days to complete service by publication within two years. Normally, this would be grounds for granting the March beneficiaries’ motion for summary judgment except for the issue of fact raised by summary judgment evidence concerning Walkers’ diligence in procuring issuance and service of citation. It was Hanes’ burden to conclusively establish the bar of limitations. This the appellees failed to do. This fact issue was raised in Talbot’s affidavit and supported by Walkers’ pleadings. The publication respondents failed to meet their burden of negating the plea of diligence. See also Strickland v. City of Denver City, 559 S.W.2d 116, 119 (Tex.Civ.App.—Eastland 1977, no writ); Zale Corporation v. Rosenbaum, 520 S.W.2d 889 (Tex.Sup.1975).

There may also be an issue of fact as to estoppel. A party may be es-topped to assert the defense of limitations if his (or his agent’s or representative’s) statements or conduct induced the plaintiff to refrain from commencing his suit within the applicable time period. See Mandola v. Mariotti, 557 S.W.2d 350 (Tex.Civ.App.—Houston [1st Dist.] 1977, writ ref’d n. r. e.); Ladd v. Knowles, 505 S.W.2d 662 (Tex.Civ.App.—Amarillo 1974, writ ref’d n. r. e.); Lanpar Company v. Stanfield, 474 S.W.2d 753 (Tex.Civ.App.—Waco 1971, writ ref’d n. r. e.); Limitation of Actions, 37 Tex.Jur.2d § 155 (Estoppel) (1962). Walkers’ pleading in opposition to the summary judgment also stated, in effect, that service of process had been delayed by the reliance on Hanes’ representations that he would furnish the addresses of the March beneficiaries, which Hanes failed to supply. Although Walkers failed to introduce summary judgment evidence in support of this affirmative defense and since the issue was raised only in their pleadings which cannot be regarded as summary judgment evidence, Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540, 545 (Tex.Sup.1971), this issue may be raised by evidence in a trial of this case on the merits.

We, therefore, conclude that the trial court erred in granting the summary judgment in favor of the March will beneficiaries because the burden remained on them to negate the applicability of the diligence issue. This they failed to do by merely showing that service of process had not been completed within the statutory time period. The Supreme Court has found similar summary judgment proof to be insufficient. Zale Corporation v. Rosenbaum, 520 S.W.2d 889, 890 (Tex.Sup.1975).

The judgment of the trial court is reversed and the cause is remanded for trial on the merits of the writ of certiorari, subject to the affirmative defense of limitations.

REVERSED AND CAUSE REMANDED FOR TRIAL.

APPENDIX

OPINION ON MOTION

PER CURIAM.

This case is before the Court on appellees’ motion to dismiss for want of jurisdiction. Two judgments were entered by the trial court; one on March 9, 1977, and the other on July 28,1977. Appellants have appealed to this Court from the July judgment. Ap-pellees Leonard Hanes and the Rio Grande Bible Institute, and the respondents cited by publication, filed their motion to dismiss for want of jurisdiction alleging that the appeal was not timely because the March judgment was the final judgment disposing of all issues and all parties. The question before the Court is whether these two judgments combine to make one final judgment.

The record shows that the judgment entered March 9, 1977, granted a motion for summary judgment filed by the respondents cited by publication, and ordered that petitioners Billy Walker, Sr., and Billy Walker, Jr., take nothing as against the respondents cited by publication. The judgment entered July 28, 1977, dismissed the suit as to the remaining respondents, Leonard C. Hanes and Rio Grande Bible Institute, Inc.

All parties filed briefs in this Court concerning appellees’ motion to dismiss. Oral arguments on the motion were presented February 10, 1978.

After careful consideration of the record, we are of the opinion that the March judgment was interlocutory and nonappealable. A summary judgment which does not dispose of all the issues and parties in a suit is interlocutory and not appealable unless a valid severance of that phase of the case has been ordered. Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200 (1959). Although appellees urge that the March judgment was final as to all parties under the rule of Northeast Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.Sup.1966), it was not. The Aldridge case states a test for determining when a judgment “not intrinsically interlocutory” may be presumed to have disposed of parties or issues not explicitly mentioned. In this case, the March judgment is intrinsically interlocutory in character and the case does not fall within any of the applicable categories enumerated in the Aldridge case.

The “final judgment” entered by the trial court on July 28, 1977, on its face disposes of the remaining parties in the lawsuit. In addition, this judgment expressly disposes of any outstanding pleadings and motions. When a prior interlocutory judgment has been entered, the judgment is final as to all parties and issues when the order is finally entered disposing of the last remaining part of the case. H. B. Zachary Co. v. Thibodeaux, 364 S.W.2d 192, 193 (Tex.Sup.1963); Lubell v. Sutton, 164 S.W.2d 41 (Tex.Civ.App.—Texarkana 1942, writ ref’d).

In determining that we have jurisdiction over the appeal from the July judgment we express no opinion on whether the September will of Letha L. Bourland is entitled to probate, nor do we express an opinion on the validity of any of the trial court’s actions in this ease.

Appellees’ motion to dismiss for want of jurisdiction is DENIED because of the foregoing actions of the trial court. The appellants’ brief is to be filed on the merits of the appeal from the July judgment on or before May 23, 1978. Appellees’ reply brief is to be filed no later than 25 days after appellants’ brief is filed. The case is hereby set for submission and oral argument on the merits for Thursday, June 22, 1978, at 2:00 p. m.

Pending before our Court is a motion seeking leave to file a petition for writ of mandamus in the event that we found neither the March nor the July judgment to be final. This petition seeks to compel the trial court to proceed on trial on the merits of this case. This motion is rendered moot by our finding that we have jurisdiction based on the finality of the July judgment. Motion number M277 is dismissed as moot.

      . This Court also previously heard an appeal from a judgment of the district court decreeing that Letha L. Bourland was not domiciled in Prattville, Alabama, at the date of her death. See In re Estate of Bourland v. Hanes, 474 S.W.2d 592 (Tex.Civ.App.—Corpus Christi 1971, no writ).

      . The parties stipulated that: 1) the Probate Court Order was entered on November 8, 1972; 2) the writ of certiorari was dismissed by the district court on June 26, 1974; 3) the mandate of this Court of Civil Appeals reversing and remanding the cause to the district court was filed with the district clerk of Hidalgo County on January 14, 1976; 4) citation was issued upon all beneficiaries under the March will except Leonard Hanes, Billy Walker and Billy Walker, Jr., on May 17, 1976; 5) service of such citation was commenced and publication first had on May 20, 1976; 6) service by publication was completed and the publisher’s affidavit evidencing the same was executed on June 10, 1976; 7) excluding the period of time from June 26, 1974 (the date the district court dismissed the writ of certiorari for want of jurisdiction) until January 14, 1976 (the date this Court issued its mandate reversing the district court’s dismissal) the number of days which elapsed from the probate court’s denial of Walkers’ application for probate of the September will and the issuance of citation on May 17, 1976, was 718; 8) the number of days from the denial until the first publication of citation was 721; and 9) the number of days from such denial until the last date of publication on June 10, 1976, was 741.